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277 | (2) A State may take measures derogating from its Convention obligations only to the extent strictly required by the situation | I. THE PARTICULAR CIRCUMSTANCES OF THE CASE A. Peter Brannigan 10. The first applicant, Mr Peter Brannigan, was born in 1964. He is a labourer and lives in Downpatrick, Northern Ireland. He was arrested at his home by police officers on 9 January 1989 at 6.30 a.m. pursuant to section 12 (1) (b) of the Prevention of Terrorism (Temporary Provisions) Act 1984 ("the 1984 Act"). He was then removed to the Interrogation Centre at Gough Barracks, Armagh, where he was served with a copy of the "Notice to Persons in Police Custody" which informs the prisoner of his legal rights (see paragraph 24 below). A two-day extension of his detention was granted by the Secretary of State on 10 January 1989 at 7.30 p.m., and a further three-day extension was granted on 12 January 1989 at 9.32 p.m. He was released at 9 p.m. on 15 January 1989. He was therefore detained for a total period of six days, fourteen hours and thirty minutes. During his detention he was interrogated on forty-three occasions and denied access to books, newspapers and writing materials as well radio and television. He was not allowed to associate with other prisoners. Although access to a solicitor was at first delayed for forty- eight hours because it was believed by the police that such a visit would interfere with the investigation, the first applicant was subsequently visited by his solicitor on 11 January 1989. He was seen by a medical practitioner on seventeen occasions during police custody. B. Patrick McBride 11. The second applicant, Mr Patrick McBride, was born in 1951. He was arrested at his home by police officers on 5 January 1989 at 5.05 a.m. pursuant to section 12 (1) (b) of the 1984 Act. He was then removed to Castlereagh Interrogation Centre where he was served with a copy of the "Notice to Persons in Police Custody". A three-day extension of his period of detention was granted by the Secretary of State at 5.10 p.m. on 6 January 1989. He was released at 11.30 a.m. on Monday 9 January 1989. He was therefore detained for a total period of four days, six hours and twenty-five minutes. During his detention he was interrogated on twenty-two occasions and was subject to the same regime as Mr Brannigan (see paragraph 10 above). He received two visits from his solicitor on 5 and 7 January 1989 and was seen by a medical practitioner on eight occasions during police custody. Mr McBride was shot dead on 4 February 1992 by a policeman who had run amok and attacked Sinn Fein Headquarters in Belfast. I. REMEDIES 26. The principal remedies available to persons detained under the 1984 Act are an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment. 1. Habeas Corpus 27. Under the 1984 Act, a person may be arrested and detained in right of arrest for a total period of seven days (section 12(4) and (5) - see paragraph 16 above). Paragraph 5(2) of Schedule 3 to the 1984 Act provides that a person detained pursuant to an arrest under section 12 of the Act "shall be deemed to be in legal custody when he is so detained". However, the remedy of habeas corpus is not precluded by paragraph 5(2) cited above. If the initial arrest is unlawful, so also is the detention grounded upon that arrest (per Higgins J. in the Van Hout case, loc. cit. at 18). 28. Habeas Corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful. The court hearing the application does not sit as a court of appeal to consider the merits of the detention: it is confined to a review of the lawfulness of the detention. The scope of this review is not uniform and depends on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. The review will encompass compliance with the technical requirements of such a statute and may extend, inter alia, to an inquiry into the reasonableness of the suspicion grounding the arrest (Ex parte Lynch, loc. cit., and Van Hout, loc. cit.). A detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith, capriciously or for an unlawful purpose (R. v. Governor of Brixton Prison, ex parte Sarno [1916] 2 King ’ s Bench Reports 742, and R. v. Brixton Prison (Governor), ex parte Soblen [1962] 3 All England Law Reports 641). The burden of proof is on the respondent authorities which must justify the legality of the decision to detain, provided that the person applying for a writ of habeas corpus has first established a prima facie case ( Khawaja v. Secretary of State [1983] 1 All England Law Reports 765). 2. False imprisonment 29. A person claiming that he has been unlawfully arrested and detained may in addition bring an action seeking damages for false imprisonment. Where the lawfulness of the arrest depends upon reasonable cause for suspicion, it is for the defendant authority to prove the existence of such reasonable cause ( Dallison v. Caffrey [1965] 1 Queen ’ s Bench Reports 348 and Van Hout, loc. cit. at 15). In false imprisonment proceedings, the reasonableness of an arrest may be examined on the basis of the well-established principles of judicial review of the exercise of executive discretion (see Holgate -Mohammed v. Duke, loc. cit.). III. THE UNITED KINGDOM DEROGATION 30. Issues akin to those arising in the present case were examined by the Court in its Brogan and Others judgment of 29 November 1988 (Series A no. 145-B) where it held that there had been a violation of Article 5 para. 3 (art. 5-3) of the Convention in respect of each of the applicants, all of whom had been detained under section 12 of the 1984 Act. The Court held that even the shortest of the four periods of detention concerned, namely four days and six hours, fell outside the constraints as to time permitted by the first part of Article 5 para. 3 (art. 5-3). In addition, the Court held that there had been a violation of Article 5 para. 5 (art. 5-5) in the case of each applicant (Series A no. 145-B, pp. 30-35, paras. 55-62 and 66-67). Following that judgment, the Secretary of State for the Home Department made a statement in the House of Commons on 22 December 1988 in which he explained the difficulties of judicial control over decisions to arrest and detain suspected terrorists. He stated inter alia as follows: "We must pay proper regard to the tremendous pressures that are already faced by the judiciary, especially in Northern Ireland, where most cases have to be considered. We are also concerned that information about terrorist intentions, which often forms part of the case for an extension of detention, does not find its way back to the terrorists as a consequence of judicial procedures, which at least in the United Kingdom legal tradition generally require someone accused and his legal advisers to know the information alleged against him. ... In the meantime, the position cannot be left as it stands. I have already made clear to the House that we shall ensure that the police continue to have the powers they need to counter terrorism, and they continue to need to be able to detain suspects for up to seven days in some cases. To ensure that there can be no doubt about the ability of the police to deal effectively with such cases, the Government are today taking steps to give notice of derogation under Article 15 (art. 15) of the European Convention of Human Rights, and Article 4 of the International Covenant on Civil and Political Rights. There is a public emergency within the meaning of these provisions in respect of terrorism connected with the affairs of Northern Ireland in the United Kingdom ..." 31. On 23 December 1988 the United Kingdom informed the Secretary General of the Council of Europe that the Government had availed itself of the right of derogation conferred by Article 15 para. 1 (art. 15-1) to the extent that the exercise of powers under section 12 of the 1984 Act might be inconsistent with the obligations imposed by Article 5 para. 3 (art. 5-3) of the Convention. Part of that declaration reads as follows: "... Following [the Brogan and Others judgment], the Secretary of State for the Home Department informed Parliament on 6 December 1988 that, against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced. He informed Parliament that the Government were examining the matter with a view to responding to the judgment. On 22 December 1988, the Secretary of State further informed Parliament that it remained the Government ’ s wish, if it could be achieved, to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer. But a further period of reflection and consultation was necessary before the Government could bring forward a firm and final view. Since the judgment of 29 November 1988 as well as previously, the Government have found it necessary to continue to exercise, in relation to terrorism connected with the affairs of Northern Ireland, the powers described above enabling further detention without charge, for periods of up to 5 days, on the authority of the Secretary of State, to the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations properly to be completed in order to decide whether criminal proceedings should be instituted. To the extent that the exercise of these powers may be inconsistent with the obligations imposed by the Convention the Government have availed themselves of the right of derogation conferred by Article 15(1) of the Convention and will continue to do so until further notice ..." 32. The Government have reviewed whether the powers of extended detention could be conferred on the normal courts but have concluded that it would not be appropriate to involve courts in such decisions for the reasons given in a Written Answer in Parliament by the Secretary of State, Mr David Waddington, on 14 November 1989: "Decisions to authorise the detention of terrorist suspects for periods beyond 48 hours may be, and often are, taken on the basis of information, the nature and source of which could not be revealed to a suspect or his legal adviser without serious risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Any new procedure which avoided those dangers by allowing a court to make a decision on information not presented to the detainee or his legal adviser would represent a radical departure from the principles which govern judicial proceedings in this country and could seriously affect public trust and confidence in the independence of the judiciary. The Government would be most reluctant to introduce any new procedure which could have this effect". (Official Report, 14 November 1989, col. 210) In a further notice dated 12 December 1989 the United Kingdom informed the Secretary General that a satisfactory procedure for the review of detention of terrorist suspects involving the judiciary had not been identified and that the derogation would therefore remain in place for as long as circumstances require. | The derogation notice invoked in this case had closely followed the Brogan and Others v. the United Kingdom judgment of 29 November 1988 (see below, p. 11), where the British Government had been found to have breached Article 5 § 3 (right to liberty and security / right to be tried within a reasonable time or released during the proceedings) of the Convention, as the applicants had not been brought promptly before a judge. The Court had to examine the derogation on the basis of that fact, in particular, without forgetting that the power of arrest and detention in question had already been in force since 1974. |
86 | Parental authority, child custody and access rights | 13. The applicant was born in Somalia in 1993. In 2009 she left home, unaccompanied, while pregnant with a child, X, whose father came from the same city as the applicant. They were unmarried and he did not acknowledge paternity. The applicant went to her uncle’s home in Kenya and in November 2009 she gave birth there to her son, X, in traumatic circumstances. She was herself still a minor when she became pregnant and gave birth. 14. In February 2010 the applicant left Kenya with X. They went first to Sweden, before entering Norway and applying for asylum there that same month. The applicant was granted a temporary residence permit with refugee status in Norway by a decision dated 4 June 2010. She has two cousins in Norway. 15. In order for the applicant to be assisted in caring for X, she and X moved into a residential parent-child centre (“the parent-child institution”) on 21 September 2010. On 28 September 2010 the institution sent a “notification of concern” (“ bekymringsmelding ”) to the child welfare services, as it considered X to be at risk of harm in the applicant’s care. The notification concluded as follows: “In [the parent-child institution]’s opinion, the child’s life would have been in danger if the staff had not protected him during the stay. It is our assessment that we cannot protect the child sufficiently within the structure of our institution, and we also find that the child is suffering.” According to the institution, the applicant had been informed of these concerns via an interpreter on the previous day. 16. It emerges from records of phone calls contained in the child welfare service’s case file that various enquiries were made to ascertain whether there were any Somali families available which could act as foster parents, both before the applicant and X entered the parent-child institution and when their stay there ended. 17. X was then placed in emergency foster care with a Norwegian woman, having spent a week in the parent-child institution. The minutes of a meeting held on 11 October 2010 in the emergency foster home indicate that the foster care services were due to meet with a Somali woman whom the applicant described as her sister and who wished to act as a foster parent for X. The minutes also indicate that the foster care services were to clarify whether another childless Somali couple could be candidates. They further state that these services would establish whether there were any Somali families in the relevant region of Norway who had completed the “PRIDE” course (“Parents, Resources, Information, Development, Education” – a training programme for, among others, persons who wished to become foster parents) and who would be willing to consider the task of acting as foster parents for X. The Government have in addition presented to the Court a document of 13 August 2020, explaining that the child welfare services had also examined the possibility of placing X with an Afghan Muslim family which had completed the “PRIDE” course, but that they had become aware of major cultural differences between Somalians and Afghans and had decided not to do so. 18. The above-mentioned meeting with the Somali woman was held on 14 October 2010. The foster care services’ subsequent report notes that she gave the impression of being a mother who took good care of her two children. However, her accommodation was considered unsuitable for an additional child, and the foster care services was unsure that she had the additional time and energy that a foster child would need, given that she was a single mother with two young children. 19. On 6 November 2010 the municipality applied to the County Social Welfare Board ( fylkesnemnda for barnevern og sosiale saker ) for a care order. The applicant opposed the application and lodged alternative claims for X to be placed in her cousin’s home or in a Somali or Muslim foster home. 20. In its decision of 10 December 2010, the Board found it clear that the conditions for issuing a care order in respect of X had been met. It also found that the decision about which foster home X should be placed in was to be left to the authorities. 21. With regard to the care order, the Board considered that it had been substantiated with a high degree of probability that, at the time of its decision, X was a child with abnormal psychological development, and that he suffered from an attachment disorder caused by the applicant’s inability to meet his need for physical and psychological security. The evidence showed that X was an emotionally damaged child who had not developed a secure relationship with his mother, and that he was, at the time, a psychologically vulnerable child with exceptional care needs. The applicant had been provided with considerable help and guidance, but none of it had had any significant effect on her competence as a caregiver. In the Board’s view, the case clearly involved gross neglect that could be deemed unacceptable by any reasonable standard, regardless of ethnicity, culture and language. In the Board’s view, assistance measures as an alternative to taking X into care had to be deemed inexpedient in terms of protecting him from further neglect, as the Board found it established that the applicant had proved unreceptive to guidance ( lite veiledbar ) and had made it clear that she would not cooperate with the child welfare services unless the boy was first returned to her care. 22. In respect of contact rights, the Board held that four short contact sessions a year would be appropriate. It had noted a statement from the emergency foster mother to the effect that X had been very agitated at night after the sessions with his mother; he had not slept well, had woken up and cried intensely, had seemed scared, and it had been difficult to re-establish contact with him and calm him down. She stated that this behaviour could continue for two or three nights, and the Board found it likely that this corresponded to the anxiety that the staff at the parent-child institution (see paragraph 15 above) had observed in X when the applicant was present. The Board deemed it important to avoid such reactions after contact sessions, and stated that it was necessary to ensure that X’s development in the foster home was not delayed by the fact of requiring him constantly to attend contact sessions which left him very disturbed; nor should the contact sessions be too long. Moreover, in the Board’s view, supervision during contact sessions was definitely necessary in order to guarantee X’s physical and mental security. The child welfare services were therefore authorised to supervise the contact sessions in the manner they considered most appropriate. 23. With regard to the choice of foster home, the Board considered that the primary goal had to be to find a home in which X’s extraordinary need for psychological security and for a stable life could be met. The Board held that the emotional damage suffered to date by X was such that an “enhanced” foster home (an arrangement whereby the foster home was given extra assistance and support) would probably be required, and his age and developmental stage indicated to the Board that it was urgent that a foster home be found in which his needs could be fully met. The Board noted that X should be moved as soon as possible from the emergency foster home to a foster family to which he could develop the best possible attachment, and that the longer he stayed in the emergency foster home, the more stressful that subsequent move would be. 24. The Board considered that X’s negative attachment to the applicant was an argument against placing him with her cousin. Experience with the applicant to date implied that she would not understand the purpose of limited contact if her son were to stay with a relative, and the Board presumed that it would hinder X’s positive development if the applicant were not kept away from the foster home. In addition, the cousin had had no contact with the applicant until very recently and already had substantial care duties, as she was a single parent with two children. 25. Although section 4-15 of the Child Welfare Act stated that due account should be taken of a child’s ethnic, religious, cultural and linguistic background when choosing a placement (see paragraph 61 below), the Board considered it more important in the present case that the primary consideration mentioned in that same section be addressed. Specifically, the point of departure of the Child Welfare Act was that a placement should be chosen on the basis of the child’s distinctive nature and need for care and training in a stable environment. As the Board had already mentioned, X was by all accounts an emotionally damaged child and consideration of his best interests indicated that starting the essential work of rectifying this state of affairs in a new care situation should be the main priority. 26. The Board stated that it would be ideal if the child welfare services, in cooperation with the Office for Children, Youth and Family Affairs ( Barne-, ungdoms- og familieetaten – Bufetat ), managed to find a foster home that could be deemed suitable for this task and that could also correspond to the specific ethnic, religious, cultural and linguistic considerations in the case. Thus, the Board expected this option to be explored in so far as time would permit but left the further work of choosing a placement to the child welfare services. If an ethnically Norwegian foster home was chosen, efforts had to be made to give X a desirable knowledge of his mother’s – the applicant’s – language, culture and religion, as far as this could be done without it being an obstacle to his positive development in the foster home. 27. X was placed in care with a Norwegian, Christian, family, members of the Mission Covenant Church of Norway and the Norwegian Missionary Society, on 13 December 2010. Records from a meeting with the applicant three days later, on 16 December 2010, contain the following notes: “The mother wants [X] to live with a Somali family, she has heard of a family in ... which takes in foster children. Or ... he [could], if possible, live with ... in ... [A case officer] informs her that it was unfortunately not possible to find a Somali home that could take in [X], so he will now live with a Norwegian family, but that they will take good care of him and that he will have a very good life.” 28. The applicant appealed against the Board’s decision to the District Court. During the hearing before that court she dropped the alternative claim for X to be placed in a Somali or Muslim foster home, should her principal claim, contesting the care order, be unsuccessful. 29. In its judgment of 6 September 2011, the District Court upheld the Board’s decision in respect of the care order but altered the decision on contact rights, fixing these at one hour, six times per year. It based its decision with regard to contact rights on, inter alia, the need for X to keep in touch with his cultural background and its opinion that, at the relevant time, it was uncertain whether the applicant’s care skills would improve and, accordingly, whether the care order would be long-term. At the same time, it found that X’s vulnerability and need for peace and stability in his care situation did not suggest that frequent contact should be granted. There is no information about the applicant having appealed against the District Court’s judgment. 30. On 27 June 2012 a meeting was held between the applicant and the child welfare services. The minutes of that meeting include the following information: “The caseworker asks if there is anything else about the access visits that [the applicant] would like to be different. Place, time, etc. [The applicant] thinks the arrangements around the access visits are ok and does not want any changes now. Furthermore, [the applicant] wants [X] not to eat pork and not go to church. They must have respect for me and my religion, she says. The child welfare services inform her that the foster family eats little pork. They eat a lot of chicken and fish. They are also aware of her wishes and therefore do not want to use a lot of pork in their cooking, but on the other hand they cannot guarantee that they will never eat pork. During the period when the child welfare services had to find a foster home for [X], they had spent a lot of time looking for a Somali foster home. They did not find one. [The family with whom X stayed] was the foster home that became relevant for [X]. They are not Somali and Muslim but have other qualities that are important for [X]. They have great respect for his culture and religion. They have already read a lot about Somalia to [X] and they want to inform him about Somali culture and religion as he grows up, but they [themselves] cannot live like that. They are Norwegian and now that [X] lives in a Norwegian foster home, he will follow the foster home’s normal routines. [The applicant] asks whether the child welfare services have received a letter from her lawyer ... stating that [X] should not be served pork. The caseworker says she is not aware that the child welfare services have received such a letter. [The applicant] says she needs to talk to the lawyer about this. [The applicant] says that he will then become “like them”. The caseworker agrees that he will be influenced by the foster family and how they live, but [that] when he grows up he will be able to choose for himself. This is how it is in Norway. We cannot choose a religion or culture for our children. We can inform them and have wishes about their choices, but the children choose for themselves. This is also how it will be for [X]. [The applicant] goes on to say that [X] cannot stay in that foster home and that [we] will return to the issue. The child welfare services emphasise that they believe [X] must stay where he is. When it comes to going to church, [X] has not been to church that many times yet. [X] still sleeps every morning, so the foster parents have often taken turns going to church or being at home with [him]. [The applicant] scoffs a little at this. The caseworker continues that when [X] stops sleeping in the morning, there is a high probability that [X] will join [the family] in church more often. This is an important part of this family’s everyday life and when [X] lives there it is natural that he accompanies them. As he grows older, it will be natural to consider his wishes about whether or not he attends church with them. In addition, they will inform and teach [X] about Somalia, Islam and his [birth] culture to the extent that they are capable of doing so here in Norway. Later when [X] grows up and if [the applicant] and he have a good relationship, it is not inconceivable that he can go with her to the mosque, but not now [while] he is little. This is something we need to eventually revisit.” 31. On 3 October 2012 the child welfare services sent a letter to the applicant, stating: “Reference is made to the meeting with [the applicant] on 29 August 2012. At the meeting, [the applicant] stated that she does not want [X] to eat pork and go to church. [The applicant] asked the child welfare services for a letter describing how they relate to this wish. The order to take [X] into care was heard by both the County Social Welfare Board ... (10 December 2010) and ... the District Court (6 September 2011). In both instances, the courts found in favour of the child welfare services and the child welfare services have had [X] in their care since December 2010. In their decisions and judgments, none of the courts has ruled on matters that have to do with the practice of religion. Both the child welfare services and the foster home wish for good collaboration with the mother and seek to show respect for her religious beliefs. As the child welfare services see it, this is a long-term placement. This means that [X] will most likely stay in the foster home until he is an adult. [X] will grow up in the foster home and be an integrated part of the family. The foster parents have Christian beliefs, attend church regularly, and a large part of their social relationships are through the church. As the child welfare services see it, it will not be in [X]’s best interests not to allow him to be a part of this. [X] will follow the foster family’s everyday life and, as a result, will go with them to church. The foster family will not have the right to register him as a member of any denomination without the mother’s consent. When [X] is 15 years old, he can register or deregister himself as a member of denominations; see section 32 of the Children Act. As [X] grows up, it will be natural to inform him about Islam and Somalia, based on his understanding and interest. Both foster parents are very enthusiastic about this. They fully appreciate that it is important to take his history seriously. At a meeting with the foster parents and the child welfare services on 20 September 2012, the foster parents agreed to arrange for [X] to be served as little pork as possible. They have respect and understanding for [the applicant]’s religious beliefs. The foster parents will try to facilitate her request regarding this as far as possible. However, they cannot rule out that [X] will eat pork on rare occasions.” 32. On 11 September 2013 the child welfare services applied to the County Social Welfare Board for an order to withdraw the applicant’s parental responsibility in respect of X, and for consent to his adoption by the foster parents. An alternative request, that the applicant be refused contact with X, was also lodged. 33. In connection with the foster parents’ application for adoption, the child welfare services prepared a report on the adoption applicants, dated 11 October 2013. Under the heading “Motive for adopting”, the following information, inter alia, was included: “Culture and religion are part of the thinking around adoption. It will be easier for [X] if he can be allowed to grow up with them without other disruptive elements regarding culture and religion. They know he will ask [about it] and they know it is important for him to obtain answers to questions that concern his differences in terms of skin colour, where he was born, etc. This is something they want to take seriously in order to be prepared to deal with his interest. Also, when it comes to knowledge of his biological origins, they recognise that there will be work for them to do as [X] grows up. It is important to know your biological origins and we will not prevent this, say both [the adoptive parents]. On several occasions during their time as foster parents for the boy, the couple has expressed an interest in the child’s family, not only in Norway, but also in Somalia. If this (knowledge of his biological origins) becomes a strong desire before he turns 18, we must assess it based on his maturity, says [the adoptive mother]. How will this information affect him? Is this the right time?” 34. The Board, composed of one lawyer qualified to act as a professional judge, one psychologist and one lay person, heard the case from 27 to 28 February 2014. The meeting was attended by the municipality’s representative and its counsel, and by the applicant and her counsel. Testimony was given by twelve witnesses and an expert, K.P. 35. In its decision of 21 March 2014 the Board granted the child welfare services’ principal request. It found that X had become so attached to his foster parents that removing him from their home could lead to serious problems; it also found that the applicant would be permanently unable to provide him with proper care. Based on an overall assessment of the general and individual factors in the case, the Board found that there were particularly compelling reasons for granting consent to the foster parents to adopt X. In its view, adoption would be in X’s best interests, in that it would create stability and security for him. Adoption would also be more effective than long-term foster placement in contributing to his recovery at the personality level ( tilheling på det personlighetsmessige plan ). X’s rights would be strengthened through adoption and he would gain a stronger identity as a member of a caring family. 36. The Board stated that it considered it very important for the development of X’s identity, and for his understanding of his own life situation, that he be given information about his biological family in due course. The foster parents had expressed their willingness to contribute to providing X with information about his biological mother and her culture when he showed sufficient maturity to be able to benefit from such information. X’s identity would not be kept hidden from him, nor would the foster parents try to hide him should they happen to meet the applicant in the street. 37. Furthermore, the Board stated that X had already been placed in an ethnically Norwegian foster home. The foster parents were active Christians. He had lived in this environment for more than three years, and this was where he would grow up. His relationship with his mother had been broken off so early that one could not say that the placement had entailed a break with his culture and religion. It had involved a break with his cultural and religious heritage, however. Contact with his mother in the years ahead could potentially help to promote identity-forming values related to ethnicity in X. However, this factor could not be given decisive weight as an argument against adoption. Since contact with the applicant reactivated dysfunctional responses in X, the importance of the cultural aspect had to be deemed as being of secondary importance in relation to safeguarding X’s fundamental personality development. 38. In addition, the Board considered that adoption would place X on an equal footing with the foster parents’ four biological children, in particular one of them who still lived at their home and with whom X was accordingly growing up. Equal status with the latter could promote X’s feeling of equality, and this was an important consideration in favour of allowing the foster parents to adopt him. 39. Following an appeal by the applicant against the Board’s decision, the District Court appointed a psychological expert, S.H.G. In his report of 13 October 2014, the psychologist stated, inter alia, under the heading “The present situation”: “The mother alternates between a traditional and more Norwegian style of dressing, but wears her head garment, is loyal to her Muslim culture and practices her religion. She stresses how much these values mean to her and believes that this also applies to her son – especially as he grows older. She has respect for other religions but is not happy for him to be taken to church without ever being taken to a mosque. ... The foster parents are active Christians and members of the Norwegian Missionary Society, but state that they have great respect for the mother’s religion. The foster parents are passing on their culture to the children as this is what they know, but they emphasise independence and self-confidence.” In a chapter entitled “Report on interviews with and observation of the mother, child, foster parents, and information from collateral sources”, the following information, inter alia, was included under the heading “Visit to the foster parents’ home”: “Culture and religion? He came at such an early stage, so we have transferred what we know – Christian culture. But the foster mother says they have great respect for the mother’s culture and religion. We let our children decide for themselves, she says. We consider self-confidence and self-esteem to be most important. However, it would do him major harm to break with this now and enter something new. We will most likely tell him about the differences eventually and strengthen his identity. We could not take him to church because of the noise levels. We do so now, but it does not work optimally because there are too many people. We keep company with Christian people and read Christian books. He would also be unable to function in a mosque.” The expert recommended that the District Court withhold consent to the adoption, and that the amount of access between the applicant and X should be gradually increased. 40. The District Court held a hearing from 4 to 6 November 2014. The court’s bench was composed of one professional judge, one psychologist and one lay person. Eight witnesses were called. The court-appointed expert attended and was present throughout the hearing and testified after the other evidence had been presented. 41. In its judgment of 21 November 2014, the District Court upheld the Board’s decision. The District Court endorsed the Board’s grounds for depriving the applicant of parental responsibility and granting consent for adoption, and referred to the Board’s reasons, but with some clarifications and additions. The District Court concurred with the assessments of psychologist K.P., who had been appointed as an expert before the Board (see paragraph 34 above), and not with those of S.H.G., who had been appointed as an expert by the District Court (see paragraph 39 above). 42. Within the reasons as to why the District Court concluded that an adoption would pertain to X’s best interest, the judgment stated, inter alia, that X had already been placed in an ethnically Norwegian foster home with a family of practising Christians. He had lived in that foster home for almost four years, and this was relevant to the District Court’s assessment as to where he would grow up. The District Court considered that the break with X’s cultural heritage had occurred when he was first taken into care. 43. On a further appeal by the applicant, the High Court held a hearing from 12 to 13 May 2015. The High Court’s bench comprised three professional judges, one psychologist and one lay person. The applicant attended, together with her counsel. Eight witnesses gave evidence, of whom four, including psychologists S.H.G. and K.P., gave expert testimony. Before the High Court, the applicant acknowledged that X had become so attached to his foster parents that a return to her would be difficult. She also accepted that X had reacted badly to the contact sessions and accepted that contact should possibly be avoided at certain periods in the future. However, she would not apply for his return and she argued that at that specific moment it could not be concluded with certainty that any contact with her in the future would be against X’s best interests. In particular, she argued that his need to keep in touch with his cultural and religious roots indicated that the possibility for future contact should be kept open. 44. In its judgment of 27 May 2015 the High Court stated that the parties agreed that X had become so attached to his foster parents that removing him could lead to serious problems, and that the High Court bench agreed unanimously with the parties on this point. It went on to reiterate that X had been placed with the foster parents when he was one year old and had, at the time of its judgment, been with them for four and a half years. Before this, he had spent two and a half months in an emergency foster home. He had lived with his biological mother for only the first ten months of his life. He regarded the foster parents as his parents and all the available information indicated that he was strongly attached to them. 45. In addition, X was a vulnerable child with special care needs. It had to be assumed that he would be at particular risk of serious harm if he were removed from the environment he was used to and placed in the care of his biological mother, with whom he had only had sporadic contact. Since a return to the applicant was in any event not being envisaged ( ei tilbakeføring under alle omstende [er] uaktuell ), it was unnecessary to decide on whether the applicant would be permanently incapable of providing appropriate care for him. 46. The decision in the case rested on an assessment of whether adoption would be in X’s best interests. A majority in the High Court concluded that it would, and generally agreed with the grounds given for this finding in the Board’s decision and the District Court’s judgment. 47. In the majority’s view, there were several risk factors relating to the applicant’s ability to provide proper care. In addition, many ( fleire ) persons had observed that the applicant had had serious difficulties caring for X during the first year in Norway. By the time of the High Court judgment, the applicant was older and seemed more mature. Given her age and history, it was understandable that she had experienced considerable challenges in caring for X. Her son had to be regarded as a child with special care needs and was possibly suffering from early attachment disorder. The majority found that he had been subjected to gross neglect, both physically and emotionally. The parent-child institution had indicated that he had been in physical danger several times while the applicant and X were staying there. Another witness, M.L., had also been concerned about the applicant’s ability to care for X on a practical level. In the High Court’s view, the most important aspect of the neglect nonetheless appeared to be the lack of emotional contact and security. 48. The High Court’s majority stated that these findings might reflect the applicant’s psychological functioning and her life circumstances during the pregnancy, birth and postnatal period, but that this had nevertheless created a serious situation for X and his development. He had displayed trauma reactions on seeing his mother again. These reactions following contact sessions could, for instance, include screaming for several hours at a time, or being agitated and anxious for several days. Similar reactions had also been noted at the kindergarten. His reactions had been observed both during and after the contact sessions. The hospital had also made a statement about them. The majority disagreed with psychologist S.H.G., who had considered that X’s reactions could be related to his emergency placement in care in 2010, as it found it unlikely that a separation from his biological mother when X had been ten months old could give rise to such reactions later in his life. 49. X had become calmer after the contact sessions had been discontinued in 2013. Since then, he had apparently only met the applicant twice. He had found these emotional outbursts after contact sessions with the applicant to be very stressful. He was still vulnerable to noise, large crowds and too many stimuli. This indicated that he was highly sensitive, which was to be expected in someone who was displaying reactions to trauma. 50. In the majority’s view, X needed to feel as secure as possible in his relationships. He needed stability, calm and continuity in the place where he lived at the time, namely in the foster home. The stronger the psychological development that could be secured, the better equipped he would be to deal with any identity issues that might arise during adolescence. All the available information suggested that X had a strong and fundamental attachment to his foster parents and foster family. Great emphasis had to be placed on this relationship, in line with the case-law of the Supreme Court. 51. The considerations of ensuring that a particularly vulnerable child would have a continued attachment to an environment in which he was deeply rooted had to be weighed against other relevant weighty considerations. The High Court reiterated that, in all cases, adoption entailed a breach of the biological principle, which was a major element in any decision. In the instant case, the foster parents had been unwilling to accept an “open adoption”, with future contact visits foreseen for the applicant, and there were additional aspects in the case related to ethnicity, culture and religion, and religious conversion. The fact that the applicant was a Muslim and the intended adoptive parents Christian raised special issues, which were further highlighted by the fact that the latter were active Christians who intended to baptise the adopted child. 52. An expert witness – N.S., a specialist in religious studies – had stated before the High Court that in Islam, the children of Muslims were regarded as Muslims as long as they had not been, for example, baptised. The parties had referred to a White Paper from a Government-appointed committee (NOU 2012: 5 Bedre beskyttelse av barns utvikling ), containing an assessment of adoption from a cultural and Islamic perspective. The White Paper stated that religion could be an obstacle to adoption for practicing Muslim families, since Islam had a general prohibition against adoption in the sense of making children born to other biological parents one’s own. Elsewhere, the White Paper had noted that various Muslim countries and Muslim schools of law had differing views on adoption, but they all had a prohibition against breaking the ties with the adoptive child’s biological family. The White Paper had concluded that the child welfare services faced a particular challenge when considering adoption as a child welfare measure for Muslim children. One of the members of the committee which drafted the White Paper had testified as an expert witness before the High Court, and stated that the committee had not wished to make recommendations one way or another with regard to the above observations; she had emphasised that each case was to be assessed on the basis of the child’s needs. 53. Based on international law sources, the High Court had not found that any prohibition could be inferred against the adoption of children from a Muslim background in Norway. Article 20(3) of the United Nations Convention on the Rights of the Child stated that when possible solutions, including adoption, were assessed, “due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background” (see paragraph 73 below). The best interests of the child should be a primary consideration in all actions and decisions concerning children, pursuant to Article 3(1) of the United Nations Convention on the Rights of the Child and the second paragraph of Article 104 of the Norwegian Constitution (see paragraphs 73 and 59 below, respectively). In adoption cases, the child’s best interests should be the paramount consideration, under Article 21 of the United Nations Convention on the Rights of the Child (see paragraph 73 below). 54. The High Court noted that the County Social Welfare Board had commented, in the context of the care order, on the choice of foster home, based on ethnic, cultural and religious considerations. Further information about which assessments had been carried out by the child welfare services when X had been placed in a foster home with ethnically Norwegian parents had not emerged during the presentation of evidence, but the High Court assumed that there had been no available foster parents with a more similar cultural background. It was known that there was a serious shortage of foster parents from minority backgrounds. Regardless of how the choice of foster home was otherwise evaluated, the initial placement had a bearing on the assessment of what was in the best interests of X at the time of the High Court’s judgment. 55. In the foster home, X had been brought up in accordance with his foster parents’ values. It had to be assumed that it was these values that he regarded as his own and with which he identified at the time of the High Court’s assessment. In this situation, consideration of the ethnicity, culture and religion of the biological family had to carry less weight than it would otherwise. In the event of a further foster home placement, X would also be exposed to the values of those foster parents. There was nonetheless an important distinction between being a foster child and an adopted child, since the parents, if the child were adopted, planned to baptise him and change his name. The applicant would experience this step as a final break with the religious values held by her and would find it difficult to accept. It was possible to feel that a more flexible solution would be to postpone the baptism until the child himself could decide on the matter when he turned fifteen, but nonetheless the majority could not see that these circumstances carried decisive weight against adoption. 56. The High Court’s majority considered that a further foster home placement could give rise to problems in connection with, for example, the applicant’s wishes that X be circumcised, attend Koranic school and follow Muslim food traditions. Her statement in the High Court that she had considered it best for X to remain with his foster parents had not been called into question, but the High Court was somehow uncertain ( noko usikker ) as to how permanent this opinion would be, and whether demands for X to be returned to her care would be made in future. A vulnerable boy such as X required a calm and stable situation. Adoption would create clarity, strengthen the development of X’s identity and make him an equal member of the family. In the light of the above considerations, the majority of the High Court bench found that there were particularly compelling reasons for authorising the adoption and thus voted to dismiss the applicant’s appeal. 57. The minority, one of the lay judges, found that the reasons for allowing the adoption were not sufficiently compelling, but that there were reasons for refusing to grant the applicant contact rights for the time being. The minority viewed the applicant’s ability to provide care in a slightly more positive light than the majority and emphasised that, for the moment, a continued foster home arrangement would be more flexible than adoption. Greater weight should also be placed on ethnic, cultural and religious considerations in the overall assessment of what would be in X’s best interests at the given time; this was highlighted in particular by the fact that adoption would entail religious conversion. 58. On 23 September 2015 the Supreme Court’s Appeals Leave Committee ( Høyesteretts ankeutvalg ) refused the applicant leave to appeal. RELEVANT DOMESTIC and international LAW AND PRACTICE Domestic law and practiceThe Constitution The Constitution The Constitution 59. Articles 16, 102 and 104 of the Norwegian Constitution of 17 May 1814 ( Grunnloven ), as revised in May 2014, read as follows: Article 16 “All inhabitants of the realm shall have the right to free exercise of their religion. The Church of Norway, an Evangelical-Lutheran church, will remain the Established Church of Norway and will as such be supported by the State. Detailed provisions as to its system will be laid down by law. All religious and belief communities should be supported on equal terms.” Article 102 “Everyone has the right to the respect of their privacy and family life, their home and their communication. Search of private homes shall not be made except in criminal cases. The authorities of the state shall ensure the protection of personal integrity.” Article 104 “Children have the right to respect for their human dignity. They have the right to be heard in questions that concern them, and due weight shall be attached to their views in accordance with their age and development. For actions and decisions that affect children, the best interests of the child shall be a fundamental consideration. Children have the right to protection of their personal integrity. The authorities of the State shall create conditions that facilitate the child’s development, including ensuring that the child is provided with the necessary economic, social and health security, preferably within their own family.” It follows from the Supreme Court’s case-law – for instance its judgment of 29 January 2015 ( Norsk Retstidende (Rt-2015-93), paragraphs 57 and 67) – that the above provisions are to be interpreted and applied in the light of their international law models, which include the United Nations Convention on the Rights of the Child, the European Convention on Human Rights and the case-law of the European Court of Human Rights. Human Rights Act 60. Sections 2 and 3 of the Human Rights Act of 21 May 1999 ( menneskerettsloven ) read, in so far as relevant: Section 2 “The following Conventions shall have the force of Norwegian law in so far as they are binding for Norway: 1. The Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 of 11 May 1994 to the Convention, together with the following Protocols: ... 4. The Convention of 20 November 1989 on the Rights of the Child, together with the following protocols: ...” Section 3 “The provisions of the Conventions and Protocols mentioned in section 2 shall take precedence over any other legislative provisions that conflict with them.” Child Welfare Act 61. The two first paragraphs of section 4-15, section 4-20 and the second paragraph of section 4-22 of the Child Welfare Act of 17 July 1992 ( barnevernloven ) read: Section 4-15. Choice of placement in the individual case “Within the framework determined in section 4-14, the placement shall be chosen on the basis of the child’s distinctive characteristics and need for care and training in a stable environment. Due account shall also be taken of the desirability of ensuring continuity in the child’s upbringing, and of the child’s ethnic, religious, cultural and linguistic background. Account shall also be taken of the likely duration of the placement, and of whether it is possible and desirable for the child to have access to and other contact with the parents. In its proposal to the county social welfare board the child welfare service shall give an account of the points of view upon which the choice of placement in the individual case should be based. In its order the county social welfare board may attach conditions to the placement. If it is not possible for the child to be placed as stipulated in the proposal or the order, the matter shall be resubmitted to the county social welfare board.” Section 4-20. Deprivation of parental responsibility. Adoption “If a county social welfare board has made a care order for a child, the county social welfare board may also decide that the parents shall be deprived of all parental responsibility. If, as a result of the parents being deprived of parental responsibility, the child is left without a guardian, the county social welfare board shall as soon as possible take steps to have a new guardian appointed for the child. When an order has been made depriving the parents of parental responsibility, the county social welfare board may give its consent for a child to be adopted by people other than the parents. Consent may be given if (a) it must be regarded as probable that the parents will be permanently unable to provide the child with proper care or the child has become so attached to persons and the environment where he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her, and (b) adoption would be in the child’s best interests, and (c) the adoption applicants have been the child’s foster parents and have shown themselves fit to bring up the child as their own, and (d) the conditions for granting an adoption under the Adoption Act are satisfied. When the county social welfare board consents to adoption, the Ministry shall issue the adoption order.” Section 4-22. Foster homes “Persons selected as foster parents shall have a special aptitude for giving children a secure and good home, and be capable of discharging their responsibilities as foster parents in accordance with the conditions on which the duration of the placement etc. (see section 4-15), is based.” 62. On 27 March 2020, the Supreme Court, sitting in a Grand Chamber formation, gave judgment and decisions in three childcare cases (HR ‑ 2020 ‑ 661-S, HR-2020-662-S and HR-2020-663-S) in order to draw up guidelines for the application of the Child Welfare Act in the light of the European Court of Human Rights’ judgments in the case of Strand Lobben and Others v. Norway ([GC], no. 37283/13, 10 September 2019) and subsequent cases concerning childcare measures adopted in the respondent State. 63. One of the above rulings (HR-2020-661-S) concerned an appeal against the High Court’s refusal to grant leave to appeal in a case about deprivation of parental responsibility and consent to adoption, in which the Supreme Court carried out an in-depth examination of the Court’s case-law in conjunction with the domestic case-law and practice, in order to clarify the Convention requirements and identify and resolve any possible inconsistencies with a view to ensuring compliance with the Convention. 64. In respect of cases where the replacement of foster care with adoption was at issue, the Supreme Court concluded that the general legal conditions, as they were expressed in the Child Welfare Act and the Supreme Court’s case-law, were compliant with the Convention and the Court’s case-law and thus could be maintained, but found that adjustments were still called for in Norwegian child welfare practice. Under the heading “Summarising remarks on reunification”, the Supreme Court stated the following: “(142) Based on the presentation of the Child Welfare Act as interpreted in case-law and judgments by the European Court of Human Rights, the status of the law may in my opinion be summarised as follows: (143) Under both Norwegian law and the European Convention on Human Rights, the overall goal is to have the care order revoked and the family reunited. A care order is therefore always temporary as a starting point. The authorities have a positive duty to strive actively to maintain the relationship between the child and the parents and to facilitate reunification. This implies that the authorities must monitor developments closely. Contact rights and assistance measures are crucial here. As long as reunification is the goal, contact must be arranged to make this possible. The authorities are to ensure, to the extent possible, that the contact sessions are of a good quality. If the sessions do not work well, one must try out adjustments or alternatives, for instance arranging them elsewhere, or under guidance. (144) As long as family reunification is the goal, the purpose of access is not only to ensure that the child knows who his or her parents are, but also to preserve the possibility of reunification. This requires a thorough assessment of the frequency and quality of the contact sessions. And even when reunification is not possible, there is an intrinsic value in maintaining family bonds, so long as this does not harm the child. (145) In my opinion, and depending on the situation, the child welfare services should in principle not be prevented early in the process – when choosing where to place a child (section 4-14 of the Child Welfare Act) and preparing a care plan (section 4-15) – from assuming that the placement will be long-term. If siblings are involved, an individual assessment must be made with regard to each child. However, the extent of contact must in any case be determined with a view to a future return of the child to his or her biological parents. This applies until a thorough and individual assessment at a later stage demonstrates that this goal should be abandoned, despite the authorities’ duty to facilitate reunification. In any event, the frequency of the contact sessions cannot be determined in a standard way, and it must be borne in mind that a strict visiting regime may render reunification more difficult. (146) It is crucial that the authorities do their utmost to facilitate family reunification. However, this goal may be abandoned if the biological parents have proved particularly unfit; see, for instance, Strand Lobben, paragraph 207. Such a situation may also affect which measures the child welfare authorities need to apply. In this assessment the interests of the child are also of paramount importance. However, this does not automatically preclude contact altogether while the child is in foster care. The parents may be competent in contact situations but lack the caring skills necessary for reunification. Maintaining family ties, even if the goal of reunification has been abandoned, still has a value in itself. (147) Secondly, the parents cannot request measures that may harm the child’s health and development; see Strand Lobben, paragraph 207. Adoption may therefore take place if it can be established that continued placement will harm the child’s health or development. In addition, reunification may – even in the absence of such damaging effects – be ruled out when a considerable amount of time has passed since the child was originally taken into care, so that the child’s need of stability overrides the interests of the parents; see paragraph 208 of the judgment. In any event, the child welfare authorities and the courts must, before deciding on a possible adoption, make an individual assessment based on a solid factual basis and thorough proceedings. (148) Accordingly, in these three situations, one must bear in mind that it is in the very nature of adoption that no real prospects for family reunification exist and that it is instead in the child’s best interests to be placed permanently in a new family; see Strand Lobben, paragraph 209.” 65. In this Grand Chamber decision, the Supreme Court also stated that judgments by the European Court had demonstrated that the decision ‑ making process, the balancing exercise or the reasoning had not always been adequate. In particular, the Court had found violations with regard to the authorities’ duty to work towards reunion of the child and the parents. As to the dilemmas represented by the choice of perspective when assessing possible errors or shortcomings, the Supreme Court stated as follows: “(114) When Norwegian courts, and ultimately the Supreme Court, review orders issued by the child welfare authorities, they apply the Child Welfare Act in line with the principle of the best interests of the child; see the second paragraph of Article 104 of the Constitution, Articles 3 and 9 of the Convention on the Rights of the Child and section 4-1 of the Child Welfare Act, which I have already mentioned. At the same time, the case-law must be in accordance with the European Convention on Human Rights, and the Supreme Court has adjusted its interpretation of the Child Welfare Act to the Court’s case-law. (115) If errors have been committed by the child welfare services or the County Social Welfare Board at an earlier stage of the proceedings (for instance due to inadequate remedial measures, or because the basis for the decision or its reasoning was unsatisfactory), the court may, depending on the circumstances, seek to remedy such errors by setting aside a care order or an adoption order. In other cases, the court may alter a previous decision, for example by increasing the granted access. However, if no such options are available and depending on the situation, the court will have to choose foster care or adoption if it is clear at the time of the judgment that this is in the best interests of the child, despite previous errors in the consideration of the case. To what extent not just the error, but also the final Norwegian ruling, must be regarded as a violation of Article 8, if the Court finds a violation at a later stage, thus relies on an interpretation of the Court’s judgment. (116) In order to prevent such a situation from occurring before the review instances, it is important that the child welfare services and the County Social Welfare Board – in seeking to identify the measures that best serve the child – consider from the very outset all relevant requirements laid down in the second paragraph of Article 104 of the Constitution, Article 8 of the Convention, the Convention on the Rights of the Child and chapter 4 of the Child Welfare Act.” 66. The Supreme Court delivered a further decision on 11 June 2020 (HR-2020-1229-U), in which it also stressed the temporary nature of care orders and the aim of reunification in the light of this Court’s case-law. Furthermore, it decided on two cases concerning the conditions under domestic law for lifting care orders on 15 September 2020 (HR ‑ 2020 ‑ 1788 ‑ A and HR-2020-1789-A). With reference to its decisions of 27 March 2020, it reiterated on 15 September 2020 that the general conditions set out in the Child Welfare Act and domestic case-law – including the “threshold” for issuing care orders – could be maintained, but that the practice in respect of their application to concrete cases needed some adjustment in the light of the judgments of the European Court of Human Rights. 67. A new child welfare act was adopted by Parliament on 18 June 2021 but has not yet entered into force. The relevant preparatory works (Bill No. 133 (2020-2021) ( Ny barnevernslov ), page 35) stated that this Court’s judgments as well as the above-mentioned case-law from the Supreme Court had been central to the work leading to the proposal of the new act. Foster Home Regulation and Circular 68. The Foster Home Regulation of 18 December 2003 ( fosterhjemsforskriften ) includes further detailed rules on foster homes. Under section 3 of the Regulation, foster parents must have the special abilities, time and energy to provide the child with a safe and good home. Foster parents must have stable living conditions, normal good health, and good interpersonal skills. They also must have the finances, home and social network required to provide the child with the opportunity to live a full life. Section 4 of the Regulation states that in choosing a foster home, the child welfare services are to give decisive importance to what is in the child’s best interests. The child welfare services must assess whether the foster parents have the requisite abilities to take care of the individual needs of the child. The child welfare services are to give appropriate consideration to the child’s ethnic, religious, cultural and linguistic background. 69. The Ministry of Children and Families ( Barne- og familiedepartementet ) issued a circular on guidelines in respect of foster homes on 15 July 2004 (Q-2004-1072 B). Among other points, the circular states that the child welfare services must give appropriate consideration to the child’s ethnic, religious, cultural and linguistic background. Where the child’s parents belong to a religious or linguistic minority, this will not always be possible. With regard to religious background, the child welfare services should nevertheless, to the extent possible, avoid placing children with foster parents who have a philosophy of life that differs substantially from that of the parents. Children Act 70. The Act relating to Children and Parents (the Children Act) of 8 April 1981 ( barnelova ) included at the relevant time the following provisions: Section 30. Meaning of parental responsibility “The child is entitled to care and consideration from those who have parental responsibility. These persons have the right and the duty to take decisions for the child in personal matters within the limits set by sections 31 to 33. Parental responsibility shall be exercised on the basis of the child’s interests and needs. Those who have parental responsibility are under an obligation to bring up and maintain the child properly. They shall ensure that the child receives an education according to his or her ability and aptitude. The child must not be subjected to violence or in any other way be treated so as to harm or endanger his or her mental or physical health. This shall also apply when violence is carried out in connection with the child’s upbringing. Use of violence and frightening or annoying behaviour or other inconsiderate conduct towards the child is prohibited. ...” Section 31. The child’s right of co-determination “As and when the child becomes able to form his or her own point of view on matters that concern him or her, the parents shall consider the child’s opinion before making a decision on the child’s personal situation. Importance shall be attached to the opinion of the child according to his or her age and maturity. The same applies to other persons with custody of the child or who are involved with the child. A child who has reached the age of seven and younger children who are able to form their own points of view must be provided with information and opportunities to express their opinions before decisions are taken concerning personal matters affecting them, including parental responsibility, custody and access. The opinions of the child shall be given weight according to his or her age and maturity. When the child reaches the age of 12 his or her opinion shall carry significant weight.” Section 32. Education, membership of associations “Children who have reached the age of 15 shall themselves decide the question of choice of education and of applying for membership of or resigning from associations.” Section 33. The child’s right to make his or her own decisions “Parents shall steadily extend the child’s right to make his or her own decisions as he or she gets older and until he or she reaches the age of 18.” Adoption Act 71. The Adoption Act of 28 February 1986 ( adopsjonsloven ), in force at the relevant time, contained, inter alia, the following provision: Section 13 “On adoption, the adopted child and his or her heirs shall have the same legal status as if the adopted child had been the adoptive parents’ biological child, unless otherwise provided by section 14 or another statute. At the same time, the child’s legal relationship to his or her original family shall cease, unless otherwise provided by special statute. ...” Act relating to religious communities, etc. 72. The Act relating to religious communities, etc. of 13 June 1969 ( lov om trudomssamfunn og ymist anna ) includes the following provisions: Section 3 “Anyone over the age of 15 may join or resign from a religious community.” Section 6 “When the parents do not both belong to the Church of Norway they may together make the child a member of a religious community or withdraw the child from such a community as long as the child is under 15 years of age. When only one of the parents has parental responsibility for the child, he or she may make this decision alone. If neither of the parents has parental responsibility for the child, the guardian may make the child a member of a religious community or withdraw the child from such a community. If possible, children of 12 years of age or more shall be allowed to express their opinions concerning registration or resignation of membership.” International law materials 73. Articles 3, 5, 8, 9, 14, 20, 21 and 30 of the United Nations Convention on the Rights of the Child, adopted on 20 November 1989, in so far as relevant, read: Article 3 “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.” Article 5 “States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.” Article 8 “1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. ...” Article 9 “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. ...” Article 14 “1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.” Article 20 “1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.” Article 21 “States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; ...” Article 30 “In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.” 74. Resolution 64/142 on Guidelines for the Alternative Care of Children, adopted by the United Nations General Assembly on 18 December 2009, includes the following paragraphs: “11. All decisions concerning alternative care should take full account of the desirability, in principle, of maintaining the child as close as possible to his/her habitual place of residence, in order to facilitate contact and potential reintegration with his/her family and to minimize disruption of his/her educational, cultural and social life. ... 16. Attention must be paid to promoting and safeguarding all other rights of special pertinence to the situation of children without parental care, including, but not limited to, access to education, health and other basic services, the right to identity, freedom of religion or belief, language and protection of property and inheritance rights. ... 57. Decision-making on alternative care in the best interests of the child should take place through a judicial, administrative or other adequate and recognized procedure, with legal safeguards, including, where appropriate, legal representation on behalf of children in any legal proceedings. It should be based on rigorous assessment, planning and review, through established structures and mechanisms, and should be carried out on a case-by-case basis, by suitably qualified professionals in a multidisciplinary team, wherever possible. It should involve full consultation at all stages with the child, according to his/her evolving capacities, and with his/her parents or legal guardians. To this end, all concerned should be provided with the necessary information on which to base their opinion. States should make every effort to provide adequate resources and channels for the training and recognition of the professionals responsible for determining the best form of care so as to facilitate compliance with these provisions. ... 58. Assessment should be carried out expeditiously, thoroughly and carefully. It should take into account the child’s immediate safety and well-being, as well as his/her longer-term care and development, and should cover the child’s personal and developmental characteristics, ethnic, cultural, linguistic and religious background, family and social environment, medical history and any special needs. ... 88. Children should be allowed to satisfy the needs of their religious and spiritual life, including by receiving visits from a qualified representative of their religion, and to freely decide whether or not to participate in religious services, religious education or counselling. The child’s own religious background should be respected, and no child should be encouraged or persuaded to change his/her religion or belief during a care placement.” 75. The United Nations Committee on the Rights of the Child General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, includes, inter alia, the following paragraphs: “38. In respect of adoption (art. 21), the right of best interests is further strengthened; it is not simply to be “ a primary consideration” but “ the paramount consideration”. Indeed, the best interests of the child are to be the determining factor when taking a decision on adoption, but also on other issues. ... 55. Children are not a homogeneous group and therefore diversity must be taken into account when assessing their best interests. The identity of the child includes characteristics such as sex, sexual orientation, national origin, religion and beliefs, cultural identity, personality. Although children and young people share basic universal needs, the expression of those needs depends on a wide range of personal, physical, social and cultural aspects, including their evolving capacities. The right of the child to preserve his or her identity is guaranteed by the Convention (art. 8) and must be respected and taken into consideration in the assessment of the child’s best interests. 56. Regarding religious and cultural identity, for example, when considering a foster home or placement for a child, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background (art. 20, para. 3), and the decision-maker must take into consideration this specific context when assessing and determining the child’s best interests. The same applies in cases of adoption, separation from or divorce of parents. Due consideration of the child’s best interests implies that children have access to the culture (and language, if possible) of their country and family of origin, and the opportunity to access information about their biological family, in accordance with the legal and professional regulations of the given country (see art. 9, para. 4). 57. Although preservation of religious and cultural values and traditions as part of the identity of the child must be taken into consideration, practices that are inconsistent or incompatible with the rights established in the Convention are not in the child’s best interests. Cultural identity cannot excuse or justify the perpetuation by decision-makers and authorities of traditions and cultural values that deny the child or children the rights guaranteed by the Convention.” 76. The following remarks were included in the United Nations Committee on the Rights of the Child’s Concluding observations on the combined fifth and sixth periodic reports of Norway (CRC/C/NOR/CO/5-6) of 4 July 2018: “21. Drawing the State party’s attention to the Guidelines for the Alternative Care of Children, the Committee emphasizes that financial and material poverty — or conditions directly and uniquely attributable to such poverty — should never be the sole justification for removing a child from parental care, for receiving a child into alternative care or for preventing a child’s social reintegration. In this regard, the Committee recommends that the State party: ... (f) Take the measures necessary, including adequate training of personnel, to ensure that children belonging to an indigenous or national minority group who are placed in alternative care learn about and maintain their connection to their native culture; ...” 77. Article 18 of the United Nations International Covenant on Civil and Political Rights, adopted on 16 December 1966, reads as follows: Article 18 “1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” 78. The third paragraph of Article 13 of the United Nations International Covenant on Economic, Social and Cultural Rights, adopted on 16 December 1966, reads as follows: Article 13 “3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.” 79. The first to fourth paragraphs of Article 5 of the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by General Assembly resolution 36/55 of 25 November 1981, read as follows: Article 5 “1. The parents or, as the case may be, the legal guardians of the child have the right to organize the life within the family in accordance with their religion or belief and bearing in mind the moral education in which they believe the child should be brought up. 2. Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his parents or, as the case may be, legal guardians, and shall not be compelled to receive teaching on religion or belief against the wishes of his parents or legal guardians, the best interests of the child being the guiding principle. 3. The child shall be protected from any form of discrimination on the ground of religion or belief. He shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood, respect for freedom of religion or belief of others, and in full consciousness that his energy and talents should be devoted to the service of his fellow men. 4. In the case of a child who is not under the care either of his parents or of legal guardians, due account shall be taken of their expressed wishes or of any other proof of their wishes in the matter of religion or belief, the best interests of the child being the guiding principle.” Comparative law observations 80. The Court has considered it appropriate to conduct a comparative survey with regard to the domestic law and practice in 41 States Parties to the Convention (namely Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Croatia, Cyprus, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, the Netherlands, Montenegro, North Macedonia, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovak Republic, Slovenia, Spain, Switzerland, Turkey, Ukraine, and the United Kingdom) as it relates to the subject matter of the case. 81. According to the information available to the Court, in at least 11 States or jurisdictions (Armenia, Azerbaijan, the Flemish Community of Belgium, Finland, France, Hungary, the Netherlands, Montenegro, Poland, Russia and Spain), a requirement to take account of the religious, ethnic or linguistic backgrounds in adoption or foster care proceedings follows directly from laws or regulations. In at least six States (Albania, Ireland, North Macedonia, Slovenia, Switzerland and the United Kingdom), a requirement to take into account the religious, ethnic, cultural and linguistic backgrounds of the concerned children and adults is mostly laid down not by laws or regulations but by infra-legislative administrative acts such as instructions and circulars. 82. Furthermore, in at least 15 States (Austria, Azerbaijan, Bosnia and Herzegovina, France, Italy, Moldova, Montenegro, the Netherlands, North Macedonia, Poland, Romania, Slovenia, Spain, Switzerland and the United Kingdom), the requirement to take into account the religious, ethnic, cultural and linguistic backgrounds is not shaped as an independent obligation, but as a specific aspect of the more general fundamental criterion of the “best interest of the child” or “the child’s welfare”. Moreover, in Ireland there is an obligation to “where possible” respect the wishes of the child’s guardian as to the child’s religious upbringing and the religion of the prospective foster parents and in Northern Ireland there is a rather clear obligation of result. None of the other States covered by the Court’s research provides a positive obligation to place the child in a family sharing his/her religious, ethnic, cultural and linguistic identity or that of his/her biological parents. There is only a procedural obligation to “take it into account” as one of the criteria for choosing an adoptive and/or foster family. However, it is never the weightiest or the decisive criterion, and it may be outweighed by other considerations within the general framework of the “best interest of the child”. | This case concerned the decision by the Norwegian authorities to allow the adoption of a child by a foster family against his mother’s wishes. The mother, a Somali national who had moved to Norway, did not ask for her son’s return as he had spent a long time with his foster parents, but wished for him to maintain his cultural and religious roots. The applicant complained about the withdrawal of her parental rights and the authorisation for adoption. |
594 | Case-law of the European Court of Human Rights | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1970 and lives in İzmir. 10. Until 1985 he lived in Germany, where he completed part of his schooling. He subsequently moved to Turkey, where he continued his education, eventually going on to university. 11. In 1993 he became an active member of the Association of Opponents of War ( Savaş Karşıtları Derneği – “the SKD”), founded in 1992. Until late 1993 he represented the SKD at various international conferences in different countries. After the SKD was dissolved in November 1993 the İzmir Association of Opponents of War ( İzmir Savaş Karşıtları Derneği – “the ISKD”) was founded and the applicant served as its chairman from 1994 to 1998. 12. In August 1995 the applicant was called up. Invoking his pacifist convictions, he refused to perform military service and publicly burned his call-up papers at a press conference in İzmir on 1 September 1995. 13. On 8 October 1996 he was arrested. On 18 October 1996 he was indicted by the military prosecutor attached to the Ankara Military Court of the General Staff (“the General Staff Court ”), under Article 155 of the Criminal Code and Article 58 of the Military Penal Code, on a charge of inciting conscripts to evade military service. 14. In a judgment of 28 January 1997 the Ankara General Staff Court sentenced the applicant, on the basis of the indictment of 18 October 1996, to six months ’ imprisonment and to a fine. The court also found that the applicant was a deserter and made an order requesting the military prosecutor attached to that court to enlist him. 15. On 3 March 1997 the applicant lodged an appeal on points of law. In his grounds of appeal he relied on, among other provisions, Articles 9 and 10 of the Convention, claiming that he was a conscientious objector. 16. In a judgment of 3 July 1997 the Military Court of Cassation upheld the first-instance judgment. 17. In the meantime, on 22 November 1996, the applicant was transferred to the 9th Regiment, attached to the Bilecik gendarmerie command. He refused to wear military uniform or carry out the orders of the regiment ’ s commanding officer. He was detained in the regimental prison, where he refused to wear prison uniform. 18. On 26 November 1996 the military prosecutor at the Court of the Eskişehir Tactical Air Forces Command (“the Command Court ”) indicted the applicant on a charge of “persistent disobedience” and sought his conviction under Article 87 of the Military Penal Code. 19. Ruling on the applicant ’ s refusal to wear prison uniform, the Command Court, in a judgment of 2 December 1996 after urgent proceedings, restricted his right to receive visitors for fifteen days, as a disciplinary measure. 20. Ultimately, in a judgment of 6 March 1997, the Command Court sentenced him to five months ’ imprisonment for persistent disobedience. 21. On 4 July 1997 the Military Court of Cassation upheld the judgment of 6 March 1997. 22. In the meantime, the applicant had failed to rejoin his regiment after being released on 27 December 199 6. He was arrested and remanded in custody. 23. He was indicted on 7 March 1997 by the military prosecutor at the Command Court, on charges of desertion and “persistent disobedience”. 24. In a judgment of 23 October 1997 the Command Court sentenced the applicant to ten months ’ imprisonment and to a fine. 25. In the meantime, on 29 May 1997, he had been released on the condition that he rejoined his regiment on 31 May to perform his military service. As he failed to do so he was arrested on 9 October 1997 and transferred to Eskişehir prison to serve the sentence imposed by the Command Court on 6 March 1997. 26. In an indictment of 16 October 1997 the military prosecutor at the Command Court called for the applicant ’ s conviction for desertion between 31 May 1997 and 9 October 1997. 27. In a judgment of 22 January 1998 the Command Court sentenced the applicant to ten months ’ imprisonment on the basis of the charges in the bill of indictment. 28. In a judgment of 30 September 1998 the Military Court of Cassation upheld the judgment of 22 January 1998. 29. On 26 January 1998 the applicant was escorted to his regiment at Bilecik. He was arrested for refusing to wear military uniform. 30. In a judgment of 11 June 1998 the Command Court sentenced him to seven months and fifteen days ’ imprisonment on account of incidents that had occurred on 28 January 1998. 31. On 7 October 1998 the Military Court of Cassation upheld the judgment of 11 June 1998. 32. After being escorted back to his regiment on 20 March 1998, the applicant was arrested on 21 March 1998 for refusing to wear his military uniform. 33. In a judgment of 4 May 1998 the Command Court sentenced him to seven months and fifteen days ’ imprisonment for “persistent disobedience” on 20 and 21 March 1998. 34. In a judgment of 7 October 1998 the Military Court of Cassation upheld the judgment of 4 May 1998. 35. In the meantime, on 4 May 1998, the applicant was sent back to his regiment, where he refused to wear military uniform. 36. In a judgment of 11 June 1998 the Command Court sentenced him to seven months and fifteen days ’ imprisonment on account of the incidents of 4 May 1998. 37. In a judgment of 7 October 1998 the Military Court of Cassation upheld the first-instance judgment of 11 June 1998. 38. The applicant was released on 24 November 1998 and transferred to his regiment, but once again refused to wear military uniform. 39. He was prosecuted and arrested on account of the incidents of 24 November 1998, and on 26 November 1998 the Command Court sentenced him to seven months and fifteen days ’ imprisonment. 40. In a judgment of 22 September 1999 the military Court of Cassation upheld the judgment of 26 November 1998. 41. The applicant served a total of 701 days in prison as a result of the above sentences, with the exception of the prison sentence imposed after his last conviction. He is wanted by the security forces for the execution of his sentence and is currently in hiding. He is no longer active in the association or in any other political activity. He has no official address and has broken off all contact with the authorities. He has been accommodated by his fiancée ’ s family. He has been unable to marry her legally or to recognise the son born to them. | The applicant refused to do his military service, on the ground that he had firm pacifist beliefs, and publicly burned his call-up papers at a press conference. He was initially convicted of inciting conscripts to evade military service and, having been transferred to a military regiment, repeatedly convicted for his refusals to wear a military uniform. He served almost two years in prison and later hid from the authorities. |
1,029 | Article 2 (right to life) of the Convention | 12. The facts set out below, established by the Commission in its report of 4 March 1994 (see paragraphs 132 and 142 below), are drawn mainly from the transcript of evidence given at the Gibraltar inquest (see paragraph 103 below). I. PARTICULAR CIRCUMSTANCES OF THE CASE 13. Before 4 March 1988, and probably from at least the beginning of the year, the United Kingdom, Spanish and Gibraltar authorities were aware that the Provisional IRA (Irish Republican Army - "IRA") were planning a terrorist attack on Gibraltar. It appeared from the intelligence received and from observations made by the Gibraltar police that the target was to be the assembly area south of Ince ’ s Hall where the Royal Anglian Regiment usually assembled to carry out the changing of the guard every Tuesday at 11.00 hours. 14. Prior to 4 March 1988, an advisory group was formed to advise and assist Mr Joseph Canepa, the Gibraltar Commissioner of Police ("the Commissioner"). It consisted of Soldier F (senior military adviser and officer in the Special Air Service or "SAS"), Soldier E (SAS attack commander), Soldier G (bomb-disposal adviser), Mr Colombo (Acting Deputy Commissioner of Police), Detective Chief Inspector Ullger, attached to Special Branch, and Security Service officers. The Commissioner issued instructions for an operational order to be prepared to deal with the situation. A. Military rules of engagement 15. Soldier F and his group, including Soldier E and a number of other SAS soldiers, had arrived in Gibraltar prior to 4 March 1988. Preliminary briefings had been conducted by the Ministry of Defence in London. According to the military rules of engagement (entitled "Rules of Engagement for the Military Commander in Operation Flavius") issued to Soldier F by the Ministry of Defence, the purpose of the military forces being in Gibraltar was to assist the Gibraltar police to arrest the IRA active service unit ("ASU") should the police request such military intervention. The rules also instructed F to operate as directed by the Commissioner. 16. The rules also specified the circumstances in which the use of force by the soldiers would be permissible as follows: "Use of force 4. You and your men will not use force unless requested to do so by the senior police officer(s) designated by the Gibraltar Police Commissioner; or unless it is necessary to do so in order to protect life. You and your men are not then to use more force than is necessary in order to protect life ... Opening fire 5. You and your men may only open fire against a person if you or they have reasonable grounds for believing that he/she is currently committing, or is about to commit, an action which is likely to endanger your or their lives, or the life of any other person, and if there is no other way to prevent this. Firing without warning 6. You and your men may fire without warning if the giving of a warning or any delay in firing could lead to death or injury to you or them or any other person, or if the giving of a warning is clearly impracticable. Warning before firing 7. If the circumstances in paragraph 6 do not apply, a warning is necessary before firing. The warning is to be as clear as possible and is to include a direction to surrender and a clear warning that fire will be opened if the direction is not obeyed." B. Operational order of the Commissioner 17. The operational order of the Commissioner, which was drawn up on 5 March 1988, stated that it was suspected that a terrorist attack was planned in Gibraltar and that the target was highly probably the band and guard of the First Battalion of the Royal Anglian Regiment during a ceremonial changing of the guard at Ince ’ s Hall on 8 March 1988. It stated that there were "indications that the method to be used is by means of explosives, probably using a car bomb". The intention of the operation was then stated to be "(a) to protect life; (b) to foil the attempt; (c) to arrest the offenders; (d) the securing and safe custody of the prisoners". 18. The methods to be employed were listed as police surveillance and having sufficient personnel suitably equipped to deal with any contingency. It was also stated that the suspects were to be arrested by using minimum force, that they were to be disarmed and that evidence was to be gathered for a court trial. Annexed to the order were, inter alia, lists of attribution of police personnel, firearms rules of engagement and a guide to firearms use by police (see paragraphs 136 and 137 below). C. Evacuation plan 19. A plan for evacuation of the expected area of attack was drawn up on 5 March 1988 by Chief Inspector Lopez. It was to be put into effect on Monday or Tuesday (7-8 March). It included arrangements to evacuate and cordon off the area around Ince ’ s Hall to a radius of 200 m, identified the approach roads to be closed, detailed the necessary traffic diversions and listed the personnel to implement the plan. The plan was not, however, distributed to other officers. D. Joint operations room 20. The operation in Gibraltar to counter the expected terrorist attack was run from a joint operations room in the centre of Gibraltar. In the operations room there were three distinct groups - the army or military group (comprising the SAS and bomb-disposal personnel), a police group and the surveillance or security service group. Each had its own means of communication with personnel on the ground operated from a separate control station. The two principal means of communication in use were, however, the two radio-communication networks known as the surveillance net and the tactical or military net. There was a bomb-disposal net which was not busy and, while the police had a net, it was not considered secure and a telephone appears to have been used for necessary communications with the central police station. E. First sighting of the suspects in Spain on 4 March 1988 21. On 4 March 1988, there was a reported sighting of the ASU in Malaga in Spain. As the Commissioner was not sure how or when they would come to Gibraltar surveillance was mounted. F. Operational briefing on 5 March 1988 22. At midnight between 5 and 6 March 1988, the Commissioner held a briefing which was attended by officers from the Security Services (including from the surveillance team Witnesses H, I, J, K, L, M and N), military personnel (including Soldiers A, B, C, D, E, F and G) and members of the Gibraltar police (Officers P, Q and R and Detective Chief Inspector Ullger, Head of Special Branch, and Detective Constable Viagas). The Commissioner conducted the police aspect of the briefing, the members of the Security Services briefed on the intelligence aspects of the operation, the head of the surveillance team covered the surveillance operation and Soldier E explained the role of the military if they were called on for assistance. It then appears that the briefing split into smaller groups, E continuing to brief the soldiers under his command but in the same location. The Commissioner also explained the rules of engagement and firearms procedures and expressed the importance to the police of gathering evidence for a subsequent trial of the terrorists. 23. The briefing by the representative of the Security Services included inter alia the following assessments: (a) the IRA intended to attack the changing of the guard ceremony in the assembly area outside Ince ’ s Hall on the morning of Tuesday 8 March 1988; (b) an ASU of three would be sent to carry out the attack, consisting of Daniel McCann, Sean Savage and a third member, later positively identified as Mairead Farrell. McCann had been previously convicted and sentenced to two years ’ imprisonment for possession of explosives. Farrell had previously been convicted and sentenced to fourteen years ’ imprisonment for causing explosions. She was known during her time in prison to have been the acknowledged leader of the IRA wing of prisoners. Savage was described as an expert bomb-maker. Photographs were shown of the three suspects; (c) the three individuals were believed to be dangerous terrorists who would almost certainly be armed and who, if confronted by security forces, would be likely to use their weapons; (d) the attack would be by way of a car bomb. It was believed that the bomb would be brought across the border in a vehicle and that it would remain hidden inside the vehicle; (e) the possibility that a "blocking" car - i.e. a car not containing a bomb but parked in the assembly area in order to reserve a space for the car containing the bomb - would be used had been considered, but was thought unlikely. This possibility was discounted, according to Senior Security Services Officer O in his evidence to the inquest, since (1) it would involve two trips; (2) it would be unnecessary since parking spaces would be available on the night before or on a Tuesday morning; (3) there was the possibility that the blocking car would itself get blocked by careless parking. The assessment was that the ASU would drive in at the last moment on Monday night or on Tuesday morning. On the other hand Chief Inspector Lopez, who was not present at the briefing, stated that he would not have brought in a bomb on Tuesday since it would be busy and difficult to find a parking place. 1. Mode of detonation of bomb 24. Various methods of detonation of the bomb were mentioned at the briefing: by timing device, by RCIED (radio-controlled improvised explosive device) and by command wire. This last option which required placing a bomb connected to a detonator by a wire was discounted as impracticable in the circumstances. The use of a timer was, according to O, considered highly unlikely in light of the recent IRA explosion of a bomb by timer device at Enniskillen which had resulted in a high number of civilian casualties. Use of a remote-control device was considered to be far more likely since it was safer from the point of view of the terrorist who could get away from the bomb before it exploded and was more controllable than a timer which once activated was virtually impossible to stop. 25. The recollection of the others present at the briefing differs on this point. The police witnesses remembered both a timer and a remote-control device being discussed. The Commissioner and his Deputy expected either type of device. Chief Inspector Ullger recalled specific mention of the remote-control device as being more likely. The surveillance officers also thought that an emphasis was placed on the use of a remote-control device. 26. The military witnesses in contrast appear to have been convinced that it would certainly be a remote-control device. Soldier F made no mention of a timer but stated that they were briefed that it was to be a "button job", that is, radio-controlled so that the bomb could be detonated at the press of a button. He believed that there had been an IRA directive not to repeat the carnage of a recent bomb in Enniskillen and to keep to a minimum the loss of life to innocent civilians. It was thought that the terrorists knew that if it rained the parade would be cancelled and in that event, if a timer was used, they would be left with a bomb that would go off indiscriminately. Soldier E also stated that at the briefing they were informed that the bomb would be initiated by a "button job". In answer to a question by a juror, he stated that there had been discussion with the soldiers that there was more chance that they would have to shoot to kill in view of the very short time factor which a "button job" would impose. 27. Soldiers A, B, C and D stated that they were told at the briefing that the device would be radio-controlled. Soldier C said that E stressed to them that it would be a "button job". 2. Possibility that the terrorists would detonate the bomb if confronted 28. Soldier O stated that it was considered that, if the means of detonation was by radio control, it was possible that the suspects might, if confronted, seek to detonate the device. Soldier F also recalled that the assessment was that any one of the three could be carrying a device. In answer to a question pointing out the inconsistency of this proposition with the assessment that the IRA wished to minimise civilian casualties, F stated that the terrorists would detonate in order nonetheless to achieve some degree of propaganda success. He stated that the briefing by the intelligence people was that it was likely if the terrorists were cornered they would try to explode the bomb. Soldier E confirmed that they had been told that the three suspects were ruthless and if confronted would resort to whatever weapons or "button jobs" they carried. He had particularly emphasised to his soldiers that there was a strong likelihood that at least one of the suspects would be carrying a "button job". 29. This was recalled, in substance, by Soldiers C and D. Soldier B did not remember being told that they would attempt to detonate if arrested but was aware of that possibility in his own mind. They were warned that the suspects were highly dangerous, dedicated and fanatical. 30. It does not appear that there was any discussion at the briefing as to the likely size, mode of activation or range of a remote-control device that might be expected. The soldiers appear to have received information at their own briefings. Soldier F did not know the precise size a radio detonator might be, but had been told that the device would be small enough to conceal on the person. Soldier D was told that the device could come in a small size and that it could be detonated by the pressing of just one button. 31. As regards the range of the device, Soldier F said that the military were told that the equipment which the IRA had was capable of detonating a radio-controlled bomb over a distance of a mile and a half. G. Events on 6 March 1988 1. Deployment of Soldiers A, B, C and D 32. The operations room opened at 8.00 hours. The Commissioner was on duty there from 10.30 to 12.30 hours. When he left, Deputy Commissioner Colombo took his place. Members of the surveillance teams were on duty in the streets of Gibraltar as were Soldiers A, B, C and D and members of the police force involved in the operation. Soldiers A, B, C and D were in civilian clothing and were each armed with a 9mm Browning pistol which was carried in the rear waistband of their trousers. Each also carried a radio concealed on their person. They were working in pairs. In each pair, one was in radio communication on the tactical net and the other on the surveillance net. Police officers P, Q and R, who were on duty to support the soldiers in any arrest, were also in plain clothes and armed. 2. Surveillance at the border 33. On 6 March 1988, at 8.00 hours, Detective Constable Huart went to the frontier to keep observation for the three suspects from the computer room at the Spanish immigration post. He was aware of the real names of the three suspects and had been shown photographs. The Spanish officers had photographs. The computer room was at some distance from the frontier crossing point itself. The Spanish officers at the immigration post showed him passports by means of a visual aid unit. It appears that they only showed him the passports of those cars containing two men and one woman. Several pictures were flashed up for him during the course of the day but he did not recognise them. At the inquest, under cross-examination, he at first did not recall that he had been given any of the aliases that the three suspects might be employing. Then, however, he thought that he remembered the name of Coyne being mentioned in relation to Savage and that at the time he must have known the aliases of all three, as must the Spanish officers. Chief Inspector Ullger, who had briefed Huart however, had no recollection of the name of Coyne being mentioned before 6 March and he only recalled the name of Reilly in respect of McCann. However, if Huart recalled it, he did not doubt that it was so. 34. On the Gibraltar side of the border, the customs officers and police normally on duty were not informed or involved in the surveillance on the basis that this would involve information being provided to an excessive number of people. No steps were taken to slow down the line of cars as they entered or to scrutinise all passports since it was felt that this might put the suspects on guard. There was, however, a separate surveillance team at the border and, in the area of the airfield nearby, an arrest group. Witness M who led a surveillance team at the frontier expressed disappointment at the apparent lack of co-operation between the various groups involved in Gibraltar but he understood that matters were arranged that way as a matter of security. 35. At the inquest, Chief Inspector Ullger stated, when pressed about the failure to take more scrupulous measures on the Gibraltar side, "In this particular case, we are talking about dangerous terrorists. We were talking about a very, very major and delicate operation - an operation that had to succeed. I think the only way it could have succeeded is to allow the terrorists to come in and for the terrorists to have been dealt with in the way they were dealt with as far as the surveillance is concerned." 36. While Soldiers E and F made reference to the preferred military option as being to intercept and arrest the suspects in the frontier area, it appears not to have been pursued with any conviction, on the assumption that identification would not be possible in light of the brief time available for identification to be made (10 to 15 seconds per car) and the lack of prior warning from the Spanish side. 3. Arrest options: Advisory Group policy 37. Soldier F stated that the military option had been refined down to the preferred option of arresting the suspects when they were on foot in the assembly area, to disarm them and then to defuse the bomb. He referred also to four key indicators formulated by the Advisory Group with a view to guiding the Commissioner: 1. if a car was driven into Gibraltar and parked in the assembly area by an identified member of the active service unit; 2. if a car was driven into the assembly area by an ASU member without prior warning; 3. the presence in Gibraltar of the other members of the ASU; 4. if there was clear indication that terrorists having parked their car bomb intended to leave Gibraltar, that is to say, they were heading for the border. The plan was for an arrest to be carried out once all the members of the ASU were present and identified and they had parked a car which they intended to leave. Any earlier action was considered premature as likely to raise suspicion in any unapprehended members of the ASU with possible risk resulting and as leaving no evidence for the police to use in court. 4. Sighting of Mr Savage 38. Detective Constable Viagas was on surveillance duty in a bank which had a view over the area in which the car driven in by the terrorists was expected to be parked. At about 12.30 hours, he heard a report over the surveillance net that a car had parked in a parking space in the assembly area under observation. A member of the Security Service commented that the driver had taken time to get out and fiddled with something between the seats. DC Viagas saw the man lock the car door and walk away towards the Southport Gate. One of the Security Service officers present consulted a colleague as to possible identification but neither was sure. A field officer was requested to confirm the identity. DC Viagas could not himself identify the man from his position. 39. Witness N of the Security Service team on surveillance in the car-park in the assembly area recalled that at 12.45 hours a white Renault car drove up and parked, the driver getting out after two to three minutes and walking away. A young man resembling the suspect was spotted next at about 14.00 hours in the area. Witness H, who was sent to verify his identification, saw the suspect at about that time and recognised him as Savage without difficulty. Witness N also saw the suspect at the rear of John Mackintosh Hall and at 14.10 hours reported over the radio to the operations room that he identified him as Savage and also as the man who had earlier parked the car in the assembly area. Officer Q who was on duty on the street recalled hearing over the surveillance net at about 14.30 hours that Savage had been identified. 40. The Commissioner however did not recollect being notified about the identification of Savage until he arrived in the operations room at 15.00 hours. Colombo did not recall hearing anything about Savage either until it was reported that he had met up with two other suspects at about 14.50 hours. Soldiers E and F recalled however that a possible sighting of Savage was reported at about 14.30 hours. Soldier G also refers to the later sighting at 14.50 hours as the first identification of Savage. 41. There appears to have been a certain time-lag between information on the ground either being received in the operations room or being passed on. Soldiers E and F may have been more aware than the Commissioner of events since they were monitoring closely the information coming in over the nets, which apparently was not audible to the Commissioner where he sat at a table away from the control stations. 42. The suspect was followed for approximately an hour by Witness H who recalled that the suspect was using anti-surveillance techniques such as employing devious routes through the side streets. Witness N was also following him, for an estimated 45 minutes, and considered that he was alert and taking precautions, for example stopping round the corner at the end of alleyways to see who followed. 5. Sighting of Mr McCann and Ms Farrell 43. Witness M who was leading the surveillance at the border stated that two suspects passed the frontier at about 14.30 hours though apparently they were initially not clearly identified. They were on foot and reportedly taking counter-surveillance measures (Farrell looking back frequently). Their progress into Gibraltar was followed. 44. At 14.30 hours, Soldiers E and F recalled a message being received that there was a possible sighting of McCann and Farrell entering on foot. The Commissioner was immediately informed. 6. Sighting of three suspects in the assembly area 45. At about 14.50 hours, it was reported to the operations room that the suspects McCann and Farrell had met with a second man identified as the suspect Savage and that the three were looking at a white Renault car in the car-park in the assembly area. Witness H stated that the three suspects spent some considerable time staring across to where a car had been parked, as if, in his assessment, they were studying it to make sure it was absolutely right for the effect of the bomb. DC Viagas also witnessed the three suspects meeting in the area of the car-park, stating that all three turned and stared towards where the car was parked. He gave the time as about 14.55 hours. He stated that the Security Services made identification of all three at this moment. At this moment, the possibility of effecting an arrest was considered. There were different recollections. Mr Colombo stated that he was asked whether he would hand over control to the military for the arrest but that he asked whether the suspects had been positively identified; he was told that there was 80% identification. Almost immediately the three suspects moved away from the car through the Southport Gate. He recalled that the movement of the three suspects towards the south gave rise to some discussion as to whether this indicated that the three suspects were on reconnaissance and might return for the car. It was for this reason that the decision was taken not to arrest at this point. 46. At 15.00 hours, Mr Colombo rang the Commissioner to inform him that it was more and more likely to be McCann and Farrell. When the Commissioner arrived shortly afterwards, Mr Colombo informed him that the suspects McCann and Farrell had met up with a third person thought to be Savage and that an arrest had almost been made. 47. The Commissioner asked for positive identification of the three suspects. Identification was confirmed by 15.25 hours when it was reported to the operations room that the three suspects had returned to the assembly area and gone past looking at the car again. The three suspects continued north and away from the car. Soldiers E and F recalled that control was passed to the military but immediately taken back as the Commissioner requested further verification of the identities of the suspects. The confirmation of identity which the Commissioner had requested was received almost immediately. 7. Examination of the suspect car in the assembly area 48. After the three suspects ’ identities had been confirmed and they had moved away from the assembly area, Soldier G examined the suspect car. He conducted an examination from the exterior without touching the car. He described it as a newish-looking white Renault. He detected nothing untoward inside the car or anything visibly out of place or concealed under the seats. He noted that the aerial of the car, which was rusty, was out of place with the age of the car. He was in the area for less than two minutes. He returned to the operations room and reported to the Commissioner that he regarded the car as a "suspect car bomb". At the inquest, he explained that this was a term of art for a car parked in suspicious circumstances where there is every reason to believe that it is a car bomb and that it could not be said that it was not a car bomb. 49. The Commissioner recalled that G had reported that it was a suspect car bomb since there was an old aerial situated centrally of a relatively new car. He stated that as a result they treated it as a "possible car bomb". 50. Soldier F referred to the aerial as rendering the car suspicious and stated that this information was passed on to all the parties on the ground. 51. Soldier E was more categorical and stated that as far as G could tell "from a cursory visual examination he was able to confirm our suspicion that they were dealing with a car bomb". 52. Soldier A stated that he believed 100 per cent that there was a bomb in the debussing area, that the suspects had remote-control devices and were probably armed. This was what he had been told over the radio. Soldier C recalled that it had been confirmed by Soldier E that there was a device in Ince ’ s Hall area which could be detonated by one of three suspects who was more likely to be Savage because he had been seen "fiddling" with something in the car earlier. He had also been told of the indication of an old aerial on a new car. Soldier D said that it had been confirmed to him by Soldier E that there was a bomb there. To his recollection, no one told them that there was a possibility that the three suspects might not be carrying the remote-control devices with them on the Sunday or that possibly they had not brought a bomb in. He had been told by Soldier E - whom he fully trusted - that there was a bomb in the car. 53. At the inquest Soldier G was described as being the bomb-disposal adviser. He had experience of dealing with car bombs in Northern Ireland but at the inquest he stated in reply to various questions that he was neither a radio-communications expert nor an explosives expert. He had not thought of de-activating the suspect bomb by unscrewing the aerial from the car. When it was put to him in cross-examination, he agreed that to have attempted to unscrew the aerial would have been potentially dangerous. 8. Passing of control to the military for arrest 54. After receiving the report from Soldier G and in view of the fact that the three suspects were continuing northwards leaving the car behind, the Commissioner decided that the three suspects should be arrested on suspicion of conspiracy to murder. At 15.40 hours, he signed a form requesting the military to intercept and apprehend the suspects. The form, which had been provided in advance by the military, stated: "I, Joseph Luis Canepa, Commissioner of Police, having considered the terrorist situation in Gibraltar and having been fully briefed on the military plan with firearms, request that you proceed with the military option which may include the use of lethal force for the preservation of life." After the form was signed, Soldier F walked across to the tactical net and issued instructions that the military should intervene. Soldier E ascertained the positions of the soldiers by radio. Soldiers C and D had been visually monitoring the movement of the three suspects in Line Wall Road and Smith Dorrien Avenue. Soldiers A and B were making their way north through Casemates Square and into the Landport tunnel. The soldiers were informed that control had passed to them to make an arrest. 55. The evidence at the inquest given by the soldiers and Police Officer R and DC Ullger was that the soldiers had practised arrest procedures on several occasions with the police before 6 March 1988. According to these rehearsals, the soldiers were to approach the suspects to within a close distance, cover the suspects with their pistols and shout "Stop. Police. Hands up." or words to that effect. They would then make the suspects lie on the ground with their arms away from their bodies until the police moved in to carry out a formal arrest. Further, DC Ullger stated that special efforts had been made to identify a suitable place in Gibraltar for the terrorists to be held in custody following their arrest. 56. On reaching the junction of Smith Dorrien Avenue with Winston Churchill Avenue, the three suspects crossed the road and stopped on the other side talking. Officer R, observing, saw them appear to exchange newspapers. At this point, Soldiers C and D were approaching the junction from Smith Dorrien Avenue. Soldiers A and B emerging from Landport tunnel also saw the three suspects at the junction from their position where the pathway to the tunnel joined Corral Road. 57. As the soldiers converged on the junction, however, Savage split away from suspects McCann and Farrell turning south towards the Landport tunnel. McCann and Farrell continued north up the right-hand pavement of Winston Churchill Avenue. 58. Savage passed Soldiers A and B, brushing against the shoulder of B. Soldier B was about to turn to effect the arrest but A told him that they should continue towards suspects McCann and Farrell, knowing that C and D were in the area and that they would arrest Savage. Soldiers C and D, aware that A and B were following suspects McCann and Farrell, crossed over from Smith Dorrien Avenue and followed Savage. 9. McCann and Farrell shootings 59. The evidence of Soldiers A and B at the inquest was to the following effect. 60. Soldiers A and B continued north up Winston Churchill Avenue after McCann and Farrell, walking at a brisk pace to close the distance. McCann was walking on the right of Farrell on the inside of the pavement. He was wearing white trousers and a white shirt, without any jacket. Farrell was dressed in a skirt and jacket and was carrying a large handbag. 61. When Soldier A was approximately ten metres (though maybe closer) behind McCann on the inside of the pavement, McCann looked back over his left shoulder. McCann appeared to look directly at A and the smile left his face, as if he had a realisation of who A was and that he was a threat. Soldier A drew his pistol, intending to shout a warning to stop at the same time, though he was uncertain if the words actually came out. McCann ’ s hand moved suddenly and aggressively across the front of his body. A thought that he was going for the button to detonate the bomb and opened fire. He shot one round into McCann ’ s back from a distance of three metres (though maybe it may have been closer). Out of the corner of his eye, A saw a movement by Farrell. Farrell had been walking on the left of McCann on the side of the pavement next to the road. A saw her make a half turn to the right towards McCann, grabbing for her handbag which was under her left arm. A thought that she was also going for a button and shot one round into her back. He did not disagree when it was put to him that the forensic evidence suggested that he may have shot from a distance of three feet (see paragraph 111 below). Then A turned back to McCann and shot him once more in the body and twice in the head. A was not aware of B opening fire as this was happening. He fired a total of five shots. 62. Soldier B was approaching directly behind Farrell on the road side of the pavement. He was watching her. When they were three to four metres away and closing, he saw in his peripheral vision that McCann turned his head to look over his shoulder. He heard what he presumed was a shout from A which he thought was the start of the arrest process. At almost the same instant, there was firing to his right. Simultaneously, Farrell made a sharp movement to her right, drawing the bag which she had under her left arm across her body. He could not see her hands or the bag and feared that she was going for the button. He opened fire on Farrell. He deemed that McCann was in a threatening position and was unable to see his hands and switched fire to McCann. Then he turned back to Farrell and continued firing until he was certain that she was no longer a threat, namely, her hands away from her body. He fired a total of seven shots. 63. Both soldiers denied that Farrell or McCann made any attempt to surrender with their hands up in the air or that they fired at the two suspects when they were lying on the ground. At the inquest, Soldier A stated expressly that his intention had been to kill McCann "to stop him becoming a threat and detonating that bomb". 64. The shooting took place on the pavement in front of a Shell petrol station in Winston Churchill Avenue. After the shooting, the soldiers put on berets so they would be recognised by the police. They noticed a police car, with its siren going, coming south from the sundial down the far side of Winston Churchill Avenue. A number of policemen jumped out of the car and leapt the central barrier. Soldier A still had his pistol in his hand. He put his hands up in the air and shouted "Police". A recalled hearing shooting from behind as the police car was approaching. While neither of the soldiers was aware of the police car or siren until after the shooting, the majority of witnesses, including the police officers P, Q and R who were in the vicinity to support the soldiers in the arrest and a number of the surveillance team as well as civilian witnesses, recalled that the sound of the police siren preceded, if only by a very short time, the sound of the gunfire. Officers P and Q, who were watching from a relatively close distance, considered that Farrell and McCann reacted to the sound of the siren: Q was of the opinion that it was the siren that caused Farrell and McCann to stop and turn. 65. The arrival of the police car at the scene was an unintended occurrence. After the Commissioner had handed over control to the military at 15.40 hours, he instructed Mr Colombo to ensure that there was police transport available. Mr Colombo telephoned Chief Inspector Lopez at the Central Police Station, who in turn instructed the Controller Police Constable Goodman to recall the duty police car. The Controller recorded the call at 15.41 hours. He radioed the patrol car informing the officers that they were to return immediately. He did not know where the car was at the time or what the reason for the recall was. When Inspector Revagliatte who was in the car asked if it was urgent, the Controller told him it was a priority message and further instructions would be given on arrival. 66. At the time of the message, the police car was waiting in a queue of traffic in Smith Dorrien Avenue. Revagliatte told the driver to put on siren and beacons. The car pulled out into the opposite lane to overtake the queue of traffic. They cut back into the proper lane at the lights at the junction with Winston Churchill Avenue and continued north along Winston Churchill Avenue in the outer lane. As they passed the Shell garage, the four policemen in the car heard shots. Revagliatte instructed the driver to continue. When he looked back, he saw two persons lying on the pavement. The car went round the sundial roundabout and returned to stop on the other side of the road opposite the Shell garage. The police siren was on during this time. When the car stopped, the four policemen got out, three of them jumping the central barrier and Revagliatte walking round to arrive at the scene. 67. Officers P, Q and R were in the vicinity of the Shell petrol station and also arrived quickly on the scene of the McCann and Farrell shootings. Officers P and R placed their jackets over the bodies. Officer P dropped his gun while crouched and had to replace it in his holster. Officer Q and Revagliatte carried out a search of the bodies. 10. Eyewitness accounts of the McCann and Farrell shootings 68. The shooting took place on a fine Sunday afternoon, when there were many people out on the streets and the roads were busy with traffic. The Shell garage was also overlooked by a number of apartment buildings. The shooting consequently was witnessed by a considerable number of people, including police officers involved in the operation, police officers who happened to pass the area on other duties, members of the surveillance team and a number of civilians and off-duty policemen. 69. Almost all the witnesses who gave evidence at the inquest recalled that Farrell had carried her bag under her right arm, not as stated by Soldiers A and B under her left arm. The Coroner commented in his summing-up to the jury that this might have had significance with regard to the alleged justification of the soldiers for opening fire, namely, the alleged movement of the bag across the front of her body. 70. More significantly, three witnesses, two of whom gave an interview on the controversial television documentary concerning the events "Death on the Rock", gave evidence which suggested that McCann and Farrell had been shot while lying on the ground. They stated that they had witnessed the shooting from apartment buildings overlooking the Shell petrol station (see paragraph 125 below). 71. Mrs Celecia saw a man lying on a pavement with another nearby with his hands outstretched: while she did not see a gun she heard shots which she thought came from that direction. After the noise, the man whom she had thought was shooting appeared to put something inside his jacket. When shown a photograph of the aftermath of the scene, Mrs Celecia failed to identify either Soldier A or B as the man whom she thought that she had seen shooting. 72. Mr Proetta saw a girl put her hands up though he thought it was more in shock than in surrender. After she had been shot and fallen to the ground, he heard another fusillade of shots. He assumed that the men nearby were continuing to fire but agreed that there was an echo in the area and that the sound could have come from the Landport tunnel area. Mrs Proetta saw a man and a woman raise their hands over their shoulders with open palms. They were shot, according to her recollection, by men who jumped the barrier. When the bodies were on the ground, she heard further shots and saw a gun in the hand of a man crouching nearby, though she did not see any smoke or cartridges ejecting from the gun. She assumed since she saw a gun that the shots came from it. It also appears that once the bodies fell they were obscured from her view by a low wall and all she saw was a man pointing in their direction. 73. Mr Bullock recalled seeing a man reeling backwards under fire with his hands thrown back. None of the other witnesses saw McCann or Farrell put their hands up or the soldiers shoot at the bodies on the ground. 74. Witness I, a member of the surveillance team, stated that he saw McCann and Farrell shot when they were almost on the ground, but not on the ground. 75. While the soldiers were not sure that any words of warning were uttered by Soldier A, four witnesses (Officers P and Q, Witness K and Police Constable Parody) had a clear recollection of hearing words "Police, Stop" or words to that effect. 76. Officer P, who was approaching from the north and had reached the perimeter wall of the Shell garage, states that he saw McCann make a move as if going for a gun and that Farrell made a move towards her handbag which made him think that she was going for a detonator. Officer Q, who was watching from the other side of the road, also saw Farrell make a move towards her handbag, as did Police Constable Parody, an off-duty policeman watching from an overlooking apartment. 11. The shooting of Savage 77. At the inquest the evidence of Soldiers C and D was to the following effect. 78. After the three suspects had split up at the junction, Soldier D crossed the road and followed Savage who was heading towards the Landport tunnel. Savage was wearing jeans, shirt and a jacket. Soldier C was briefly held up on the other side of the road by traffic on the busy road but was catching up as D closed in on Savage. D intended to arrest by getting slightly closer, drawing his pistol and shouting "Stop. Police. Hands up". When D was about three metres away, he felt that he needed to get closer because there were too many people about and there was a lady directly in line. Before D could get closer however, he heard gunfire to the rear. At the same time, C shouted "Stop". Savage spun round and his arm went down towards his right hand hip area. D believed that Savage was going for a detonator. He used one hand to push the lady out of line and opened fire from about two to three metres away. D fired nine rounds at rapid rate, initially aiming into the centre of Savage ’ s body, with the last two at his head. Savage corkscrewed as he fell. D acknowledged that it was possible that Savage ’ s head was inches away from the ground as he finished firing. He kept firing until Savage was motionless on the ground and his hands were away from his body. 79. Soldier C recalled following after Savage, slightly behind D. Savage was about eight feet from the entrance to the tunnel but maybe more. C ’ s intention was to move forward to make arrest when he heard shots to his left rear from the direction in which Farrell and McCann had headed. Savage spun round. C shouted "Stop" and drew his pistol. Savage moved his right arm down to the area of his jacket pocket and adopted a threatening and aggressive stance. C opened fire since he feared Savage was about to detonate the bomb. He saw something bulky in Savage ’ s right hand pocket which he believed to be a detonator button. He was about five to six feet from Savage. He fired six times as Savage spiralled down, aiming at the mass of his body. One shot went into his neck and another into his head as he fell. C continued firing until he was sure that Savage had gone down and was no longer in a position to initiate a device. 80. At the inquest, both soldiers stated under cross-examination that once it became necessary to open fire they would continue shooting until the person was no longer a threat. C agreed that the best way to ensure this result was to kill. D stated that he was firing at Savage to kill him and that this was the way that all soldiers were trained. Both soldiers, however, denied that they had shot Savage while he was on the ground. Soldier E (the attack commander) stated that the intention at the moment of opening fire was to kill since this was the only way to remove the threat. He added that this was the standard followed by any soldier in the army who opens fire. 81. The soldiers put on berets after the incident to identify themselves to the police. 12. Eyewitness accounts of the Savage shooting 82. Witnesses H, I and J had been involved in surveillance of the three suspects in or about the Smith Dorrien/Winston Churchill area. 83. Witness H had observed Soldiers A and B moving after McCann and Farrell up Winston Churchill Avenue. He moved to follow Savage whom he noticed on the corner about to turn into the alleyway leading to the Landport tunnel. He indicated Savage to Soldiers C and D who were accompanying him at this point. While he was moving to follow Savage, H saw the McCann and Farrell shooting from a distance. He continued to follow after Savage, who had gone into the alleyway. He heard a siren, a shout of "Stop" and saw Savage spin round. The soldiers were five feet away from Savage. H then turned away and did not witness the shooting itself. 84. Witness I had met with Witness H and Soldier D and had confirmed that Savage had gone towards the Landport tunnel. Witness I entered the alleyway after the shooting had begun. He saw one or two shots being fired at Savage who was on the ground. He saw only one soldier firing from a distance of five, six or seven feet. He did not see the soldier put his foot on Savage ’ s chest while shooting. 85. Witness J had followed after Savage when he had separated from McCann and Farrell. When Savage was twenty feet into the alleyway near a large tree, she heard noise of gunfire from behind and at that same time a police siren in fairly close proximity. Savage spun round very quickly at the sound of gunfire, looking very stunned. J turned away and did not see the shooting. When she turned round again, she saw Savage on his back and a soldier standing over him saying, "Call the police". 86. Mr Robin Mordue witnessed part of the shooting but as he fell to the ground himself and later took cover behind a car he saw only part of the incident. He did not recall Savage running. When he saw the soldier standing over Savage, there were no more shots. 87. The evidence of Mr Kenneth Asquez was surrounded by the most controversy. A handwritten statement made by him appears to have been used by Thames Television in its documentary "Death on the Rock" (see paragraph 125 below). The draft of an affidavit, prepared by a lawyer acting for Thames Television who interviewed Mr Asquez, but not approved by him, was also used for the script of the programme. In them, he alleged that while in a friend ’ s car on the way to the frontier via Corral Road, he passed the Landport tunnel. He heard "crackers" and saw a man bleeding on the floor. He saw another man showing an ID card and wearing a black beret who had his foot on the dying man ’ s throat and was shouting, "Stop. It ’ s OK. It ’ s the police". At that instant, the man fired a further three to four shots. At the inquest, he stated that the part of the statement relating to the shooting was a lie that he had made up. He appeared considerably confused and contradicted himself frequently. When it was pointed out to him that until the inquest it had not become known that the soldiers wore berets (no newspaper report had mentioned the detail), he supposed that he must have heard it in the street. When asked at the inquest why he had made up the statement, he referred to previous illness, pressure at work and the desire to stop being telephoned by a person who was asking him to give an interview to the media. 88. Miss Treacy claimed that she was in the path leading from the tunnel and that she was between Savage and the first of the soldiers as the firing began, though not in the line of fire. She recalled that Savage was running and thought that he was shot in the back as he faced towards the tunnel. She did not see him shot on the ground. Her account contained a number of apparent discrepancies with the evidence of other witnesses; she said the soldier shot with his left hand whereas he was in fact right-handed; no one else described Savage as running; and she described the body as falling with feet towards the nearby tree rather than his head which was the way all the other witnesses on the scene described it. The Coroner in his summing-up thought that it might be possible to reconcile her account by the fact that Miss Treacy may have not been looking at Savage as he spun round to face the soldiers and that by the time she did look he was spinning round towards the tunnel in reaction to the firing. 89. Mr Bullock and his wife stated that a man pushed past them as they walked up Smith Dorrien Avenue to the junction and that they saw that he had a gun down the back of his trousers. They saw him meet up with another man, also with a gun in his trousers, on the corner of the alleyway to the Landport tunnel. The men were watching the shooting outside the Shell garage and, when the shooting stopped, they turned and ran out of sight. After that there was another long burst of shooting. 90. Another witness, Mr Jerome Cruz, however, who was in a car in the traffic queue in Smith Dorrien Avenue and who remembered seeing Mr Bullock dive for cover, cast doubts on his version. In particular, he stated that Mr Bullock was not near the end of Smith Dorrien Avenue but further away from the Shell garage (more than 100 yards away) and that he had dived for cover as soon as there was the sound of shooting. He agreed that he had also seen persons crouching looking from behind a wall at the entrance to the pathway leading to the tunnel. 13. Events following the shootings 91. At 15.47-15.48 hours, E received a message in the operations room that apprehension of the three suspects had taken place. It was not clear at that stage whether they had been arrested or shot. By 16.00 to 16.05 hours, the report was received in the operations room that the three suspects had been shot. 92. At 16.05-16.06 hours, Soldier F handed a form to the Commissioner returning control. According to the transcript of the evidence given by the Commissioner at the inquest, this form addressed to him by Soldier F stated that "at 16.06 hours on 6 March a military assault force was completed at the military option in respect of the terrorist bombing ASU in Gibraltar. Control is hereby handed back to the Civil Power". Deputy Commissioner Colombo telephoned to Central Station for the evacuation plans to be put into effect. Instructions were also given with a view to taking charge of the scenes of the incidents. Soldier G was also instructed to commence the clearance of the car. 93. After the shooting, the bodies of the three suspects and Farrell ’ s handbag were searched. No weapons or detonating devices were discovered. 94. At the Shell garage scene, the shell cases and cartridges were picked up without marking their location or otherwise recording their position. The positions of the bodies were not marked. 95. At the scene of the Savage shooting, only some of the cartridge positions were marked. No police photographs were taken of the bodies ’ positions. Inspector Revagliatte had made a chalk outline of the position of Savage ’ s body. Within that outline, there were five strike marks, three in the area of the head. 96. Chief Inspector Lopez ordered a general recall of personnel and went directly to the assembly area to begin cordoning it off. The fire brigade also arrived at the assembly area. The bomb-disposal team opened the suspect white Renault car but found no explosive device or bomb. The area was declared safe between 19.00 and 20.00 hours. H. Police investigation following the shootings 97. Chief Inspector Correa was appointed in charge of the investigation. 98. Inside Farrell ’ s handbag was found a key ring with two keys and a tag bearing a registration number MA9317AF. This information was passed at about 17.00 hours to the Spanish police who commenced a search for the car on the suspicion that it might contain explosives. During the night of 6 to 7 March, the Spanish police found a red Ford Fiesta with that registration number in La Linea. Inside the car were found keys for another car, registration number MA2732AJ, with a rental agreement indicating that the car had been rented at 10.00 hours on 6 March by Katharine Smith, the name on the passport carried in Farrell ’ s handbag. 99. At about 18.00 hours on 8 March, a Ford Fiesta car with registration number MA2732AJ was discovered in a basement car-park in Marbella. It was opened by the Malaga bomb-disposal squad and found to contain an explosive device in the boot concealed in the spare-wheel compartment. The device consisted of five packages of Semtex explosive (altogether 64 kg) to which were attached four detonators and around which were packed 200 rounds of ammunition. There were two timers marked 10 hrs 45 mins and 11 hrs 15 mins respectively. The device was not primed or connected. 100. In the report compiled by the Spanish police on the device dated Madrid 27 March 1988, it was concluded that there was a double activating system to ensure explosion even if one of the timers failed; the explosive was hidden in the spare-wheel space to avoid detection on passing the Spanish/Gibraltarian customs; the quantity of explosive and use of cartridges as shrapnel indicated the terrorists were aiming for greatest effect; and that it was believed that the device was set to explode at the time of the military parade on 8 March 1988. 101. Chief Inspector Correa, who acted also as Coroner ’ s Officer, traced and interviewed witnesses of the shooting of the three suspects. Police officers visited residences in the area knocking on doors and returning a second time when persons were absent. The Attorney-General made two or three appeals to the public to come forward. At the inquest, Inspector Correa commented that the public appeared more than usually reluctant to come forward to give statements to the police. 102. A post-mortem was conducted in respect of the three deceased suspects on 7 March 1988. Professor Watson, a highly qualified pathologist from the United Kingdom, carried out the procedure. His report was provided to a pathologist, Professor Pounder, instructed by the applicants. Comment was later made at the inquest by both pathologists with regard to defects in the post-mortem procedures. In particular, the bodies had been stripped before Professor Watson saw them, depriving him of possible aid in establishing entry and exit wounds, there had been no X-ray facilities and Professor Watson had not later been provided either with a full set of photographs for reference, or the forensic and ballistics reports. I. THE GIBRALTAR INQUEST 103. An inquest by the Gibraltar Coroner into the killings was opened on 6 September 1988. The families of the deceased (which included the applicants) were represented, as were the SAS soldiers and the United Kingdom Government. The inquest was presided over by the Coroner, who sat with a jury chosen from the local population. 104. Prior to the inquest, three certificates to the effect that certain information should not, in the public interest, be disclosed, were issued by the Secretary of State for the Home Department, the Secretary of State for Defence and the Deputy Governor of Gibraltar, dated respectively 26 August, 30 August and 2 September 1988. These stated that the public interest required that the following categories of information be protected from disclosure: 1. In the case of the seven military witnesses, the objection was to the disclosure of any information or documents which would reveal: (i) their identity; (ii) the identity, location, chains of command, method of operation and the capabilities of the units with which the soldiers were serving on 6 March 1988; (iii) the nature of their specialist training or equipment; (iv) the nature of any previous operational activities of the soldiers, or of any units with which any of them might at any time have served; (v) in the case of Soldier G (the ammunition technical officer), any defence intelligence information, activities or operations (and the sources of intelligence), including those on the basis of which his assessments were made and details of security forces counter-measures capabilities, including methods of operation, specialist training and equipment. 2. In the case of Security Service witnesses, the objection was to the disclosure of information which would reveal: (a) the identities of members of the Security Service, and details of their deployment, training and equipment; (b) all sources of intelligence information; (c) all details of the activities and operations of the Security Service. 105. As was, however, expressly made clear in the certificates, no objection was taken to the giving of evidence by either military or Security Service witnesses as to: (i) the nature of the information relating to the feared IRA plot, which was transmitted to the Commissioner of Police and others concerned (including general evidence as to the nature of a Provisional IRA active service unit); (ii) the assessments made by Soldier G as to the likelihood of, and the risks associated with, an explosive device and as to the protective measures which might have to be taken; (iii) the events leading up to the shootings on 6 March 1988 and the circumstances surrounding them, including evidence relating to the transfer of control to the military power. 106. The inquest lasted until 30 September and during the nineteen days it sat, evidence was heard from seventy-nine witnesses, including the soldiers, police officers and surveillance personnel involved in the operation. Evidence was also heard from pathologists, forensic scientists and experts in relation to the detonation of explosive devices. 1. Pathologists ’ evidence at the inquest 107. Evidence was given by Professor Watson, the pathologist who had conducted the post-mortem on the deceased on 7 March 1988 and also by Professor Pounder called on behalf of the applicants (see paragraph 102 above). 108. Concerning Farrell, it was found that she had been shot three times in the back, from a distance of some three feet according to Professor Pounder. She had five wounds to the head and neck. The facial injuries suggested that either the entire body or at least the upper part of the body was turned towards the shooter. A reasonable scenario consistent with the wounds was that she received the shots to the face while facing the shooter, then fell away and received the shots to the back. Professor Watson agreed that the upward trajectory of the bullets that hit Farrell indicated that she was going down or was down when she received them. Altogether she had been shot eight times. 109. Concerning McCann, he had been shot in the back twice and had three wounds in the head. The wound on the top of the head suggested that the chest wounds came before the head wound and that he was down or very far down when it was inflicted. The shots to the body were at about a 45-degree angle. He had been hit by five bullets. 110. Concerning Savage, he had been hit by sixteen bullets. He had seven wounds to the head and neck, five on the front of the chest, five on the back of the chest, one on the top of each shoulder, three in the abdomen, two in the left leg, two in the right arm and two on the left hand. The position of the entry wounds suggested that some of the wounds were received facing the shooter. But the wounds in the chest had entered at the back of the chest. Professor Watson agreed that Savage was "riddled with bullets" and that "it was like a frenzied attack". He agreed that it would be reasonable to suppose from the strike marks on the pavement that bullets were fired into Savage ’ s head as he lay on the ground. Professor Pounder also agreed that the evidence from strike marks on the ground and the angle and state of wounds indicated that Savage was struck by bullets when lying on his back on the ground by a person shooting standing towards his feet. He insisted under examination by counsel for the soldiers that the three strike marks on the ground within the chalk outline corresponded with wounds to the head. In his view "those wounds must have been inflicted when either the head was on the ground or very close to the ground indeed" and when pressed "within inches of the ground". 2. Forensic evidence at the inquest 111. A forensic scientist specialising in firearms had examined the clothing of the three deceased for, inter alia, powder deposits which would indicate that shots had been fired at close range. He found signs of partly burnt propellant powder on the upper-right back of Farrell ’ s jacket and upper-left front of Savage ’ s shirt which suggested close-range firing. He conducted tests which indicated that such a result was only obtained with a Browning pistol at a range of up to six feet. The density on Farrell ’ s jacket indicated a muzzle-to-target range of three feet and on Savage ’ s shirt of four to six feet. 3. Evidence relating to detonation devices 112. Issues arose at the inquest as to whether, even if the three suspects had been carrying remote-control devices, they would have been able to detonate the suspected bomb which was approximately 1.4 km from the place where they were shot. Also it was questioned whether the soldiers could reasonably have expected that the applicants could have concealed the devices on their persons without it being apparent and whether in fact the device could have been detonated by pressing only one button. 113. Mr Feraday gave evidence for the Crown. He was a forensic scientist employed at Explosives Forensic Laboratory at Royal Armament Research and Development Establishment, with thirty-three years experience of explosives. He produced an ICOM IC2 transmitter, as an example of a device used in Northern Ireland, which was the size of a standard commercial walkie-talkie. It was also produced in evidence by the Government to both the Commission and Court in the Strasbourg proceedings (see paragraph 130 below). While referring to the factors which could affect the range (for example, terrain, weather conditions) Mr Feraday stated that the equipment could, in optimum conditions, operate up to a thirty-mile range. In his opinion, the aerial on the suspect car could have received a signal though its efficiency would have been fairly poor as it was not the right length for the frequency. He considered that one would have to assume that from the distance of about a mile a bomb could be detonated by remote control using that aerial. 114. The applicants called Dr Scott, who held a masters degree and doctorate in engineering and was a licensed radio operator. He had been involved in two IRA trials in England. He had conducted tests with similar receivers along the route taken by the three suspects. He referred to the fact that there was rising ground between the sites of the shootings and the assembly area as well as a thick wall and a considerable number of buildings. The IRA used encoders and decoders on their devices to prevent spurious signals detonating their bombs: this required that a good clean signal be received. Having regard to the facts that the aerial, which "was a joke" from the point of view of effectiveness, the wrong length for the expected frequency and pointing along the roof rather than standing vertically, he stated that in his professional opinion the purported receiver could not have been detonated by a transmitter in the circumstances of the case. He also stated that the bomb could have been neutralised by removing the car aerial and that such a manoeuvre would not have destabilised the explosive device. 115. Dr Scott also explained how the transmitter would operate. Assuming the dial setting the frequency was already set, it would be necessary to activate the on/off power switch, followed by the on/off switch on the encoder and then a third button would have to be pressed in order to transmit. While it would be possible to set the device so that it would be necessary to press one button (the transmit button) in order to detonate a bomb, this would require leaving the power switches on for both the transmitter and the encoder with the risk that the batteries would run down. There would also be the risk that the device might be set off accidentally by being bumped in the street or being hit by a bullet or by a person falling awkwardly so as to hit the edge of a pavement or bench. 116. Captain Edwards was called by the lawyer representing the soldiers to rebut this evidence. He was a member of the Royal Corps of Signals and had experience in VHF/HF radio in combat net radio spectrum. He carried out tests to see if voice communications were possible on an ICOM-type radio in the area of or from the Shell garage to Ince ’ s Hall. The equipment used was not identical to that of Dr Scott. He stated that it was possible to receive both voice communication and a single audio tone at the site of the shootings from the assembly area. He did not however use an encoder and his equipment was matched and compatible. Mr Feraday was also recalled. He gave the opinion that if a weak voice communication could be received then the signal would be sufficient to set off a bomb. 117. It appears to have been accepted by all that the IRA have developed the use of high-frequency devices, which require shorter aerials and have a surer line-of-sight effect. These are stated to have the characteristics suitable for detonation when the operator of the device has line of sight of the bomb and carry with them less possibility of interference from other radio sources or countermeasures. No examples were known or at least given as to this type of remote-control detonation being used other than in line-of-sight conditions. 4. Submissions made in the course of the inquest 118. At the inquest, the representative of the applicants, Mr P.J. McGrory, questioned the witnesses and made submissions to the effect, inter alia, that either the decision to shoot to kill the suspects had been made by the United Kingdom Government prior to the incident and the soldiers were ordered to carry out the shootings, or that the operation was planned and implemented in such a way that the killing of the suspects by the soldiers was the inevitable result. In any event, in light of the circumstances, the use of lethal force by the soldiers was not necessary or, if it was necessary, the force used was excessive and therefore not justified. He maintained throughout, however, that he did not challenge that the Commissioner of Police and his officers had acted properly and in good faith. 119. Soldier F (the senior military commander) and Soldier E (the tactical commander) denied that there had been a plan, express or tacit, to execute the suspects. When it was put to Soldiers A, B, C and D, they also denied that they had been sent out either expressly or on the basis of "a nod or a wink" to kill the suspects. 5. The Coroner ’ s address to the jury 120. At the conclusion of the inquest, the Coroner addressed the jury in respect of the applicable law, in particular, Article 2 of the Gibraltar Constitution (see paragraph 133 below). As inquest proceedings did not allow for the parties to make submissions to the jury, he summed up the respective propositions of the applicants ’ representatives and the representatives of the soldiers and the Crown referring to the evidence. He concluded from the evidence given by the soldiers that when they opened fire they shot intending to kill and directed the jury as to the range of possible verdicts: "... If the soldiers set out that day with the express intent to kill that would be murder and it would be right to return a verdict of unlawfully killed. Example two: were you to find in the case of Savage (or any of the other two for that matter) that he was shot on the ground in the head after effectively being put out of action, that would be murder if you come to the conclusion that the soldiers continued to finish him off. In both cases they intended to kill not in self-defence or in the defence of others or in the course of arrest ... so it is murder and you will return a verdict of unlawfully killed. If in this second example you were to conclude that it is killing in pursuance of force used which was more than reasonably necessary, then the verdict should also be killed unlawfully but it would not have been murder. The third example I offer is precisely of that situation. If you accept the account that the soldiers ’ intention was genuinely to arrest (in the sense that they were to apprehend the three suspects and hand them over live to the Gibraltar police force) and that the execution of the arrest went wrong and resulted in the three deaths because either (a) force was used when it was not necessary or (b) the force that was used was more than was reasonably necessary, then that would not be murder ... and the verdict would be, as I say, unlawfully killed. Example four: if you are satisfied that the soldiers were acting properly but nevertheless the operation was mounted to encompass the deaths of the three suspects to the ignorance of the soldiers, then you would also bring in a verdict of unlawfully killed. ... So there are only three verdicts reasonably open to you and these are: (a) Killed unlawfully, that is unlawful homicide. (b) Killed lawfully, that is justifiable, reasonable homicide. (c) Open verdict. Remembering that you must be satisfied beyond reasonable doubt where the verdict of unlawfully killed is concerned, there are two situations to consider. The first concerning the soldiers themselves, the second if they have been the unwitting tools of a plot to dispose of the three suspects. As to the first concerning the soldiers themselves, I must tell you that if you are not satisfied beyond a reasonable doubt that they have killed unlawfully, you have then to decide whether your verdict should be an open verdict or one of justifiable homicide. My direction to you is that you should bring in a verdict of justifiable homicide, i.e. killed lawfully, because in the nature of the circumstances of this incident that is what you will have resolved if you do not return a verdict of unlawful homicide in respect of the soldiers themselves. That is the logic of the situation. You may reach a situation in which you cannot resolve either way, in which case the only alternative is to bring in an open verdict, but I must urge you, in the exercise of your duty, to avoid this open verdict. As to the second situation where they are unwitting tools, the same applies ..." 121. The jury returned verdicts of lawful killing by a majority of nine to two. J. Proceedings in Northern Ireland 122. The applicants were dissatisfied with these verdicts and commenced actions in the High Court of Justice in Northern Ireland against the Ministry of Defence for the loss and damage suffered by the estate of each deceased as a result of their death. The statements of claim were served on 1 March 1990. 123. On 15 March 1990 the Secretary of State for Foreign and Commonwealth Affairs issued certificates under section 40 (3) a of the Crown Proceedings Act 1947, as amended by the Crown Proceedings (Northern Ireland) Order 1981. Section 40 (2) b of the same Act excludes proceedings in Northern Ireland against the Crown in respect of liability arising otherwise than "in respect of Her Majesty ’ s Government in the United Kingdom". A similar exemption applies to the Crown in Northern Ireland pursuant to the 1981 Order. A certificate by the Secretary of State to that effect is conclusive. The certificates stated in this case that any alleged liability of the Crown arose neither in respect of Her Majesty ’ s Government in the United Kingdom, nor in respect of Her Majesty ’ s Government in Northern Ireland. 124. The Ministry of Defence then moved to have the actions struck out. The applicants challenged the legality of the certificates in judicial review proceedings. Leave to apply for judicial review was granted ex parte on 6 July 1990, but withdrawn on 31 May 1991, after a full hearing, on the basis that the application had no reasonable prospects of success. Senior Counsel advised that an appeal against this decision would be futile. The applicants ’ High Court actions were struck off on 4 October 1991. K. The television documentary "Death on the Rock" 125. On 28 April 1988 Thames Television broadcast its documentary entitled "Death on the Rock" (see paragraph 70 above), during which a reconstruction was made of the alleged surveillance of the terrorists ’ car by the Spanish police and witnesses to the shootings described what they had seen, including allegations that McCann and Farrell had been shot while on the ground. A statement by an anonymous witness was read out to the effect that Savage had been shot by a man who had his foot on his chest. The Independent Broadcasting Authority had rejected a request made by the Foreign and Commonwealth Secretary to postpone the programme until after the holding of the inquest into the deaths. L. Other evidence produced before the Commission and Court 1. Statement of Chief Inspector Valenzuela 126. While an invitation had been made by the Gibraltar police for a Spanish police officer to attend the inquest to give evidence relating to the role of the Spanish police, he did not attend, apparently since he did not receive permission from his superiors. 127. The Government provided the Commission with a copy of a statement made by Chief Inspector Rayo Valenzuela, a police officer in Malaga, dated 8 August 1988. According to this statement, the United Kingdom police had at the beginning of March provided the Spanish police with photographs of the possible members of the ASU, named as Daniel McCann, Mairead Farrell and Sean Savage. The three individuals were observed arriving at Malaga Airport on 4 March 1988 but trace of them was lost as they left. There was then a search to locate the three suspects during 5 to 6 March 1988. This statement provided by the Government was not included in the evidence submitted at the inquest, as the Coroner declined to admit it following the objection by Mr P.J. McGrory who considered that it constituted hearsay in the absence of any police officer from Spain giving evidence in person. 2. Statement of Mr Harry Debelius 128. This statement, dated 21 September 1988 and supplied on behalf of the applicants, was made by a journalist who acted as consultant to the makers of the Thames Television programme "Death on the Rock". He stated that the white Renault car used by the ASU was under surveillance by the Spanish authorities as it proceeded down the coast towards Gibraltar. Surveillance is alleged to have been conducted by four to five police cars which "leapfrogged" to avoid suspicion, by helicopter and by agents at fixed observation points. The details of the car ’ s movements were transmitted to the authorities in Gibraltar who were aware of the car ’ s arrival at the border. He refers to the source of this information as being Mr Augustín Valladolid, a spokesman for the Spanish Security Services in Madrid, with whom he and Mr Julian Manyon, a reporter for Thames Television, had an interview lasting from 18.00 to 19.20 hours on 21 March 1988. 129. The applicants intended submitting this statement as evidence before the inquest. The Coroner decided however that it should also be excluded as hearsay on the same basis as the statement relied upon by the Government (see paragraph 127 above). 3. Exhibits provided by the parties 130. An ICOM transmitter device was provided to the Commission and Court by the Government with an improvised encoder attached. The dimensions of the transmitter are 18 cm x 6.5 cm x 3.7 cm; the encoder (which is usually taped to the transmitter and which can be contained in a small flat Strepsil tin) is 8 cm x 9 cm x 3 cm. The aerial from the transmitter is 18 cm long. 4. Further material submitted by the applicants 131 The applicants also submitted a further opinion of Dr Scott, dated 22 October 1993, in which he reiterated his view that it would have been impossible for the three suspects to have detonated a bomb in the target area from the location where they were shot using an ICOM or any other conceivable concealable transmitter/aerial combination, which he maintains must have been well known to the authorities. He also drew attention to the fact that the strength of a hand-held transmitter is severely attenuated when held close to the human body; when transmitting it should be held well clear of the body with the aerial as high as possible. 5. Findings of fact by the Commission 132. In its report of 4 March 1994, the Commission made the following findings on questions of fact: - that the suspects were effectively allowed to enter Gibraltar to be picked up by the surveillance operatives in place in strategic locations for that purpose (at paragraph 213); - that there was no evidence to support the applicants ’ contention of a premeditated design to kill Mr McCann, Ms Farrell and Mr Savage (at paragraph 216); - that there was no convincing support for any allegation that the soldiers shot Mr McCann and Ms Farrell when they were attempting to surrender or when they were lying on the ground. However the soldiers carried out the shooting from close proximity. The forensic evidence indicated a distance of as little as three feet in the case of Ms Farrell (at paragraphs 222 and 223); - Ms Farrell and Mr McCann were shot by Soldiers A and B at close range after the two suspects had made what appeared to the soldiers to be threatening movements. They were shot as they fell to the ground but not when they were lying on the ground (at paragraph 224); - it was probably either the sound of the police siren or the sound of the shooting of Mr McCann and Ms Farrell at the Shell garage, or indeed both, which caused Mr Savage to turn round to face the soldiers who were behind him. It was not likely that Soldiers C and D witnessed the shooting of Mr McCann and Ms Farrell before proceeding in pursuit of Savage (at paragraph 228); - there was insufficient material to rebut the version of the shooting given by Soldiers C and D. Mr Savage was shot at close range until he hit the ground and probably in the instant as or after he hit the ground. This conclusion was supported by the pathologists ’ evidence at the subsequent inquest (at paragraphs 229 and 230); - Soldiers A to D opened fire with the purpose of preventing the threat of detonation of a car bomb in the centre of Gibraltar by suspects who were known to them to be terrorists with a history of previous involvement with explosives (at paragraph 231); - a timer must in all probability have been mentioned at the Commissioner ’ s operational briefing. For whatever reason, however, it was not a factor which was taken into account in the soldiers ’ view of the operation (at paragraph 241). III. UNITED NATIONS INSTRUMENTS 138. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials ("UN Force and Firearms Principles") were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. 139. Article 9 of the UN Force and Firearms Principles provides, inter alia, that "intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life". Other relevant provisions provide as follows: Article 10 "... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident." Article 22 "... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control." Article 23 "Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly." 140. Article 9 of the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, adopted on 24 May 1989 by Economic and Social Council Resolution 1989/65, ("UN Principles on Extra-Legal Executions") provides, inter alia, that: "There shall be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances ..." Articles 9 to 17 contain a series of detailed requirements that should be observed by investigative procedures into such deaths. | Three members of the Provisional IRA, suspected of having a remote-control device to detonate a bomb, were shot dead in a street in Gibraltar by SAS (Special Air Service) soldiers. The applicants, heirs of the deceased, argued that the use of lethal force by the security services constituted a violation of Article 2 of the Convention. |
644 | Journalists and publishing companies | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, Ms Ljiljana Milisavljević, is a Serbian national who was born in 1966 and lives in Belgrade. 6. The applicant was a journalist employed at Politika, a major Serbian daily newspaper. In September 2003 she was requested by the editorial board to write an article about Ms Nataša Kandić. 7. Ms Nataša Kandić is a Serbian human rights activist primarily known for her activities in investigating crimes committed during the armed conflicts in the former Yugoslavia, including those crimes committed by Serbian regular and irregular forces. She was also recognised as one of the most vocal advocates for full cooperation of the Yugoslav and later Serbian authorities with the International Criminal Tribunal for the former Yugoslavia (hereinafter “the ICTY”). 8. At the time relevant to this case, between 40% and 64% of the Serbian population considered the ICTY to be a major security threat to the Republic of Serbia. [1] Some 54% of the population was against cooperation with the ICTY, which would include arrests and transfers of Serbian suspects to this institution. [2] In 2003, the ICTY ’ s assessment of Serbia ’ s cooperation with that court was that it was “neither full nor proactive”. [3] The level of cooperation was further negatively influenced by the assassination of the Serbian Prime Minister Dr Zoran Đinđić in March 2003, a major political figure open to full cooperation with the ICTY. [4] Ms Kandić herself came under attack by a significant portion of the Serbian political elite and general population. As a consequence, she was involved in several incidents. 9. The applicant ’ s article on Ms Kandić appeared in Politika on 7 September 2003. The integral translation of the impugned article, titled “The Hague Investigator”, reads as follows: “ ‘ Even my son blames me for protecting everybody but the Serbs ’, says the director of the Fund for Humanitarian Law. Ms Nataša Kandić, founder and Executive Director of the Humanitarian Law Centre for Serbia, Montenegro, and Kosovo and Metohija, a non-governmental organisation aimed at promoting human rights for minorities, last week, again, defended herself ‘ from the Serbian patriotism surge ’. On the occasion of the International Day of the Disappeared commemoration, at the gathering of the Association of Families of Missing and Kidnapped Persons in Kosovo and Metohija organised in the centre of Belgrade, following a short argument she slapped one of the participants. After this incident the Belgrade police submitted a request for the initiation of prosecution proceedings against her, and the Association of Families of the Missing lodged a lawsuit, demanding that she pay 30,000,000 Serbian dinars (RSD) for the insult to the families of those kidnapped and killed. Recently our media have also reported that this ‘ prominent advocate of human rights and democratic reform in Serbia ’ was awarded the annual Central European and Eurasian Law Initiative Award (CEELI) from the American Bar Association on 9 August during the ABA Annual Meeting luncheon in San Francisco. Former winners of this award were Petar Stoyanov from Bulgaria, Emil Constantinescu from Romania, Vaclav Havel from the Czech Republic, Stjepan Mesić from Croatia ... It was also reported that at the beginning of May the American magazine Time published a list of thirty-six individuals dubbed the European heroes, among which was Nataša Kandić, too. The Serbian campaigner for the truth on war crimes, a lonely voice of reason in Serbia or the Soros [5] mercenary, the one who was named by all the banished FRY [6] spies, has won many awards, including the Human Rights Watch Award, but none of them were awarded to her in Serbia. Nataša Kandić provokes stormy reactions wherever she appears. While the West lauds and praises her, in Serbia she is spoken about with contempt and accused of anti-Serbian politics. Most of all they blame her for never pursuing the crimes against Serbs but exclusively dealing with those committed by Serbs against other ethnicities. Although she has been called a witch and a prostitute and is permanently under threat (this year she has also had to cancel her appearance at a local TV station owing to a bomb threat), she says: ‘ This is simply the part of this job. I don ’ t think that they hate me, only my message ’. Nevertheless, she once made a public complaint: ‘ Even my son has accused me of protecting everybody except the Serbs. ’ Although later, she adds, she heard him defending her concern for the weak. Nataša Kandić was born in 1946 in Topola, to her father Radoslav and mother Vera. In 1966 she went to study in Great Britain and upon her return she enrolled in the Faculty of Philosophy at the University of Belgrade. She participated in the 1968 student demonstrations. In the 1970s she started working in the Belgrade municipality of Palilula. Afterwards she worked in the city trade union. During the mid-1990s she went to the Centre for Antiwar Action to work as a technical secretary, but before long she left it after a conflict with Ms Vesna Pešić [7]. With a group of like-minded people she founded the Humanitarian Law Centre at the beginning of 1993. A year later, on the invitation of Ms Jeri Laber, the Helsinki Watch Executive Director, she left for New York. Upon discussion with top people at the Hague Tribunal [8], the Humanitarian Law Centre took charge of its work in respect of the so ‑ called Serbian crimes against Muslims in Bosnia and Herzegovina, as well as violations and abuses of Muslim and Croatian minority rights in the FRY. That is how this organisation became the [ICTY] ‘ investigator ’. Starting from the second half of the 1990s the Centre became involved in the Kosovo and Metohija issues. During the NATO campaign [9] she frequently travelled the Belgrade-Kosovo and Metohija-Montenegro routes. Her email messages sent via the Internet to foreign friends and collaborators are the evidence of her time and work in Kosovo and Metohija. With Lazar Stojanović [10], the Plastični Isus ( ‘ Plastic Jesus ’ ) director, she has a son Stefan, who lives in New York and is involved in graphic animation.” 10. On 10 November 2003 Ms Kandić started a private prosecution against the applicant. She claimed that the entire piece had been written with the intent of belittling her in the eyes of the public, to present her as a traitor to Serbian interests and as a “paid servant of foreign interests and a prostitute who sells herself for money”. She further claimed that the points introduced in the article were maliciously misrepresented, and that the article contained untruths and blatant insults. She explicitly refused to lodge any civil compensation claim within these proceedings. 11. The applicant, in her defence, stated that she was not expressing her own opinion of Ms Kandić, whom she did not intend to insult, and that she had written the entire article on the basis of the documentation of other magazines. She put the citations within quotation marks, but she omitted them when she was not literally citing but paraphrasing (“ ono što nije stavila pod navodnike predstavljaju navode koji nisu citati, već ih je prepričavala iz drugih listova ”). She provided details as to what phrases were taken from which articles and magazines, including from which article and magazine she had taken the phrase that Ms Kandić had been called a witch and a prostitute. 12. On 1 September 2005, after a remittal, the First Municipal Court ( Prvi opštinski sud ) in Belgrade found that the applicant had committed a criminal offence of insult when having stated for Ms Kandić “although she has been called a witch and a prostitute” and gave her a judicial warning. The court established that the impugned phrase had been indeed previously published in another article by another author in a different magazine. However, the applicant did not put it in quotation marks which meant that she agreed with it, thus expressing her opinion. The court concluded that there was therefore an intention to insult Ms Kandić. In view of no aggravating circumstances and a number of mitigating ones ( the applicant had a clean record, was employed and of mature age ( u zrelom dobu )), she was given a mere judicial warning ( sudska opomena ), on the grounds of Articles 41 and 59 of the General Criminal Code (see paragraph 18 below). No prison sentence or fines were imposed. 13. On an unspecified date thereafter the applicant appealed. She reiterated that the impugned words were not her own opinion, but an opinion of another author. The fact that she wrote also on the negative attitudes towards the private prosecutor and her work could not and must not make her, the applicant, criminally liable. She also submitted that such an attitude towards the freedom of press could have long-reaching consequences. 14. On 5 July 2006 the Belgrade District Court ( Okružni sud ) upheld the first-instance decision endorsing the reasons given therein. 15. In separate proceedings, on 2 October 2006 the Belgrade First Municipal Court ordered the applicant to pay Ms Kandić RSD 33,125 (around 386 euros (EUR)) in respect of costs and expenses. The applicant did not appeal against that decision. 16. The applicant submitted in her observations that she had been later discharged from Politika and that “her conviction [ ... ] appear[ed] to have been the cause [thereof]”. | The case concerned a journalist’s complaint about her conviction for insult following an article she had written about Nataša Kandić, a well-known human rights activist. The Serbian courts held that by failing to put one particular sentence – “Ms Kandić [had] been called a witch and a prostitute” – in quotation marks, the applicant had tacitly endorsed the words as her own. |
425 | Challenging the lawfulness of detention | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1989 in Ain al ‑ Hilweh, a Palestinian refugee camp located on the outskirts of Saida, Lebanon (see paragraphs 52 ‑ 55 below). He currently lives in Sofia, Bulgaria. A. The applicant’s arrival in Bulgaria and his asylum claim 8. On 24 May 2009 the applicant arrived illegally in Bulgaria and on 7 July 2009 applied for asylum, citing his fear that if he returned to Lebanon he would be killed or ill-treated by members of the Islamic militant group Jund al ‑ Sham (see paragraphs 59, 60, 62, 78, 80 and 81 below). His identity was established on the basis of a certificate issued on 26 November 2008 by the Palestine Liberation Organisation. 9. The applicant’s story was that he, like his father who had gone missing in 1991, was a member of Fatah (see paragraphs 59 and 60 below). He had been appointed to a salaried position in the movement with the protection of its head of security in Ain al ‑ Hilweh, colonel Maqdah (see paragraphs 54, 55 and 84 below). His job had consisted in organising rallies in support of various Palestinian organisations, commemorations of the Palestinian revolution and protests against the founding of Israel. In early 2009, a neighbour of his who was a member of Jund al ‑ Sham had been killed, the killing having been facilitated by information supplied by a friend of the applicant, also a member of Fatah. In reprisal, members of Jund al ‑ Sham had killed the applicant’s friend. To protect himself, the applicant had moved to his sister’s house, located in a part of the camp which was under the control of Fatah. In July 2009 armed men had fired rounds at his sister’s house, shouting his name. Later on colonel Maqdah had told the applicant that those men had been members of Jund al ‑ Sham seeking revenge for their associate’s killing, that he was not able to protect him from them, and that he should leave Lebanon. 10. In August 2009 the applicant tried to leave Bulgaria with false documents. He was arrested by the police at the Bulgarian ‑ Greek border. On 21 August 2009 the Petrich District Court approved a plea bargain whereby the applicant pleaded guilty to offences of illegally crossing the border and trying to deceive a public officer by using an official document issued to another person. He was sentenced to six months’ imprisonment, suspended for three years, and fined 200 Bulgarian levs. 11. In a decision of 29 October 2009, the State Refugees Agency refused to grant the applicant refugee status, but granted him humanitarian protection under section 9(1)(3) of the Asylum and Refugees Act of 2002 (see paragraph 29 below). The reasons for the decision described the applicant’s story, as related by him, and continued: “Bearing in mind the situation in the Palestinian [refugee] camp [Ain al ‑ Hilweh],which is characterised by serious armed clashes between ‘Fatah’ and militants from ‘Jund al ‑ Sham’, there are grounds to grant the applicant humanitarian protection, due to the real risk of infringements consisting of personal threats against his life in a situation of internecine armed conflict. Refugee camps in Lebanon have their own system of governance. Camp administrations are not elected by popular vote, but reflect the predominance of one or more groups or formations that constantly vie for territorial control, which often leads to armed clashes. In an interview for the news agency IRIN of April 2008, the head of security of ‘Fatah’ in Lebanon colonel Maqdah said that ‘Fatah’ will take care of security in all Palestinian camps in order to put an end to the spread of radical groups. ... The applicant states that he has been a member of ‘Fatah’ since 2006, but there are no acts of persecution against him by the authorities or by another political organisation that the State is unable to oppose. He does not point to any of the other relevant grounds under section 8(1) of the Asylum and Refugees Act justifying fear of persecution, such as race, religion, nationality, membership of a particular social group, or political opinion or belief. That leads to the conclusion that there are no grounds to grant asylum under the Asylum and Refugees Act [of 2002]. The [applicant] does not raise grounds justifying the application of section 9(1)(1) or (1)(2) of [the Act]. The evidence in the file points to grounds to grant humanitarian protection. There are indications of circumstances falling within the ambit of section 9(1)(3) of [the Act]. The above ‑ mentioned circumstances show that there are grounds to take into account [the applicant]’s personal situation in connection with the general social and political situation in the Palestinian camps in Lebanon. The evidence gathered during the proceedings shows that there is a real danger and risk of encroachments upon [the applicant’s] life and person. Under section 75(2) of the [Act], the [applicant]’s assertions, set out in detail in the record drawn up by the interviewing official, must be presumed to be truthful. ... As required by section 58(7) of [the Act], the State National Security Agency was invited to make written comments. Those comments, dated 21 August 2009, contain no objection to granting the [applicant] protection in the Republic of Bulgaria.” 12. The applicant did not seek judicial review of the refusal to grant him refugee status. 13. During that time he was settled, together with other Palestinians, in a housing facility operated by the State Refugees Agency. B. The order for the applicant’s expulsion and his ensuing detention 14. On 17 November 2009 an agent of the State Agency for National Security proposed to expel the applicant on national security grounds and to place him in detention pending the carrying out of that measure. In support of the proposal he said that the applicant was a member of Usbat al ‑ Ansar, which he described as a Sunni terrorist organisation acting in close cooperation with Hamas, Jund al ‑ Sham, Ansar Allah and others (see paragraphs 54, 59 ‑ 61 and 78 below). The applicant was alleged to have taken part in “wet jobs” for the organisation and in the assassinations of more than ten members of a Palestinian political party; he was being sought by the Lebanese authorities in connection with that. He was a relative of one of the leaders of Usbat al ‑ Ansar. The available information showed that the applicant followed strictly the organisation’s ideas and would unhesitatingly follow the orders of its leaders. This had been confirmed by partner security services. It had also been established that the applicant kept contacts with two asylum seekers who were known to adhere to a terrorist organisation active in Ain al ‑ Hilweh. One of them had been implicated in the killing of a member of a Palestinian political party and kept close contacts with Usbat al ‑ Ansar and Fatah al ‑ Islam (see paragraph 65, 72, 74, 78 and 81 below). All of that showed that the applicant by reason of his previous and current activities presented a serious threat to the national security of Bulgaria, and that his presence in the country discredited it as a reliable partner in the fight against international terrorism. 15. On 17 November 2009 the head of the State Agency for National Security made an order for the applicant’s expulsion. He also barred him from entering or residing in Bulgaria for ten years, “in view of the reasons set out in [the above ‑ mentioned] proposal and the fact that his presence in the country represent[ed] a serious threat to national security”. The order relied on sections 42 and 44(1) of the Aliens Act 1998. No factual grounds were given, in accordance with section 46(3) of the Act (see paragraph 33 below). The order further provided that it was to be brought to the attention of the applicant and was immediately enforceable, as provided by section 44(4)(3) of the Act (see paragraph 34 below). 16. Concurrently with that order the head of the State Agency for National Security made an order for the applicant’s detention pending deportation (see paragraphs 42 and 43 below). He reasoned that the information featuring in the proposal showed that the applicant would try to prevent the enforcement of the expulsion order, and accordingly directed that the detention order should be immediately enforceable. He also instructed the immigration authorities urgently to take all necessary steps to enforce the expulsion order. 17. On 20 November 2009 the applicant was arrested and placed in a special detention facility pending enforcement of the expulsion order. He submits that when brought there he was informed about the two orders against him but was not given copies of them. 18. On 19 May 2011, in view of the impending expiry of the maximum permissible period of detention pending deportation – eighteen months (see paragraph 44 below), the head of the State Agency for National Security made an order for the applicant’s release. The applicant was set free the following day, 20 May 2011. He was placed under the obligation to report daily to his local police station. He submits that he is currently without any identification documents, means of support, or the possibility to work. C. Judicial review of the applicant’s expulsion 19. On 4 December 2009 the applicant made an application for judicial review of the expulsion order. He also challenged his detention. He argued that the order was unlawful and that he had not engaged in any illegal activities while in Bulgaria. 20. On 23 March 2010 the applicant, having acquainted himself with an excerpt of the proposal for his expulsion and other documents in the file, asked the court to order the authorities to specify – if need be, subject to restrictions resulting from the use of classified information – what was the basis for their belief that he was being sought by the Lebanese authorities “in connection with the killing of members of Palestinian political parties”, as noted in the proposal. He also asked the court to order the authorities to specify whether they had used special means of surveillance to gather information about him; if yes, to order them to produce a copy of the requisite warrant and other documents. 21. The Supreme Administrative Court heard the case on 27 April 2010. 22. In a memorial filed on that date the applicant argued that the data on which the authorities had relied to order his expulsion were incorrect, vague, unverified, internally inconsistent and unreliable. It was not true that he was a member of Usbat al ‑ Ansar; quite the opposite, he was being sought by terrorist organisations, and had for that reason fled Lebanon. His relative referred to as a terrorist in the proposal was in fact an official of a school administered by the United Nations. There were no concrete elements in support of the assertion that he was being sought by the Lebanese authorities. The Bulgarian authorities had not tried to verify that through official channels, as was possible under the treaty between Bulgaria and Lebanon for mutual cooperation in criminal matters. The lack of concrete information on those issues prevented him from presenting evidence to rebut the allegations against him. He also pointed out that the State Agency for National Security had not objected to his receiving protection in Bulgaria during the asylum proceedings (see paragraph 11 above). Lastly, he drew attention to the fact that he had been granted humanitarian status on the basis of a risk to his life, and argued that his expulsion would breach the principle of “non ‑ refoulement” and Article 3 of the Convention. 23. In a final judgment of 22 June 2010 (реш. № 8 ‑ 10 от 22 юни 2010 г. по адм. д. № С ‑ 4/2010 г., ВАС, VІІ о.), the Supreme Administrative Court upheld the expulsion order in the following terms: “The order was issued on the basis of the reasons set out in proposal no. T ‑ 6 ‑ 5347/17.11.2009 and the factual ground featuring in section 42(1) of the Aliens Act [of 1998 – see paragraph 33 below] – the alien’s presence in the country poses a serious threat for national security. The proposal for imposing the coercive measure in issue says that [the applicant] was born on 30 November 19[8]9 in the refugee camp ‘Ain al ‑ Hilweh’. He became a member of the terrorist radical Islamic organisation ‘Asbat al ‑ Ansar’, which is active on the territory of that camp. That organisation works in close cooperation with similar organisations, including ‘Hamas’. The [applicant] was member of a ‘wetwork’ squad that targeted also members of a Palestinian political party. It is not in dispute that the applicant is a relative of [A] who, according to operative information, is one of the leaders of ‘Asbat al ‑ Ansar’. He follows strictly the organisation’s ideas and would carry out without hesitation the orders of its leaders. [The applicant] entered the territory of the county in June 2009 and applied for asylum. However, in August that year he tried to leave the country with forged documents, heading towards western Europe. He was arrested by the border police at [a checkpoint at the Bulgarian ‑ Greek border]. [On] 21 August 2009 the Petrich District Court ... approved a plea bargain whereby [the applicant] pleaded guilty to offences under Articles 279 § 1 and 318 of the Criminal Code[: illegal crossing of the border and trying to deceive a public officer by using an official document issued to another person]. He was sentenced to six months’ imprisonment, suspended for three years, and fined 200 [Bulgarian] levs. According to operative information, he is in contact with [B] and [C], who are present in the country as asylum seekers. There is information that M.I. is also a member of Jund al ‑ Sham and has taken part in the assassination of a member of ‘Fatah’ in ‘Ain al ‑ Hilweh’, in connection with which he is being sought by the Lebanese authorities. [C] is an adherent of the terrorist organisation ‘Asbat al ‑ Ansar’ and takes part in a human trafficking channel from Lebanon to western Europe that is used by members of Lebanese terrorist organisations. It is known that there are contacts between [D] and individuals who reside in western Europe and who sympathise with ‘Jund al ‑ Sham’. The proposal makes a reasoned assumption that, due to his earlier and present activities the [applicant] presents a serious threat to the security of the Republic of Bulgaria, within the meaning of section 4 of the State Agency for National Security Act [of 2007], and his presence in the country is liable to discredit our country as a reliable partner in the fight against international terrorism. The written evidence in the case includes excepts nos. RB 202001 ‑ 001 ‑ 03 ‑ T6 ‑ 3594, ‑ 95 and ‑ 96 of 12 April 2010. By decision no. 513 of 29 October 2009, the State Refugees Agency refused to grant [the applicant] refugee status. The assertions in the application that [the applicant] resides lawfully on the territory of the country have not been proven. The negative assertions in the application that he has not taken part in unlawful activities cannot be regarded as established, because the specialised agency has made findings in that regard. Under section 46(3) of the Aliens Act [of 1998], expulsion orders do not point to the factual grounds for the imposition of the coercive measure; those grounds are contained in the proposal for its imposition. The proposal shows that there are indications of encroachments on national security, falling within the remit of the State Agency for National Security under section 4(1)(11) and (14) of the State Agency for National Security Act [of 2007]: international terrorism and cross ‑ border organised crime, which creates a threat for national security. The existence of such indications does not require proof beyond doubt of acts directed against the security of the county. There are sufficient grounds to impose a coercive measure if there are indications which can lead to a reasonable assumption that the applicant’s presence creates a serious threat to national security. The factual data gathered through operative methods and set out in proposal no. RB 202001 ‑ 001 ‑ 03 ‑ T6 ‑ 5347 of 17 November 2009 constitute grounds to make a reasonable assumption that this applicant’s presence does create a serious threat to national security. The existing data about the applicant’s activity on the country’s territory show the existence of the grounds set out in section 42 of the Aliens Act [of 1998 – see paragraph 33 below]. A coercive measure, such as that envisaged by section 42 of the Aliens Act, has a preventive character, it aims to prevent actions directed against the country’s security. For it to be imposed, it is not necessary to carry out a full inquiry into the information that has been gathered or seek proof for it, because this is not a case involving the imposition of an administrative sanction. The applicant’s statement, made in open court, that he does not wish to be returned to Lebanon, where his life is under threat, is irrelevant for the present proceedings. Under section 42(2) of the Aliens Act, the withdrawal of the right of an alien to reside in the Republic of Bulgaria and the imposition of a ban on entering its territory inevitably flow from the imposition of the coercive measure under subsection 1 – expulsion. The order complies with the legal requirements. The coercive measure has been imposed by the competent authority under section 44 of the Aliens Act [of 1998], in due form and in compliance with the rules of administrative procedure, the substantive law norms and the aim of the law, and for those reasons the application for judicial review must be rejected as ill ‑ founded.” D. Judicial review of the applicant’s detention pending deportation 24. The legal challenge to the applicant’s detention pending deportation (see paragraph 19 above) was transmitted to the Sofia City Administrative Court. In the course of the ensuing proceedings the court was provided with an excerpt of the expulsion proposal. In a final judgment of 9 February 2010 (реш. № 2 от 9 февруари 2010 г. по адм. д. № С ‑ 66/ 2009 г., САС, І о.), it upheld the order for the applicant’s detention, finding that it had been made by a competent authority, in proper form, in line with the applicable substantive and procedural rules, and in conformity with the aim of the law. It went on to say that there was enough evidence that the applicant would try to hinder the enforcement of the order for his expulsion. 25. On an unspecified date in the summer of 2010 the Sofia City Administrative Court, acting of its own motion, as required under new section 46a(4) of the 1998 Aliens Act (see paragraph 45 below), reviewed the applicant’s continued detention (адм. д. № 3872/2010 г., САС). It confirmed it for a further six months. 26. On 7 December 2010, again acting of its own motion, the Sofia City Administrative Court confirmed the applicant’s detention for a maximum of a further six months, until 20 May 2011 (опр. № 4227 от 7 декември 2010 г. по адм. д. № 9061/2010 г., САС, І о.). It noted that the detention had already lasted almost twelve months and by law could be prolonged for a maximum of eighteen months. There existed impediments to the enforcement of the order for the applicant’s expulsion. He did not have the required travel document that would enable him to enter Lebanon. In spite of three requests, the Lebanese embassy had failed to issue such a document. The case thus fell within the ambit of section 44(8) of the Aliens Act 1998 (see paragraph 44 below). | The applicant, a stateless person of Palestinian origin, arrived in Bulgaria in May 2009 and soon after claimed asylum. Accused of terrorism (notably being involved in more than ten assassinations), the applicant’s expulsion to Lebanon was ordered in November 2009 on the grounds of national security. He was detained until May 2011, that is to say the maximum period (18 months) allowed under Bulgarian legislation pending deportation. Upon his release he remained in Sofia and was obliged to report daily to the local police station. |
820 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1959 and lives in Baktalórántháza. 10. Between 1 May 1975 and 14 July 1997 the applicant was employed and made the statutory contributions to the social-security scheme. Subsequently, she was in receipt of unemployment benefit from 15 September 1997 until 9 September 1998. 11. In response to a request lodged on 16 October 2001, the applicant was granted a disability pension ( rokkantsági nyugdíj ) later that same year on the basis of a retrospective finding that she had lost, as of 1 April 2001, 67% of her capacity to work on account of various ailments. This assessment was maintained in 2003, 2006 and 2007. 12. As of 2008 the legislation on the methodology used to assess health impairment in occupational contexts changed. In application of the new methodology, the applicant’s disability was assessed by an expert at 40% on 1 December 2009. Without envisaging any procedure for rehabilitation, the assessment panel scheduled the next check-up of her medical status for 2012. 13. The Government submitted that, under the new methodology, the applicant’s previous condition of 67% loss of working capacity would have corresponded to 54% overall health impairment. Since, however, she was found to have only 40% health impairment, her condition had to be deemed to have improved in the intervening period. The applicant submitted that the connection suggested by the Government between the scores of 67% in the old system and 54% in the new system was not based on any legal text. In her submission, her condition had not improved at all; the difference in scores was solely a consequence of changing the methodology used. 14. As a consequence of the applicant’s newly assessed 40% level of disability, on 1 February 2010 the relevant pension insurance directorate withdrew her entitlement to the disability pension. The applicant appealed against that decision. On an unspecified date, the decision was upheld by the second-instance pension insurance authority. At the relevant time the monthly amount of the applicant’s disability pension was 60,975 Hungarian forints (HUF), approximately 200 euros (EUR). On 25 March 2010 the applicant brought an action before the Nyíregyháza Labour Court, challenging the administrative decision. 15. The Nyíregyháza Labour Court heard the case, and appointed an expert with a view to obtaining an opinion as to the reasons for the difference in the scores. In an opinion of 16 February 2011, the expert submitted that the old score of 67%, as well as the new one of 40%, were correct under the respective methodologies; at any rate, the applicant’s condition had not significantly improved since 2007. 16. Observing that the applicant had accumulated 23 years and 71 days of service time, the court retained the disability score of 40% and dismissed her action on 1 April 2011. The applicant was ordered to reimburse the amounts received after 1 February 2010. The court noted that the applicant’s next medical assessment was due in 2012. It drew her attention to the possibility of making a renewed application for disability pension should her health deteriorate. 17. In 2011 the applicant requested another assessment of her disability. On 5 September 2011 the first-instance authority assessed it at 45%, scheduling the next assessment for September 2014. The second-instance authority changed this score to 50% on 13 December 2011, with a reassessment due in March 2015. Such a level would have entitled her to disability pension had rehabilitation not been possible. However, this time the assessment panel envisaged the applicant’s complex rehabilitation within a 36-month time-frame, and recommended that she be entitled to rehabilitation allowance ( rehabilitációs járadék ). Nevertheless, no such rehabilitation took place, and the applicant did not receive rehabilitation allowance. 18. As of 1 January 2012, a new law on disability and related benefits (Act no. CXCI of 2011) entered into force. It introduced additional eligibility criteria. In particular, instead of fulfilling a service period as required by the former legislation, the persons concerned had to have at least 1,095 days covered by social security in the five years preceding the submission of their requests. Individuals who did not meet this requirement could nevertheless qualify if they had no interruption of social cover exceeding 30 days throughout their careers, or if they were in receipt of a disability pension or rehabilitation allowance on 31 December 2011. 19. On 20 February 2012 the applicant submitted another request for disability allowance ( rokkantsági ellátás ). Her condition was assessed in April 2012, leading to the finding of 50% disability. On 5 June 2012 her request was dismissed because she did not have the requisite period of social cover. Rehabilitation was not envisaged. The next assessment was scheduled for April 2014. 20. Between 1 July and 7 August 2012 the applicant was employed by the Mayor’s Office in Baktalórántháza. 21. On 15 August 2012 the applicant submitted a fresh request for disability pension under the new law. She underwent another assessment, during which her degree of disability was again established at 50%. Rehabilitation was not envisaged. 22. In principle, such a level of disability would have entitled the applicant to a disability allowance under the new system. However, since her disability pension had been terminated in February 2010 (that is, she was not in receipt of a disability pension or a rehabilitation allowance on 31 December 2011) and, moreover, she had not accumulated the requisite number of days of social-security cover or demonstrated uninterrupted social cover, she was not eligible, under any title, for a disability allowance under the new system. Instead of the requisite 1,095 days covered by social security in the five preceding years, the applicant had been covered for 947 days. According to the Government, had the law not been so amended, the applicant would again have become eligible for a disability pension, since her health impairment was again assessed as exceeding the relevant threshold in 2012. 23. The applicant’s request was refused by the relevant authority of Szabolcs-Szatmár-Bereg County on 23 November 2012 and, on appeal, by the National Rehabilitation and Social Welfare Authority on 27 February 2013. On 27 March 2013 the applicant filed an action with the Nyíregyháza Administrative and Labour Court, challenging these administrative decisions. On 20 June 2013 the court dismissed her case. This judgment was not subject to appeal. 24. From 1 January 2014 the impugned legislative criteria were amended with a view to extending eligibility to those who have accumulated either 2,555 days of social-security cover over ten years or 3,650 days over fifteen years. However, the applicant does not meet these criteria either. 25. In 2011 and 2012 the applicant received a monthly housing allowance from the local municipality, in the amount of HUF 4,100 (EUR 14) in 2011 and HUF 5,400 (EUR 18) in 2012. The applicant also applied for the basic welfare allowance ( rendszeres szociális segély ), but her request was denied because she did not meet the statutory requirements. | This case concerned the applicant’s complaint of having lost her entitlement to a disability pension due to newly introduced eligibility criteria. The applicant complained in particular that she had lost her livelihood, previously secured by the disability pension – despite the fact that her health had remained as poor as at the time that she was first diagnosed with her disability. |
410 | Deprivation of liberty / Restriction on the freedom of movement | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1986. Since February 2015 he has been kept in a detention centre for foreign nationals in the town of Makhachkala, Dagestan Republic, Russia. A. The applicant ’ s arrival in Russia and prosecution for administrative offences 6. The applicant arrived in Russia in October 2011. He was in possession of a visa declaring the purpose of his visit as business. The applicant ’ s visa was due to expire in October 2012. However, the visa allowed the applicant to stay in Russia for no longer than ninety days in the course of a single visit. As submitted by the Government, he was therefore expected to leave Russia in early 2012. 7. The applicant did not leave and started to live together with Ms B., a Russian national. In November 2013 they had a child together. In April 2014 they married. 8. In the meantime, on 15 and 19 February 2013 the applicant was found guilty of an offence under Article 18.10 of the Code of Administrative Offences (CAO), which provided that a foreigner could be punished for unlawful employment activities in Russia. 9. By judgment of 26 February 2015 the Sovetskiy District Court of Makhachkala found the applicant guilty of an offence under Article 18.8 § 1.1 of the CAO (see paragraph 24 below), of remaining in Russia after the expiry of the visa. It sentenced him to a fine and a penalty of forcible administrative removal ( принудительное административное выдворение ) from Russia. The District Court held as follows: “Article 18.8 § 1.1 of the CAO provides for the following penalties: a fine of between 2,000 and 5,000 roubles with or without administrative removal from Russia ... The subsidiary penalty of administrative removal from Russian may be imposed with due regard to the information that confirms the actual need to impose such a penalty on the defendant, as well as the information that confirms the proportionality of this penalty as the only acceptable measure for achieving a balance between the public and private interests at stake ... The defendant has no legal grounds for remaining in Russia. If a fine is imposed, the defendant will add himself to the group of illegal labour immigrants who do everything to avoid compliance with the Russian migration legislation. The penalty of administrative removal is also necessary for the sake of national security, to avoid the spread of various infectious diseases such as HIV, tuberculosis and leprosy, and to ensure the optimal balance of labour resources and in order to support, as a matter of priority, the employment of Russian nationals ...” 10. In the same judgment the District Court ordered that, while awaiting enforcement of the administrative removal, the applicant be placed in a special detention facility for foreigners in the town of Makhachkala. 11. Lawyer D. lodged a statement of appeal on behalf of the applicant against the judgment of 26 February 2015. It appears that the applicant raised arguments relating to his family life in Russia; it is unclear whether he raised any argument relating to a risk to his life and physical integrity in the event of enforcement of the penalty of forcible removal. 12. On 4 March 2015 the Supreme Court of the Dagestan Republic upheld the judgment. The appeal court held as follows: “Article 18.8 § 1.1 of the CAO provides for the following penalties: a fine of between 2,000 and 5,000 roubles with administrative removal from Russia ... [The applicant] has committed a violation of the regime applicable for the presence of foreigners in Russia, by way of omitting after 7 October 2012 to leave Russia ... The court dismisses [the applicant ’ s] argument relating to his family life in Russia ... The marriage with Ms B. was concluded on 28 April 2014, which was a long time after the commission of the offence by [the applicant] ... The administrative offence record did not contain any information relating to his family life in Russia. No such information was adduced during the proceedings before the first-instance court ... [The applicant ’ s] prolonged violation of the migration legislation since October 2012 amounts to abuse of Russia ’ s hospitality and thus should be treated as a breach of the receiving country ’ s interests ... ” 13. On an unspecified date the applicant received a copy of the appeal decision. 14. The penalty of administrative removal was not enforced. According to the Government, the bailiff service instituted enforcement proceedings on 12 March 2015, but they were not pursued on account of an application lodged by the applicant for temporary asylum (see below). B. Application for temporary asylum 15. On 5 May 2015 the applicant applied for temporary asylum. He referred to the ongoing intensive military actions in Syria, in particular in his home town of Aleppo. He further argued that given his age, he would be drafted by the governmental forces for active military service, thereby putting his life and physical integrity in danger. 16. It appears that the applicant engaged lawyer K. to assist him in those proceedings and had a meeting with him in the detention centre. On 2 June 2015 the applicant called the lawyer from the detention centre, complaining of beatings. On the same day, the lawyer was refused access to the applicant in the detention centre, apparently because he should have obtained authorisation for the visit from the regional migration authority. The lawyer wrote to the regional prosecutor ’ s office complaining of a violation of the applicant ’ s rights and physical integrity. 17. On 4 June 2015 the lawyer made a further unsuccessful attempt to gain access to the applicant. 18. On 6 August 2015 the local migration authority dismissed the applicant ’ s application for temporary asylum. The applicant sought review of this refusal before the Federal Migration Service ( “the FMS ” ). On 24 September 2015 the FMS upheld its decision, stating as follows: “ In February 2012 there were no large-scale military operations in Syria; there were only localised hostilities between governmental forces and opposition groups. Despite the above, the applicant failed to leave Russia. .. At the time he did not apply for asylum and continued to stay in Russia unlawfully until the imposition of the penalty of administrative removal. The following violations of the migration rules for foreigners should be pointed out: The applicant arrived in Russia under a business visa, whereas his actual goal was employment. Thus, his declared aim did not correspond to the actual aim for arriving in Russia. The applicant was unlawfully engaged in employment activities ... In February 2013 he was twice prosecuted for administrative offences. However, even after this, he did not seek asylum, while neglecting the real possibility of his future deportation from Russia ... The Ministry of Foreign Affairs points out that Syrian nationals who return to their homeland or who are deported or expelled there may arrive in Damascus and then proceed to other regions that are controlled by governmental forces.” 19. On 14 October 2015 the applicant, assisted by lawyer M., sought judicial review of the refusal of temporary asylum under the Code of Administrative Procedure ( “the CAP ” ) and asked the Leninskiy District Court of Makhachkala to put in place an interim measure by way of suspending enforcement of the judgment of 26 February 2015. On 16 October 2015 the court refused to deal with the case, concluding that it had to be lodged before a court with jurisdiction in the area of the applicant ’ s current “ place of residence ”; his stay in the detention centre did not qualify as a place of residence. 20. Assisted by Ms Biryukova (who is his representative before this Court) the applicant resubmitted his application for judicial review to the Basmannyy District Court of Moscow. On 27 October 2015 the District Court left the matter without examination because the applicant had not indicated the date and place of his birth; had not specified whether he had a law degree, which was relevant because the case could only be lodged by a person in possession of a law degree; and had not provided evidence that his representative had a law degree. The applicant was required to remedy the above defects by 18 November 2015. 21. By a judgment of 9 December 2015 the District Court upheld the refusals of temporary asylum. The court held that the applicant was at risk of violence which was no more intensive than for other people living in Syria : “The grounds for granting temporary asylum on account of humanitarian considerations include the following situations: a grave medical condition for which the foreigner will not receive the requisite medical care in the country of nationality, thus putting his or her life at risk; a real threat to his or her life or liberty on account of hunger, epidemics, emergency situations of environmental or industrial origin or on account of an internal or international conflict that encompasses the entire territory of the state of nationality; a real threat of being subjected to torture or another cruel, inhuman or degrading treatment or punishment in the country of nationality. Under Article 62 of the Code of Administrative Procedure the parties to the case must prove the circumstances to which they refer as the basis for their claims or objections, unless otherwise provided for by the Code. Assessing the evidence submitted to it, the court concludes that [the applicant] has not adduced convincing arguments that he is at risk of being persecuted by the authorities or by groups of the population on account of his religion, race or membership of a social group ... Despite the difficult social and political situation in Syria, there are no grounds to consider that his life will be at a higher risk than that of other people living in this country ... According to information from the Federal Migration Authority, people returning to Syria may reach directly the city of Damascus, which is under the control of the government. ... ” 22. The applicant received a copy of the judgment in February 2016 and lodged an appeal. He argued that the first-instance court had not paid proper attention to his argument relating to the risk to his life and physical integrity in the event of his removal to Syria; the migration authority had not refuted his argument while the court had shifted the burden of proof onto the applicant and had placed undue emphasis on the illegality of the applicant ’ s presence in Russia. His appeal was dismissed by the Moscow City Court on 8 June 2016. The appeal court held as follows: “The first-instance court considered that the applicant did not fall within the scope of the notion of “refugee” under the Refugees Act ... In view of the applicant ’ s failure to submit specific facts disclosing that in the event of his removal to Syria he would be exposed to a real threat to his security ... or that he was persecuted in this country, the appeal court agrees with the first-instance court ... The appeal court also notes that the applicant arrived in Russia in 2011 but only sought temporary asylum in 2015.” | This case involved a decision by the Russian authorities to detain the applicant, a Syrian national, and remove him to his home country. The applicant complained in particular that his continuing detention was arbitrary, given that he could not be removed to Syria, and that there had been no domestic procedure which he could have used to have had his detention reviewed. |
3 | Deprivation of liberty and challenging the lawfulness of detention | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants are Mr Vladimir Popov and Mrs Yekaterina Popov née Yakovenko, nationals of Kazakhstan, born in 1983 and 1982 respectively, and their two minor children, who were born in France on 7 April 2004 and 17 March 2007. A. Applicants’ arrival in France 6. The applicants were born in Kazakhstan. They were married on 18 June 2002. In the applicants’ submission they were repeatedly persecuted in their country on account of their Russian origin and their affiliation to the Russian Orthodox Church. On 9 May 2002 the applicant’s father was beaten up in the street and required treatment in hospital. The family filed a complaint and on 5 June 2002 the applicants received, at their house, a visit from unknown individuals of Kazakh origin who asked them to withdraw their complaint and threatened them with reprisals. On 15 July 2002 an incendiary device was thrown into their home through the window, starting a fire, and they were rescued by a neighbour. Following that incident, the applicant’s father left Kazakhstan on 16 August 2002. 7. On 29 September 2002, when the second applicant was returning home, Kazakh police officers stopped her in the street and questioned her about her father. They took her away and she was beaten up. They tried to shut her in a vehicle and threatened to rape and kill her. She managed to escape. The next day, she went to the casualty department in the town of Taraz to have her injuries recorded and treated. On 2 October 2002 her mother came home having also been beaten up by Kazakh policemen who were looking for her husband. After that incident they moved to the country. 8. On 28 November 2002 the second applicant was again assaulted. She had gone shopping and did not return until the next day, covered in bruises and blood. Several days later she lost the child she was carrying. She then decided to leave the country and entered France on 15 December 2002 on a two-week visa. After her departure, the applicant, who had filed a complaint, was assaulted by policemen on 10 March 2003. He spent several months in hiding but the authorities found him, confiscated his papers, and threatened to kill him if he did not withdraw his complaint. He too decided to leave the country and joined his wife in France on 19 June 2003. B. Asylum applications 9. The applicants each filed an asylum application with the French Office for the Protection of Refugees and Stateless Persons (OFPRA) and obtained residence permits. Their asylum applications were rejected on 20 January 2004 on the ground that their statements were “riddled with inconsistencies”, followed “a stereotyped pattern” and were “unconvincing”. On 31 May 2005 the Refugee Appeals Board dismissed their appeals. 10. On 12 January 2006, having learnt of the murder of the second applicant’s father, after his return to Kazakhstan, the applicants requested a fresh examination of their case by the OFPRA. On 19 January 2006 the OFPRA refused to re-examine the case. On 13 September 2006 the Appeals Board rejected their appeal on the ground that the new fact could not be regarded as established. 11. They subsequently applied for recognition as stateless persons, but the OFPRA rejected their request on 5 April 2007, on the ground, first, that they had not provided evidence that the Kazakh authorities had withdrawn their nationality and they could not lose that nationality purely of their own volition, and, secondly, that they held passports issued by their national authorities that were valid until 2012. On 25 April 2007 the applicants appealed against that rejection before the Nantes Administrative Court. They subsequently dropped their appeal, however, having obtained refugee status in the meantime (see paragraph 27 below). C. Refusal to grant residence permits together with an obligation to leave France and measures of administrative detention 1. First detention measure 12. On 21 June 2005 the Ardennes prefecture notified the applicants of its refusal to issue them with residence permits and directed them to leave the country within one month. 13. On 22 November 2005 Mr Popov was arrested during a vehicle check when he was found to be in the country illegally. On the next day he was issued with a removal order and placed in administrative detention in Charleville-Mézières. On 25 November 2005 the liberties and detention judge of the Charleville-Mézières tribunal de grande instance ordered the extension of his detention for fifteen days. On 9 December 2005 the detention was extended for a further fifteen days in order to “enable the enforcement of the removal measure”. 14. On 28 November 2005 the Châlons-en-Champagne Administrative Court rejected Mr Popov’s application for the annulment of the order for his removal to Kazakhstan. On 23 November 2006 the Nancy Administrative Court of Appeal upheld that judgment, finding that he had not adduced any conclusive evidence in support of his allegations that he had been persecuted in his country of origin. 15. The removal order against the first applicant was not enforced, however, and he was released from the detention centre, as no laissez-passer had been issued. 2. Second detention measure 16. On 11 October 2006 it was decided to place the applicants in administrative detention but the prefect of the Ardennes ordered them to reside at a specific address, pursuant to Article L. 513-4 of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA). Two attempts to remove the applicants failed as a result of the mobilisation of a support group. The family was thus released. 17. On 29 January 2007 the Ardennes prefecture rejected a new request for the issuance of a residence permit to the applicants. On the same day, a further decision was delivered imposing on them an obligation to leave the country. On 31 May 2007 the Châlons-en-Champagne Administrative Court dismissed their appeal against that decision. 18. On 25 June 2008 they again applied for residence permits. As the prefecture failed to respond, the applicants challenged the implicit rejection decision before the Nantes Administrative Court. However, having subsequently obtained refugee status, the applicants withdrew their complaint. 3. Disputed measures of administrative detention (a) First attempt to remove the applicants 19. On 27 August 2007 the applicants and their children, who were then under six months and three years, respectively, were apprehended at the home of the applicant’s mother, who was accommodating them, and taken into police custody. After a long wait, the Maine-et-Loire prefecture ordered their administrative detention in a hotel in Angers. On 28 August 2007 the applicants and their children were transferred to Charles-de-Gaulle airport pending their removal to Kazakhstan. However, the flight scheduled for the early afternoon was cancelled, without the prefecture having been informed, and the removal could not therefore be carried out. It was only in the evening that the applicants and their children were transferred, in a police van, to the administrative detention centre of Rouen ‑ Oissel. 20. That centre, even though it is mentioned on the list of centres that cater for families, does not have any real leisure or learning area. Whilst one wing is reserved for families and single women, the atmosphere there is distressing and stressful, with a lack of privacy and a high level of tension. Announcements via loud-speakers reverberate throughout the centre and exacerbate the feeling of stress. The Oissel centre, at the time of the applicants’ detention, was not equipped with the basic facilities for the detention of young children (it had metal beds with pointed corners, no cots, just a few toys in the corner of a room, etc.). The only outdoor area is a courtyard, concreted over and with wire netting over the top, and the bedroom windows are covered with a tight grill obscuring the view to the outside ... The eldest child refused to eat in the centre and showed signs of anxiety and stress. The parents had to negotiate with the police to recover their personal belongings, including the milk they had brought for the infant. They were only able to receive one short visit during their detention, as it was not easy to gain access to the centre. 21. On 29 August 2007 the liberties and detention judge of the Rouen tribunal de grande instance ordered the extension of the detention measure for fifteen days, after observing that the maintaining of a family in detention was not in breach of the decree of 30 May 2005 on administrative detention and holding areas and that their transfer to Rouen ‑ Oissel was not vitiated by any defect. The decision also mentioned the loss of the second applicant’s Kazakh nationality but it was found that this could not justify release, as the Administrative Court alone had jurisdiction to decide if that situation would have any consequences. On 30 August 2007 the Rouen Court of Appeal upheld the extension decision. (b) Second attempt to remove applicants 22. Having been held in the detention centre since 28 August 2007, the applicants were again transferred to Roissy Charles-de-Gaulle airport pending their removal on 11 September 2007, the flight being scheduled for the early afternoon. It did not go ahead, however. The applicants were not taken back to the Rouen-Oissel centre until the evening, without any measure of placement in a detention facility being decided at Roissy during that period. The prefect then applied to the Rouen liberties and detention judge to have the applicants’ detention extended for a further fifteen days, relying solely on the argument that the non-enforcement of the removal order could be attributed to the applicants themselves (CESEDA, Article L. 552-7). The applicants complained about the conditions of their detention and its length, arguing that the authorities had failed to prove that the length of the measure was strictly necessary. 23. On the same day the applicants submitted to the Court, under Rule 39 of the Rules of Court, a request for the suspension of the removal measure. The Court declined to indicate an interim measure in response to that request. 24. On 12 September 2007 the liberties and detention judge found that there was no evidence to show that the applicants had deliberately impeded their removal, because the documents concerning the circumstances of the attempt expressly stated that “no refusal to board the plane was recorded on 11 September 2007”, and he ordered their release, with the obligation to leave France being maintained. The prefect appealed against that decision but without seeking suspensive effect. The applicants were thus released from the detention centre. 25. On 14 September 2007 the Rouen Court of Appeal set aside the liberties and detention judge’s decision and extended the administrative detention measure for fifteen days, finding that it could be seen from certain documents in the file that the applicants had indeed prevented their removal (an e-mail from one of the border police officers mentioning the need for an escort to carry out the removal the next time, in view of Mrs Popov’s reaction). It had been found that the next flight with an escort for the applicants’ removal would not be available before 18 September 2007, and the prefect had not therefore shown a lack of diligence in organising the departure and limiting the length of the detention. He had thus been justified in seeking an extension of the administrative detention pending the organisation of a fresh removal. That decision was not enforced. D. Obtaining of refugee status 26. Before their arrest the applicants had filed a fresh request to be granted refugee status. In a decision of 6 September 2007 the OFPRA rejected the request on account of the very general nature of the alleged facts, finding that this, together with the unlikely claim of blackmail on the part of the Kazakh authorities, precluded the establishment of their veracity. The OFPRA further stated that as the allegation that the applicants had lost their nationality had not been corroborated, the request for re-examination had to be rejected. The applicants appealed against that decision. 27. On 16 July 2009 the National Asylum Tribunal granted the applicants refugee status, finding that the enquiries made by the Ardennes prefecture vis-à-vis the Kazakh authorities, in breach of the confidentiality of asylum applications, had exposed the applicants to danger in the event of their return to Kazakhstan, and that their loss of Kazakh nationality, in August 2007 and April 2008 respectively, whilst not per se constituting persecution, did not, however, preclude the granting of refugee status. IV. ALTERNATIVES TO DETENTION 64. According to the non-governmental organisation “International Detention Coalition”, the alternative of compulsory residence orders is used in France in only 5% of cases (see the report: “Survey on Alternatives to Detention of Asylum Seekers in EU Member States”). Many organisations, both governmental and non-governmental, advocate alternatives to detention. ... | This case concerned the administrative detention of a couple of asylum-seekers and their two underage children for two weeks pending their removal. They complained in particular that their detention had been unlawful. |
105 | Taking of children into care | I. THE CIRCUMSTANCES OF THE CASE A. Background to the case 6. The applicants, Petra Wunderlich, who was born in 1967, and Dirk Wunderlich, who was born in 1966, are married to each other. 7. The applicants are the parents of four children: M. (born in July 1999), J. (born in September 2000), H. (born in April 2002) and S. (born in September 2005). 8. The applicants reject the State school system and compulsory school attendance and wish to homeschool their children themselves. In 2005 their oldest daughter, M., reached school age. The applicants refused to register her in a school. Several regulatory fines and criminal proceedings were conducted against the applicants for failing to comply with rules on compulsory school attendance. The applicants accepted these decisions and paid the fines, but did not change their behaviour. 9. Between 2008 and 2011 the applicants lived with their children abroad. In 2011 they returned to live permanently in Germany, but did not register their children with any school. B. Proceedings at issue 10. By a letter of 13 July 2012 the State Education Authority ( staatliches Schulamt – hereinafter “the Education Authority”) informed the competent family court that the applicants were deliberately and persistently refusing to send their children to school and provided a chronological list of administrative fines and criminal investigations against the applicants – amongst others for hitting one of the daughters – as well as of other incidents since 2005. The Education Authority concluded that the children were growing up in a “parallel world” without any contact with their peers and that they received no attention of any kind which would enable them to have a part in communal life in Germany. It therefore suggested a court measure under Article 1666 of the German Civil Code (see paragraph 25 below), arguing the children’s best interests were endangered owing to their being systematically deprived of the opportunity to participate in “normal” life. The youth office ( Jugendamt – hereinafter: “the youth office”) supported the request of the Education Authority. It considered that the persistent refusal of the applicants endangered the best interests of the children. 11. The Darmstadt Family Court initiated court proceedings and heard testimony from the applicants, their children and the youth office. It also appointed a guardian ad litem for the children. In the oral hearing, on 6 September 2012, the applicants stated that they had paid the administrative fines imposed on them for not sending the children to school and that, despite the State sanctions, they would continue to homeschool their children. Already in a previous written submission the applicants had confirmed their unwillingness to send their children to school and had stated that the authorities would have to remove their children from the family home and take them away from them entirely if the children were ever to go to a State school. The children explained during the hearing that it was primarily their mother who taught all four children and that school normally started at 10 a.m. and lasted until 3 p.m., with a break for lunch, which was prepared by their mother. 12. On 6 September 2012 the Darmstadt Family Court withdrew the applicants’ right to determine their children’s place of residence, their right to take decisions on school matters and right to apply to the authorities on behalf of their children, and transferred these rights to the youth office. It also ordered the applicants to hand their children over to the youth office for enforcement of the rules on compulsory school attendance and authorised the youth office to use force if necessary. In its reasoning the court stated that the parents’ persistent refusal to send their children to a State school or a recognised grant-aided independent school not only violated section 67 of the Hesse School Act ( Hessisches Schulgesetz ) (see paragraph 31 below) but also represented an abuse of parental authority which risked damaging the children’s best interests in the long term. Independent from the question of whether it could be ensured that the children were acquiring sufficient knowledge through the applicants’ homeschooling, the children’s not attending school was preventing them from becoming part of the community and learning social skills such as tolerance, assertiveness and the ability to assert their own convictions against majority-held views. The court found that the children needed to be exposed to influences other than those of their parental home to acquire those skills. Lastly, the court concluded that no less severe measures were available. Owing to the persistent refusal of the applicants to send their children to school, only withdrawing parts of parental authority could ensure the children’s continual attendance at school and would prevent them suffering harm on account of them being educated at home. 13. The applicants appealed against that decision. 14. In a letter dated 15 November 2012 the youth office informed the applicants that it intended to assess the children’s knowledge on 22 November 2012 and asked the applicants to have their children ready to be collected on that day. On 22 November 2012 a member of staff of the youth office, acting as the children’s guardian, attempted to take the children to the Education Authority’s premises to conduct the learning assessment. The children refused to go with him. A second attempt to take the children to the learning assessment on the same day by two members of the public-order office and a police patrol also failed on account of the children’s refusal to accompany them. In a letter dated 10 December 2012 the applicants were notified of two dates (19 December 2012 and 17 January 2013) on which the children were to be assessed at home. The applicants submitted statements to the Education Authority in which they informed the latter that the children did not wish to participate in the assessment. In a letter dated 20 December 2012 the Education Authority informed the applicants’ lawyer that in order to ensure the children’s school attendance the children would, among other things, firstly have to undergo a learning assessment. At the same time the parents were informed that the appointment of 19 December 2012 had been cancelled, but the appointment of 17 January 2013 still stood. However, staff of the Education Authority were not allowed to enter the family home when they arrived for the appointment in January 2013. The father spoke to the members of staff and explained that he believed that the Family Court’s decision had been unlawful and that he alone was authorised to decide whether his children attended school or not. 15. On 25 April 2013 the Frankfurt am Main Court of Appeal rejected the parents’ appeal, but clarified that the applicants retained the right to determine their children’s place of residence during school holidays in Hesse. At the outset the court noted that up to that date the children had not attended school, even though the decision of the Darmstadt Family Court had not been suspended. It also observed that all attempts to conduct a learning assessment had failed on account of the children’s and the parents’ resistance. As to the law, the court outlined that the decision to withdraw parts of parental authority under Articles 1666 and 1666a of the Civil Code (see paragraphs 25 and 26 below) presupposed a significant endangerment of the best interests of the children, which the parents were unable or unwilling to prevent. To establish such an endangerment, a process of balancing the various interests had to be undertaken, during which the rights and interests of the children and of the parents as well as the interests of society had to be considered. In particular, a withdrawal of parental authority could not be justified to enable children to receive the best possible education but only to prevent any endangerment of children. Applying these principles to the case at hand, the court concluded that the applicants’ persistent refusal to ensure that their children attended school risked damaging the best interests of the children. According to the court, the children’s best interests were in concrete danger on account of them being kept in a “symbiotic” family system and being denied an education which met standards which were both well recognised and fundamentally important for growing up in society. The education they were receiving from the applicants could not compensate for not attending school. Five hours of homeschooling – including a lunch break –, which was conducted concurrently for all four children, could not suffice to offer each child a range of schooling appropriate to his or her age. In addition, the children were also not members of any sports club, music school or similar organisation where they could acquire other skills important for their education. The court also noted that the applicants’ submissions as a whole showed that their main concern was creating a strong attachment between the children and their parents to the exclusion of others. Moreover, by their persistent refusal they were also teaching the children that they did not need to comply with the rules of community life if they found them disagreeable. Lastly, the Court of Appeal found that there were no less severe measures available, since merely issuing instructions would have been ineffective, as shown by the applicants’ previous conduct and submissions. Consequently, the withdrawal of parts of parental authority by the Family Court had been correct. 16. On 9 October 2014 the Federal Constitutional Court refused to accept the applicants’ constitutional complaint for adjudication, without providing reasons. The decision was served upon the applicants on 16 October 2014. 17. In later proceedings (see paragraph 23 below) the Frankfurt am Main Court of Appeal transferred the right to determine the children’s place of residence back to the applicants on 15 August 2014. C. Children’s Removal from the Family Home 18. On 26 August 2013 the youth office arranged a meeting between the applicants, their lawyer, the youth office and the Education Authority. During the meeting the applicants declared that they refused – on principle – to have their children schooled outside the family. In addition, Mr Wunderlich stated, amongst other things, that he considered children to be the ‘property’ of their parents. 19. On 29 August 2013 the applicants’ children were removed from the parental home and placed in a children’s home. The children had to be carried out of the house individually with the help of police officers after they had refused to comply with the court bailiff’s requests to come out voluntarily. 20. On 12 September 2013 and on 16 September 2013 the knowledge of the applicants’ children was assessed for ninety minutes each during two school appointments with a view to determining the children’s appropriate class and schooling requirements. 21. In written submissions dated 10 September 2013 concerning other ongoing proceedings before the Family Court the applicants agreed to the children’s attending school. On 19 September 2013 the court heard testimony from the applicants, their children and a member of staff of the Education Authority. The children were subsequently handed back to the applicants that same day, since the applicants were now willing to allow their children to attend school. D. Further Developments 22. Following the return of the children on 19 September 2013, they attended school for the school year of 2013-14. On 16 May 2014 the Education Authority lodged a criminal complaint against the applicants for failing to comply with rules on compulsory school attendance. On 25 June 2014 the applicants again withdrew their children from school. 23. On 15 August 2014, in parallel proceedings, the Frankfurt am Main Court of Appeal transferred the right to determine the children’s place of residence back to the applicants. The court held that, as pointed out in its decision of 25 April 2013 (see paragraph 15 above), the applicants’ persistent refusal to send their children to school constituted child endangerment and that neither their temporary schooling nor the learning assessment of the children had changed that conclusion. However, the court continued, the situation had changed in comparison to that of August 2013, at which point – according to the information provided by the youth office – several elements had led to the children’s removal from the family home: a risk emanating from the children’s father to their physical integrity could not be excluded; failed attempts to bring the children to school by the police had led to the risk of the children internalising the attitude that laws had had no bearing on them; attempts to carry out a learning assessment had failed owing to the resistance of the applicants; and according to the information available at the time, it had been possible to assume that the children had had no contact with anyone outside of the family whatsoever. According to the information gathered since the removal of the children by the youth office, any risk to their physical integrity emanating from the applicants could now be excluded. Moreover, the learning assessment had showed that the knowledge level of the children was not alarming and that the children were not being kept from school against their will. Since permanent removal of the children from their parents would be the only possible way to ensure the continued schooling of the children, this was no longer proportionate as it would have a greater impact on the children than being homeschooled by their parents. The Court of Appeal however emphasised that the present decision should not be understood as permission for the applicants to homeschool their children. In that regard it observed that the Education Authority had already lodged a criminal complaint against the applicants for failing to comply with the rules on compulsory school attendance, which carried a maximum sentence of six months’ imprisonment. | This case concerned the withdrawal of some aspects of the parents’ authority and the removal of the four children from their family home for three weeks, after the applicants persistently refused to send their children to school. The applicants complained about the decision by the German authorities to withdraw parts of their parental authority by transferring them to the youth office. In particular, they complained about the forcible removal of their children and their placement in a children’s home for three weeks. |
395 | Medical care / treatment during hunger strike | I. THE CIRCUMSTANCES OF THE CASE A. Background to the case 5. The applicant was born in 1969 and lives in Hamburg. He is the brother of the late Y.C., also a Gambian national, who was born in 1987 and applied for asylum in Austria in 2004. 6. On 4 April 2005, the Vienna Regional Criminal Court ( Straflandesgericht ) convicted Y.C. of drug trafficking and sentenced him to seven months ’ imprisonment. Y.C. began serving his sentence at Vienna ‑ Josefstadt Prison ( Strafvollzugsanstalt ). On 2 May 2 005 he was transferred to Linz Prison. 7. On 18 April 2005 the Vienna Federal Police Authority ( Bundespolizeidirektion ) dismissed Y.C. ’ s asylum application and ordered his expulsion to the Gambia. An appeal lodged by Y.C. was dismissed by the Vienna Federal Asylum Office ( Bundesasylamt ) on 6 June 2005. He did not appeal against this decision and it became legally binding on 5 July 2005. 8. On 8 September 2005 the Linz Federal Police Authority issued an order for Y.C. to be placed in detention with a view to his expulsion. 9. On 12 September 2005 Y.C. was conditionally released from prison and directly transferred to the Linz police detention centre ( Polizeianhaltezentrum – hereinafter “the detention centre” ). 10. Upon his admission to the detention centre, Y.C. was examined by a police doctor ( Polizeiarzt ), who noted that Y.C. was in a good general state and was fit for detention. His weight was recorded at 76.5 kg and his height at 1 70 cm. Communication between the authorities and Y.C. took place in English. 11. On 26 September 2005 the police doctor, while conducting a routine examination which all detainees have to undergo at two-week intervals, again noted that Y.C. ’ s state of health was good and recorded his weight at 70 kg. 12. On 27 September 2005 Y.C. went on hunger strike. On 28 September 2005 he informed the authorities thereof. Representatives of Human Rights Association Austria ( Verein Menschenrechte Österreich ), a non-governmental organisation (NGO) who had already been counselling him since the day of his admission to the detention centre, came to talk to him. On the same day Y.C. was subject to an initial hunger- strike examination ( Hungerstreik-Eingangsuntersuchung ). Y.C. was handed an information pamphlet on hunger strikes ( in English ) and was also orally informed by the public medical officer of the possible consequences of a hunger strike. A medical hunger- strike protocol ( Hungerstreikprotokoll ) was filled out, in which his state of health was described as follows: “ Musculature in a good, well- trained state, pronounced muscles of the upper arm, six-pack like someone who practices athletic sports, appears vital, overall. ” 13. On the hunger- strike protocol it was noted that at the outset of his hunger strike, Y.C. had weighed 67 kg. On the basis of this, Y.C. ’ s “critical weight” was calculated at 54 kg (see paragraph 64 below). Under the heading “reasons given for hunger strike”, it was noted that Y.C. “absolutely wanted to be transferred back to cell no. 36”. He had been placed in a different cell because he and his cellmates had allegedly tried to escape from cell no. 36. 14. Daily health checks of Y.C. were subsequently carried out, during which his weight was checked, his blood pressure was taken and his oxygen saturation level was measured. Until 1 October 2005, no anomalies were detected. 15. On 2 October 2005 the public medical officer noted that Y.C. ’ s tongue was slightly dry, and on 3 October 2005 that his lips were “barky” ( borkig ). Further, there were occasional comments on the hunger- strike form to the effect that Y.C. resisted examination and was “malingering” ( simuliert ) – for example, he had “pretended to fall”, “refused to be examined”, “needed to be carried by other detainees”, and “tilted over from [his] chair in an ostentatious manner ”. 16. After examining Y.C. during the morning of 4 October 200 5, Dr F. G., the police doctor in charge, noted the following: “Pretends to be weak, has to be physically supported by two detainees – therefore weight check not possible. Dry tongue, barky lips. I request a medical assessment by a specialist. Possibly blood test, ionogram.” 17. On 4 October 2005 at 9 .30 a. m. , Y.C. was taken to Linz General Hospital ( Allgemeines Krankenhaus ) for examination and an assessment of whether he was fit enough for further detention. Because Y.C. resisted the examination and kicked out at a nurse, his hands and feet had to be shackled by the police officers who had accompanied him to the hospital. According to a report drawn up by the treating doctor on 4 October 2005, it was “not possible to assess the intake of liquids”, “communication [was] difficult” because Y.C. did not speak German, he had “dry lips” and had his eyes “ constantly closed”, but “walking [ was ] possible if [he was] supported”. The hospital further noted that if his general condition worsened, he would have to be force-fed and taken to a psychiatric ward, because he “lashed out from time to time”. Taking his blood for a blood test had been difficult and risky; nevertheless, with the support of the two police officers, who secured Y.C. in a chair in the examination room, the doctor nonetheless managed to take a small amount of blood. After consulting the senior doctor, the treating doctor formally confirmed Y.C. ’ s fitness for detention and noted the police doctor ’ s telephone number in order to contact him after obtaining the results of the blood test. 18. Y.C. was subsequently taken back to the detention centre and at around 11 a. m. was placed alone in a security cell ( Sicherheitszelle ) because of his behaviour at the hospital. His shackles were removed. The security cell did not contain a water outlet, but Y.C. could request a water bottle at any time. A police officer checked on Y.C. every fifteen to thirty minutes. At 12. 30 p. m. , Y.C., who was lying on the bed, reacted to the police officer ’ s presence by lifting his head. When the officer next checked, at 12. 50 p. m. , he was not breathing anymore and had no pulse. At 1. 20 p.m. he was declared dead by an emergency doctor who had been immediately called to the scene. The presumed time of death was 12.40 p.m. His weight was recorded at 59 kg. At 1. 42 p. m. the blood test results from the hospital examination (see paragraph 17 above) were produced. They indicated that Y.C. had been dehydrated and that he should have been hydrated intravenously and placed in intensive care. 19. In a report of 5 October 2005 the doctor from the hospital noted that Y.C. had been uncooperative during his examination. It had been virtually impossible to take a blood sample as the patient had resisted strongly. At that time nothing had indicated that Y.C. ’ s physical condition could become life-threatening. In a statement given on 14 October 2005 the doctor described Y.C. as not having been weak at all, rather, he had been physically strong and had steadily resisted treatment with all his might ( nach Leibeskräften ), using the whole of his body and kicking out with his legs. After examination of his tongue, pulse, respiration, heartbeat and skin, he had observed Y.C. ’ s dry lips, but had seen none of the other usual signs of dehydration or other abnormalities. He further stated that even as an experienced emergency unit doctor, a rapid and fatal development of Y.C. ’ s situation had not at all been foreseeable by him. B. Criminal investigation 20. On 4 October 2005, the day of Y.C. ’ s death, the Linz public prosecutor ’ s office ( Staatsanwaltschaft – hereinafter “the public prosecutor” ) instituted a criminal investigation against “unknown offenders” and requested the Linz Regional Court ( Landesgericht ) to conduct a judicial investigation. The investigating judge ordered that an autopsy be conducted by a sworn and judicially certified expert ( beeideter und gerichtlich zertifizierter Sachverständiger ); the autopsy was conducted on 5 October 2005. On the same day, the investigating judge, in response to a request made by the public prosecutor, delivered a decision ordering the seizure of the blood samples taken from Y.C., together with the pertinent examination report. 21. On 5 October 2005 the Linz Federal Police Authority submitted a detailed report on the circumstances of Y.C. ’ s death. 22. On 6 October 2005 the public prosecutor requested the Office for Internal Affairs at the Ministry of the Interior ( Büro für interne Angelegenheiten des Bundesministeriums für Inneres – hereinafter the “OIA”) for it to carry out an investigation. The request included that interviews be conducted with : the two police officers who had accompanied Y.C. to the hospital on the day of his death; the police doctor who had examined Y.C. on that day; the doctor at Linz General Hospital who had examined Y.C.; the police officers who had been checking on Y.C. when he was placed in the security cell; and Y.C. ’ s cellmate. 23. On 12 October 2005 the public prosecutor added to the case file a note regarding a telephone conversation between him and Dr H., the expert who had conducted the autopsy, regarding the preliminary findings of that autopsy. 24. The OIA subsequently conducted an investigation at the detention centre ’ s medical service, procured documents from the detention centre, and produced written records of the requested interviews (see paragraph 22 above). The OIA ’ s report was submitted to the public prosecutor on 18 October 2005. 25. On 24 October 2005 the investigating judge complied with a request lodged by the public prosecutor for the inclusion in the case file of the results of the investigation up until that date, as well as for Y.C. ’ s medical history to be obtained from the detention centre, and for these documents to be transmitted to the expert Dr H. It was further decided that the scale used to weigh Y.C. at the detention centre be seized and sent for technical examination. 26. On 5 November 2005 the OIA submitted a report containing the results of the supplementary investigation. 27. On 1 December 2005, after being supplied with all pertinent documents by the OIA, the Austrian Human Rights Advisory Board ( Menschenrechtsbeirat – hereinafter “the Advisory Board” – an independent monitoring body established in 1999 at the Ministry of the Interior ) issued a report on Y.C. ’ s death. In that report, the Advisory Board considered several points to be problematic: that Y.C., after his visit to Linz General Hospital on 4 October 2005, had been further monitored only by police officers, rather than by medical professionals; that no interpreter had been present during the said hospital visit; that a blood sample had been taken from Y.C. against his will; and that the calculation of Y.C. ’ s critical weight had been questionable. The issues of Y.C. ’ s possible dehydration and carrying sickle cell disease had not been addressed in the report, as it had been drawn up before the delivery of the final autopsy report by Dr H. (see paragraph 30 below). 28. On 12 December 2005 the applicant, who was represented by counsel, joined the criminal proceedings as a private party. 29. By an order of 14 December 2005 the investigating judge urged the expert to submit his report. 30. On 4 January 2006 Dr H., the forensic expert who had conducted the autopsy, submitted his final autopsy report ( dated 5 October 2005 ), as well as his expert report on Y.C. ’ s death, to the Linz Regional Court. He stated in the autopsy report that Y.C. ’ s body had not shown signs of “significantly acute malnutrition”, nor had there been signs of “classic dehydration”. 31. In the more detailed expert report, Dr H. stated that Y.C. ’ s body had not shown signs of any injuries; therefore, death caused by the use of force could be excluded. Y.C. had been slim, but had not appeared malnourished. His body had weighed 59.3 kg; his height had been 171 cm. No typical external signs of dehydration had been visible, except for the lips appearing to be slightly dry. The results of the internal investigation had recorded a thickening of the blood, which indicated a possible alternation to the blood while Y.C. had still been alive caused by a lack of hydration. Dr H. noted that a hunger strike alone could not lead to a thickening of the blood, as long as enough fluids were consumed. As concerns the hunger strike, Dr H. stated that it was likely that Y.C. had not eaten solid food for several days, but that it was unlikely that he had engaged in a long-term total hunger strike as the large intestine had still been filled with an abundance of stool along its entire length. 32. Dr H. further stated that neither Y.C. ’ s external appearance nor the medical reports produced until 4 October 2005 had indicated a life ‑ threatening situation, although there had been a significant reduction in his weight. Rather, it was more likely that a shift in the electrolyte system had commenced over a period of several days, as indicated by the results of the blood test conducted by Linz General Hospital on 4 October 2005. A post-mortem examination of Y.C. ’ s blood (conducted in the course of the autopsy) had shown that he had been a carrier of sickle cell trait ( Sichelzellanlage ). Dr H. explained that sickle cell disease ( Sichelzellenkrankheit ) was an inherited red blood cell disorder; while red blood cells (containing normal haemoglobin ) were disc - shaped, sickle haemoglobin could form stiff rods within the cell, changing it into a sickle shape. Dr H. added that the disease was rare among the white population, occurring mostly among black people. Unlike in the case of people suffering from sickle cell disease, in Y.C. ’ s blood the trait had been present in the heterozygous form, which is why the disease had remained undetected during his lifetime. In cases like Y.C. ’ s, symptoms of sickle cell disease only manifested themselves if there were further damaging external factors, such as dehydration or a lack of oxygen. 33. Dr H. concluded that the cause of Y.C. ’ s death had been dehydration, combined with the fact that he had been a carrier of sickle cell trait, which had caused a shift in the electrolyte system and had ultimately caused his heart to stop beating. Neither the authorities nor Y.C. himself had been aware that he had been a carrier of sickle cell trait. Dr H. stated that Y.C. ’ s death could only have been prevented if he had been tested earlier for sickle cell trait, or if he had been aware that he was a carrier thereof. However, the hunger - strike protocol had not indicated any necessity for a blood test in that respect. The test results from the hospital on the day of Y.C. ’ s death would have given reason for further tests. However, the results had only been produced after Y.C. ’ s death. 34. On 12 October 2005 the public prosecutor made a note in the criminal file ( Aktenvermerk ) about a conversation with Dr H. The doctor had expressed the opinion that with hindsight Y.C. ’ s extraordinarily aggressive behaviour at the hospital on the day of his death had resembled a delirious state caused by advanced dehydration and the consequent disintegration of his blood cells. 35. On 13 January 2006 the public prosecutor decided to discontinue the criminal investigation into the death of Y.C ., as no sufficient evidence could be found to warrant criminal proceedings. The applicant was informed that he had the right to ask the Council Chamber ( Ratskammer ) of the Linz Regional Court to conduct a preliminary investigation. However, he was also informed that he would have to bear the full costs of the criminal proceedings should the Council Chamber grant his request but the proceedings did not result in a criminal conviction. This decision was served on the applicant ’ s counsel on 19 January 2006. The applicant did not request that a preliminary investigation be instituted. 36. On 2 March 2006 the applicant submitted the decision of 13 February 2006 issued by the Upper Austria Independent Administrative Panel ( Unabhänigiger Verwaltungssenat Oberösterreich – hereinafter “ the IAP”) (see paragraph 46 below ) to the public prosecutor and requested him to investigate further. On 13 March 2006 the public prosecutor replied that the documents submitted had already been made available to him, but that they could not change his assessment of the procedural results obtained so far, since every aspect of the legal question to be answered had already been clarified by Dr H. ’ s autopsy report and his comprehensive expert report. C. Administrative proceedings 37. On 15 November 2005 the applicant requested the IAP to review the lawfulness of Y.C. ’ s detention ( Schubhaftbeschwerde ) and at the same time lodged a complaint about the conditions of his detention ( Maßnahmenbeschwerde ). He submitted in particular that Y.C. should not have continued to be kept in detention because he had no longer been fit to be detained on account of his hunger strike. As regards the conditions of Y.C. ’ s detention, he submitted that the medical treatment of Y.C. had not been in conformity with section 10 ( 1 ) of the Detention Ordinance ( Anhalteordnung – see paragraph 59 below). He furthermore claimed that his brother had been placed in a security cell, without access to water, on the day of his death, in contravention of section 5 ( 5 ) of the Detention Ordinance. 38. On 13 February 2006 the competent member of the IAP held a hearing during which he examined as witnesses the applicant, a cellmate of Y.C., one of the police doctors who had examined Y.C. during his hunger strike, and the police officers who had been in charge of examining detainees on the day of Y.C. ’ s death. 39. Y.C. ’ s former cellmate, H.C., stated that they had gone on hunger strike together to protest the duration of their detention, and that they had not been treated correctly by the police officers; however, he did not specify how that treatment had not been correct. He said that he did not remember the exact day on which they had begun their hunger strike, but that they had not eaten or drunk anything at all for twelve days. H.C. stated that he had had the impression that Y. C. had been “terribly weak” during the three days before his death. 40. According to the witness statements by employees of the NGO Human Rights Association Austria who had visited Y.C. on several occasions, Y.C. had not raised any allegations of ill-treatment during their visits. In fact, with the exception of his former cellmate, all other witnesses who had been in contact with Y.C. until his death had also stated during the IAP hearing that he had not appeared to be ill or weak, but that on the contrary, even on the day of his death he had seemed athletic and strong; which had been corroborated by photographs taken of his dead body and its description by Dr H. in the autopsy report (see paragraph 30 above ). 41. One of the police doctors, Dr F.G., gave evidence regarding, inter alia, the reason why the calculation of the critical weight of a detainee on hunger strike was based on his or her weight at the outset of the hunger strike, and not the weight recorded upon admission to the detention centre. He stated that detainees usually lost weight slightly during their detention, but that it was also possible for them to gain weight. He acknowledged that he had not even checked Y.C. ’ s initial weight, as the 65. 5 kg recorded on the day after Y.C. had announced his hunger strike had in principle amounted to a normal weight, given his height. Dr F.G. furthermore stated that on 3 October 2005 Y.C. had walked into the examination room without support. One day later, Y.C. had showed signs of dehydration and had come to the examination room supported by two police officers. Dr F.G. stated that he had accordingly ordered him to be examined at the hospital. 42. H., the police officer who had accompanied Y.C. to and from the hospital on the day of his death, stated that the reason for Y.C. ’ s placement in solitary confinement had been that – following Y.C. ’ s behaviour at the hospital – he and the other officer in charge had feared that Y.C. might harm himself or others. H. confirmed that there had been no water outlet in the security cell, but that Y.C. could have requested a water bottle at any time by ringing a bell. 43. B., the police officer who had been in charge of checking on Y.C. while he was being held in the security cell, stated that he had received an order to do so every fifteen to thirty minutes. During the checks, he had had to make sure that the detainee reacted when spoken to. When B. had checked on Y.C. at 12.30 p. m. , the latter had moved his head. At the next check at 12.50 p. m. , he had showed no reaction and had subsequently been pronounced dead by the emergency doctor, who had immediately been called to the scene. 44. During the IAP hearing on 13 February 2006 the applicant presented an undated and unsigned three-page statement by Dr W.G., whom he had engaged himself and who was a general practitioner in Linz with a focus on nutritional medicine. Dr W.G, who had not examined Y.C. ’ s body, had based his report on the autopsy report and expert report issued by Dr H., the report of the OIA (see paragraph 24 above) and the report by Linz General Hospital, and had come to the following opinion. On 12 September 2005, the day on which Y.C. had been taken into detention with a view to his expulsion, he had weighed 76.5 kg. On 28 September 2005, the day on which Y.C. had announced that he was on hunger strike, he had had a body weight of only 67 kg. The police doctor had made a mistake in taking the latter as the normal weight of Y.C. for the purposes of calculating his critical body weight. The doctor had not taken into account the fact that Y.C. had already lost 9.5 kg between 12 and 28 September 2005, meaning that Y.C. must have already started his hunger strike before he had officially announced it. From 28 September until the day of his death on 4 October 2005, Y.C. had lost a further 8 kg in body weight. However, the doctor had used Y.C. ’ s weight on 28 September (namely 67 kg) as a starting point, and had established his critical weight as 54 kg, which in Dr W.G. ’ s view was incorrect. The police doctor should have based his calculations on how much Y.C. had weighed when he had arrived at the detention centre. If he had, the correct critical weight would have been determined at 67 kg, minus 10%. Instead, Y.C. at the time of his death had already lost approximately 18% of his weight in fluids. For an adult person a loss of even 10% in fluids constituted a life-threatening situation. Dr W.G. assumed that Y.C. had died of dehydration resulting from the erroneous calculation of his body weight. He did not deal with the question of how far the sickle cell trait present in Y.C. ’ s blood had played a role in his death, nor did he provide any scientific source for his calculations. Dr W.G. ’ s opinion was later not supported by any of the official experts. 45. The applicant asked the IAP that the second police doctor in charge at the detention centre on the day of Y.C. ’ s death be questioned, and that another expert report be obtained in order to refute the expert report issued by Dr H. (see paragraphs 30 - 33 above). The IAP refused these requests. 46. The IAP, at the end of the hearing of 13 February 2006, ruled that Y.C. ’ s detention pending his expulsion had been unlawful and that the conditions of detention during his hunger strike had violated Y.C. ’ s right under Article 3 of the Convention to protection against ill-treatment. Concerning the cause of Y.C. ’ s death, the IAP reiterated the findings of the autopsy report and the expert report attached thereto (see paragraphs 30 - 33 above). The IAP argued that the State authorities had not fulfilled their role of guarantor of the applicant ’ s rights under Articles 3 and 5 of the Convention. It found that given the frequency of sickle cell disease among people from sub-Saharan Africa, the State was under an obligation to offer a test for sickle cell disease to all detainees from that specific geographic area, and in particular to those on hunger strike. 47. The Ministry of the Interior appealed against that decision. 48. On 30 August 2007, the Administrative Court quashed the IAP ’ s decision. It held that the applicant had no locus standi regarding the request for a review of the lawfulness of the detention of his brother because rights under Article 5 of the Convention were not transferable to other persons. Therefore, the IAP had not had authority to issue a decision in that respect. Concerning the complaint under Article 3 of the Convention, it held that the mere fact that a person was detained did not place any duty on the State to take measures (the need for which had not necessarily been foreseeable ) because of the genetic disposition of that person without a manifest outbreak of disease in that person. Moreover, it found that the IAP had not respected certain procedural requirements, which is why the Administrative Court referred the case back to the IAP. 49. On 1 April 2008 the applicant lodged an application with the European Court of Human Rights concerning the above-mentioned judgment of the Administrative Court; it was registered as Ceesay v. Austria ( no. 17208/08 ). Thereupon, the IAP decided to suspend the fresh proceedings until such time as the Court rendered its decision in respect of this complaint. 50. On 21 May 2010 the Court declared application no. 17208/08 inadmissible, pursuant to Article 35 § § 1 and 4 of the Convention, as the proceedings were still pending before the IAP and the complaints lodged by the applicant with the Court were therefore premature. 51. The IAP resumed the proceedings and on 11 June 2010 again issued a decision finding a violation of Article 3 of the Convention in respect of the conditions of Y.C. ’ s detention. It essentially reiterated the reasoning contained in its previous decision, explaining that the proceedings were not aimed at identifying an individual who could be held culpable for Y.C. ’ s death but at identifying errors inherent in the detention system – specifically, the lack of a standardised test for sickle cell disease for certain high- risk groups and the lack of clear instructions for the staff of the detention centre concerning detainees on hunger strike. 52. The Ministry of the Interior again lodged a complaint, arguing that there had been sufficient rules and instructions in place concerning the treatment of detainees. In the present case, there had not been any indications that Y.C. had suffered from sickle cell disease. Not even hospitals conducted standardised tests for this blood anomaly where there was no concrete suspicion in that respect. It added that the death of Y.C. had nonetheless prompted the Ministry of the Interior to issue a directive to detention centre authorities instructing them to (i) inform detainees who were on hunger strike and who belonged to a high- risk group of the possible consequences of sickle cell disease, and (ii) conduct the necessary tests. 53. On 20 October 2011 the Administrative Court again quashed the IAP ’ s decision. It reminded the IAP that it was bound by the legal interpretation that the Administrative Court had expressed in its previous judgment concerning the obligations of the State under Article 3 of the Convention towards detainees (see paragraph 48 above). Moreover, it suggested that the IAP order an expert report in order to determine whether the reduced mental and physical condition of Y.C. should have given rise to an investigation into the possibility that he had been suffering from sickle cell disease and whether appropriate medical treatment from that moment onwards could have prevented the death of Y.C. 54. During the course of the new round of proceedings, the IAP ordered an expert report, as suggested by the Administrative Court. In a report dated 19 May 2012, as well as during the hearing of 21 June 2012, the expert in question, Dr L., confirmed that according to his findings, Y.C. had been a sickle cell trait carrier. He added that this was the case in respect of 30% of the population of countries in sub-Saharan Africa, such as the Gambia ( where Y.C. had been from ), and that this trait served as a protection from Malaria. The fact that a person was a carrier of sickle cell trait did not mean that he or she was ill or had a lower life expectancy. Nonetheless he or she would face a higher risk of death in the event of engaging in strenuous activities (anstrengungsassoziierte Todesfälle ), and the trait could also cause rapid dehydration in the event of reduced liquid intake. Dr L. explained that sickle cell disease could only be detected through an analysis of blood samples, but that the need for such an analysis had at no point been clearly indicated in Y.C. ’ s case, even in the light of his reduced mental and physical condition. 55. The applicant submitted the same unsigned statement that he had already submitted during the hearing of 13 February 2006 (see paragraph 44 above). He did not submit any further requests. When the expert Dr L. was questioned by the IAP regarding the calculation of Y.C. ’ s critical weight, he stated that he was inclined to believe that Y.C. ’ s weight had been correctly calculated, but that that calculation had been wrongly recorded. In his opinion, it was unlikely that Y.C. could have lost 9 kg over the course of a sixteen -day hunger strike. 56. On 13 July 2012 the IAP dismissed the applicant ’ s complaint about the conditions of Y.C. ’ s detention, basing its decision on the finding contained in the expert report of Dr L. (see paragraph 54 above) that the need for an analysis of Y.C. ’ s blood in respect of sickle cell trait had not been indicated. It reiterated that according to the Administrative Court ’ s legal interpretation, by which it was bound, the State had no duty to take measures the need for which had not been foreseeable in respect of a person because of a certain genetic disposition without a manifest outbreak of the disease in that person. Therefore, the authorities ’ conduct had not constituted a violation of Article 3. 57. The applicant lodged a complaint with the Constitutional Court, which was dismissed on 22 November 2013. 58. On 25 April 2014 the applicant lodged a complaint with the Administrative Court, which, referring to its decisions of 30 August 2007 and 20 October 2011, dismissed it. This decision was served on the applicant on 16 May 2014. III. INTERNATIONAL MATERIAL 69. The World Medical Association Declaration on Hunger Strikers (adopted by the 43 rd World Assembly, Malta, November 1991, editorially revised at the 44 th World Medical Assembly in Marbella, Spain, September 1992 and ultimately revised at the 57 th WMA General Assembly in Pilansberg, South Africa, October 2006 ), addresses the conflicting situations faced by doctors in treating hunger strikers and provides guidelines for dealing with them. The relevant provisions of September 1992 “Malta Declaration”, the version in force at the relevant time, can be found in Nevmerzhitsky v. Ukraine, no. 54825/00, § 69, ECHR 2005 ‑ II (extracts). | This case concerned the death of the applicant’s brother, a Gambian national, in detention pending his expulsion. The latter was on hunger strike. On the day of his death, he had been taken to hospital for examination and his fitness for detention had been confirmed. On his return at around 11 a.m. he was placed alone in a security cell, which did not contain a water outlet. A police officer checked on him every 15 to 30 minutes. At 1.20 p.m. he was declared dead by an emergency doctor. The autopsy concluded that he had died of dehydration, combined with the fact that he had been a carrier of sickle cell trait, a fact of which he had been unaware. The applicant complained that there had not been an effective and comprehensive investigation into his brother’s death and that the causes of his death had remained unclear. He further maintained that the medical assistance provided to his brother during his hunger strike had not been in accordance with the law. |
723 | Access to court | I. THE CIRCUMSTANCES OF THE CASE 8. The first five applicants are individual Spanish nationals who live in Itoiz (Navarre province ). The third applicant is also the chairperson and legal representative of the sixth applicant, the Coordinadora de Itoiz association. The first, second, fourth and fifth applicants are members of this association. A. Background to the case 9. The case originated in an engineering project of February 1989 for the construction of a dam in Itoiz (Navarre province) which would result in the flooding of three nature reserves and a number of small villages, including Itoiz, where the applicants live. According to the Government, the total number of landowners affected by the dam's construction is 159, thirteen of whom live in Itoiz itself. 10. On 6 May 1988 the Coordinadora de Itoiz association was set up; its articles of association state, inter alia, that its aim is “to coordinate its members'efforts to oppose construction of the Itoiz dam and to campaign for an alternative way of life on the site, to represent and defend the area affected by the dam and this area's interests before all official bodies at all levels, whether local, provincial, State or international, and to promote public awareness of the impact of the dam”. By a ministerial decree of 2 November 1990, the Ministry of Public Works adopted the Itoiz dam project. B. The administrative appeal to the Audiencia Nacional 11. In 1991 the villages concerned by the dam and the applicant association brought an administrative appeal before the Audiencia Nacional against the ministerial decree of 2 November 1990. The appeal was based on several allegations of unlawfulness which, in their opinion, had tainted the procedure for informing the public about the proposed dam, the fact that the project had been adopted without the prior approval of the hydrological plans for each river basin or of the national hydrological plan and the lack of any public or social interest served by the project. They also claimed that the project breached the legislation on environmental protection, since no environmental impact study had been commissioned. Finally, the court's attention was drawn to the project's impact on the nature reserves and habitat within the relevant area in the light of the Council of Europe's recommendations on engineering works in the Pyrenees and the European Union's common agricultural policy. 12. In a judgment of 29 September 1995, the Audiencia Nacional partly upheld the appeal, considering in particular that, according to the law, the planned dam should have been based on the national hydrological plan, which had not been drawn up when the project was approved. The court also accepted the request for precise designation of the protection zones around the nature reserves affected by the dam and for a breakdown of the quarry use that would be necessary for its construction. 13. The applicant association applied for immediate enforcement of the judgment and, in particular, for suspension of construction work on the dam. By a decision of 24 January 1996, the Audiencia Nacional granted a suspension order but directed that the necessary measures be taken to ensure the completion of work already begun and for the maintenance and safety of the work already completed, subject to the payment of security by the applicant association. 14. All the parties to the proceedings lodged súplica appeals against the decision of 24 January 1996. In the context of the interim enforcement of its judgment of 29 September 1995 and, in particular, with a view to maintaining the protection zones around the three nature reserves affected by the project, the Audiencia Nacional, by a decision of 6 March 1996, prohibited the filling of the reservoir and displacement of the population concerned. C. Enactment by the Autonomous Community of Navarre of Autonomous Community Law no. 9/1996 15. On 17 June 1996 the parliament of the Autonomous Community of Navarre ( parlamento foral de Navarra ) passed Autonomous Community Law ( foral ) no. 9/1996 on natural sites in Navarre (“the Autonomous Community law of 1996). This law amended Autonomous Community Law no. 6/1987 of 10 April 1987, particularly with regard to the possibility of reclassifying the protection zones or carrying out activities within them for the purpose of introducing infrastructure that had been declared in the general or public interest. According to the applicants, this Law enabled construction work on the dam to continue, with the consequent deterioration of the protected natural site. In application of the Autonomous Community law of 1996, the Autonomous Community's government adopted Decree no. 307/1996 of 2 September 1996, which identified the peripheral protection zones for certain nature reserves and strict nature reserves in Navarre. D. Appeal on points of law by the State and the government of the Autonomous Community of Navarre against the Audiencia Nacional's judgment 16. In the meantime, Counsel for the State and the government of the Autonomous Community of Navarre had appealed on points of law against the Audiencia Nacional's judgment of 29 September 1995. In a judgment of 14 July 1997, the Supreme Court definitively cancelled the dam project in so far as it concerned the 500 -metre protection zones around nature reserves RN 9, 10 and 11. As a result of the judgment, the size of the planned dam, and thus of the area to be flooded, was reduced, so that the village of Itoiz, where the applicants'immovable property was located, was saved from flooding. E. Proceedings to enforce the Supreme Court's judgment 17. In application of the Supreme Court's judgment, by a decision of 4 September 1997, the Audiencia Nacional declared final the interim enforcement measures ordered on 6 March 1996 concerning the prohibition on filling the reservoir and other related work. Before ruling on the question of the possible suspension of construction work on a dyke, the Audiencia Nacional invited the parties to appear before it so that they could submit observations on the consequences of the new Autonomous Community law of 1996, particularly with regard to the protection zones around all the nature reserves provided for in that law, and on the impact of the maximum flood levels on the protection zones of the reserves to which the cancelled project had referred. 18. The central State authorities and the Navarre Autonomous Community's government argued before the Audiencia Nacional that it had become legally impossible to enforce the Supreme Court's judgment of 14 July 1997, in so far as the Autonomous Community law of 1996 had removed protection - zone status from the area within the nature reserves that was due be flooded. Accordingly, taking that legislative amendment into account, it had become possible to carry out the public-works schemes planned within those protection zones. 19. The applicant association contested the authorities'argument, claiming that the Autonomous Community law of 1996 was inapplicable in the instant case, since it had been enacted following the administrative decisions in the proceedings in issue and subsequent to the Audiencia Nacional's judgment and the two interim enforcement orders. In the alternative, the applicant association requested that certain provisions in the Autonomous Community law be referred to the Constitutional Court for a preliminary ruling on their constitutionality, particularly those authorising the removal of protection - zone status from the three nature reserves in the area to be flooded, which, in the applicant association's submission, would allow the work to be completed and make the reservoir cover the area specified in the original plans. F. Reference of a preliminary question to the Constitutional Court 20. By a decision of 1 December 1997, the Audiencia Nacional asked the Constitutional Court to rule on the preliminary question submitted by the applicant association. By a decision of 21 May 1998, the Constitutional Court declared the application inadmissible on account of certain errors in its presentation which could nonetheless be corrected. 21. In order to rectify the above-mentioned errors, the Audiencia Nacional summoned the parties on 28 May 1998 so that it could hear their submissions on certain aspects of the Autonomous Community law whose constitutionality had been challenged before the Constitutional Court, and on the constitutionality of section 18(3) (A. 1. ) and (B) of that law. The applicant association submitted its observations on 10 June 1998. By a decision of 17 June 1998, the Audiencia Nacional again asked the Constitutional Court to rule on the preliminary question as to constitutionality and extended the question to include a new point raised by the applicant association, namely section 18(3) (B) (B. 1. ) of the Autonomous Community law. 22. By a decision of 21 July 1998, the Constitutional Court declared the issues raised in the preliminary question admissible. Under section 37 (2) of the Judicature Act, it gave notice of the questions to the Chamber of Deputies, the Senate, the government and parliament of Navarre and the Spanish government, and invited them to file their observations within fifteen days. The Constitutional Court received Counsel for the State's observations on 4 September 1998. The government and parliament of Navarre submitted their observations on 11 and 15 September 1998 respectively. The Attorney General's observations were submitted on 29 September 1998. The Speaker of the Chamber of Deputies indicated that the Chamber would present no observations. The Speaker of the Senate asked that the Senate be considered a party to the proceedings and offered its assistance. On 1 March 2000 the Audiencia Nacional forwarded to the Constitutional Court the written pleadings submitted by the applicant association during the proceedings before it. These pleadings, dated 29 September 1997, 10 June 1998 and 28 February 2000, were formally included in the case file at the Constitutional Court. G. The Constitutional Court's judgment 23. In a judgment of 14 March 2000, the Constitutional Court, sitting as a full court, held that the impugned provisions of the Autonomous Community law of 1996 were compatible with the Constitution. It observed at the outset that enforcement of the Supreme Court's judgment of 14 July 1997, delivered in accordance with Navarre Autonomous Community Law no. 6/1987, had become impossible since the entry into force of the Autonomous Community law of 1996, in that the cancelled project complied with the new law. 24. Examining the purpose of the Autonomous Community law of 1996, the Constitutional Court held as follows: “... Its purpose is to establish a general system for environmental protection of the natural sites in the Autonomous Community of Navarre. Accordingly, this protection system [was] applicable ... to the nature reserves already identified in the previous Autonomous Community law, even though the essential difference between the legal rules established by those two laws lies in the arrangements regarding the peripheral protection zones.” 25. The Constitutional Court held, firstly, that this was not to be seen as a legislative solution for the particular problem of the three peripheral zones around the three nature reserves affected by construction of the Itoiz dam and, secondly, that statements and parliamentary initiatives by certain politicians which, in the opinion of the Audiencia Nacional, demonstrated that the main aim of the Autonomous Community law of 1996 was to prevent execution of the Supreme Court's judgment, were immaterial in assessing whether there had been a violation of the principle of lawfulness. The Constitutional Court also ruled that, given the significance of the question raised by the Itoiz dam's construction, which could not simply be ignored, it was justifiable that the explanatory memorandum accompanying the Autonomous Community law of 1996 specifically mentioned the aim and means of environmental protection in the peripheral protection zones around the three above-mentioned nature reserves. 26. As to the alleged infringement of the right to a fair hearing, in so far as the Autonomous Community law of 1996 now prevented execution of the Supreme Court's judgment partly cancelling the Itoiz dam project, the Constitutional Court considered that the fact that in the meantime a new law had been passed amending the legal system applicable to the peripheral protection zones and replacing the previous law on the basis of which the project had been declared partly void was not in itself incompatible with the right to execution of judicial decisions as enshrined in Article 24 of the Constitution. 27. Referring to the case-law of the European Court of Human Rights and, in particular, to the judgments in Stran Greek Refineries and Stratis Andreadis v. Greece (9 December 1994, Series A no. 301-B) and Papageorgiou v. Greece (22 October 1997, Reports of Judgments and Decisions 1997-VI), the Constitutional Court examined whether the impossibility of executing the Supreme Court's judgment as a consequence of the enactment of the Autonomous Community law of 1996 was justified in view of the values and assets protected by the Constitution. Having held that environmental protection was enshrined in the Constitution, the Constitutional Court examined whether the prejudice arising from the failure to execute the judgment in issue was proportionate to the protected or disputed interests or was on the other hand purposeless, excessive or the cause of a clear imbalance between the interests at stake. It found that both the Supreme Court's judgment of 14 July 1997 and the new Autonomous Community law of 1996 were intended to guarantee the existence of a peripheral protection zone around the three nature reserves affected by the dam's construction. The Constitutional Court further noted that the system of peripheral protection zones introduced by this new law had not in itself been considered arbitrary in the Audiencia Nacional's decision; nor had the zones'new boundaries been held responsible for the serious deterioration of the environment. Accordingly, it held that the balance of general interests had been respected and that there was no clear lack of proportion between the conflicting interests. Consequently, the impugned provisions could not be held to be contrary to Article 24 § 1 of the Constitution. 28. As to the argument that the new legal rules governing the peripheral protection zones around the nature reserves appeared in a law rather than in regulations, as had previously been the case, and that this deprived the applicants of the possibility of overseeing the administration's actions through an administrative appeal or enforcement proceedings, the Constitutional Court noted that there was no legal provision requiring that certain subjects be dealt with by regulations. It added that the new law did not amount to ad causam legislation, being general in form and in substance, and pointed out that laws could be challenged before the Constitutional Court through the remedy provided for in Article 163 of the Constitution. Accordingly, the Constitutional Court dismissed the application for a preliminary ruling. The judgment was published in the Official Gazette on 14 April 2000. | The five first applicants and an association of which they were members brought proceedings against plans to build a dam that would result in three nature reserves and a number of small villages being flooded. They submitted in particular that they had not had a fair hearing in that they had been prevented from taking part in the proceedings concerning the reference of the preliminary question, whereas the Spanish State and State Counsel’s Office had been able to submit observations to the Constitutional Court. |
955 | Restrictions on voting rights based on a residence criterion and exercise of the right to vote for non-resident citizens | I. THE CIRCUMSTANCES OF THE CASE A. General background to the case 6. The 101 applicants, whose names are appended, are Bulgarian nationals of Turkish origin and/or of Muslim faith who live or have lived in Turkey. They all exercised their right to vote at the 2009 Bulgarian general elections in 17 of the polling stations set up in Turkish territory, the election results in which were subsequently contested by the RZS political party and nullified by the Bulgarian Constitutional Court. 7. According to the official statistics from the census carried out in Bulgaria in 2011, 588,318 persons stated that they were ethnic Turks, amounting to 8.8 % of the persons who answered that question, and 577,139 persons stated that they were of Muslim religion. Since the late 1980 s, the members of those communities have been involved in major migrations leading many of them to settle in Turkey. The Court has no official information on the exact number of Bulgarian citizens who are ethnic Turks or Muslims living temporarily or permanently in Turkey. Estimates of that number vary considerably, generally ranging from 300, 000 to 500, 000 individuals, in all the age brackets. 8. The DPS was founded in 1990. Its statutes define it as a liberal political party endeavouring to help unite all Bulgarian citizens and to protect the rights and freedoms of minorities in Bulgaria as guaranteed by the Constitution and national legislation, as well as by the international instruments ratified by the Republic of Bulgaria. 9. The DPS has put up candidates for all general and local elections in Bulgaria since its inception. It has won seats in the national Parliament in all the general elections held since 1990. Between 2001 and 2009 it took part in two successive coalition governments. Several of its leaders and members belong to the Bulgarian Turkish and Muslim minorities. 10. Mr Riza was born in 1968 and lives in Sofia. A DPS member, he is also one of its Vice- Presidents and a member of the party ’ s central executive bureau. He is currently a DPS deputy of the National Assembly. 11. These two applicants submit that most of the Bulgarian citizens currently living in Turkey have voted for the DPS at all the general elections held over the last twenty years. B. Bulgarian general elections on 5 July 2009 12. By Decree of 28 April 2009 the Bulgarian President set 5 July 2009 as the date of the elections to the 41 st National Assembly. The electoral law laid down a new hybrid electoral system: 31 deputies were to be elected on a first-past-the-post basis in single-member constituencies, and 209 deputies were to be elected on a proportional basis at national level in 31 multiple-member constituencies. 13. Bulgarian citizens living abroad were entitled to vote in the general elections, but only for parties and coalitions, and their votes were taken into account in the proportional distribution of sears among the different political formations at the national level ... Having obtained the consent of the competent authorities in the countries concerned, the Bulgarian diplomatic representations opened 274 polling stations in 59 countries, 123 of them in Turkey. 14. On 20 May 2009 the Central Electoral Commission registered the DPS as participating in the general elections. The DPS presented lists of candidates in several single- and multiple-member constituencies. It was also included on the ballot paper designed for voting by Bulgarian citizens living abroad. Mr Riza was included in second position on the list of his party ’ s candidates for the 8 th multiple-member constituency (Dobrich). 15. Thirteen of the 101 applicants ( see appended list ) (nos., 13, 17, 21, 26, 30, 39, 51, 59, 74, 75, 89 and 94) submitted that they had all personally submitted prior declarations of intention to vote to the Bulgarian diplomatic representations in Turkey. The Bulgarian diplomates has asked them to take part in local electoral committees in Istanbul, Bursa, Çerkezköy, Çorlu and İzmir as presidents, secretaries or ordinary members, which they had agreed to do. On 4 July 2009 they had been invited to the offices of the Bulgarian diplomatic and consular representations, where Bulgarian diplomats had informed them about the formalities to be complied with on election day, and in particular how to draw up the electoral rolls. Some of the applicants affirmed that they had only been given one instruction on that subject, to the effect that persons attending the polling station on election day without preregistration should be included on the additional pages of the electoral roll, and that the last name added on election day should be suffixed with a “ Z ”. 16. The 13 applicants submitted that their names had not been included on the list at the polling station where they were to function as members of the electoral committee. They had all voted in their respective polling stations by registering on election day and signing opposite their names and forenames. Furthermore, they submitted that they had carefully indicated their choices on their ballot papers, without any other type of indication, and slotted the papers into the ballot box. 17. The 13 applicants also pointed out that there had been no particular problems on election day. Their respective electoral committees had been made up of Bulgarian nationals living in their respective towns and representatives of the Bulgarian Ministry of Foreign Affairs. Some of the polling stations had been visited by the Bulgarian Ambassador and Consul General, and others had been reported on by Bulgarian public television and radio teams, and no irregularities had been noted. At the close of polling on election day the local committees had counted the votes, filled in the requisite report forms and submitted the electoral documents to the Bulgarian diplomatic representatives. 18. The other 88 applicants submitted that at the material time they had been living in Turkey. Some of them had sent prior statements of intention to vote to the Bulgarian diplomatic representations, but they had never been informed in return of which polling stations to vote in. On election day all the applicants in question had attended the nearest polling stations in their respective towns. Their names had been handwritten into the electoral rolls, and after voting they signed opposite their names. 19. According to information available on the Central Electoral Commission website ( http://pi2009.cik.bg ), following the 5 July 2009 elections, six political parties and coalitions garnered more than the minimum 4 % of votes cast and were included in the process of proportional distribution of seats in the National Assembly: the GERB party, the Coalition for Bulgaria, the DPS, Ataka, the Blue Coalition and the RZS party. 20. The DPS obtained a total of 610, 521 votes, or 14. 45 % of the valid votes, which made it the country ’ s third political party. It garnered 61. 18 % of the out-of-country voting, that is to say 93, 926 votes, 88, 238 of which were cast in polling stations in Turkish territory. It came out well ahead in the 17 polling stations – in Istanbul, Bursa, Çerkezköy, Çorlu and İzmir – in which the 101 applicants had voted. By decision of 7 July 2009 the Central Electoral Commission assigned the DPS 33 parliamentary seats under the proportional representation system, together with a further five seats won in the first-past-the-post constituencies. 21. Following the apportionment of seats won by the DPS at the national level in the 31 multiple-member constituencies, the party won only one seat in the 8 th constituency. However, another political formation, the Blue Coalition, having appealed to the Constitutional Court and the votes cast in a polling station in the 19 th constituency having been recounted, the Central Electoral Commission conducted a reassignment of the seats won at the national level among the 31 multiple-member constituencies. This gave the DPS a second seat in the 8 th constituency, where Mr Riza was in second place on his list of candidates, and removed one of the two seats initially won in the 19 th multiple-member constituency. On 12 October 2009 Mr Riza was declared elected to the National Assembly. He was sworn in as a deputy and became a member of his party ’ s parliamentary group. On 20 January 2010 he was elected member of the Parliamentary Commission on Ethics and the Fight against Corruption and Conflicts of Interest. C. Procedure for contesting election results before the Constitutional Court 1. The appeal lodged by the RZS party 22. On 21 July 2009 the President and three other members of the RZS ( Red, Zakonnost, Spravedlivost – “Order, Law and Justice”), a right-wing conservative party, requested the Attorney General to lodge with the Constitutional Court the appeal provided for in section 112 of the Electoral Law in order to annul the election of seven DPS deputes on the grounds of several irregularities which had occurred in the 123 polling stations operating in Turkish territory. The four appellants complained of several breaches of electoral legislation in connection with the setting up of the said polling stations and their handling of the voting : they claimed that the rule requiring a polling station to be opened for every one hundred prior statements of intention to vote had been flouted in Turkish territory; some electors had exercised their voting rights once in Bulgarian national territory and again in a polling station in Turkish territory; incorrect information had been included in the reports drawn up by the electoral committees concerning the number of voters in the polling stations in question; 23 of them had allegedly dealt with over 1,000 voters, which would have been a practical impossibility in view of the opening hours of the polling station and the time required to complete the requisite formalities for each voter, and the electoral committees attached to those polling stations had, in certain cases, reportedly allowed persons into the voting booths without valid Bulgarian identity papers. The appellants invited the Constitutional Court to verify the authenticity of the prior voting requests issued in Turkish territory, to check the electoral rolls drawn up in the region of Bulgaria where the individuals wishing to vote in Turkey had their permanent addresses, and to declare null and void the records drawn up by the electoral committees responsible for the polling stations opened in Turkish territory. According to the appellants, the large number of irregularities committed in the voting procedure in the 123 polling stations in question necessitated the annulment of the votes cast in them, which annulment would have changed the election results and led to the ousting of seven DPS deputies from their seats. 23. On 22 July 2009 the Attorney General transmitted the request submitted by the President and three other members of the RZS party to the Constitutional Court. 2. The initial phase of the proceedings before the Constitutional Court 24. On 11 August 2009 the Constitutional Court declared the appeal admissible and designated as parties to proceedings the National Assembly, the Council of Ministers, the Ministry of Foreign Affairs, the Central Electoral Commission, the National Department responsible for Citizens ’ Civil Status Data and two non-governmental organisations. It sent copies of the request and the relevant documents to the parties to proceedings and gave them a deadline of twenty days to submit their observations on the merits of the case. That court asked the National Department responsible for Citizens ’ Civil Status Data to ascertain how many voters had voted in the national territory and then again in Turkish territory, and invited it to submit certified copies of the lists of persons having voted and the reports on voting drawn up by the polling stations in Turkish territory. The President of the Constitutional Court, R.Y., and Judge B.P. signed the admissibility decision, while issuing a separate opinion. They argued that the Attorney General should have submitted a reasoned request to the Constitutional Court rather than merely transmitting the request for annulment lodged by the RZS political party. 3. Initial written observations by the DPS parliamentary group 25. On 18 September 2009 the DPS parliamentary group of the National Assembly presented its written observations on the case. It first of all disputed the admissibility of the appeal lodged by the four appellants, arguing that the Attorney General had failed to conduct a prior assessment of the merits of the said request, merely transmitting it to the Constitutional Court, that the appeal had been lodged belatedly, after the deputies in question had been sworn in, and that the seven DPS deputies mentioned in the request had been designated randomly since the out-of-country votes had been used solely to apportion the seats among the various parties at the national level and not for the benefit of any given list of candidates. Secondly, the DPS parliamentary group submitted that the request had been ill-founded for the following reasons: the legal conditions for setting up the 123 polling stations in question had been fulfilled; there had been very few cases of double voting, and voting secrecy precluded determining for which party exactly those persons had voted; the number of persons included on the additional electoral rolls on election day had been higher than that of preregistered voters because the number of persons wishing to exercise their voting rights had far exceeded the number of voters having previously declared their intention to vote outside the country; and in several of the out-of-country polling stations the number of persons voting had exceeded one thousand, and that had not been the case only in the polling stations in Turkey. 4. Expert reports commissioned by the Constitutional Court 26. On 6 October 2009, at the request of the RZS party, the Constitutional Court ordered a threefold expert assessment to provide the answers to the following questions: ( i) how many prior statements of intention to vote were submitted for the territory of Turkey, from which towns were they sent, and did their number correspond to the number of polling stations set up? ( ii) were the identity papers of electors voting in the 123 polling stations valid? ( iii) did the numbers of electors voting recorded in the minutes drawn up on election day correspond to the total number of preregistered electors and persons registered on the rolls on election day, and were there any polling stations in which none of the preregistered persons exercised their right to vote? ( iv) what was the maximum number of persons who could vote in a polling station over election day? The three experts were given leave to consult all the documents on elections in Turkish territory which the diplomatic service of the Ministry of Foreign Affairs had submitted to the Central Electoral Commission. 27. The expert report was submitted to the Constitutional Court some time later. It indicated that there had been a total of 27, 235 prior declarations of intention to vote in respect of the territory of Turkey : 5, 127 of those declarations had been received at the Bulgarian Embassy in Ankara, 15, 556 at the Consulate General in Istanbul and 6, 552 at the Consulate General in Edirne. The Bulgarian diplomatic services had opened 28 polling stations in the Ankara region, 72 in the Istanbul region and 23 in the Edirne region. The experts had noted that some polling stations had been opened without the threshold of 100 declarations of intention to vote having been reached. 28. The experts were unable to answer the second question, on the validity of the Bulgarian identity papers of those voting in Turkey. They pointed out that it would have been very time-consuming to carry out the necessary verifications and would have required access to the population database administered by the Ministry of the Interior. Furthermore, in several cases the local electoral committees had merely mentioned the type of document presented, i.e. an identity card or passport, without recording the document number. 29. As regards the third question, the experts replied that there had been some very slight differences – between one and five persons – between the numbers of persons voting recorded in the polling station minutes and the numbers of voters included in the electoral rolls. According to the experts, that might have been due to inadvertent omissions. Moreover, they observed that the additional electoral lists in 116 polling stations, which had been drawn up on election day and contained data on the persons who had turned out without having been preregistered, had not been signed by the chair or secretary of the local electoral committee. The experts noted that the personal data on electors contained in those lists had been handwritten, apparently unhurriedly, and those entries would have taken a considerable length of time to write. Furthermore, in some of the polling stations none of the preregistered persons had turned out to vote. In some other polling stations there had been no minutes on file, or else the first page of the minutes had been missing. 30. As regards the fourth question put by the Constitutional Court, the experts concluded, from a reconstitution of the requisite formalities in dealing with voters and their ballot papers, that the minimum time required for voting would have been about fifty seconds. Having regard to the total duration of election day, that is to say thirteen hours, the experts estimated that a polling station could deal with a maximum of 936 voters. The maximum number of persons voting as thus calculated had been exceeded in 30 of the polling stations operating in Turkey. 31. The National Department responsible for Citizens ’ Civil Status Data presented the Constitutional Court with the results of its inquiry into cases of double voting. The department pointed out that 174 persons had voted several times and that 79 cases of double voting had been noted in Turkey. 32. On 27 January 2010 the Constitutional Court decided to ask the three experts to examine an additional point: it asked them to recalculate the election results after deducting all the votes cast in 23 polling stations and some of those cast in another polling station, all located in Turkish territory. The court ’ s request covered: (i) all the votes cast in 18 polling stations where none of the preregistered voters had voted and where the additional lists of those voting had not been signed by the members of the local electoral committees and therefore lacked the probative value of official documents; (ii) all the votes cast in a polling station in which the minutes on voting were missing; (iii) all the votes cast in two other polling stations where the first page of the minutes was missing; (iv) all the votes cast in a polling station where the list of preregistered voters was missing; (v) 86 votes cast for the DPS by persons included in the unsigned additional list at another polling station where that party had garnered all the votes and where 124 preregistered persons had voted; (vi) all the votes cast in another polling station where the list of preregistered voters had not been put on file and where the additional electoral list had not been signed by the members of the local electoral committee. 33. On 2 February 2010 the experts submitted their supplementary conclusions to the Constitutional Court. In the introductory section of the report they pointed out that they had been mandated to deduct from the outcome of the election the votes cast in polling stations where : ( i) none of the preregistered voters had voted and where the additional lists of those voting had not been signed by the members of the local electoral committees; ( ii) the minutes were not put on file; ( iii) the first page of the minutes was missing. The report presented estimates of the votes cast in 23 polling stations : ( i) in 18 of those stations, none of the preregistered voters had voted and the additional list of voters had not been signed; ( ii) in the case of another polling station, no minutes had been put on file and the additional list of voters had not been signed; ( iii) for three other stations, the first page of the minutes was missing and the additional list of voters had not been signed; ( iv) in another polling station, the first page of the minutes had not mentioned the number of persons having voted and none of the preregistered voters had voted. The experts considered that a total of 18,351 votes should be deducted from the election results, 18, 140 of which had been case for the DPS. The Central Electoral Commission conducted the provisional reassignment of seats among the political parties on the basis of the expert report. 5. Other written observations and requests submitted to the Constitutional Court 34. On 9 February 2010 the parliamentary group of the DPS submitted supplementary observations challenging the Constitutional Court ’ s choice of criteria for excluding the votes cast in the aforementioned polling stations from the vote count. The DPS deputies pointed out that the outcome of the voting had been based on the data set out in the polling station minutes, and not on the electoral rolls. They added that electoral legislation did not require the chairs and secretaries of out-of-country local electoral committees to sign below the additional lists of voters drawn up on election day. At all events, in the deputies ’ opinion, the shortcomings of members of the electoral administration could not lead to the annulment of electors ’ votes. 35. On 15 February 2010 the Central Electoral Commission presented its findings to the Constitutional Court. It pointed out that according to mathematical projections, the annulment of the votes cast in the 23 polling stations mentioned in the experts ’ supplementary conclusions would deprive the DPS of one seat which would be assigned to the GERB political party and that in the 8 th multiple-member constituency the DPS candidate concluded in second place on the party ’ s list, Mr Riza, would lose his parliamentary seat. 36. The Central Electoral Commission presented the Constitutional Court with observations made by five of its twenty-five members on the merits of the case. Those five members voiced the opinion that the arguments put forward by the appellants and the experts ’ conclusions could not be used to justify annulling the votes cast in the polling stations in question. They explained in particular that the lists of persons voting in the out-of-country polling stations had been drawn up by the Bulgarian diplomatic representatives accredited on the basis of the prior declarations of intention to vote which they had received. They nevertheless stated that no prior information had been given on the distribution of the voters in question around the various polling stations, as they could attend any polling station or choose not to vote at all, which in their view explained why in some stations none of the voters on the main list had voted. The members of the Electoral Commission considered that that should not lead to the invalidation of the ballots of other electors who had voted in the same polling station. They pointed out that under domestic legislation the election documents had to be packaged and sealed by the local electoral committees and then sent to the Central Electoral Commission. However, when the election documents had arrived from Turkey, it had been noted that the packages containing the documents had already been opened and then re-sealed by the diplomatic services of the Ministry of Foreign Affairs. At all events, the absence, attributable to the Bulgarian diplomatic services or the local electoral committees, of election documents from out-of-county polling stations could not have justified annulling votes cast in those stations, given that the election results from outside the country had been based on data transmitted via diplomatic telegrams to the Central Electoral Commission. Finally, the members of the Electoral Commission, referring to domestic legislation, submitted that the fact that a member of the Electoral Commission had not signed minutes of voting or the accompanying documents did not invalidate them and did not constitute grounds for annulling the votes cast in the station in question. They considered that the recalculation of the election results was based on arguments which had not been mentioned in the request to the Constitutional Court. 37. On 15 February 2010 the DPS and six of its deputies applied to the Constitutional Court for leave to join the proceedings in question as a party. In that application the DPS stated that it fully endorsed the observations submitted by its parliamentary group on 18 September 2009 and 9 February 2010. On 16 February 2010 Mr Riza requested leave to join the proceedings as a party. In order to demonstrate his interest in taking part in the proceedings he referred explicitly to the additional expert report ordered by the Constitutional Court and the reapportionment of seats effected by the Central Electoral Commission on the basis of the experts ’ findings. All those requests remained unanswered. 6. 16 February 2010 judgment of the Constitutional Court 38. On 16 February 2010 the Constitutional Court, sitting in private session, adopted its decision in the case in question. It delivered its judgment on the same day. 39. The Constitutional Court dismissed the pleas of inadmissibility put forward by the DPS parliamentary group in its observations of 18 September 2009 ( see paragraph 25 above ). It considered, first of all, that the procedure for applying to the court had been respected. Secondly, it observed that the case concerned the contestation of election results rather than the eligibility of an individual candidate, which enabled it to assess the case even though the deputies in question had been sworn in and were already in office. It joined to the merits of the case the third plea of inadmissibility concerning the lack of a direct link between the out-of-country votes and the election of the seven DPS deputies named in the initial request. Judges R.N. and B.P. set out separate opinions on the admissibility of the request for annulment of the election results. They considered that the Attorney General had merely transmitted the request submitted by the RZS party instead of himself lodging a reasoned application for the annulment of the elections. 40. Considering that it should begin by clarifying the scope of the case, the Constitutional Court pointed out that it had been invited to find unlawful the election of a number of DPS deputies owing to several alleged irregularities in the polling stations operating in Turkish territory. Having regard to the specific mode of functioning of the Bulgarian electoral system, in which votes cast by Bulgarian citizens living abroad were taken into account solely for the proportional distribution of seats among political parties at the national level, it was impossible to determine in advance which deputies would be affected by the invalidation of some or all of the votes cast in Turkish territory. Thus, in the framework of that case, the Constitutional Court considered that it had been called upon to determine whether there had been any serious irregularities in the voting procedure in the 123 polling stations in Turkey. It held that a finding of such irregularities could lead to a change in the election results, a fresh apportionment of seats among the political parties and the annulment of the seats of deputies who had not been explicitly targeted by the initial application lodged by the leader and a number of candidates of the RZS party in the general elections. 41. The Constitutional Court rejected all the arguments put forward in the initial statement of claim. It first of all noted that section 41 ( 8 ) ( 3 ) of the Electoral Law gave Bulgarian diplomatic representatives outside the country carte blanche to open as many polling stations as they considered necessary for the proper conduct of the elections. 42. Secondly, it considered that the question whether a given voter had voted without a valid Bulgarian identity card was immaterial to the outcome of the proceedings, since voting secrecy ruled out ascertaining which party the person had voted for. 43. The Constitutional Court stated that the experts had noted that in some polling stations none of those on the main electoral roll had voted, while in other stations only a few of those on the roll had voted. It pointed out that according to the experts the names added on election day had been written clearly and apparently unhurriedly, which would seem rather unlikely given the large number of such additions and the pressure under which the members of the electoral committees would have been working on election day. However, the Constitutional Court considered that such considerations were mere suspicions which had not categorically demonstrated that the results of voting in those polling stations had been manipulated. 44. The Constitutional Court also noted that the experts had reached the conclusion that the maximum number of persons who could vote in one polling station was 936. However, it considered that in the absence of precise information on the alleged irregularities in the voting procedure in the polling stations with more than 1, 000 persons voting, that finding did not provide grounds for invalidating the election results. At all event voting secrecy precluded determining for whom the persons registered after number 936 on the list of voters had cast their vote. 45. For those reasons the Constitutional Court dismissed the application for the annulment of the seats of the seven deputies explicitly covered by the initial request submitted by the leader and candidates of the RZS party. 46. However, it decided to deduct from the results obtained by each of the political parties respectively all the votes cast in 23 polling stations in Turkey, that is to say a total of 18, 358 votes, 18, 140 of which had been cast for the DPS. It pointed out that in those polling stations none of the voters preregistered on the main electoral rolls had voted, or else the first page of the minutes of the voting, certifying that the preregistered persons had voted, was missing. The court pointed out that in the 23 polling stations in question the additional lists of voters drawn up on election day did not bear the signatures of the chairs and secretaries of the local electoral committees, which deprived them of the probative value of official documents. The Constitutional Court accordingly considered that they could not be used in evidence to demonstrate that the registered persons had voted. That approach had allegedly also enabled it to determine how many votes had been deducted from the election results of each party or coalition and to reallocate the deputies ’ seats in the National Assembly. 47. The Constitutional Court rejected the additional objections raised by the DPS parliamentary group on 9 February 2010 ( see paragraph 34 above ). It considered that the irregularities noted in the electoral rolls in the various polling stations had also affected the legitimacy of the minutes drawn up by the electoral committee on completion of the voting because they contained data on the exact number of persons having voted in the polling station in question and the election results had been determined on the basis of the minutes. Even though domestic legislation did not explicitly require the members of the out-of-country local electoral committees to sign additional electoral lists, the module additional electoral list approved by the President of the Republic pursuant to the Electoral Law provided for such signatures. The Constitutional Court therefore took the view that such signature was a legal condition for the validity of such official documents. At all events, the signature was one of the fundamental and obvious components of any official document. The lack of those signatures on the additional voter lists drawn up in the 23 polling stations thus deprived them of their official probative value in respect of the fact that the registered persons had actually cast their votes. 48. The Constitutional Court declared that the votes in question had been valid under domestic legislation but that they had been deducted from the election results owing to the irregularity of the voter lists and the voting minutes. It considered that the seats in the National Assembly had to be reallocated. For those reasons, and having taken into account the prior calculations submitted by the Central Electoral Commission, the Constitutional Court annulled the parliamentary seats of three deputies, including Mr Riza. It ordered the Central Electoral Commission to reapportion the seats in the National Assembly by deducting from the election results the 18, 358 votes cast in the 23 polling stations in question. 49. By decision of 19 February 2010, pursuant to the judgment of the Constitutional Court, the Central Electoral Commission declared three other candidates elected. Consequently to that redistribution of seats, the DPS was the only party to have lost a parliamentary seat and the GERB party, which had won the general elections, obtained an additional seat. D. Appeals lodged by Mr Riza and the DPS 50. On 4 March 2010 the DPS and three of its deputies in the National Assembly in turn lodged the appeal provided for in section 112 of the Electoral Law and contested the lawfulness of the election of the three deputies which the Central Electoral Commission had declared elected by decision of 19 February 2010. Mr Riza lodged the same appeal in his own name. 51. On 31 March and 27 April 2010 the Constitutional Court declared the two appeals inadmissible on the grounds that the dispute in issue had already been the subject of proceedings before it, leading to its judgment of 16 February 2010. E. Other relevant circumstances 52. The 41 st National Assembly constituted following the general elections of 5 July 2009 sat until 15 March 2013, when it was dissolved by Presidential Decree. 53. The elections to the 42 nd National Assembly were held on 12 May 2013. At those elections the DPS obtained 400, 460 votes, that is to say 11. 31 % of the validly cast votes. It obtained 51, 784 votes in Turkish territory. It sent 36 deputies to the National Assembly, where it was the third biggest parliamentary group. Mr Riza was elected deputy of the 8 th multiple-member constituency, where he headed his party ’ s list. 54. The lawfulness of those general elections, particularly as regards the polling stations opened in Turkish territory, was disputed before the Constitutional Court by a group of 48 deputies from the GERB party. The deputies requested the annulment of the elections in the 86 polling stations operating in Turkey owing to several alleged irregularities in the voting procedures: they submitted that the polling stations had been set up on the basis of forged prior declarations of intention to vote; they had opened despite their electoral committees lacking the minimum number of members; unidentified persons had canvassed the areas inhabited by Bulgarian citizens in Turkey, had obtained Bulgarian identity papers from various electors and had returned them to their owners the day before the elections telling them that they had voted; several voters had not shown any valid Bulgarian identity papers; the number of persons voting in some of the polling stations had exceeded, which was unrealistic in view of the time required to complete the formalities linked to the voting procedure; there had been several cases of double voting; the lists of electors registered on election day had not been properly drawn up and had not been signed by the chair and the other members of the electoral committee. The request referred explicitly to the reasoning of the judgment delivered by the Constitutional Court on 16 February 2010. 55. By judgment of 28 November 2013 the Constitutional Court dismissed the appeal lodged by the 48 GERB deputies. It considered and rejected, on the basis of the evidence gathered, all the allegations of breaches of electoral legislation advanced by the appellants. It noted, inter alia, that the relevant members of all the electoral committees set up in Turkish territory had signed at the bottom of the lists of voters added on election day, which gave those documents the probative value of official documents. 56. During the 42 nd legislature the DPS took part in a coalition government which resigned in July 2014. Following those events the 42 nd National Assembly was dissolved on 6 August 2014 by Presidential Decree. 57. The elections to the 43 rd National Assembly were held on 5 October 2014. The DPS obtained 487, 134 votes, that is to say 14. 84 % of all valid votes cast, and sent 38 deputies to Parliament. No admissible appeal was lodged before the Constitutional Court against those election results. The DPS is currently the third biggest political party in the country and the second biggest opposition party. 58. Mr Riza was elected as deputy in the 8 th constituency, where he headed the DPS list. ... i. Where the appeal body is a higher electoral commission, it must be able ex officio to rectify or set aside decisions taken by lower electoral commissions. ” Explanatory report “ 2. Equal suffrage 10. Equality in electoral matters comprises a variety of aspects. Some concern equality of suffrage, a value shared by the whole continent, while others go beyond this concept and cannot be deemed to reflect any common standard. The principles to be respected in all cases are numerical vote equality, equality in terms of electoral strength and equality of chances. On the other hand, equality of outcome achieved, for instance, by means of proportional representation of the parties or the sexes, cannot be imposed. ... 3.3. An effective system of appeal 92. If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election, the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding. 93. There are two possible solutions: - appeals may be heard by the ordinary courts, a special court or the constitutional court; - appeals may be heard by an electoral commission. There is much to be said for this latter system in that the commissions are highly specialised whereas the courts tend to be less experienced with regard to electoral issues. As a precautionary measure, however, it is desirable that there should be some form of judicial supervision in place, making the higher commission the first appeal level and the competent court the second. 94. Appeal to parliament, as the judge of its own election, is sometimes provided for but could result in political decisions. It is acceptable as a first instance in places where it is long established, but a judicial appeal should then be possible. 95. Appeal proceedings should be as brief as possible, in any case concerning decisions to be taken before the election. On this point, two pitfalls must be avoided: first, that appeal proceedings retard the electoral process, and second, that, due to their lack of suspensive effect, decisions on appeals which could have been taken before, are taken after the elections. In addition, decisions on the results of elections must also not take too long, especially where the political climate is tense. This means both that the time limits for appeals must be very short and that the appeal body must make its ruling as quickly as possible. Time limits must, however, be long enough to make an appeal possible, to guarantee the exercise of rights of defence and a reflected decision. A time limit of three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings. 96. The procedure must also be simple, and providing voters with special appeal forms helps to make it so. It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases. 97. It is also vital that the appeal procedure, and especially the powers and responsibilities of the various bodies involved in it, should be clearly regulated by law, so as to avoid any positive or negative conflicts of jurisdiction. Neither the appellants nor the authorities should be able to choose the appeal body. The risk that successive bodies will refuse to give a decision is seriously increased where it is theoretically possible to appeal to either the courts or an electoral commission, or where the powers of different courts – e.g. the ordinary courts and the constitutional court – are not clearly differentiated. ... 98. Disputes relating to the electoral registers, which are the responsibility, for example, of the local administration operating under the supervision of or in co-operation with the electoral commissions, can be dealt with by courts of first instance. 99. Standing in such appeals must be granted as widely as possible. It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed for appeals by voters on the results of elections. 100. The appeal procedure should be of a judicial nature, in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded. 101. The powers of appeal bodies are important too. They should have authority to annul elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats. This is the general principle, but it should be open to adjustment, i.e. annulment should not necessarily affect the whole country or constituency – indeed, it should be possible to annul the results of just one polling station. This makes it possible to avoid the two extremes – annulling an entire election, although irregularities affect a small area only, and refusing to annul, because the area affected is too small. In zones where the results have been annulled, the elections must be repeated. 102. Where higher-level commissions are appeal bodies, they should be able to rectify or annul ex officio the decisions of lower electoral commissions. ” | The applicants were a Bulgarian political party, a member of that party, and 101 other Bulgarian nationals of Turkish origin and/or of the Muslim faith who had exercised their right to vote in polling stations in Turkey where the results of the Bulgarian general elections in July 2009 were subsequently declared null and void by a judgment of the Constitutional Court. The 101 applicants alleged that the annulment of their ballot papers had constituted a violation of their active electoral rights. |
218 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1985 and lived in Bilgorod-Dnistrovsky. A. Proceedings against the applicant 7. In the early morning on 18 November 2002, responding to P.'s complaint about having been robbed, the police arrived in a bar and arrested the applicant, a minor at the material time, and V., his acquaintance, and took them to the police station for questioning. The applicant explained that he knew nothing about the robbery and left the police station. It is unclear whether he was officially released. 8. At about noon on 18 November 2002 the applicant was arrested when walking down a street. According to the applicant, he was seized by force by two policemen dressed in civilian clothes, without any explanations. According to the police officers, they invited him for questioning concerning P.'s robbery and he swore at them and attempted to escape, making it necessary to arrest him by force. 9. On the same date the applicant was charged with refusal to comply with the lawful demands of the police officers, presented before the Bilgorod-Dnistrovsky Court without his parents being informed or a lawyer being appointed, and sentenced to seven days'administrative detention. 10. On 19 November 2002 the police formally initiated criminal proceedings concerning P.'s robbery. 11. On 21 November 2002 the Bilgorod-Dnistrovsky Court reviewed the applicant's sentence after an objection from the Bilgorod-Dnistrovsky Prosecutor, reduced it to three days'detention and ordered the applicant's release. Subsequently (on 4 January 2003) the President of the Odessa Regional Court of Appeal quashed the decisions of 18 and 21 November 2002 by way of supervisory review, having found that the applicant should not have been subjected to administrative detention as he was a minor. He did find, however, that the applicant's malicious insubordination rendered him liable to a fine of 136 hryvnias (UAH). 12. Before his release on 21 November 2002, the applicant was questioned concerning P.'s robbery, in the presence of his mother and a lawyer appointed by the police, and confessed to having participated in the robbery. 13. Following his release, the applicant hired a new lawyer and retracted his confessions. He alleged that he had neither participated in, nor witnessed P.'s alleged robbery and that his previous confessions had been made under duress. He further explained that on 21 November 2002 he had confirmed his confession in presence of his mother and the advocate because the police had threatened that otherwise he would not be released from detention. 14. In December 2003 the applicant was committed for trial on charges of robbery. On 3 May 2005 the Bilgorod-Dnistrovsky Court remitted his case for additional investigation. The parties did not provide any further information concerning the outcome of the criminal proceedings. B. The applicant's alleged ill-treatment and the investigation into his ill-treatment complaint 15. According to the applicant, while he was serving his administrative detention sentence he was severely ill-treated by police officers, who tried to make him confess to participating in P.'s robbery. In particular, he was handcuffed to a radiator and beaten on the head and body with a plastic water bottle. On several occasions the applicant lost consciousness. As a result of the ill-treatment, on 18 and 19 November 2002 the applicant, who had not been given access to either a lawyer or his parents, wrote self-incriminating statements, dictated by the police. By way of evidence that he was so questioned, the applicant presented copies of his confession statements dated 18 and 19 November 200 2. These documents contained his and the law-enforcement officers'signatures only (no signatures of an advocate or a minor's legal representative) and a seal of the Bilgorod ‑ Dnistrovsky Prosecutor's Office. 16. According to the Government, no investigative actions in the applicant's respect took place during his administrative detention. 17. According to the applicant, on 22 November 2002 he complained to the Bilgorod-Dnistrovsky and Odessa Regional Prosecutors'Offices that he had been ill-treated by the police, but he was denied referral to a forensic expert to assess his injuries. 18. On 23 November 2002 the Internal Security Service of the Ministry of the Interior agreed to provide the applicant with the necessary referral. On the same day the applicant underwent a forensic examination and was found to have minor bodily injuries. In particular, the expert found that the applicant suffered from abrasions and bruises on different parts of his body, a haematoma, situational neurosis, cephalalgia and a possible kidney contusion, which could have been sustained on 18 November 2002. 19. Between 26 November and 20 December 2002 the applicant received in-patient treatment for his injuries and stress in the Bilgorod ‑ Dnistrovsky District Hospital. Subsequently (in 2003-2 004 ) the applicant also underwent medical treatment for depression and chronic pyelonephritis, conditions which, according to him, were caused by head and kidney injuries sustained at the hands of the police and related stress. 20. On various dates between 22 November 2002 and 1 April 2003 the applicant's mother complained about his ill-treatment to various authorities, including the ombudsman and the President of Ukraine, in various informal ways. However, it appears that no formal action followed. 21. On 1 April 2003 the applicant lodged an official request with the Bilgorod-Dnistrovsky Inter-District Prosecutor's Office to institute criminal proceedings in respect of his ill-treatment. 22. On 11 April 2003 the prosecutor's office refused to initiate the criminal proceedings, having found that there was no evidence of ill ‑ treatment. It noted, in particular, that on the morning of 18 November 2002 the applicant had left the police station without authorisation and that at noon on the same day he had refused to follow the police officers who invited him to report for questioning, had sworn at them, pushed them and attempted to escape. His arrest and the bringing of insubordination charges had therefore been justified. Moreover, during his detention the applicant had never requested medical assistance and upon his release he had signed a document stating that he had no claims against the police. No investigative measures in the applicant's respect had been taken during the period of his detention. 23. On 15 April 2003 the Deputy Head of the Bilgorod-Dnistrovsky Department of the Ministry of the Interior conducted an internal investigation and concluded that there was no ill-treatment case to answer. In particular, the only force applied to the applicant had been during his arrest and in response to his attempt to escape. He further noted that during the applicant's detention no investigative action had been taken in his respect. On 18 September 2003 and 1 April 2004 two other internal investigations were carried out and similar conclusions were reached. 24. On 10 January 2004 the Bilgorod-Dnistrovsky Prosecutor's Office took a fresh decision refusing to initiate criminal proceedings concerning the applicant's ill-treatment complaint. It noted that the applicant had fallen to the ground on several occasions while trying to escape. It made no conclusions, however, as to whether or not these falls were the cause of the applicant's injuries. On the same date that decision was quashed by the Odessa Regional Prosecutor's Office and the case was remitted for additional investigation. 25. In the meantime, having been notified of the decision of 11 April 2003 in October 2003, the applicant appealed against it before the Bilgorod ‑ Dnistrovsky Court. He noted, in particular, that the prosecutor's office had not questioned him, his relatives or any witnesses to his arrest concerning the events in question. It also failed to respond to his allegation that there was no legal basis for the demand to appear for questioning and his ensuing arrest at noon on 18 November 2002. If the police officers had wanted to question him about P.'s robbery, according to the applicable law they should have issued a summons and informed his parents. This procedure had not been complied with; the police had unlawfully demanded that he follow them, so he should not have been convicted of insubordination. Further, the prosecutor's office had not reacted to the fact that the applicant's administrative detention had been unlawful as he had been a minor at the material time. In addition, the authorities had wrongly stated that no investigative action involving the applicant had been taken during his detention. In particular, on 18 and 19 November 2002 he had made self-incriminating statements. 26. On 15 January 2004 the Bilgorod-Dnistrovsky City Court annulled the decision of 11 April 2003. It stated, in particular, that the investigation had been perfunctory and that the prosecution had failed to establish the cause of the applicant's injuries. It further noted that the allegation that the applicant had not been questioned concerning P.'s robbery during his detention contradicted the factual evidence contained in the case-file materials. 27. On 9 February and 2 March 2004 the Bilgorod-Dnistrovsky Prosecutor's Office again refused to institute criminal proceedings into the applicant's ill-treatment allegations, relying on essentially the same arguments as above. 28. On 20 February and 6 March 2004 respectively those decisions were set aside by the Odessa Regional Prosecutor's Office and the General Prosecutor's Office, and the case was remitted for further investigation. The General Prosecutor's Office noted, in particular, that the investigation had not determined what legal basis there had been for the police officers'initial demand of 18 November 2002 that the applicant report for questioning, or whether the applicant's reaction vis-à-vis the police necessitated his arrest and the use of force against him. Further, the authorities had not questioned the applicant or the medical expert who had examined his injuries and had not verified the police officers'version that the applicant had fallen several times while trying to escape. 29. On 22 March 200 4 the Odessa Regional Prosecutor's Office also addressed a letter to the Bilgorod-Dnistrovsky Prosecutor, alerting him that the investigation was perfunctory and one-sided. In particular, it was largely based on the explanations given by the police officers, without any other measures being taken to establish the real facts. It further invited the Bilgorod-Dnistrovsky Prosecutor to facilitate “a proper and professional investigation”. 30. On 5 April 2004 the Bilgorod-Dnistrovsky Prosecutor's Office took a fresh decision not to institute criminal proceedings, which was set aside by the Odessa Regional Prosecutor's Office on 15 November 2004 and followed by a new refusal on 14 December 2004. 31. On 27 January 2005 the Odessa Regional Forensic Experts Bureau re-assessed the applicant's injuries as being of'intermediate gravity'. In particular, it concluded that his depressive disorders and pyelonephritis could be connected to a traumatic experience in November 2002. It further concluded that, in view of their number and location, the injuries concerned could not have been sustained as a result of a single fall. It was likely that the injuries at issue had been caused by multiple impacts with blunt objects, such as a fist, a foot or the like. 32. Following this assessment, on 5 September 2 005 the Bilgorod ‑ Dnistrovsky District Court set aside the decision of 2 March 2004 refusing to initiate criminal proceedings (which had already been annulled by the General Prosecutor's Office on 6 March 2004) and ordered further investigation. 33. On 23 March 2006 the Bilgorod-Dnistrovsky Prosecutor's Office refused to comply with the court's instructions, finding that further to the annulment of the decision of 2 March 2004 by the General Prosecutor's Office, it had already carried out additional investigations, and its last decision of 14 December 2004 was valid. 34. On 26 May 2006 the Odessa Regional Prosecutor's Office annulled that decision and ordered further investigation. 35. On 5 June 2006 the Bilgorod-Dnistrovsky Prosecutor's Office took a fresh decision not to institute criminal proceedings, relying essentially on the same arguments as in its previous refusals. | This case concerned the unlawful detention and questioning without a lawyer of a 17-year-old’s. The applicant alleged that he was tortured in police custody in order to make him confess to a robbery. |
7 | Deprivation of liberty and challenging the lawfulness of detention | 2. The applicants are an Iranian-Afghan family of five. Their details are set out in the appendix. They were represented before the Court by Ms B. Pohárnok, a lawyer practising in Budapest. 3. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants ’ background and their travel to Hungary 5. S.H. (“the applicant mother”) claims that she was a victim of torture in Afghanistan; she was allegedly captured, burned and raped by the Taliban, who killed her first husband. On an unknown date between 2012 and 2014 she fled Afghanistan to Iran together with her two daughters from her first marriage, M.H. and R.H. She met R.R. (“the first applicant”) there, and entered into a religious marriage with him. 6. R.R., S.H. and her two children left Iran in the beginning of 2016, allegedly escaping reprisals because R.R. had deserted the Iranian army. Having left Iran, they travelled together through Turkey to Greece, where they were separated. R.R. made it to Austria, but allegedly decided to join his family, who were returned to Greece after being arrested in North Macedonia. On 11 March 2016 R.R. was apprehended at Sopron railway station in Hungary. He applied for asylum. On 21 March 2016 he withdrew his asylum application and the asylum proceedings were terminated. Pending enforcement of his expulsion to Iran, the first applicant was held in immigrant detention, where he submitted his second asylum application. On 3 August 2016 he left for an unknown destination and the asylum proceedings were terminated. 7. Subsequently, the applicant family were reunited in Serbia. They spent several months in different camps around the country. On 16 October 2016 A.R., the first biological child of R.R. and S.H., was born. 8. On 19 April 2017 the applicants arrived in Hungary from Serbia and entered the Röszke transit zone, which is situated on Hungarian territory at the border between the two countries. They applied for asylum on the same date. 9. On 19 April 2017 the Office for Immigration and Asylum (hereinafter “the IAO”) issued a ruling ordering that the applicants be accommodated in the Röszke transit zone under section 80/J(5) of the Asylum Act (see paragraph 24 below). The applicants ’ stay in the transit zone 10. Since 2015 the two transit zones located at the border with Serbia have been significantly enlarged (see Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 15, 21 November 2019). According to data collected by the Government in July 2017, at the time in question the Röszke transit zone had an official capacity of 460 places and was accommodating 291 foreign nationals. The sections of the transit zone were rectangular in shape, with accommodation “containers” placed adjacent to each other on three sides and a wire mesh fence on the fourth. There was razor wire on the roofs of the containers. People staying in one section could only go to other parts of the zone to see a doctor, a lawyer or IAO staff, and were always escorted by guards. 11. The applicants initially stayed in the section of the Röszke transit zone designated for families. They were placed together in a 13 ‑ square ‑ metre living container, which had three bunk beds without child safety rails and five lockable cabinets. According to the Government, a cot bed was provided to families with small children. According to the applicants, the containers were extremely hot in summer and without air conditioning; for ventilation they had to open the window and door, which made the room draughty and allowed insects in. An awning over the front door (to offer shade) and fans were provided in August 2017. 12. In the middle of the family section there was a communal courtyard with a small playground for children, ping-pong table, badminton net, basketball court and goals for football. According to the applicants, there was no shade or greenery in the outdoor area. The section also had a playroom, study room, room for religious worship and common room equipped with a television. The NGOs working within the zone organised activities for children, such as drawing and crafts, once or twice a week for one to two hours. From September 2017 an education programme for children in the transit zone was provided. 13. On 29 June 2017 the applicants were moved to an isolation section within the transit zone because the applicant mother and children had hepatitis B. The isolation section consisted of approximately ten mobile containers placed in a row and a narrow (approximately 2.5 metres wide and 40 to 50 metres long) open-air area surrounded by fencing. Their living container, which was equipped with air conditioning, was furnished with one bunk bed, two single beds (no cot bed for A.R.) and a chest of drawers. There was no refrigerator, microwave or washing machine in the section. The applicants were given sand for the children to play with. There was no playground and no activities were organised for the children in the isolation section. The applicants had access to a television in the common area container and a ping-pong table. 14. The police regularly carried out morning (6 a.m.) checks – headcounts. The applicants submitted that the police officers/guards had often raided their living containers to perform security checks. 15. Free wireless Internet was available in the transit zone. According to the applicants, the connection was poor and could only be used for messaging. 16. According to the Government, children were, in addition to the three meals provided to adult asylum-seekers, provided with two snacks each per day. Like pregnant women, they were also entitled to dairy products and fruit. Children under the age of one were provided infant nutrition and baby food. The applicants submitted that the children had been given chocolate bars for snacks and that fruit had only been provided occasionally. They submitted that the food provided to the children had been inadequate for their age. 17. Upon their arrival at the transit zone, families were provided with a sanitary package, including essential baby hygiene products such as disposable nappies. An additional monthly sanitary package was provided to asylum-seekers and, in justified cases, additional items were provided on request. According to the Government, clothing was provided to asylum ‑ seekers who did not have appropriate clothing for the season. The applicants submitted that the applicant mother had not been provided with maternity clothes, so she had had to sew a dress for herself using bed linen. 18. The applicants received medical treatment on several occasions during their stay in the transit zone. The Government submitted that asylum-seekers were entitled to basic and emergency medical care, including specialist medical treatment, according to their needs. If justified by their health condition, the resident medical staff could transfer them to hospitals or clinics to obtain urgent or specialist care. On 24 April 2017 the applicant mother was examined by a gynaecologist of a Szeged hospital. On 25 April 2017 she was referred to the emergency department of the hospital because of sickness. On 28 April 2017 she was taken to the hospital to have her pregnancy determined. She underwent blood and laboratory tests in relation to her hepatitis B and was prescribed medication for a urinary tract infection. On the same date she was taken to the emergency department of the hospital because of vomiting and cramps. She spent the night there. On 26 May 2017 she attended a prenatal check ‑ up in the hospital and was found to have a high-risk pregnancy. On 13 and 14 June 2017 she was taken to the hospital and prescribed medication for epigastric (abdominal) pain. On 3 July 2017 she had another check-up in the hospital and a consultation took place in relation to her hepatitis B. On 9 August 2017 she attended an ultrasound appointment and was taken to the emergency department of the hospital. She was recommended a high fluid intake and adequate nutrition (fruit), and was prescribed medication for anaemia. Following the family ’ s release from the transit zone, the applicant mother attended two more medical check-ups. On 24 April and 6 July 2017 the two eldest applicant children were taken to the paediatrics department of the hospital in Szeged. Their hepatitis B was confirmed following blood tests taken during their second visit to the hospital and the doctor suggested a further examination at the hepatology department. On 29 June 2017 the eldest applicant child, M.H., was examined at the ear, nose and throat department of the hospital in Szeged because of frequent nosebleeds. On 16 August 2017 she was taken to the emergency department of a hospital in Győr by ambulance and was subsequently treated at the ear, nose and throat department. The applicants submitted that, although requested, the youngest applicant child had not been given the vaccines recommended at six months. It appears from the case file that she had received some vaccines in Serbia and that the next vaccination appointment was scheduled for 8 April 2017. 19. The applicants submitted that no interpreter had been present in the course of S.H. ’ s medical examinations and that no anamnesis (medical history) could be collected from her due to the language constraints (she spoke only in her mother tongue). At her hospital visit of 9 August 2017 a “heteroanamnesis” was taken by questioning an interpreter using English and Dari at the doctor ’ s request. The applicants also submitted that they had always been taken to the hospital in an unsuitable police van and escorted by armed police officers, who had remained present during the medical examinations. In particular, (male) armed police officers had been present (standing by her side) during the second applicant ’ s gynaecological examination. 20. As regards psychological assistance in the transit zone, the applicants submitted that there had been no assistance for traumatised asylum-seekers. They drew the Court ’ s attention to their lawyer ’ s submissions in the asylum procedure of 26 and 27 July 2017. With respect to the applicant mother, the lawyer submitted, inter alia, that she had been subjected to serious ill-treatment in Afghanistan, the consequences of which she was still suffering, and that she was in need of specialist treatment. In this connection, the lawyer also submitted that, given her mental health problems, the applicant mother had been under psychiatric treatment (medication and psychotherapy) during her stay in Serbia and requested that she be examined by a psychiatrist. In their application form, the applicants submitted that S.H. had had to stop taking that medication because of her pregnancy. The Government submitted that during the period in question the Hungarian Calvinist Charity Service and specialists from Sirius Help had provided psychosocial assistance in the transit zone, the latter specifically for children. On 24 August 2017, at the request of the applicants ’ lawyer for the purposes of their legal (asylum) procedures, the applicant mother was examined by a psychiatrist, who diagnosed her with major depressive disorder and post-traumatic stress disorder (“PTSD”). The psychiatrist recommended that the applicant mother undergo medical, psychiatric and psychotherapeutic treatment, as otherwise suicidal urges and impulsive reactions were likely to occur. On the same date the two eldest applicant children were examined, at their lawyer ’ s request, by a psychologist, who observed that they showed signs of PTSD related to their experience in the transit zone and opined that psychological support should be made available to them. 21. As R.R. had already applied for asylum in Hungary before entering the transit zone with his family (see paragraph 6 above), he was considered by the IAO not to be entitled to material reception conditions under the Asylum Act (see paragraph 24 below). He was assigned accommodation together with his family but was not given free meals. The hot meals provided to the other applicants could not be taken out of the canteen where they ate their lunch. The applicants submitted that the NGO Sirius Help, which had operated in the zone until the end of May 2017, had twice organised food shopping for R.R. from outside at the beginning of his stay. He had initially been able to get food by paying other asylum-seekers, who had bought the food in Serbia and delivered it to him upon their arrival at the zone. According to the applicants, such arrangements were difficult to achieve and R.R. was forced to eat his family ’ s leftovers, beg other asylum ‑ seekers for food and search for edible things in the rubbish bins. He could only recall two occasions when Charity Council organisations and the Hungarian Red Cross had provided him with non-perishable food packages. According to the Government, the other applicants were distributed sufficient amounts of long-life food which they could share with R.R. They also submitted that R.R. had several times bought food with the assistance of social workers and that members of the Charity Council had taken care of his needs, in terms of food, toiletries and clothing. According to the Government, R.R. refused to accept food several times, stating that the family had sufficient supplies. On 31 July 2017 the IAO sent an email to the applicants ’ lawyer noting, in particular, that under the applicable Hungarian law the applicants were not entitled to food in the transit zone; they had the possibility to buy food for themselves, which they had done on multiple occasions, and charity organisations were handing out food. The IAO further noted that it did not appear that the first applicant had lost any weight during his stay in the zone. examination of the applicants ’ asylum APPLICATION 22. The applicants were represented by a lawyer of their choice in the asylum proceedings. The adult applicants were heard by the IAO on 19 April 2017 (both), on 8 June 2017 (only S.H.) and on 10 May and 6 June 2017 (only R.R.). In the course of the asylum proceedings, the IAO, inter alia, requested an expert opinion on their marriage certificate, which was delivered on 3 July 2017. On 20 June 2017 the IAO also requested a DNA test to verify that R.R. was the father of S.H. ’ s third child. The results of the test, which confirmed his paternity, were received on 14 August 2017. 23. On 15 August 2017 the applicants were granted leave to enter and temporarily stay in the territory of Hungary (admitted alien status, befogadott ). They were accommodated in the Vámosszabadi Reception Centre the same day. The IAO however refused to recognise them as refugees or persons in need of subsidiary protection. The applicants requested a judicial review of the part of the decision rejecting their applications. Subsequently, on 23 August 2017 the IAO issued a ruling withdrawing the decision on the merits. On 8 September 2017 it issued a new decision on the merits, recognising the applicants as persons in need of subsidiary protection. In the meantime, on 25 August 2017 the applicants left for Germany, where they were later granted international protection. | This case concerned the confinement of an asylum-seeking family, including three minor children, in the Röszke transit zone on the border with Serbia in April-August 2017. The applicants complained, in particular, of the fact of and the conditions of their detention in the transit zone, of the lack of a legal remedy to complain of the conditions of detention, and of the lack of judicial review of their detention. |
58 | Adoption | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1961 and lives in Lons -le - Saunier. 8. She has been a nursery school teacher since 1985 and, since 1990, has been in a stable relationship with a woman, Ms R., who is a psychologist. 9. On 26 February 1998 the applicant made an application to the Jura Social Services Department for authorisation to adopt a child. She wanted to investigate the possibility of international adoption, in particular in Asia, South America and Madagascar. She mentioned her sexual orientation and her relationship with her partner, Ms R. 10. In a report dated 11 August 1998 the socio-educational assistant and paediatric nurse noted the following points among others : “ Ms B. and Ms R. do not regard themselves as a couple, and Ms R., although concerned by her partner's application to adopt a child, does not feel committed by it. Ms B. considers that she will have to play the role of mother and father, and her partner does not lay claim to any right vis-à-vis the child but will be at hand if necessary. ... Ms B. is seeking to adopt following her decision not to have a child herself. She would prefer to explain to a child that he or she has had a father and mother and that what she wants is the child's happiness than to tell the child that she does not want to live with a man. ... Ms B. thinks of a father as a stable, reassuring and reliable figure. She proposes to provide a future adopted child with this father figure in the persons of her own father and her brother-in-law. But she also says that the child will be able to choose a surrogate father in his or her environment ( a friend's relatives, a teacher, or a male friend ...). ... CONCLUSION “ On account of her personality and her occupation, Ms B. is a good listener, is broad-minded and cultured, and is emotionally receptive. We also appreciated her clear-sighted approach to analysing problems and her child-raising and emotional capacities. However, regard being had to her current lifestyle: unmarried and cohabiting with a female partner, we have not been able to assess her ability to provide a child with a family image revolving around a parental couple such as to afford safeguards for that child's stable and well-adjusted development. Opinion reserved regarding authorisation to adopt a child. ” 11. On 28 August 1998, in her report on the interviews she had had with the applicant, the psychologist examining her application recommended in the following terms that authorisation be refused : “ ... Ms [B.] has many personal qualities. She is enthusiastic and warm -hearted and comes across as very protective of others. Her ideas about child - rearing appear very positive. Several question marks remain, however, regarding a number of factors pertaining to her background, the context in which the child will be cared for and her desire for a child. Is she not seeking to avoid the “ violence ” of giving birth and genetic anxiety regarding a biological child? Idealisation of a child and under-estimation of the difficulties inherent in providing one with a home : is she not fantasising about being able to fully mend a child's past? How certain can we be that the child will find a stable and reliable paternal referent? The possibilities of identification with a paternal role model are somewhat unclear. Let us not forget that children forge their identity with an image of both parents. Children need adults who will assume their parental function: if the parent is alone, what effects will that have on the child's development? ... We do not wish to diminish Ms [B.]'s confidence in herself in any way, still less insinuate that she would be harmful to a child; what we are saying is that all the studies on parenthood show that a child needs both its parents. Moreover, when asked whether she would have wanted to be brought up by only one of her parents, Ms B. answered no. ... A number of grey areas remain, relating to the illusion of having a direct perception of her desire for a child: would it not be wiser to defer this request pending a more thorough analysis of the various – complex – aspects of the situation? ... ” 12. On 21 September 1998 a technical officer from the children's welfare service recommended that authorisation be refused, observing that the applicant had not given enough thought to the question of a paternal and male role model, and assumed that she could easily take on the role of father and mother herself, while mentioning a possible role for her father and/or brother-in-law, who lived a long way away, however, meaning that meetings with the child would be difficult. The officer also wondered about the presence of Ms R. in the applicant's life, noting that they refused to regard themselves as a couple and that Ms R. had not at any time been involved in the plan to adopt. The reasoning of the opinion ended as follows: “ I find myself faced with a lot of uncertainties about important matters concerning the psychological development of a child who has already experienced abandonment and a complete change of culture and language ... ”. 13. On 12 October 1998 the psychologist from the children's welfare service, who was a member of the adoption board, recommended that authorisation be refused on the ground that placing a child with the applicant would expose the child to a certain number of risks relating to the construction of his or her personality. He referred among other things to the fact that the applicant lived with a girlfriend but did not consider herself to be in a couple, which gave rise to an unclear or even an unspoken situation involving ambiguity and a risk that the child would have only a maternal role model. The psychologist went on to make the following comments:- “ ... It is as though the reasons for wanting a child derived from a complicated personal background that has not been resolved with regard to the role as child- parent that [the applicant] appears to have had to play ( vis-à-vis one of her sisters, protection of her parents), and were based on emotional difficulties. Has this given rise to a feeling of worthlessness or uselessness that she is trying to overcome by becoming a mother? Unusual attitude towards men in that men are rejected. In the extreme, how can rejection of the male figure not amount to rejection of the child's own image? (A child eligible for adoption has a biological father whose symbolic existence must be preserved, but will this be within [the applicant's ] capabilities ?) ... ” 14. On 28 October 1998 the Adoption Board's representative from the Family Council for the association of children currently or formerly in State care recommended refusing authorisation to adopt in the following terms:- “ ... From my personal experience of life with a foster family I am now, with the benefit of hindsight, in a position to assess the importance of a mixed couple (man and woman) in providing a child with a home. The role of the “ adoptive mother” and the “ adoptive father” in the child's day-to-day upbringing are complementary, but different. It is a balance that will be shaken by the child to a degree that may sometimes vary in intensity according to how he or she experiences the realisation and acceptance of the truth about his or her origins and history. I therefore think it necessary, in the interests of the child, for there to be a solid balance between an “ adoptive mother” and an “ adoptive father” where adoption is being envisaged. ... ” 15. On 4 November 1998 the Board's representative from the Family Council, present on behalf of the union of family associations for the département (UDAF), referring to the Convention on the Rights of the Child of 20 November 1989, recommended that authorisation be refused on the ground of the lack of a paternal referent and added: “ ... It appears impossible to build a family and bring up a child without the full support of this partner [R.] for the plan. The psychologists'and welfare reports show her clear lack of interest in Ms [B.]'s plan ... In the further alternative, the material conditions for providing a child with a suitable home are not met. It will be necessary to move house, solve the issue of how to divide expenses between both partners, whose plans differ at least in this respect .” 16. On 24 November 1998 the head of the children's welfare service also recommended that authorisation be refused, noting expressly that “ Ms [B.] lives with a female partner who does not appear to be a party to the plan. The role this partner would play in the adopted child's life is not clearly defined. There does not appear to be room for a male referent who would actually be present in the child's life. In these circumstances, there is a risk that the child would not find within this household the various family markers necessary to the development of his or her personality and well-being. ” 17. In a letter of 26 November 1998 the decision of the president of the council for the département refusing authorisation to adopt was served on the applicant. The following reasons, among others, were given: “ ... in examining any application for authorisation to adopt I have to consider the child's interests alone and ensure that all the relevant safeguards are in place. Your plan to adopt reveals the lack of a paternal role model or referent capable of fostering the well-adjusted development of an adopted child. Moreover, the place that your partner would occupy in the child's life is not sufficiently clear: although she does not appear to oppose your plan, neither does she seem to be involved, which would make it difficult for the child to find its bearings. Accordingly, all the foregoing factors do not appear to ensure that an adopted child will have a sufficiently structured family framework in which to flourish. ... ” 18. On 20 January 1999 the applicant asked the president of the council for the département to reconsider the decision refusing her authorisation to adopt. 19. The children's welfare service asked a clinical psychologist to prepare a psychological assessment. In her report of 7 March 1999, drawn up after an interview with the applicant, the psychologist concluded that “Ms B. ha [d] plenty to offer in providing a home for a child (patience-values - creativity - time ) ”, but considered that adoption was premature having regard to a number of problematic points (confusion between a non-directive and laissez -faire attitude, and ignorance of the effects of the introduction of a third person into the home set-up ). 20. On 17 March 1999 the president of the council for the département of the Jura confirmed the refusal to grant the request for authorisation. 21. On 13 May 1999 the applicant applied to the Besançon Administrative Court seeking to have the administrative decisions of 26 November 1998 and 17 March 1999 set aside. She also contested the manner in which the screening process in respect of her request for authorisation had been conducted. She pointed out that many people involved in the process had not met her, including the psychologist from the adoption board. 22. In a judgment of 24 February 2000 the Administrative Court set aside the decisions of 26 November 1998 and 19 March 1999, ruling as follows : “ ... the president of the council for the département of the Jura based his decision both on “ the lack of a paternal role model or referent capable of fostering the well-adjusted development of an adopted child ” and on “the place [her] partner would occupy in the child's life”. The reasons cited are not in themselves capable of justifying a refusal to grant authorisation to adopt. The documents in the case file show that Ms B., who has undisputed personal qualities and an aptitude for bringing up children, and who is a nursery school teacher by profession and well integrated into her social environment, does offer sufficient guarantees – from a family, child-rearing and psychological perspective – that she would provide an adopted child with a suitable home. ... Ms B. is justified, in the circumstances of this case, in seeking to have the decisions refusing her authorisation set aside ... ” 23. The département of the Jura appealed. The Nancy Administrative Court of Appeal, in a judgment of 21 December 2000, set aside the lower court's judgment. It found, first, that “ B. maintain [ ed ] that she ha[d] not been sent a personality test, but [ did ] not allege that she [had] asked for the document and that her request [had been] refused” and that the 4th paragraph of Article 63 of the Family and Social Welfare Code “[did] not have the effect of precluding a report from being drawn up on the basis of a summary of the main points of other documents. Hence, the fact that a psychologist [had drawn] up a report just on the basis of information obtained by other people working on the case and without hearing submissions from the applicant [did] not invalidate the screening process carried out in respect of Ms B .'s application for authorisation to adopt ...”. 24. The court went on to find that “ ... the reasons for the decisions of 26 November 1998 and 17 March 1999, which were taken following an application for reconsideration of the decision of the president of the council for the département of the Jura rejecting the application for authorisation to adopt submitted by Ms B., are the absence of “ identificational markers ” due to the lack of a paternal role model or referent and the ambivalence of the commitment of each member of the household to the adoptive child. It can be seen from the documents in the file, and particularly the evidence gathered during the examination of Ms B.'s application, that having regard to the latter's lifestyle and despite her undoubted personal qualities and aptitude for bringing up children, she did not provide the requisite safeguards – from a family, child-rearing and psychological perspective – for adopting a child ...; ... contrary to Ms B.'s contentions, the president of the council for the département did not refuse her authorisation on the basis of a position of principle regarding her choice of lifestyle. Accordingly, and in any event, the applicant is not justified in alleging a breach ... of the requirements of Articles 8 and 14 of the Convention... ”. 25. The applicant appealed on points of law. On 5 June 2002 the Conseil d'Etat dismissed her appeal in a judgment giving the following reasons: “ ... Regarding the grounds for refusing Ms B. authorisation: ... Firstly, the fact that a request for authorisation to adopt a child is submitted by a single person, as is permitted by Article 343-1 of the Civil Code, does not prevent the administrative authority from ascertaining, in terms of child-rearing and psychological factors that foster the development of the child's personality, whether the prospective adoptive parent can offer – in her circle of family and friends – a paternal “ role model or referent ” where the application is submitted by a woman ...; nor, where a single person seeking to adopt is in a stable relationship with another person, who will inevitably be required to contribute to providing the child with a suitable home for the purposes of the above-mentioned provisions, does this fact prevent the authority from determining – even if the relationship in question is not a legally binding one – whether the conduct or personality of the third person, considered on the basis of objective considerations, is conducive to providing a suitable home. Accordingly, the Administrative Court of Appeal did not err in law in considering that the two grounds on which the application by Ms [B.] for authorisation as a single person was refused – namely, the “ absence of identificational markers due to the lack of a paternal role model or referent ” and “the ambivalence of the commitment of each member of the household to the adoptive child” – were capable of justifying, under the above-mentioned provisions of the decree of 1 September 1998, the refusal to grant authorisation; Secondly, with regard to Ms [B.]'s assertion that, in referring to her “ lifestyle ” to justify the refusal to grant her authorisation to adopt, the Administrative Court of Appeal had implicitly referred to her sexual orientation, it can be seen from the documents submitted to the tribunals of fact that Ms [B.] was, at the time of the examination of her application, in a stable homosexual relationship. As that relationship had to be taken into consideration in the needs and interests of an adopted child, the court neither based its decision on a position of principle in view of the applicant's sexual orientation nor breached the combined requirements of Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; nor did it breach the provisions of Article L. 225-2 of the Criminal Code prohibiting sexual discrimination; Thirdly, in considering that Ms [B.], “ having regard to her lifestyle and despite her undoubted personal qualities and aptitude for bringing up children, did not provide the requisite safeguards – from a family, child-rearing and psychological perspective – for adopting a child ”, the Administrative Court of Appeal, which did not disregard the elements favourable to the applicant in the file submitted to it, did not distort the contents of the file; It follows from the foregoing that Ms [B.] is not justified in seeking to have set aside the above-mentioned judgment, which contains adequate reasons ... ”. i. who are married to each other, or ii. where such an institution exists, have entered into a registered partnership together; b. by one person. 2. States are free to extend the scope of this convention to same-sex couples who are married to each other or who have entered into a registered partnership together. They are also free to extend the scope of this convention to different-sex couples and same-sex couples who are living together in a stable relationship. ” 2. International Convention on the Rights of the Child 30. The relevant provisions of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989 and which came into force on 2 September 1990 read as follows: Article 3 “ 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. ” Article 4 “ States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation. ” Article 5 “ States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. ” Article 20 “ 1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.” Article 21 “ States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin; (c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs. ... ” 3. Hague Convention of 29 May 1993 on the Protection of Children and Co-operation in Respect of International Adoption 31. The relevant provisions of the Hague Convention of 29 May 1993 provide: Article 5 “ An adoption within the scope of the Convention shall take place only if the competent authorities of the receiving State: a) have determined that the prospective adoptive parents are eligible and suited to adopt; b) have ensured that the prospective adoptive parents have been counselled as may be necessary; and c) have determined that the child is or will be authorized to enter and reside permanently in that State. ” Article 15 “1. If the Central Authority of the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they would be qualified to care. 2. It shall transmit the report to the Central Authority of the State of origin.” | The applicant alleged that at every stage of her application for authorisation to adopt she had suffered discriminatory treatment which had been based on her sexual orientation and had interfered with her right to respect for her private life. |
313 | Prevention of terrorism | I. circumstances of the case 7. The United Communist Party of Turkey (“the TBKP ”), the first applicant, was a political party that was dissolved by the Constitutional Court (see paragraph 10 below). Mr Nihat Sargın and Mr Nabi Yağcı, the second and third applicants, were respectively Chairman and General Secretary of the TBKP. They live in Istanbul. 8. The TBKP was formed on 4 June 1990. On the same day, its constitution and programme were submitted to the office of Principal State Counsel at the Court of Cassation for assessment of their compatibility with the Constitution and Law no. 2820 on the regulation of political parties (“Law no. 2820” – see paragraph 12 below). A. The application to have the TBKP dissolved 9. On 14 June 1990, when the TBKP was preparing to participate in a general election, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Constitutional Court for an order dissolving the TBKP. He accused the party of having sought to establish the domination of one social class over the others (Articles 6, 10 and 14 and former Article 68 of the Constitution and section 78 of Law no. 2820), of having incorporated the word “communist” into its name (contrary to section 96(3) of Law no. 2820), of having carried on activities likely to undermine the territorial integrity of the State and the unity of the nation (Articles 2, 3 and 66 and former Article 68 of the Constitution, and sections 78 and 81 of Law no. 2820) and of having declared itself to be the successor to a previously dissolved political party, the Turkish Workers’ Party (section 96(2) of Law no. 2820). In support of his application Principal State Counsel relied in particular on passages from the TBKP ’s programme, mainly taken from a chapter entitled “Towards a peaceful, democratic and fair solution for the Kurdish problem”; that chapter read as follows: “The existence of the Kurds and their legitimate rights have been denied ever since the Republic was founded, although the national war of independence was waged with their support. The authorities have responded to the awakening of Kurdish national consciousness with bans, oppression and terror. Racist, militarist and chauvinistic policies have exacerbated the Kurdish problem. That fact both constitutes an obstacle to the democratisation of Turkey and serves the interests of the international imperialist and militaristic forces seeking to heighten tension in the Middle East, set peoples against each other and propel Turkey into military adventures. The Kurdish problem is a political one arising from the denial of the Kurdish people’s existence, national identity and rights. It therefore cannot be resolved by oppression, terror and military means. Recourse to violence means that the right to self-determination, which is a natural and inalienable right of all peoples, is not exercised jointly, but separately and unilaterally. The remedy for this problem is political. If the oppression of the Kurdish people and discrimination against them are to end, Turks and Kurds must unite. The TBKP will strive for a peaceful, democratic and fair solution of the Kurdish problem, so that the Kurdish and Turkish peoples may live together of their free will within the borders of the Turkish Republic, on the basis of equal rights and with a view to democratic restructuring founded on their common interests. The solution of the Kurdish problem must be based on the free will of the Kurds and take into account the common interests of the Turkish and Kurdish nations and contribute to the democratisation of Turkey and peace in the Middle East. A solution to the Kurdish problem will only be found if the parties concerned are able to express their opinions freely, if they agree not to resort to violence in any form in order to resolve the problem and if they are able to take part in politics with their own national identity. The solution of the Kurdish problem will require time. In the immediate future, priority must be given to ending military and political pressure on the Kurds, protecting the lives of Kurdish citizens, bringing the state of emergency to an end, abandoning the ‘village guards’ system and lifting bans on the Kurdish language and Kurdish culture. The problem should be freely discussed. The existence of the Kurds must be acknowledged in the Constitution. Without a solution of the Kurdish problem, democratic renewal cannot take place in Turkey. Any solution will entail a fight for the democratisation of Turkey.” Two other passages relied on by Principal State Counsel read as follows: “... the United Communist Party of Turkey is the party of the working class, formed from the merger of the Turkish Workers’ Party and the Turkish Communist Party. ... The cultural revival will be fashioned by, on the one hand, the reciprocal influence of contemporary universal culture and, on the other, Turkish and Kurdish national values, the heritage of the Anatolian civilisations, the humanist elements of Islamic culture and all the values developed by our people in their effort to evolve with their times.” The Turkish Workers’ Party referred to above had been dissolved on 16 October 1981 on grounds similar to those relied on against the TBKP. B. Dissolution of the TBKP 10. On 16 July 1991 the Constitutional Court made an order dissolving the TBKP, which entailed ipso jure the liquidation of the party and the transfer of its assets to the Treasury, in accordance with section 107(1) of Law no. 2820. The order was published in the Official Gazette on 28 January 1992. As a consequence, the founders and managers of the party were banned from holding similar office in any other political body (Article 69 of the Constitution and section 95(1) of Law no. 2820 – see paragraph 11 below). The Constitutional Court firstly rejected the submission that the TBKP maintained that one social class, the proletariat, was superior to the others. Referring to the party’s constitution, modern works on Marxist ideology and contemporary political ideas, it held that the TBKP satisfied the requirements of democracy, which was based on political pluralism, universal suffrage and freedom to take part in politics. The court also rejected the argument, based on section 96(2) of Law no. 2820, that no political party may claim to be the successor to a party that has previously been dissolved. In its view, it was entirely natural and consistent with the concept of democracy for a political party to claim the cultural heritage of past movements and currents of political thought. The TBKP had accordingly not infringed the provision relied on by reason only of its intention of drawing on the experience and achievements of Marxist institutions. The Constitutional Court went on to hold that the mere fact that a political party included in its name a word prohibited by section 96(3) of Law no. 2820, as the TBKP had done in the present case, sufficed to trigger the application of that provision and consequently to entail the dissolution of the party concerned. As to the allegation that the TBKP ’s constitution and programme contained statements likely to undermine the territorial integrity of the State and the unity of the nation, the Constitutional Court noted, inter alia, that those documents referred to two nations: the Kurdish nation and the Turkish nation. But it could not be accepted that there were two nations within the Republic of Turkey, whose citizens, whatever their ethnic origin, had Turkish nationality. In reality the proposals in the party constitution covering support for non-Turkish languages and cultures were intended to create minorities, to the detriment of the unity of the Turkish nation. Reiterating that self-determination and regional autonomy were prohibited by the Constitution, the Constitutional Court said that the State was unitary, the country indivisible and that there was only one nation. It considered that national unity was achieved through the integration of communities and individuals who, irrespective of their ethnic origin and on an equal footing, formed the nation and founded the State. In Turkey there were no “minorities” or “national minorities”, other than those referred to in the Treaty of Lausanne and the friendship treaty between Turkey and Bulgaria, and there were no constitutional or legislative provisions allowing distinctions to be made between citizens. Like all nationals of foreign descent, nationals of Kurdish origin could express their identity, but the Constitution and the law precluded them from forming a nation or a minority distinct from the Turkish nation. Consequently, objectives which, like those of the TBKP, encouraged separatism and the division of the Turkish nation were unacceptable and justified dissolving the party concerned. | This case concerned the dissolution of the United Communist Party of Turkey (“the TBKP”) and the banning of its leaders from holding similar office in any other political party. |
961 | Risk of being sentenced to death | I. EVIDENCE BEFORE THE COURT II. BACKGROUND TO THE CASE A. Terrorist attacks of which the applicant has been suspected 1. USS Cole bombing in 2000 2. MV Limburg bombing B. The so-called “High-Value Detainees Programme” 1. The establishment of the HVD Programme 2. Enhanced Interrogation Techniques 3. Standard procedures and treatment of “High Value Detainees” in CIA custody (combined use of interrogation techniques) 4. Conditions of detention at CIA detention facilities 5. Closure of the HVD Programme C. Role of Jeppesen Company D. Military Commissions 1. Military Order of 13 November 2001 2. Military Commission Order no. 1 3. The 2006 Military Commissions Act and the 2009 Military Commissions Act E. Review of the CIA’s activities involved in the HVD Programme in 2001-2009 by the US Senate III. THE PARTICULAR CIRCUMSTANCES OF THE CASE A. The applicant’s capture, transfer to the CIA’s custody and initial detention (from the end of October to 4 December 2002) B. Transfer to Poland and detention in the “black site” in Stare Kiejkuty (from 4/5 December 2002 to 6 June 2003) 1. Transfer (4-5 December 2002) 2. Detention and ill-treatment (5 December 2002- 6 June 2003) C. Transfer from Poland on 6 June 2003 D. The applicant’s further transfers during CIA custody (from 6 June 2003 to 6 September 2006) E. The applicant’s detention in Guantánamo Bay and his trial before the Military Commission (from 6 September 2006 to present) 1. Hearing before the Combatant Status Review Tribunal 2. Trial before the military commission F. Parliamentary inquiry in Poland 1. Parliamentary inquiry in Poland 2. Views regarding the inquiry expressed by international organisations (a) Council of Europe (b) European Parliament G. Criminal investigation in Poland 1. Information supplied by the Polish Government in their written and oral submissions made in the present case and in the case of Husayn (Abu Zubaydah) v. Poland 2. Facts supplied by the applicant in the present case and supplemented by the facts related in the case of Abu Zubaydah v. Poland and certain materials available in the public domain 3. Views regarding the investigation expressed by international organisations (a) United Nations (b) Amnesty International VI. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001 A. United Nations Organisation 1. Statement of the UN High Commissioner for Human Rights on detention of Taliban and Al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16 January 2002 2. Statement of the International Rehabilitation Council for Torture 3. UN Working Group on Arbitrary Detention, Opinion No. 29/2006, Mr Ibn al-Shaykh al-Libi and 25 other persons v. United States of America, UN Doc. A/HRC/4/40/Add.1 at 103 (2006) B. Other international organisations 1. Amnesty International, Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, April 2002 2. Human Rights Watch, “United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G), August 2002 3. Human Rights Watch, “United States: Reports of Torture of Al ‑ Qaeda Suspects”, 26 December 2002 4. International Helsinki Federation for Human Rights, “Anti ‑ terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11”, Report, April 2003 5. Amnesty International Report 2003 – United States of America, 28 May 2003 6. Amnesty International, “Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay”, 29 May 2003 7. Amnesty International, “United States of America, The threat of a bad example: Undermining international standards as ‘war on terror’ detentions continue”, 18 August 2003 8. Amnesty International, “Incommunicado detention/Fear of ill ‑ treatment”, 20 August 2003 9. International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004 10. Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005 11. Human Rights Watch – List of Ghost Prisoners Possibly in CIA Custody of 30 November 2005 C. Parliamentary Assembly of the Council of Europe Resolution no. 1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003 D. Media reports and articles 1. International media 2. Polish media 3. Interview with Mr A. Kwaśniewski, former President of Poland VII. INTERNATIONAL INQUIRIES RELATING TO CIA SECRET DETENTIONS AND RENDITIONS OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING POLAND A. Council of Europe 1. Procedure under Article 52 of the Convention 2. Parliamentary Assembly’s inquiry – the Marty Inquiry (a) The 2006 Marty Report (b) The 2007 Marty Report (c) The 2011 Marty Report B. European Parliament 1. The Fava Inquiry 2. The 2007 European Parliament Resolution 3. The 2011 European Parliament Resolution 4. The Flautre Report and the 2012 European Parliament Resolution 5. The 2013 European Parliament Resolution C. The 2007 ICRC Report D. United Nations Organisation 1. The 2010 UN Joint Study 2. The 2010 UN Human Rights Committee Observations E. The CHRGJ Report VIII. OTHER DOCUMENTARY EVIDENCE BEFORE THE COURT A. Polish Border Guard’s letter of 23 July 2010 B. TDIP transcript of “Exchange of views with [M.P.], former director of Szczytno/Szymany airport in Poland” C. Senator Pinior’s affidavit submitted to the Court in the case of Husayn (Abu Zubaydah) IX. EXTRACTS FROM TESTIMONIES OF EXPERTS AND WITNESS HEARD BY THE COURT A. Mr Fava B. Presentation by Senator Marty and Mr J.G.S. “Distillation of available evidence, including flight data, in respect of Poland and the cases of Al Nashiri and Abu Zubaydah ” C. Senator Marty D. Mr J.G.S. E. Senator Pinior | This case concerned allegations of torture, ill-treatment and secret detention of a Saudi Arabian national of Yemeni descent – who is currently detained in the United States Guantanamo Bay Naval Base in Cuba – suspected of terrorist acts. The applicant submitted that he had been held at a Central Intelligence Agency (CIA) “black site” in Poland. He invoked in particular Articles 2 (right to life) and 3 (prohibition of torture and inhuman or degrading treatment) of the Convention, and Article 1 (abolition of the death penalty) of Protocol No. 6 to the Convention as regards his transfer from Poland, alleging that there had been substantial grounds for believing that there was a real and serious risk that he would be subjected to the death penalty. |
427 | Cases in which the Court found no violation of Article 4 of Protocol No. 4 | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant, who is of Kurdish origin, was born in 1969 in north ‑ west Syria and lives in Nicosia. A. The applicant ’ s asylum claim and all relevant proceedings 10. The applicant left Syria on 21 May 2005 and, after travelling to Turkey and then to the “Turkish Republic of Northern Cyprus” (“TRNC”), he entered Cyprus unlawfully. 11. He applied for asylum on 12 September 2005 and an interview was held on 21 June 2006 with the Asylum Service. 12. His application was dismissed by the Asylum Service on 21 July 2006 on the ground that the applicant did not fulfil the requirements of the Refugee Law of 2000-2005 [1], namely, he had not shown a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion or a well-founded fear of serious and unjustified harm for other reasons. The Asylum Service noted that there had been discrepancies in his account of the facts which undermined his credibility. In particular, there had been significant contradictions regarding his origins. It was also observed that the applicant had not been able to reply satisfactorily and with precision to certain questions or to give the information required in a persuasive manner. In conclusion, the Asylum Service found that the asylum application had not been substantiated. 13. On 1 August 2006 the applicant lodged an appeal with the Reviewing Authority for Refugees (hereafter “the Reviewing Authority”) against the Asylum Service ’ s decision. The appeal was dismissed on 1 February 2008. 14. The Reviewing Authority upheld the decision of the Asylum Service. In its decision it observed that the applicant ’ s claims had not been credible and had been vague and unsubstantiated. The Reviewing Authority noted, inter alia, that although the applicant had stated in his interview with the Asylum Service that he had been arrested and detained for three days by the Syrian military security forces, that had been in 1992, thirteen years before he decided to leave the country. With the exception of this incident, he had confirmed that he had never been harassed by the Syrian authorities and had never been persecuted. Moreover, although the applicant claimed that he had stated in his interview with the Asylum Service that he had been subjected to electric shock treatment and the “wheel treatment” whilst in detention in Syria, it transpired from the minutes of that interview that he had in fact stated that the electric cables had not functioned and had not mentioned that the wheel had been used to torture him. The Asylum Service had therefore not considered it necessary to refer him for a medical examination. The Reviewing Authority also observed that the applicant had merely claimed that he had left Syria on account of the increased pressure on the Kurdish population in that country following the events in Qamishli in 2004 and his fear of being arrested in the future, and because of his political activities as a member of the Yekiti Party. His allegations, however, had been general and vague. Further, his written asylum application had been based on other grounds. In particular, in his application the applicant had stated that he had come to Cyprus in search of work and better living conditions. 15. Lastly, the Reviewing Authority pointed out that the applicant had been able to obtain a passport lawfully and to leave Syria. As regards the applicant ’ s claims concerning his involvement with the Yekiti Party in Syria, it pointed out that the applicant ’ s replies to questions put to him about the party were too general and vague. 16. In conclusion, the Reviewing Authority held that the applicant had not established that he was at risk of persecution and that if he returned to Syria his life would be in danger or he would be imprisoned. 17. On 1 September 2008, following a request by the Cyprus-Kurdish Friendship Association to the Minister of the Interior on 22 July 2008, the applicant ’ s file was reopened by the Asylum Service in order to examine new information put forward by the applicant, mainly concerning his activities as the head of the Yekiti Party in Cyprus. The applicant was again interviewed by the Asylum Service on 16 February 2009. 18. According to the Government, on 8 June 2010 an officer of the Asylum Service expressed the opinion that the information submitted by the applicant could not be considered as new evidence forming the basis of a new claim. The Government submitted an internal note to this effect. 19. The applicant was arrested on 11 June 2010 and deportation and detention orders were issued against him on the same day (see paragraph 41 below). 20. On 7 July 2010 the Asylum Service sent the applicant ’ s file to the Reviewing Authority following an opinion given by the Attorney-General that the relevant body which should examine the new evidence put forward by the applicant was the Reviewing Authority and not the Asylum Service. 21. On 20 August 2010 the Minister of the Interior cancelled the deportation and detention orders of 11 June 201 0 and issued new ones against the applicant on other grounds (see paragraph 4 8 below). 22. On 30 September 2010 the Reviewing Authority informed the applicant that the information submitted before it could not alter in any manner its initial decision not to recognise him as a refugee within the meaning of Articles 3 and 19 of the Refugee Law of 2000-2009 [2]. The applicant was served with the relevant letter on 6 October 2010. On the copy of the letter provided by the Government it is stated that the applicant was served with the letter on 6 October 2010 but refused to sign for it, requesting instead to see his lawyer. 23. On 8 October 2010 the applicant brought a “ recourse ” (judicial review proceedings) before the Supreme Court (first-instance revisional jurisdiction) under Article 146 of the Constitution challenging the decision of the Reviewing Authority of 30 September 2010. 24. Following advice from the Attorney-General, the Reviewing Authority decided to re-open the applicant ’ s file in order to consider the content of his second interview at the Asylum Service on 16 February 2009 (see paragraph 17 above). 25. The applicant was informed by letter dated 8 April 2011 that the Reviewing Authority had decided to withdraw its previous decision (see paragraph 22 above) and to reopen and re-examine his claim taking into consideration the content of his second interview with the Asylum Service. 26. The applicant was called on by the Reviewing Authority to give another interview as an examination of the minutes of the applicant ’ s interview at the Asylum Service showed that it had been inadequate. The applicant was interviewed by the Reviewing Authority on 26 April 2011. 27. On 29 April 2011 the Reviewing Authority decided to recognise the applicant as a refugee pursuant to the Refugee Law of 2000-2009 and the 1951 Geneva Convention relating to the Status of Refugees ( hereafter “the 1951 Geneva Convention”). The relevant excerpt of the decision reads as follows: “During the interview the applicant was asked about his activities in Cyprus and in particular about his membership of the Cypriot-Kurdish Friendship Association as well as his activities in the Yekiti opposition Party in Cyprus. From his interview it was ascertained that the applicant is credible in so far as his feelings for the rights of the Kurds in Syria are concerned. Consequently, the applicant started to get involved in political matters and to publicly express his opinion about the bad state of affairs in Syria. In particular, the applicant has an active role in the Yekiti Party in Cyprus as he is its founder and organises and coordinates his compatriots in anti-regime demonstrations and demonstrations for the rights of Kurds. Among the documents the applicant provided the Asylum Service with, there were photographs which show him organising, coordinating and leading the demonstrations that took place in the Republic of Cyprus. Consequently, his name has been connected with anti-regime demonstrations and with a negative stance towards the existing government of Syria. In addition, as an activist, the applicant is considered to be someone who causes problems for the Syrian authorities. Following his interview on 26 April 2011, the applicant provided the Reviewing Authority with additional documents. These are: 1) Documents from the Kurdish Organisation for Human Rights in Austria which refer to the activity of the applicant in Cyprus and to photographs of him which were published in Cypriot newspapers and which have come to the attention of the Syrian authorities. 2) The organigram of the Yekiti Party in Cyprus, which shows that the applicant is the head of the party. Lastly, following an inquiry, it was ascertained that the applicant had spoken about the problems faced by Kurds in the Republic and in Syria to local newspapers with pan -Cyprian circulation. More specifically, speaking as the representative of the Kurdish Yekiti Party in Cyprus the applicant had stated that Kurds did not have rights in Syria, as one of these rights was to speak one ’ s own language, something which is prohibited [for Kurds] in Syria. In addition, the applicant expressed fears that upon his return he would be arrested as [the authorities] knew him. The applicant has proved in a convincing manner that his fear of persecution and danger to his life in the event of his return to Syria is objectively credible. He is already stigmatised by the authorities of his country and according to the COI (country of origin information) a well-founded fear of persecution by the authorities in his country because of his political opposition activity has been substantiated. Upon examination it was ascertained that none of the exclusion clauses apply to the applicant ’ s case and, as a result, he should be granted refugee status as provided for in Article 3 of the Refugee Law. In view of all the above, it is evident that the real circumstances of the present application, [fulfil] the necessary conditions for the granting of refugee status provided for in section 3 of the Refugee Law 2000-2009 and the 1951 Geneva Convention. The applicant has succeeded in showing a well-founded fear of persecution on the basis of political opinions and should therefore be granted refugee status. On the basis of the above, it is decided that [the applicant] be granted refugee status.” 28. Following the above decision, on 6 June 2011 the applicant withdrew his recourse with the Supreme Court (see paragraph 23 above). B. The applicant ’ s arrest and detention with a view to deportation 29. On 17 May 2010 the Yekiti Party and other Kurds from Syria organised a demonstration in Nicosia, near the Representation of the European Commission, the Ministry of Labour and Social Insurance and the Government Printing Office. They were protesting against the restrictive policies of the Cypriot Asylum Service in granting international protection. About 150 Kurds from Syria, including the applicant, remained in the area around the clock, having set up about eighty tents on the pavement. According to the Government, the encampment conditions were unsanitary and protesters were obstructing road and pedestrian traffic. The encampment had become a hazard to public health and created a public nuisance. The protesters performed their daily chores on the pavement, including cooking and washing in unsanitary conditions. The sewage pits had overflown, causing a nuisance and offensive odours. The public lavatories were dirty and the rubbish bins of the Government buildings were being used and, as a result, were continuously overflowing. Furthermore, the protesters were unlawfully obtaining electricity from the Printing Office. Members of the public who lived or worked in the area had complained to the authorities. The Government submitted that efforts had been made by the authorities to persuade the protesters to leave, but to no avail. As a result, the authorities had decided to take action to remove the protesters from the area. 30. On 28 May 2010 instructions were given by the Minister of the Interior to proceed with the deportation of Syrian-Kurdish failed asylum seekers in the normal way. 31. On 31 May 2010 the Minister requested the Chief of Police, among others, to take action in order to implement his instructions. Further, he endorsed suggestions made by the competent authorities that deportation and detention orders be issued against Syrian- Kurdish failed asylum seekers who had passports and did not have Ajanib or Maktoumeen status and that the police execute the orders starting with the ones issued against the leaders of the protesters. The police were also directed to take into account the policy guidelines and to use discreet methods of arrest. 32. According to the Government, letters were sent by the Civil Registry and Migration Department to a number of failed Syrian- Kurdish asylum - seekers informing them that they had to make arrangements to leave Cyprus in view of their asylum applications being turned down. The Government submitted copies of thirty such letters. In thirteen cases the letters were dated 1 June 2010 (in some the asylum decisions having been taken as far back as 2007) and in one case 9 June 2010 (the asylum decision procedure having been completed at the end of 2009). Two other letters were dated 16 June 2010 (the asylum procedures having been completed in early 2008) and 28 June 2010 (the asylum procedures having been completed in March 2010). Further, one letter was dated 5 February 2011 in a case where the asylum procedure had been completed on 22 April 2010 and the person in question had voluntarily agreed and did return to Syria on 24 September 2010. 33. From documents submitted by the Government it appears that from 31 May until 7 June 2010 the authorities kept the area under surveillance and kept a record of the protesters ’ daily activities and of all comings and goings. In the relevant records it is noted that invariably, between 1.30 a.m. and 5. 30 a.m., things were, in general, quiet, and everyone was sleeping apart from those keeping guard. During the above-mentioned period a large-scale operation was organised by the Police Emergency Response Unit, “ERU” (“ ΜΜΑΔ ”), and a number of other authorities, including the Police Aliens and Immigration Unit, for the removal of the protesters and their transfer to the ERU headquarters for the purpose of ascertaining their status on a case-by-case basis. 34. In the meantime, between 28 May 2010 and 2 June 2010 orders for the detention and deportation of forty-five failed asylum seekers were issued following background checks. Letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, containing a short paragraph with information as to the immigration status of each person. This information included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service, the date of dismissal of the appeal by the Reviewing Authority, where lodged, and the date some of those concerned had been included on the authorities ’ “stop list” (a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring). The letters recommended the issuance of deportation and detention orders. The Government submitted copies of two such letters with information concerning thirteen people. 35. On 2 June 2010, letters were also prepared in English by the Civil Registry and Migration Department informing those concerned of the decision to detain and deport them. The Government submitted that, at the time, the authorities did not know whether those individuals were among the protesters. 36. The removal operation was carried out on 11 June 2010, between approximately 3 a.m. and 5 a.m. with the participation of about 250 officers from the Police Aliens and Immigration Unit, the ERU, the Nicosia District Police Division, the Traffic Division, the Fire Service and the Office for Combating Discrimination of the Cyprus Police Headquarters. The protesters, including the applicant, were led to buses, apparently without any reaction or resistance on their part. At 3.22 a.m. the mini buses carrying the male protesters left. The women, children and babies followed at 3.35 a.m. A total of 149 people were located at the place of protest and were transferred to the ERU headquarters: eighty-seven men, twenty-two women and forty children. Upon arrival, registration took place and the status of each person was examined using computers which had been specially installed the day before. The Government submitted that during this period the protesters had not been handcuffed or put in cells but had been assembled in rooms and given food and drink. It appears from the documents submitted by the Government that by 6.40 a.m. the identification of approximately half of the group had been completed and that the whole operation had ended by 4.30 p.m. 37. It was ascertained that seventy-six of the adults, along with their thirty children, were in the Republic unlawfully. Their asylum applications had either been dismissed or their files closed for failure to attend interviews. Those who had appealed to the Reviewing Authority had had their appeals dismissed. Some final decisions dated back to 2006. A number of people had also been included on the authorities ’ “ stop list ”. Deportation orders had already been issued for twenty-three of them (see paragraph 34 above). 38. The authorities deported twenty-two people on the same day at around 6.30 p.m. (nineteen adults and three children ). Forty-four people (forty-two men and two women), including the applicant, were charged with the criminal offence of unlawful stay in the Republic under section 19(2) of the Aliens and Immigration Law (see paragraph 6 5 below). They were arrested and transferred to various detention centres in Cyprus. The applicant was placed in the immigration detention facilities in the Nicosia Central Prisons ( Block 10). All those who were found to be legally resident in the Republic returned to their homes. Further, on humanitarian grounds, thirteen women whose husbands were detained pending deportation and who had a total of twenty-seven children between them were not arrested themselves. 39. According to the Government the applicant and his co-detainees were informed orally that they had been arrested and detained on the basis that they had been staying in the Republic unlawfully and were thus “ prohibited immigrants” (see § 62 below). They were also informed of their rights pursuant to the Rights of Persons Arrested and Detained Law 2005 (Law no. 163(I)/of 2005) (see paragraph 9 3 below) and, in particular, of their right to contact by phone, in person and in private, a lawyer of their own choice. The applicant submitted that he had not been informed of the reasons for his arrest and detention on that date. 40. On the same day letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, recommending the issuance of deportation and detention orders. The letters contained a short paragraph in respect of each person with information as to his or her immigration status. This included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service and the date of dismissal of the appeal by the Reviewing Authority where lodged. Some letters also referred to the date the asylum application had been lodged and the date some of the individuals concerned had been included on the authorities ’ “ stop list ”. The Government submitted copies of letters concerning thirty-seven people [3]. 41. Deportation and detention orders were also issued in Greek on the same day in respect of the remaining fifty-three people detained (see paragraph 37 above), including the applicant, pursuant to section 14 (6) of the Aliens and Immigration Law on the ground that they were “ prohibited immigrants ” within the meaning of section 6(1)( k ) of that Law. These were couched in identical terms. In respect of two people the orders also mentioned sections 6(1)(i) and 6 (1)(l) of the Law. 42. Subsequently, on the same date, letters were prepared in English by the Civil Registry and Migration Department informing all the detainees individually, including the applicant, of the decision to detain and deport them. The Government submitted thirty-seven copies of these letters. The text of the letter addressed to the applicant reads as follows: “You are hereby informed that you are an illegal immigrant by virtue of paragraph (k). section 1, Article 6 of the Aliens and Immigration law, Chapter 105, as amended until 2009, because you of illegal entry [ sic ] Consequently your temporary residence permit/migration permit has been revoked and I have proceeded with the issue of deportation orders and detention orders dated 11th June 2010 against you. You have the right to be represented before me, or before any other Authority of the Republic and express possible objections against your deportation and seek the services of an interpreter.” 43. The text of the remaining copies of the letters submitted by the Government was virtually identical, a standard template having been used. The only differences were that some letters referred to illegal stay rather than illegal entry and that the letters issued earlier referred to 2 June 2010 as the date of issuance of the deportation and detention orders (see paragraph 34 above). 44. On the copy of the letter to the applicant provided by the Government, there is a handwritten signed note by a police officer stating that the letter was served on the applicant on 18 June 2010 but that he refused to receive and sign for it. The other letters had a similar note or stamp on them with the same date, stating that the person concerned had refused to sign for and/or receive the letter. In a letter dated 7 September 2010 the Government stated that the applicant had been served on 18 June 2010. In their subsequent observations the Government submitted, however, that this was the second attempt to serve the letters, the first attempt having been made on 11 June 2010, that is, the day of the arrest. 45. The applicant submitted that he had never refused to receive any kind of information in writing. He claimed that it had only been on 14 June 2010 that he had been informed orally that he would be deported to Syria on the same day but that the deportation and detention orders were not served on him on that date or subsequently. He submitted that he had eventually been informed by his lawyer, following the receipt of information submitted by the Government to the Court in the context of the application of Rule 39 of the Rules of Court, that deportation and detention orders had been issued against him on 11 June 2010. 46. From the documents submitted by the Government, it appears that at least another fourteen of the detainees were to be deported on 14 June 2010 [4]. 47. In a letter dated 12 October 2010 the Government informed the Court that on 17 August 2010 the Minister of the Interior had declared the applicant an illegal immigrant on public order grounds under section 6(1)(g) of the Aliens and Immigration Law on the basis of information that he had been involved in activities relating to receiving money from prospective Kurdish immigrants in exchange for “securing” residence and work permits in Cyprus. 48. On 20 August 2010 the Minister of Interior issued deportation and detention orders based on the above-mentioned provision. The previous orders of 11 June 2010 were cancelled. The applicant submitted that he had not been notified of the new orders. The Government did not comment on the matter and did not submit a copy of a letter notifying the applicant of these orders. 49. The applicant was released from detention on 3 May 2011 following the decision to grant him refugee status (see paragraph 27 above). C. Habeas corpus proceedings 50. On 24 January 2011 the applicant filed a habeas corpus application claiming that his continued detention from 11 June 2010 had violated Article 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Members states for returning illegally staying third- country nationals. The applicant, relying on the Court ’ s judgment in Chahal v. the United Kingdom, 15 November 1996, ( Reports of Judgments and Decisions 1996 ‑ V ) and the Commission ’ s report in Samie Ali v. Switzerland (no. 24881/94, Commission ’ s report of 26 February 1997) also claimed that his detention had breached Article 11 ( 2 ) of the Constitution and Article 5 § 1 of the Convention. 51. On 23 February 2011 the Supreme Court dismissed the application. With regard to the preliminary issues raised, the Supreme Court first of all held that it had the competence to examine the application as it was called upon to examine the lawfulness of the applicant ’ s protracted detention and not the lawfulness of the deportation and detention orders. The court could, within the context of a habeas corpus application, examine the conformity of the applicant ’ s detention with Article 15 (3) of the Directive and Article 11 (2) (f) of the Constitution. The applicant was not estopped from bringing a habeas corpus application due to the fact that he had not challenged the deportation and detention orders issued against him. Even if the lawfulness of the detention was assumed, detention for the purpose of deportation could not be indefinite and the detainee left without the right to seek his release. The Supreme Court also rejected the argument that the applicant was estopped from bringing the application because his continued detention had been brought about by his own actions, that is, by his application to the Strasbourg Court for an interim measure suspending his deportation. 52. The Supreme Court then examined the substance of the application. It noted that the Directive had direct effect in the domestic law, as the period for transposition had expired and the Directive had not been transposed. It could therefore be relied on in the proceedings. However, it went on to hold that the six- month period provided for in the Directive had not yet started to run. The applicant had been arrested on 11 June 2010 with a view to his deportation but had not been deported by the Government in view of the application by the Court on 12 June 2010 of Rule 39 and the issuing of an interim measure suspending his deportation. Consequently, the authorities had not been able to deport him. As the applicant himself had taken steps to suspend his deportation, the ensuing time could not be held against the Government and could not be taken into account for the purposes of Article 15 (5) and (6) of the Directive. The six-month period would start to run from the moment that the interim measure had been lifted. From that moment onwards the Government had been under an obligation in accordance with Article 15 (1) of the Directive to proceed with the applicant ’ s deportation with due diligence. The situation would have been different if the deportation had not been effected owing to delays attributable to the authorities. 53. In so far as the applicant ’ s complaints under Article 11 (2) of the Constitution and Article 5 § 1 of the Convention were concerned, the Supreme Court distinguished the applicant ’ s situation from those in the cases he relied on and in which responsibility for the protracted detention lay with the authorities. Further, it held that it had not been shown that the continued detention of the applicant had been arbitrary, abusive and contrary to the Court ’ s case- law (see paragraph 50 above). 54. The applicant lodged an appeal with the Supreme Court (appellate jurisdiction) on 17 March 2011. 55. The appeal was dismissed on 15 October 2012. The Supreme Court held that as the applicant had, in the meantime, been released, the application was without object. D. Background information concerning the applicant ’ s request under Rule 39 of the Rules of Court 56. On Saturday, 12 June 2010, the applicant, along with forty-three other persons of Kurdish origin, submitted a Rule 39 request [5] in order to prevent their imminent deportation to Syria. 57. On 14 June 2010 the President of the First Section decided to apply Rule 39, indicating to the respondent Government that the detainees should not be deported to Syria until the Court had had the opportunity to receive and examine all the documents pertaining to their claim. The parties were requested under Rule 54 § 2 (a) of the Rules of Court to submit information and documents concerning the asylum applications and the deportation. 58. On 21 September 2010 the President of the First Section reconsidered the application of Rule 39 in the light of information provided by the parties. He decided to maintain the interim measure in respect of five applications, including the present one. Rule 39 was lifted with regard to the thirty-nine remaining cases. In seven of these cases the deportation and detention orders were annulled by the authorities. It appears that in at least three out of the seven cases proceedings were still pending with the Asylum Service or the Reviewing Authority. Those applicants subsequently withdrew the applications they had lodged with the Court. 59. By a letter dated 11 May 2011, the applicant ’ s representative informed the Court that the applicant, by a decision dated 26 April 201 1, had been recognised as a refugee under the 1951 Geneva Convention and had been released on 3 May 2011. 60. On the basis of the above information, on 23 May 2011 the President of the First Section decided to lift the measure indicated under Rule 39. III. INTERNATIONAL TEXTS AND DOCUMENTS A. Relevant Council of Europe documents 1. Guidelines of the Committee of Ministers of the Council of Europe 94. Guideline X of the Guidelines on human rights protection in the context of accelerated asylum procedures adopted by the Committee of Ministers on 1 July 2009 at the 1062nd meeting of the Ministers ’ Deputies provides for the right to effective and suspensive remedies. It reads as follows: “ 1. Asylum seekers whose applications are rejected shall have the right to have the decision reviewed by a means constituting an effective remedy. 2. Where asylum seekers submit an arguable claim that the execution of a removal decision could lead to a real risk of persecution or the death penalty, torture or inhuman or degrading treatment or punishment, the remedy against the removal decision shall have suspensive effect.” 2. The Commissioner for Human Rights 95. The Commissioner for Human Rights issued a recommendation concerning the rights of aliens wishing to enter a Council of Europe member State and the enforcement of expulsion orders (CommDH(2001)19). This recommendation of 19 September 2001 included the following paragraph: “11. It is essential that the right of judicial remedy within the meaning of Article 13 of the ECHR be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ECHR. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the ECHR is alleged.” 3. ECRI reports on Cyprus 96. The European Commission against Racism and Intolerance (ECRI) published its third report on Cyprus on 16 December 2005. The relevant parts read as follows: “ 56. ECRI is also concerned that deportations of asylum seekers have sometimes been carried out in a way that jeopardises respect of the principle of non - refoulement. It has been reported to ECRI that deportations are effectively carried out before the individual has been given a chance to even formally apply for asylum. However, deportations have also been carried out after an asylum application has been filed and before the completion of its examination. This has reportedly included cases where the files were arbitrarily closed or the asylum seeker was forced to withdraw the application, but also cases where the asylum claim was still pending in the first or second instance. Furthermore, since filing an appeal for judicial review before the Supreme Court does not have a suspensive effect on the deportation order, deportations of asylum seekers who file such an appeal are reportedly carried out as a rule before its examination is completed. ... 61. ECRI urges the Cypriot authorities to ensure that the asylum seekers ’ right to protection from refoulement is thoroughly respected. In this respect, it recommends that the Cypriot authorities ensure that deportations are not carried out before asylum procedures at all instances are completed .” 97. In its subsequent periodic report (fourth monitoring cycle) on Cyprus, published on 31 May 2011, ECRI stated as follows: “ Asylum seekers and refugees 172. In its third report, ECRI made a large number of recommendations related to asylum seekers, namely that the authorities (i) ensure that adequate human and financial resources are available to deal effectively and within a reasonable time with all asylum applications; (ii) ensure that asylum seekers only be detained when it is absolutely necessary and that measures alternative to detention be used in all other cases; (iii) take urgent measures to ensure that the right of persons to apply for asylum is thoroughly respected; (iv) ensure that clear information on the rights of asylum seekers and the procedures to apply for asylum is available in a language that asylum seekers understand at police stations and at all places where they may apply for asylum; (v) increase training of the police in human rights, including asylum and non ‑ discrimination issues; (vi) ensure that any alleged instance of ill treatment of asylum seekers by police officers is thoroughly and rapidly investigated and that the persons found responsible are duly punished; (vii) take measures to improve asylum seekers ’ access to free or inexpensive legal aid and representation; (viii) take urgent measures to ensure that asylum seekers can access in practice all rights to which they are entitled by law, including in such areas as healthcare provision, welfare services, education and employment; (ix) ensure that asylum seekers are not discriminated against in exercising the right to employment granted to them by law, underlining that any measures taken by the Cypriot authorities with respect to asylum seekers ’ access to employment and welfare benefits should not push these persons towards illegality; (x) ensure that the asylum seekers ’ right to protection from refoulement is thoroughly respected and that deportations are not carried out before asylum procedures at all instances are completed; (xi) refrain from adopting deterrent policies in the field of asylum and from presenting any asylum policies to the public as deterrent policies. 173. ECRI notes that relatively little has changed in respect of the numerous concerns raised in its third report. Some of the above issues have already been addressed in other parts of this report. Below are some additional observations relating to asylum seekers. ... 183. As for legal aid, this is not available in administrative proceedings. ECRI notes that the first two instances in the asylum procedure, before the Asylum Service and the Refugee Reviewing Authority, are both administrative proceedings. The authorities have stated that according to the Refugee Law, an applicant has the right to have a lawyer or legal advisor at his/her own cost during all stages of the asylum procedure and that asylum seekers have access to free legal aid through the programmes funded by the European Refugee Fund and the Republic of Cyprus. In reality, however, few asylum seekers have the financial resources to engage private lawyers and there are only two NGOs functioning in the country with an interest in assisting asylum seekers. ... 185. A person whose asylum application is rejected at second instance may appeal to the Supreme Court for judicial review. The recent Law 132(I)/2009 amended the Legal Aid Law of 2002, in accordance with the EU Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status, to extend eligibility for free legal aid, including advice, help and representation, to asylum seekers and refugees in appeals before the Supreme Court. ECRI notes that applications for legal aid are subject to a means and merits test: asylum seekers must demonstrate that they lack sufficient financial resources and that the appeal is likely to succeed. 186. International and civil society organisations have reported major difficulties in the application of the new legislation. Firstly, no information has been provided to asylum seekers of the new legal aid possibility. Secondly, since most asylum seekers do not have sufficient command of the Greek language, it is almost impossible for them to formulate a successful legal aid application, particularly as regards the merits test. Thirdly, it is reported that as soon as a negative second instance decision is taken, a deportation order is faxed to the police and rejected asylum seekers are frequently arrested before they even receive the letter informing them of the negative decision of the Refugee Reviewing Authority or have a chance to appeal to the Supreme Court. Filing an appeal in any case does not have a suspensive effect on the deportation order. This raises questions concerning respect of the principle of non-refoulement. The authorities, however, have assured ECRI that the Asylum Service takes all necessary measures to ensure that the principle of non-refoulement is fully respected and that no deportation takes place before the examination of an asylum case is completed. Lastly, if legal aid is granted there is no list of lawyers specialising in asylum for asylum seekers to choose from. 187. ECRI understands that only two asylum seekers have been granted legal aid since the adoption of the amendment in December 2009 and around 100 have represented themselves before the Supreme Court without legal aid. Moreover, very few decisions have been made by the Supreme Court to send a case back to the Refugee Reviewing Authority. 188. ECRI recommends that the authorities ensure that asylum seekers have access to appropriate legal aid throughout the asylum application procedure and not just at the appeal stage. 189. ECRI recommends that the authorities ensure that asylum seekers are fully aware of the availability of legal aid to challenge negative asylum decisions before the Supreme Court. 195. As administrative decisions, detention and deportation can be appealed at the Supreme Court. However, as observed in ECRI ’ s third report, an appeal has no suspensive effect, unless an interim injunction is granted by the Supreme Court. ” B. Relevant European Union Law 98. Article 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals stipulates that: “ 1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence 2. Detention shall be ordered by administrative or judicial authorities. Detention shall be ordered in writing with reasons being given in fact and in law. When detention has been ordered by administrative authorities, Member States shall: (a) either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention; (b) or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings.” The third-country national concerned shall be released immediately if the detention is not lawful. 3. In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority. 4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately. 5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months. 6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a) a lack of cooperation by the third-country national concerned, or (b) delays in obtaining the necessary documentation from third countries. ” 99. Article 18 (2) of Council Directive 200 5 / 85 /EC of 1 December 200 5 on minimum standards on procedures in Member States for granting and withdrawing refugee status provides that where an applicant for asylum is held in detention, Member States shall ensure that there is a possibility of speedy judicial review. C. Amnesty International reports 1. Report concerning the detention of migrants and asylum-seekers in Cyprus 100. In June 2012 Amnesty International published a report on the detention of migrants and asylum-seekers in Cyprus entitled “Punishment without a crime”. 101. In the report Amnesty International, noted, inter alia, that it had been made aware of asylum-seekers whose claims had been rejected at the initial stage and at appeal level, and who had subsequently been apprehended and kept in detention pending deportation even though they were awaiting a decision by the Supreme Court on their challenges against the rejection of their asylum applications. This was because although an application to the Supreme Court did not automatically suspend the deportation process, an application to suspend the deportation, including as an interim measure, had to be lodged with the Supreme Court. The suspension was not granted automatically; an applicant had to establish flagrant illegality or irreparable damage. This therefore meant that in Cyprus asylum-seekers might be at risk of forcible return to a place where they were at serious risk of human rights violations (breaching the principle of non-refoulement ) before their claim was finally determined unless the Supreme Court agreed to suspend the deportation order or, in cases where the asylum -seekers had petitioned the Court, an interim measure had been granted. 102. As regards the safeguards against unlawful detention, Amnesty International pointed out that it had documented several cases attesting to a failure by the police authorities to explain to immigration detainees the reasons for their detention, its possible length and the rights they had whilst in detention. Detainees and their lawyers had told Amnesty International that often they were not provided with the reasons and justification for detention. Usually, detainees were given a short letter simply referring to the legislative provisions under which their detention had been ordered and to the fact that they were being detained pending deportation. In some cases, deportation and detention orders had been handed to the individuals concerned several months into their detention. The report noted that such shortcomings were particularly common in relation to detained asylum-seekers. A large number interviewed by Amnesty International, particularly those whose applications were pending, did not appear to know how long they would be detained, even when they were aware of the grounds for their detention. 103. Furthermore, referring to the remedies available in Cyprus against detention, the report observed that according to lawyers, the average length of a recourse under Article 146 of the Constitution was one and a half years, whereas in a habeas corpus application it was one or two months. In the case of an appeal against an unsuccessful application, the length of the appeal proceedings in both cases was about five years on average. In addition, according to domestic legislation, the Minister of Interior reviewed immigration detention orders either on his or her own initiative every two months, or at a reasonable time following an application by the detainee. The Minister was also solely responsible for any decision to prolong detention for an additional maximum period of twelve months. However, the lack of automatic judicial review of the decision to detain was a cause of major concern. Referring to Article 5 § 4 of the Convention, Article 18 (2) of the Asylum Procedures Directive and Article 15 (2) of the EU Returns Directive the report concluded that because of the lack of an automatic judicial review of the administrative orders to detain, especially in cases of prolonged detention, it was clear that the procedural safeguards in Cypriot law fell short of international and regional standards. 104. The report concluded that the routine detention of irregular migrants and of a large number of asylum-seekers was in clear violation of Cyprus ’ human rights obligations. It considered that this pattern of abuse was partly due to inadequate legislation, but more often it was down to the practice of the authorities. Lastly, the report set out a number of recommendations to the Cypriot authorities. These include, in so far as relevant: - Ending the detention of asylum-seekers for immigration purposes in law and in practice, in line with international human rights standards which require that such detention is only used in exceptional circumstances; - Ensuring that the recourse to the Supreme Court regarding a decision rejecting an asylum application at the initial stage or at appeal level automatically suspends the implementation of a deportation order; - Ensuring that the decision to detain is automatically reviewed by a judicial body periodically on the basis of clear legislative criteria; - Ensuring that migrants and asylum-seekers deprived of their liberty are promptly informed in a language they understand, in writing, of the reasons for their detention, of the available appeal mechanisms and of the regulations of the detention facility. The decision to detain must entail reasoned grounds with reference to law and fact; - Ensuring that detention was always for the shortest possible time; - Ensuring that the maximum duration for detention provided in law is reasonable; - Ensuring that migrants and asylum-seekers were granted effective access to remedies against administrative deportation and detention orders, including through the assistance of free legal aid to challenge detention and/or deportation and adequate interpretation where necessary; - Ensuring that deportation procedures contain adequate procedural safeguards, including the ability to challenge individually the decision to deport, access to competent interpretation services and legal counsel, and access to appeal before a judge. 2. Annual report of 2011 105. The chapter on Cyprus in the Amnesty International 2011 annual report refers, inter alia, to the events of June 2010. In so far as relevant, it states as follows: “ In late May, around 250 Syrian Kurd protesters camped outside the “EU House” in Nicosia to protest against the authorities ’ rejection of their asylum claims and to protest about residence rights. On 11 June, 143 of the protesters, including children, were reportedly arrested during an early morning police operation. Several of them were released immediately but, according to reports, 23 were forcibly removed to Syria that day. On 14 June, the European Court of Human Rights issued interim measures requesting that Cyprus suspend the removal of the 44 who were still in detention. Seven of these were then released, either because they had pending asylum applications or were stateless. According to reports, of those remaining, 32 were forcibly removed to Syria after the European Court lifted the interim measures in their cases in September. The remaining five continued to be detained in Cyprus. Seventeen of those forcibly removed were reportedly arrested and detained upon or after their arrival in Syria.” | This case concerned a Syrian Kurd’s detention by Cypriot authorities and his intended deportation to Syria after an early morning police operation removing him and other Kurds from Syria from an encampment outside government buildings in Nicosia in protest against the Cypriot Government’s asylum policy. The applicant complained in particular that the Cypriot authorities had intended to deport him as part of a collective expulsion operation, without having carried out an individual assessment and examination of his case. |
504 | Unavailability of widows’ allowances to widowers | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant is a British national born in 1956 and living in Bristol. 8. In December 1984 the applicant married Marlene Willis. They had two children: Natasha Uma, born on 24 March 1989, and Ross Amal, born on 2 August 1990. Mrs Willis died of cancer on 7 June 1996, at the age of 39. The applicant is the administrator of his late wife's estate. 9. Mrs Willis had been employed as a local authority housing officer. For the greater part of her married life, she was the primary breadwinner. She had paid full social-security contributions as an employed earner until 1994, and was subsequently entitled to contribution credits as a person unfit for work. On 3 November 1995 the applicant gave up work to nurse his wife and care for their children. Following his wife's death, he worked part time between 2 September 1996 and 6 November 1996, for an annual salary of 4,393 pounds sterling (GBP), but since this proved uneconomic he stopped working to care full time for the children. 10. On 4 November 1996 the applicant applied to the Benefits Agency for the payment of social-security benefits. He applied for benefits equivalent to those which a widow whose husband had died in similar circumstances to those of Mrs Willis would have been entitled, namely a widow's payment and a widowed mother's allowance, payable under the Social Security and Benefits Act 1992. 11. By a letter dated 18 November 1996, the Benefits Agency informed the applicant that the benefits he had claimed did not exist for widowers, and that his claim accordingly could not be accepted as valid. The letter continued: “I am afraid I can only explain that the Government says that it has no plans to introduce a widowers' pension on the same line as the existing widows' benefits. It may help if I explain the current policy underlying widows' benefits was established at a time when married women rarely worked. It is based on the assumption that women are more likely than men to have been financially dependent on their spouse's earnings and therefore more likely on widowhood to face greater financial hardship. The benefits themselves are concentrated on those widows who are perceived to have the greatest problems, those with children and older women who may have been out of the labour market for many years. It is accepted that social patterns have changed considerably since the provisions were first introduced. However, it is still broadly the case that on bereavement, women are more likely than men to be in financial need. For instance, most widowers of working age will have been in employment before the death of their wives. They will not therefore have the same degree of difficulty in supporting themselves as widows who may have been out of the labour market for some time and may find it difficult to obtain paid work. Women on average earn less than men. So even for women who have been working, the financial loss on widowhood is likely to be significantly more than for men. Widows' benefits are not means tested and are paid regardless of the level of the widows' earnings. The Government says that the extension of the benefits on the same basis to widowers would mean substantial extra expenditure in paying maintenance benefit to men who are likely to be already maintaining themselves by their earnings, and in some cases, very high earnings indeed. To make existing widows' benefits provisions available to widowers would add an estimated GBP 490 million to the annual Social Security budget. The Government is of the opinion that at a time when all areas of public expenditure are having to be carefully considered, this is simply not a best use of scarce resources. In making these points, the Government says that it is in no way minimising the sad problems faced by widowers, in particular those left with small children to care for. For them there are already available benefits such as Child Benefit and One Parent Benefit, together with the range of income-related benefits, for example, Income Support for those not in full time work and Family Credit for low paid workers. In the Government's view this remains the fairest way of providing benefits to meet specific need rather than an extension of widows' benefits along the lines suggested. ...” 12. The applicant lodged a statutory appeal against this decision on 17 February 1997. The Social Security Appeal Tribunal declined jurisdiction on the basis that no appealable decision had been made. 13. The applicant currently receives child benefit and, in respect of his son Ross, received a disability living allowance and an invalid care allowance for a period following his wife's death. He is also in receipt of a widower's pension under Mrs Willis's occupational pension scheme. The applicant has capital, much of which is derived from a joint endowment policy (for which he and Mrs Willis had paid premiums) which matured on Mrs Willis's death, from which he obtains a further income of about GBP 150 per month. Because of his savings, the applicant does not qualify for means-tested benefits such as income support or family credit. All the social-security benefits he receives would also be received by a widow, who would in addition be paid a widow's payment and a widowed mother's allowance. | The applicant complained about the discrimination suffered by him and his late wife in respect of the decision to refuse him the Widow’s Payment and Widowed Mother’s Allowance, and in respect of his future non-entitlement to a Widow’s Pension, notwithstanding the social security contributions made by his wife during her lifetime. He alleged that British social security legislation was discriminatory on grounds of sex. |
101 | Taking of children into care | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1979 and lives in La Porrosa (Chiclana de Segura, Jaén). A. Background to the case and placement of child G. in a children's home 6. The applicant, the daughter of a Guinean father and a Spanish mother, was living at the time of her daughter G.'s birth, on 3 October 2001, within a mutually supporting extended family. The family unit comprised her grandmother, her great-uncle (her grandmother's brother, a lawyer by profession), and the applicant's other two children. Also living temporarily in the family home (two adjoining houses) were a Guinean priest and the godfather of two of the applicant's children. The property is situated on an olive-producing farm belonging to and run by the applicant's grandmother. The applicant is also regularly hired by the Government of the Autonomous Region of Andalusia as an agricultural worker, an activity which she combines with other farm work, particularly grape-picking in France. 7. In order to avoid having to take her two eldest sons to France with her, the applicant appointed her great-uncle to look after them until her return. The two children are officially under the guardianship of the Jaén provincial office and placed in the foster care of their mother's great ‑ uncle, within the extended family. The applicant has not objected to this situation, as the children live in practice with her and the remainder of the extended family on the farm. 8. On 23 August 2005 the applicant and her partner, accompanied by their minor daughter G., visited the social services department of the municipality of Motril (Granada) looking for “work, food and housing”. The same day – at the request of A.L.N., a social worker with the child protection services of the Granada provincial office for equality and social welfare (hereafter “the provincial office”), who had called the police because of the applicant's agitated state – child G., then aged three years and ten months, was taken away from her mother and placed in the Nuestra Señora del Pilar children's home in Granada. Her mother was taken to hospital on account of her nervous state following the separation from her daughter. 9. On 25 August 2005 the provincial office began the administrative procedure to have G. declared legally abandoned, and issued a provisional declaration to that effect. The decision cited, among other factors, the applicant's lack of funds (her state of extreme financial hardship), the child's situation and lack of hygiene, the fact that she was inappropriately dressed for the summer weather, her dry skin, marked with scars and scratches, and her anxiety about food. The provincial office assumed guardianship of the child, ordered her placement in the aforementioned children's home and informed the applicant that she could apply for legal aid if she wished to appeal against that decision to the first-instance judge. 10. On 26 August 2005 the applicant requested the Motril social services department to return her daughter to her. She also visited the department the following day and again on 30 August. The child protection services informed her that contact with her daughter would not be recommended until such time as the applicant began psychiatric treatment. The applicant claimed that the social workers had offered her money (see paragraph 16 below). 11. A report dated 29 August 2005 prepared by the Nuestra Señora del Pilar children's home stated that the child's “overall condition [was] acceptable”, noting simply that her skin was dry, with minor scars and cuts caused by scratching. According to a subsequent report dated 1 September 2006 prepared by the San Ramón y San Fernando children's home in Loja (Granada) (see below), the child was suffering from atopic seborrhoeic dermatitis. 12. On 30 August 2005 the applicant was informed that the provincial office was assuming guardianship of G. and that she was being placed in the Nuestra Señora del Pilar children's home in Granada. The applicant was also informed of the possibility of appealing against that measure to the first-instance judge. She was told that no contact visits with her daughter would be recommended until such time as she began psychiatric treatment. The mental health team told her on 5 September 2005 that she was not in a position to look after her daughter, but that supervised visits could be arranged. 13. According to the “observation and initial reception” report drawn up by the San Ramón y San Fernando children's home in Loja on 30 October 2005, G. had been moved to the home on 14 September 2005. The applicant was not informed and did not give her consent. Some witnesses claimed that the child had been moved there on 13 September 2005. 14. On 23 September 2005 the applicant requested the provincial office to transfer her daughter to the Linares (Jaén) children's home, which was closer to where the applicant lived. 15. The last of three supervised meetings between the applicant and her daughter following the latter's placement was held on 27 September 2005. The meetings took place away from the children's home and were supervised by carers and by the police. The applicant stated that the other two meetings had taken place on 6 and 20 September 2005. According to the applicant's account, her daughter told her at one of these meetings that she had been taken to a house with a swimming pool. The applicant has not seen her daughter since. 16. In a report dated 4 October 2005, social worker A.L.N. noted the applicant's inappropriate attitude – described as disrespectful, “violent” and aggressive – and stated that the applicant had attempted to harm herself and had had to be taken to hospital when her daughter was taken from her. A.L.N. said that the applicant had been informed of the steps likely to be taken to ensure her daughter's welfare on account of the applicant's lack of means. A.L.N. expressed the view that the temporary fostering of G.'s two brothers by the applicant's great-uncle should be discontinued on the (unsubstantiated) grounds that the latter was not suited to the task. She noted in her report that the applicant travelled every day to the vicinity of the Nuestra Señora del Pilar children's home, where the child protection services had put in place a provisional arrangement consisting of three visits supervised by carers and by the police, away from the home, “in anticipation of possibly violent conduct” on the part of the applicant. The social worker stated in her report that the applicant had been given an unspecified sum of money in order to travel to Majorca and to Madrid. According to the social worker, the applicant had at first asked for the money but then refused it, throwing it on the ground. She had subsequently asked for money again, this time to travel to Granada, but had returned it three hours later out of a sense of pride. According to the report, during the three supervised visits the applicant had encouraged G. to continue crying and shouting in order to get what she wanted, had constantly accused the professionals of not providing her daughter with the appropriate assistance, had spoken to her daughter in a compulsive and incoherent manner, had not accepted the visiting hours and had screamed when the end of the visits approached, threatening also to take photographs in order to publicise the situation in a television programme. Describing the applicant's conduct during her visits to the Nuestra Señora del Pilar children's home as “violent”, and taking the view that it was disrupting the child's stability and development, A.L.N. proposed suspending the visits and moving G. to a different home, the address of which should not be disclosed to the applicant. 17. On 5 October 2005 the provincial office took a decision confirming G.'s provisional legal status as an abandoned minor and placing her in the San Ramón y San Fernando children's home in Loja (see paragraph 13 above). It was also decided to seek a court order suspending visits, and, pending the order, to temporarily suspend all communication between the applicant and her daughter, in the latter's interests, and not to provide the applicant with any information on G.'s whereabouts. The decision informed the applicant of the possibility of applying for legal aid should she wish to appeal against the decision to the first-instance judge. 18. On 4 October and 22 November 2005 the applicant again applied to the provincial office seeking to have her daughter moved to the Linares children's home and requesting contact rights. 19. Between 22 November 2005 and 31 January 2006 the applicant approached the provincial office on at least seventeen occasions asking to see her daughter. She complained of the lack of information concerning her daughter, and in particular of the refusal of the lawyer representing the provincial office to explain the reasons behind the declaration that her daughter had been abandoned. The applicant was not allowed any contact with her daughter and has not received any information about her since. B. Administrative procedure leading to declaration of abandonment and placement with a foster family 20. On 27 October 2005 the Government of the Autonomous Region of Andalusia applied to the Granada first-instance judge no. 3 to have the contact visits suspended (a provisional decision having already been taken). 21. On 2 November 2005 the administrative proceedings were stayed at the request of the Granada Bar so that a legal-aid lawyer could be appointed to represent the applicant. A lawyer was appointed on 20 January 2006 and made representations on the applicant's behalf on 23 January 2006. 22. In a decision of 1 February 2006 the provincial office officially declared the child to have been abandoned, in view of “the poor prospects for improvement [of the family's situation] and hence for reunification of mother and child”, and decided to initiate the procedure for placing G. in pre-adoption foster care. The decision stressed (without citing any supporting reports) that the applicant's great-uncle was not a suitable candidate for fostering G., and reiterated the findings made in the previous reports. It also referred, without elaborating further, to the “mother's mental health” and her “moderately manic state”, and considered it significant that the applicant, on the numerous occasions when she had visited, “[had] displayed no interest, either orally or in writing, in the child's well-being”. The prohibition on contact visits was kept in place. The applicant was informed of the possibility of applying for legal aid should she wish to appeal against the decision. 23. On 2, 6 and 15 February 2006 the applicant again requested the provincial office to allow her to visit her daughter and expressed her opposition to G.'s placement in pre-adoption foster care, arguing that the reasons given for taking her daughter from her had no basis in reality. On the last of these dates she reported the situation to the Spanish Ombudsman's Office. 24. On 16 February and 2 March 2006 the applicant again approached the provincial office requesting contact with and information about her daughter. 25. On 10 January 2007 the provincial office's protective measures committee upheld the provisional declaration that G. had been abandoned. 26. On 22 January 2007 the social worker A.L.N. sent an e-mail to the Red Cross asking them to trace the applicant and to check on the situation of her fourth child, a baby. She stated that the applicant's eldest two children had been placed in foster care with one of the applicant's great ‑ uncles and that G. had “been adopted” by a family who were also prepared to adopt the applicant's baby. She estimated the latter to be around nine months old, noting that the applicant “[had been] pregnant over a year ago”. She said that the applicant had “undiagnosed mental health problems” and was likely to “be in France, with the baby and her current partner, a French citizen”. C. Judicial proceedings to appeal against the declaration of abandonment and the suspension of contact visits (no. 1278/05) 27. On 31 January 2006 the Granada first-instance judge no. 3 decided to join the proceedings concerning the appeal against the child protection measures and the proceedings on the suspension of contact visits. 28. On 28 November 2006 the applicant, represented by a lawyer, contested the legal declaration of abandonment adopted by the provincial office, claiming that she was living in France with her partner and receiving monthly payments of 836.87 euros. 29. On 3 May 2007 a hearing was held before the Granada first ‑ instance judge no. 3 concerning the declaration of abandonment. The prosecutor responsible for minors requested the judge to uphold the declaration that G. had been abandoned. 30. In a judgment of 18 May 2007 reiterating the arguments set out in the provincial office's decision of 25 August 2005 concerning G.'s abandonment, issued two years previously, the Granada first ‑ instance judge no. 3 rejected the appeal against the declaration of abandonment and held that the child could return to the family home if the family's situation improved. The judge upheld the guardianship order and the order placing the child in residential care. He stated as follows: “... 2. In the light of the submissions, it is apparent that when the authorities intervened there were ample grounds for declaring child G. to have been abandoned. It is clear beyond dispute from the administrative file that, whether as a result of ignorance, other impediments, lack of social skills or any other reason, including possible mental illness (although it should be said that the mother did not cause or seek to bring about this situation), the child was in a state of wholesale physical and psychological neglect. Her appearance was very dirty, she wore clothes that were inappropriate for the summer weather and her skin was dry and marked with scars and scratches. She said that she lived among the reeds ( en las cañas ), speaking of them as if they were her house; she also displayed anxiety about food and was receptive to any sign of affection. This provided ample justification for automatically placing her under guardianship and declaring her to have been abandoned. The child's situation is not new since both her older brothers are in foster care with a great-uncle owing to the risks to which they were being exposed. The file does not contain any objective evidence to suggest that the appeal [against the declaration of abandonment] should be allowed, particularly bearing in mind that a possible error could be damaging to the child, who deserves all possible protection, and that this consideration must prevail over any other interests.” The judge refused to put in place the schedule of contact visits requested by the applicant, on the grounds of “the child's lack of emotional attachment to her mother and [the fact that] the latter's violent conduct during the visits [was] disruptive to the child's stability and development.” 31. Following an appeal by the applicant, the Granada Audiencia Provincial, in a judgment of 27 June 2008, upheld the impugned judgment. The court pointed out that the aim of the proceedings had been to uphold or overturn the decision by the administrative authorities declaring G. to have been abandoned. The child's placement in care could be reviewed in the course of the appropriate administrative or judicial proceedings, which the applicant could institute if her situation changed. The judgment upheld the prohibition on contact visits between the applicant and her daughter and the residential care order. D. Judicial proceedings concerning G.'s placement in pre-adoption foster care (no. 74/07) and the appeal against the placement order (no. 2188/07) 32. On 1 February 2006 the provincial office submitted its report setting out the reasons for the proposal to place the child in pre-adoption foster care. The same day the proceedings were stayed pending the appointment of a lawyer for the applicant. 33. On 2 April 2006 a couple was chosen as foster parents for the child. On 9 June 2006 the provincial office's protective measures committee began the administrative procedure to have G. placed with a foster family. 34. On 14 February 2007 the provincial office ordered G.'s temporary placement in pre-adoption foster care, on the following grounds: “ On 25 August 2005 it was decided to issue a provisional declaration that the child had been abandoned, and a residential care order, on the grounds set out above. In view of the seriousness of the allegations against the child's mother, the fact that the father's whereabouts are unknown, the mother's provocative and aggressive attitude and the inconsistency of her statements on her visits to our departments, a report on her state of health was requested in order to assess the possibility of putting contact arrangements in place. On 5 September 2005 it was decided that the mother was not capable of looking after her daughter but that she could meet her under supervision. Three visits took place away from the centre where the child is living, under the supervision of carers and police officers. The incidents occurring during those visits, the fact that the mother is frequently seen in the vicinity of the home, her behaviour, the assessment of the mother-daughter relationship and the overall developments in this case led to a decision being taken on 4 October 2005 to suspend contact visits on a temporary basis and to move the child to a different home. The documents in the file show that the child's mother has two other children who have been abandoned and are under the guardianship of the Jaén provincial office, that no member of the extended family (up to the third degree of kinship) is able to take care of the child and that the great-uncle who was put in charge of the other two children, first on a temporary basis and then as a foster carer, is overburdened. The information in the file leads us to conclude that the prospects for improvement in the family's situation and reunification of the child with her mother are poor. The mother regularly complains to our departments about all kinds of irregularities on the part of the officials who are involved or have been involved in this case (health care workers, members of the judiciary, police officers, municipal social services, the protection service, children's homes, etc.), while at the same time refusing to sign acknowledgements of receipt, to submit the documents requested and to prove or seek proof that the information in the file is inaccurate. Furthermore, she denies all of the above as well as the failings identified, the risks run by the child and her own instability. She does not attend her appointments at the mental health centre. It is significant that in the course of her repeated visits she has never attempted to find out, either face-to-face or in writing, how her daughter is getting on. We are thus dealing with a child whose father cannot be traced, who cannot be taken care of by the person already looking after her two brothers, and whose mother – who appears to have another child under the guardianship of the French authorities – is once again pregnant. The prospects for reunification of the birth family in the foreseeable future are poor. All of the above considerations, in addition to the need for the child to live in an appropriate family environment and to avoid a prolonged stay in institutional care, justify continuing the procedure and making lasting foster care arrangements with a view to adoption ... .” 35. As the applicant refused to consent to G.'s placement, the child protection services issued a proposal on 23 March 2007 for the foster care arrangements to be put in place by means of a court order, with the child being placed in temporary foster care in the meantime. 36. On 2 October 2007 the applicant, represented by a lawyer, brought judicial proceedings to appeal against the decision of 23 March 2007 to place her daughter in pre-adoption foster care. 37. After a long series of procedural setbacks, a hearing took place on 28 July 2009 before the Granada first-instance judge no. 16. The applicant objected to any form of pre-adoption foster care for her daughter and instead requested that G. be placed in permanent foster care with the applicant's great-uncle and that she should have contact rights. The applicant also challenged the declaration that G. had been abandoned, approved by the first-instance judge no. 3. 38. The prosecutor responsible for minors supported the applicant's appeal against G.'s placement in pre-adoption foster care. 39. In a judgment of 4 September 2009 the Granada first-instance judge no. 16 upheld the foster care arrangements proposed by the child protection services on 23 March 2007. He did not allow the applicant's great-uncle to appear as a witness, and rejected the alternative proposal to place the child in foster care with him, taking the view that the applicant's great-uncle was not a suitable candidate for fostering children. As to the declaration of abandonment in respect of G. issued by the Granada first-instance judge no. 3 and upheld on appeal, the judge did not examine it and pointed out that the decision of the first judge was final and that proceedings would have to be brought in the event of a change in circumstances. However, with regard to the alleged change in circumstances since the time of the declaration of abandonment, the judge noted that the applicant had stated “[that she] grew olives, worked on the land and worked for part of the year in France, was a good mother and could live with her children, was capable of it and had family very close by”. The judge took the view, referring to “technical reports” which he did not cite, that “this testimony, given by members of [the applicant's] family and neighbours, [did] not by itself demonstrate that [she was] once again competent to raise the child”. The judge noted the following: “... the child, who is almost eight, has had no contact with her mother for several years, as contact visits were suspended following a court order. All this indicates that in the interests of the child the most suitable guardianship measure is the one already adopted, consisting of pre-adoption foster care, notwithstanding the fact that the prosecutor responsible for minors supported the applicant's claims and requested that [her] objections be taken into account.” 40. The applicant, represented by her lawyer, appealed against the judgment of 4 September 2009. 41. The prosecutor responsible for minors supported the applicant's appeal. 42. On 18 December 2009 the applicant submitted a psychological expert report stating that she was capable of looking after her daughter. 43. In a judgment of 18 June 2010 the Granada Audiencia Provincial upheld the first-instance judgment. It pointed out that the object of the appeal against the foster care decision had not been to challenge the declaration of abandonment, but to demonstrate that the reasons for it had ceased to exist and that a radical change had occurred in the behaviour, habits and lifestyle of the birth parents which justified returning full parental responsibility to them, and at the same time to provide irrefutable evidence that the child's return to the family would be clearly beneficial to her. The judgment referred to the assessment of the evidence by the first-instance judge no. 16 and noted, among other things, that the psychological expert report submitted by the applicant on 18 December 2009 contained only information provided by the applicant herself, such as her supposed ability to look after her children, without explaining why two of her other children had been placed in foster care with her great-uncle. The judgment further observed that the report, while stating that the applicant did not suffer from any mental illness or disability, had noted her impulsive and irascible nature. Likewise, notwithstanding her assertion that she spoke three languages, the applicant had not attempted to make use of those skills, living in a situation of social and professional isolation which forced her to emigrate or move around in order to find work. In any event, the Audiencia Provincial took the view that there was no “convincing evidence in the report that the risk of a recurrence of the lack of attention to her minor daughter which led to the declaration of abandonment [had] ceased to exist”. The court considered that the witnesses called by the applicant to testify to her capacity to have her children living with her “[had] not provide[d] any evidence of her social and professional stability and of an absence of risk for the child, still less [had] they demonstrated how the child would benefit from being returned to her original family”. 44. The applicant appealed on points of law. The appeal was declared inadmissible by the Granada Audiencia Provincial on 27 July 2010. 45. Relying on Article 15 (right to physical and moral integrity) (in relation to her daughter) and Article 24 (right to a fair hearing) of the Constitution, and on Articles 8 and 14 of the Convention, the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 27 October 2011, served on 3 November 2011, the Constitutional Court declared the appeal inadmissible as lacking the special constitutional significance required by section 50(1)(b) of the Constitutional Court Act. 46. In the meantime, in decisions dated 18 October and 1 December 2010, the Granada first-instance judge no. 16 confirmed the status of G.'s foster parents as her pre-adoption foster family. 47. A follow-up report on the foster family dated 29 March 2011 noted that G. was fully integrated within the family, with whom she had been living since 16 February 2007, and within the extended family. The report noted that G. had attained the level of physical and motor development appropriate for her age and had made progress in terms of her maturity and adaptation as well as her ability to concentrate, and that there had been no deterioration in her school performance. She was in a normal and secure environment within her foster family, who met all her material and emotional needs. E. Adoption proceedings (no. 599/2011) and proceedings to appeal against the child protection measures (no. 156/2010) 48. On 11 April 2011 the Granada child protection services submitted a proposal to the Granada first-instance judge no. 16 for G. to be adopted by her foster family. 49. On 14 April 2011 the judge declared the adoption proceedings open. 50. On 14 June 2011 the proceedings were stayed at the applicant's request. On 13 March 2012 the same judge set case no. 156/2010 down for hearing on 24 April 2012. 51. In a report of 28 September 2012 addressed to the Government after they had been given notice of the present application, the Granada child protection services summed up the background to the separation and G.'s placement in the children's homes and subsequently in pre-adoption foster care, reiterating the arguments set forth in the original report of 4 October 2005 (see paragraph 16 above) and noting, among other things, “the defiant and provocative attitude of the applicant during her numerous visits to the child protection services, her persistent complaints against officials of the health services, the police, the social services and the protection centres ..., refusing to submit the documents requested by our departments and showing no interest in the child's well-being”. They also referred to the report of 25 March 2011, stating that “the emotional and family ties that have been created and continue to develop must be reflected in and consolidated by the legal situation, with the result that adoption would be the most appropriate means of ensuring the child's needs and interests”. 52. The Court was not informed of the subsequent progress of the adoption proceedings. According to the information provided by the Government on 5 February 2013, the child had not yet been adopted. ... | This case concerned the placement of a child with a foster family on account of her mother’s financial situation and without taking into account subsequent change in circumstances. The applicant complained mainly of being deprived of all contact with her daughter and being separated from her without good reason. |
689 | Incitement to racial or religious discrimination or hatred | I. THE PARTICULAR CIRCUMSTANCES OF THE CASE 9. Mr Jens Olaf Jersild, a Danish national, is a journalist and lives in Copenhagen. He was at the time of the events giving rise to the present case, and still is, employed by Danmarks Radio (Danish Broadcasting Corporation, which broadcasts not only radio but also television programmes), assigned to its Sunday News Magazine ( Søndagsavisen ). The latter is known as a serious television programme intended for a well-informed audience, dealing with a wide range of social and political issues, including xenophobia, immigration and refugees. A. The Greenjackets item 10. On 31 May 1985 the newspaper Information published an article describing the racist attitudes of members of a group of young people, calling themselves "the Greenjackets" (" grønjakkerne "), at Østerbro in Copenhagen. In the light of this article, the editors of the Sunday News Magazine decided to produce a documentary on the Greenjackets. Subsequently the applicant contacted representatives of the group, inviting three of them together with Mr Per Axholt, a social worker employed at the local youth centre, to take part in a television interview. During the interview, which was conducted by the applicant, the three Greenjackets made abusive and derogatory remarks about immigrants and ethnic groups in Denmark. It lasted between five and six hours, of which between two and two and a half hours were video-recorded. Danmarks Radio paid the interviewees fees in accordance with its usual practice. 11. The applicant subsequently edited and cut the film of the interview down to a few minutes. On 21 July 1985 this was broadcast by Danmarks Radio as a part of the Sunday News Magazine. The programme consisted of a variety of items, for instance on the martial law in South Africa, on the debate on profit-sharing in Denmark and on the late German writer Heinrich Böll. The transcript of the Greenjackets item reads as follows [(I): TV presenter; (A): the applicant; (G): one or other of the Greenjackets ]: (I) "In recent years, a great deal has been said about racism in Denmark. The papers are currently publishing stories about distrust and resentment directed against minorities. Who are the people who hate the minorities? Where do they come from? What is their mentality like? Mr Jens Olaf Jersild has visited a group of extremist youths at Østerbro in Copenhagen. (A) The flag on the wall is the flag of the Southern States from the American Civil War, but today it is also the symbol of racism, the symbol of the American movement, the Ku Klux Klan, and it shows what Lille Steen, Henrik and Nisse are. Are you a racist? (G) Yes, that ’ s what I regard myself as. It ’ s good being a racist. We believe Denmark is for the Danes. (A) Henrik, Lille Steen and all the others are members of a group of young people who live in Studsgårdsgade, called STUDSEN, in Østerbro in Copenhagen. It is public housing, a lot of the inhabitants are unemployed and on social security; the crime rate is high. Some of the young people in this neighbourhood have already been involved in criminal activities and have already been convicted. (G) It was an ordinary armed robbery at a petrol station. (A) What did you do? (G) Nothing. I just ran into a petrol station with a ... gun and made them give me some money. Then I ran out again. That ’ s all. (A) What about you, what happened? (G) I don ’ t wish to discuss that further. (A) But, was it violence? (G) Yes. (A) You have just come out of ... you have been arrested, what were you arrested for? (G) Street violence. (A) What happened? (G) I had a little fight with the police together with some friends. (A) Does that happen often? (G) Yes, out here it does. (A) All in all, there are 20-25 young people from STUDSEN in the same group. They meet not far away from the public housing area near some old houses which are to be torn down. They meet here to reaffirm among other things their racism, their hatred of immigrants and their support for the Ku Klux Klan. (G) The Ku Klux Klan, that ’ s something that comes from the States in the old days during - you know - the civil war and things like that, because the Northern States wanted that the niggers should be free human beings, man, they are not human beings, they are animals, right, it ’ s completely wrong, man, the things that happened. People should be allowed to keep slaves, I think so anyway. (A) Because blacks are not human beings? (G) No, you can also see that from their body structure, man, big flat noses, with cauliflower ears etc., man. Broad heads and very broad bodies, man, hairy, you are looking at a gorilla and compare it with an ape, man, then it is the same [behaviour], man, it ’ s the same movements, long arms, man, long fingers etc., long feet. (A) A lot of people are saying something different. There are a lot of people who say, but ... (G) Just take a picture of a gorilla, man, and then look at a nigger, it ’ s the same body structure and everything, man, flat forehead and all kinds of things. (A) There are many blacks, for example in the USA, who have important jobs. (G) Of course, there is always someone who wants to show off, as if they are better than the white man, but in the long run, it ’ s the white man who is better. (A) What does Ku Klux Klan mean to you? (G) It means a great deal, because I think what they do is right. A nigger is not a human being, it ’ s an animal, that goes for all the other foreign workers as well, Turks, Yugoslavs and whatever they are called. (A) Henrik is 19 years old and on welfare. He lives in a rented room in Studsgårdsgade. Henrik is one of the strongest supporters of the Klan, and he hates the foreign workers, ‘ Perkere ’ [a very derogatory word in Danish for immigrant workers]. (G) They come up here, man, and sponge on our society. But we, we have enough problems in getting our social benefits, man, they just get it. Fuck, we can argue with those idiots up there at the social benefit office to get our money, man, they just get it, man, they are the first on the housing list, they get better flats than us, man, and some of our friends who have children, man, they are living in the worst slum, man, they can ’ t even get a shower in their flat, man, then those ‘ Perkere ’ -families, man, go up there with seven kids, man, and they just get an expensive flat, right there and then. They get everything paid, and things like that, that can ’ t be right, man, Denmark is for the Danes, right? It is the fact that they are ‘ Perkere ’, that ’ s what we don ’ t like, right, and we don ’ t like their mentality - I mean they can damn well, I mean ... what ’ s it called ... I mean if they feel like speaking Russian in their homes, right, then it ’ s okay, but what we don ’ t like is when they walk around in those Zimbabwe-clothes and then speak this hula-hula language in the street, and if you ask them something or if you get into one of their taxis then they say: I don ’ t know where it is, you give directions right. (A) Is it not so that perhaps you are a bit envious that some of the ‘ Perkere ’ as you call them have their own shops, and cars, they can make ends ... (G) It ’ s drugs they are selling, man, half of the prison population in ‘ Vestre ’ are in there because of drugs, man, half of those in Vestre prison anyway, they are the people who are serving time for dealing drugs or something similar. They are in there, all the ‘ Perkere ’, because of drugs, right. [That] must be enough, what ’ s it called, there should not be drugs here in this country, but if it really has to be smuggled in, I think we should do it ourselves, I mean, I think it ’ s unfair that those foreigners come up here to ... what ’ s it called ... make Denmark more drug dependent and things like that. We have painted their doors and hoped that they would get fed up with it, so that they would soon leave, and jumped on their cars and thrown paint in their faces when they were lying in bed sleeping. (A) What was it you did with that paint - why paint? (G) Because it was white paint, I think that suited them well, that was the intended effect. (A) You threw paint through the windows of an immigrant family? (G) Yes. (A) What happened? (G) He just got it in his face, that ’ s all. Well, I think he woke up, and then he came out and shouted something in his hula-hula language. (A) Did he report it to the police? (G) I don ’ t know if he did, I mean, he won ’ t get anywhere by doing that. (A) Why not? (G) I don ’ t know, it ’ s just kid ’ s stuff, like other people throwing water in people ’ s faces, he got paint in his. They can ’ t make anything out of that. --- (A) Per Axholt, known as ‘ Pax ’ [(P)], is employed in the youth centre in Studsgårdsgade. He has worked there for several years, but many give up a lot sooner because of the tough environment. Per Axholt feels that the reasons why the young people are persecuting the immigrants is that they are themselves powerless and disappointed. What do you think they would say that they want, if you asked them? (P) Just what you and I want. Some control over their lives, work which may be considered decent and which they like, a reasonable economic situation, a reasonably functioning family, a wife or a husband and some children, a reasonable middle-class life such as you and I have. (A) They do many things which are sure to prevent them from getting it. (P) That is correct. (A) Why do you think they do this? (P) Because they have nothing better to do. They have been told over a long period that the means by which to achieve success is money. They won ’ t be able to get money legitimately, so often they try to obtain it through criminal activity. Sometimes they succeed, sometimes not, and that ’ s why we see a lot of young people in that situation go to prison, because it doesn ’ t work. --- (A) How old were you when you started your criminal activities? (G) I don ’ t know, about 14 I guess. (A) What did you do? (G) The first time, I can ’ t remember, I don ’ t know, burglary. (A) Do you have what one might call a criminal career? (G) I don ’ t know if you can call it that. (A) You committed your first crime when you were 14. (G) Well, you can put it that way, I mean, if that is a criminal career. If you have been involved in crime since the age of 15 onwards, then I guess you can say I ’ ve had a criminal career. (A) Will you tell me about some of the things you have done? (G) No, not really. It ’ s been the same over and over again. There has been pinching of videos, where the ‘ Perkere ’ have been our customers, so they have money. If people want to be out here and have a nice time and be racists and drink beer, and have fun, then it ’ s quite obvious you don ’ t want to sit in the slammer. (A) But is the threat of imprisonment something that really deters people from doing something illegal? (G) No, it ’ s not prison, that doesn ’ t frighten people. (A) Is that why you hear stories about people from out here fighting with knives etc., night after night. Is the reason for this the fact that they are not afraid of the police getting hold of them? (G) Yes, nothing really comes of it, I mean, there are no bad consequences, so probably that ’ s why. For instance fights and stabbings and smashing up things ... If you really get into the joint it would be such a ridiculously small sentence, so it would be, I mean ... usually we are released the next day. Last time we caused some trouble over at the pub, they let us out the next morning. Nothing really comes of it. It doesn ’ t discourage us, but there were five of us, who just came out and then we had a celebration for the last guy, who came out yesterday, they probably don ’ t want to go in again for some time so they probably won ’ t commit big crimes again. (A) You would like to move back to Studsgårdsgade where you grew up, but we know for sure that it ’ s an environment with a high crime rate. Would you like your child to grow up like you? (G) No, and I don ’ t think she will. Firstly, because she is a girl, statistics show that the risk is not that high, I mean they probably don ’ t do it, but you don ’ t have to be a criminal because you live in an environment with a high crime rate. I just wouldn ’ t accept it, if she was mugging old women and stealing their handbags. (A) What if she was among those beating up the immigrants etc. What then? (G) That would be okay. I wouldn ’ t have anything against that. --- (I) We will have to see if the mentality of this family changes in the next generation. Finally, we would like to say that groups of young people like this one in STUDSEN at Østerbro, have been formed elsewhere in Copenhagen ." B. Proceedings in the City Court of Copenhagen 12. Following the programme no complaints were made to the Radio Council, which had competence in such matters, or to Danmarks Radio but the Bishop of Ålborg complained to the Minister of Justice. After undertaking investigations the Public Prosecutor instituted criminal proceedings in the City Court of Copenhagen ( Københavns Byret ) against the three youths interviewed by the applicant, charging them with a violation of Article 266 (b) of the Penal Code ( straffeloven ) (see paragraph 19 below) for having made the statements cited below: "... the Northern States wanted that the niggers should be free human beings, man, they are not human beings, they are animals." "Just take a picture of a gorilla, man, and then look at a nigger, it ’ s the same body structure and everything, man, flat forehead and all kinds of things." "A nigger is not a human being, it ’ s an animal, that goes for all the other foreign workers as well, Turks, Yugoslavs and whatever they are called." "It is the fact that they are ‘ Perkere ’, that ’ s what we don ’ t like, right, and we don ’ t like their mentality ... what we don ’ t like is when they walk around in those Zimbabwe-clothes and then speak this hula-hula language in the street ..." "It ’ s drugs they are selling, man, half of the prison population in ‘ Vestre ’ are in there because of drugs ... they are the people who are serving time for dealing drugs ..." "They are in there, all the ‘ Perkere ’, because of drugs ..." The applicant was charged, under Article 266 (b) in conjunction with Article 23 (see paragraph 19 below), with aiding and abetting the three youths; the same charge was brought against the head of the news section of Danmarks Radio, Mr Lasse Jensen. 13. In the City Court counsel for the applicant and Mr Jensen called for their acquittal. He argued that the conduct of the applicant and Mr Jensen could in no way be compared to that of the other three defendants, with whose views they did not sympathise. They sought merely to provide a realistic picture of a social problem; in fact the programme only provoked resentment and aroused pity in respect of the three other defendants, who had exposed themselves to ridicule on their own terms. Accordingly, it was by no means the intention of Danmarks Radio to persuade others to subscribe to the same views as the Greenjackets, rather the contrary. Under the relevant law a distinction had to be drawn between the persons who made the statements and the programme editors, the latter enjoying a special freedom of expression. Having at that time a broadcasting monopoly, Danmarks Radio was under a duty to impart all opinions of public interest in a manner that reflected the speaker ’ s way of expressing himself. The public also had an interest in being informed of notoriously bad social attitudes, even those which were unpleasant. The programme was broadcast in the context of a public debate which had resulted in press comments, for instance in Information, and was simply an honest report on the realities of the youths in question. Counsel, referring inter alia to the above-mentioned article in Information, also pointed to the fact that no consistent prosecution policy had been followed in cases of this nature. 14. On 24 April 1987 the City Court convicted the three youths, one of them for having stated that "niggers" and "foreign workers" were "animals", and two of them for their assertions in relation to drugs and" Perkere ". The applicant was convicted of aiding and abetting them, as was Mr Jensen, in his capacity as programme controller; they were sentenced to pay day-fines ( dagsbøder ) totalling 1,000 and 2,000 Danish kroner, respectively, or alternatively to five days ’ imprisonment ( hæfte ). As regards the applicant, the City Court found that, following the article in Information of 31 May 1985, he had visited the Greenjackets and after a conversation with Mr Axholt, amongst others, agreed that the three youths should participate in a television programme. The object of the programme had been to demonstrate the attitude of the Greenjackets to the racism at Østerbro, previously mentioned in the article in Information, and to show their social background. Accordingly, so the City Court held, the applicant had himself taken the initiative of making the television programme and, further, he had been well aware in advance that discriminatory statements of a racist nature were likely to be made during the interview. The interview had lasted several hours, during which beer, partly paid for by Danmarks Radio, was consumed. In this connection the applicant had encouraged the Greenjackets to express their racist views, which, in so far as they were broadcast on television, in itself constituted a breach of Article 266 (b) of the Penal Code. The statements were broadcast without any counterbalancing comments, after the recordings had been edited by the applicant. He was accordingly guilty of aiding and abetting the violation of Article 266 (b). C. Proceedings in the High Court of Eastern Denmark 15. The applicant and Mr Jensen, but not the three Greenjackets, appealed against the City Court ’ s judgment to the High Court of Eastern Denmark ( Østre Landsret ). They essentially reiterated the submissions made before the City Court and, in addition, the applicant explained that, although he had suspected that the Greenjackets ’ statements were punishable, he had refrained from omitting these from the programme, considering it crucial to show their actual attitude. He assumed that they were aware that they might incur criminal liability by making the statements and had therefore not warned them of this fact. 16. By judgment of 16 June 1988 the High Court, by five votes to one, dismissed the appeal. The dissenting member was of the view that, although the statements by the Greenjackets constituted offences under Article 266 (b) of the Penal Code, the applicant and Mr Jensen had not transgressed the bounds of the freedom of speech to be enjoyed by television and other media, since the object of the programme was to inform about and animate public discussion on the particular racist attitudes and social background of the youth group in question. D. Proceedings in the Supreme Court 17. With leave the applicant and Mr Jensen appealed from the High Court judgment to the Supreme Court ( Højesteret ), which by four votes to one dismissed the appeal in a judgment of 13 February 1989. The majority held: "The defendants have caused the publication of the racist statements made by a narrow circle of persons and thereby made those persons liable to punishment and have thus, as held by the City Court and the High Court, violated Article 266 (b) in conjunction with Article 23 of the Penal Code. [We] do not find that an acquittal of the defendants could be justified on the ground of freedom of expression in matters of public interest as opposed to the interest in the protection against racial discrimination. [We] therefore vote in favour of confirming the judgment [appealed from]." Justice Pontoppidan stated in his dissent: "The object of the programme was to contribute to information on an issue - the attitude towards foreigners - which was the subject of extensive and sometimes emotional public debate. The programme must be presumed to have given a clear picture of the Greenjackets ’ views, of which the public was thus given an opportunity to be informed and form its own opinion. In view of the nature of these views, any counterbalancing during or immediately before or after would not have served a useful purpose. Although it concerned a relatively small group of people holding extreme views, the programme had a fair degree of news and information value. The fact that the defendants took the initiative to disseminate such views is not of paramount importance for the assessment of their conduct. In these circumstances and irrespective of the fact that the statements rightly have been found to be in violation of Article 266 (b), I question the advisability of finding the defendants guilty of aiding and abetting the violation of this provision. I therefore vote in favour of the defendants ’ acquittal." 18. When the Supreme Court has rendered judgment in a case raising important issues of principle it is customary that a member of the majority publishes a detailed and authoritative statement of the reasons for the judgment. In keeping with this custom, Justice Hermann on 20 January 1990 published such a statement in the Weekly Law Journal ( Ugeskrift for Retsvæsen, 1989, p. 399). As regards the conviction of the applicant and Mr Jensen, the majority had attached importance to the fact that they had caused the racist statements to be made public. The applicant ’ s item had not been a direct report on a meeting. He had himself contacted the three youths and caused them to make assertions such as those previously made in Information, which he knew of and probably expected them to repeat. He had himself cut the recording of the interview, lasting several hours, down to a few minutes containing the crude comments. The statements, which would hardly have been punishable under Article 266 (b) of the Penal Code had they not been made to a wide circle (" videre kreds ") of people, became clearly punishable as they were broadcast on television on the applicant ’ s initiative and with Mr Jensen ’ s approval. It was therefore beyond doubt that they had aided and abetted the dissemination of the statements. Acquitting the applicant and Mr Jensen could only be justified by reasons clearly outweighing the wrongfulness of their actions. In this connection, the interest in protecting those grossly insulted by the statements had to be weighed up against that of informing the public of the statements. Whilst it is desirable to allow the press the best possible conditions for reporting on society, press freedom cannot be unlimited since freedom of expression is coupled with responsibilities. In striking a balance between the various interests involved, the majority had regard to the fact that the statements, which were brought to a wide circle of people, consisted of series of inarticulate, defamatory remarks and insults spoken by members of an insignificant group whose opinions could hardly be of interest to many people. Their news or information value was not such as to justify their dissemination and therefore did not warrant acquitting the defendants. This did not mean that extremist views could not be reported in the press, but such reports must be carried out in a more balanced and comprehensive manner than was the case in the television programme in question. Direct reports from meetings which were a matter of public interest should also be permitted. The minority, on the other hand, considered that the right to information overrode the interests protected by Article 266 (b) of the Penal Code. Finally, Justice Hermann noted that the compatibility of the impugned measures with Article 10 (art. 10) of the Convention was not raised during the trial. III. INSTRUMENTS OF THE UNITED NATIONS 21. Provisions relating to the prohibition of racial discrimination and the prevention of propaganda of racist views and ideas are to be found in a number of international instruments, for example the 1945 United Nations Charter (paragraph 2 of the Preamble, Articles 1 para. 3, 13 para. 1 (b), 55 (c) and 76 (c)), the 1948 Universal Declaration of Human Rights (Articles 1, 2 and 7) and the 1966 International Covenant on Civil and Political Rights (Articles 2 para. 1, 20 para. 2 and 26). The most directly relevant treaty is the 1965 International Convention on the Elimination of All Forms of Racial Discrimination ("the UN Convention"), which has been ratified by a large majority of the Contracting States to the European Convention, including Denmark (9 December 1971). Articles 4 and 5 of that Convention provide: Article 4 "States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of this Convention, inter alia: (a) shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; ..." Article 5 "In compliance with the fundamental obligation laid down in ... this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: ... (d) ... viii. the right to freedom of opinion and expression; ..." The effects of the "due regard" clause in Article 4 has given rise to differing interpretations and the UN Committee on the Elimination of Racial Discrimination ("the UN Committee" - set up to supervise the implementation of the UN Convention) was divided in its comments on the applicant ’ s conviction. The present case had been presented by the Danish Government in a report to the UN Committee. Whilst some members welcomed it as "the clearest statement yet, in any country, that the right to protection against racial discrimination took precedence over the right to freedom of expression", other members considered that "in such cases the facts needed to be considered in relation to both rights" (Report of the Committee to the General Assembly, Official Records, Forty-Fifth Session, Supplement No. 18 (A/45/18), p. 21, para. 56). | The applicant, a journalist, had made a documentary containing extracts from a television interview he had conducted with three members of a group of young people calling themselves the “Greenjackets”, who had made abusive and derogatory remarks about immigrants and ethnic groups in Denmark. The applicant was convicted of aiding and abetting the dissemination of racist remarks. He alleged a breach of his right to freedom of expression. |
213 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1974. He is currently serving a life sentence in Marche-en-Famenne prison (Belgium). A. The applicant ’ s arrest in France 9. The applicant was arrested on 17 December 2007 by the French gendarmerie in a village situated in the French département of Nord and taken into police custody under a European arrest warrant issued against him on 14 November 2007 by an investigating judge of the Charleroi (Belgium) Court of First Instance, on the basis of a request of 6 November 2007 from the Crown Prosecutor attached to that court. 10. The warrant stated that the applicant was wanted for the premeditated murder of his former girlfriend, M.B., committed on 5 November 2007. The warrant stated that a witness who was a neighbour of M.B. had formally identified the applicant. It also referred to a risk of reoffending in view of his history of violence. 11. The interview record drawn up by the French gendarmes at the time of the applicant ’ s arrest on 17 December 2007 indicated that he had waived his right under Article 63-4 of the French Code of Criminal Procedure to consult with a lawyer of his choosing or, failing that, officially assigned counsel. 12. In a judgment of 21 December 2007, the Investigation Division of the Court of Appeal of Douai (France), after acknowledging that the applicant had not renounced his entitlement to the rule of speciality [1], ordered his surrender to the Belgian judicial authorities for the execution of the above ‑ mentioned arrest warrant. The applicant was assisted before the Investigation Division by a lawyer, Ms A., of the Douai Bar. B. Surrender to Belgian authorities and pre-trial investigation stage 13. Having been surrendered to the Belgian authorities at 10.40 a.m. on 31 December 2007, the applicant was interviewed by the criminal investigation police from 11.50 a.m. to 3.55 p.m. 14. As shown by the police interview record, in accordance with Article 47 bis of the Code of Criminal Procedure ( code d ’ instruction criminelle ) (see paragraphs 62-65 below), the applicant was notified that he was entitled to request the verbatim transcription of all the questions put to him and his answers, to request any investigative act or the conducting of any interview, and that his statements could be used in evidence. 15. During that first interview, the applicant explained that he had met M.B. in early 2007 through C.L., his then girlfriend. He admitted that he had been present on 5 November 2007 at the scene of the crime but denied having committed the murder. He claimed that the victim, M.B., had been struck with a hammer by her thirteen-year-old son. He explained that he had intervened and grabbed the hammer from the child, but the latter had continued to hit his mother. The applicant stated that he had left with an axe – which the police had later found near the scene – because he was afraid of being accused on account of his criminal record. He explained that he had fled the scene and had been hiding in his car when the emergency services arrived. He stated that he was unaware that the victim was dead. 16. During the interview the applicant was also questioned about a statement made to the police by M.B. on 25 October 2007 according to which the applicant had tried to kill her by running her over. The applicant explained that he had accidentally skidded while driving his car and had probably hit M.B., but denied that his intention had been to kill her as she had alleged. 17. The investigators informed the applicant that they had intercepted a number of text messages that had been sent to relatives of M.B., following her death, from a mobile phone belonging to him. Those messages included one offering condolences for the death of M.B. The applicant denied having sent them himself. 18. The applicant ’ s detailed statements were taken down by the police in an eight-page record. The record indicated at the very end that following the interview the applicant had read over his statements and had not wished to correct them or add to them. 19. All subsequent records of his statements contained the same indications and were signed by the applicant. Except for the first police interview record, of which a copy was given to him after his examination by the investigating judge later that day, the applicant received his copies immediately after being questioned. 20. Following his interview by the criminal investigation police, the applicant was examined by the investigating judge at the Charleroi Court of First Instance at 4.45 p.m. that day. He confirmed his statements to the investigating judge. 21. On being asked by the investigating judge at the beginning of the examination whether he had chosen a lawyer, the applicant answered in the negative. At the end of the interview record it was stated: “I (the investigating judge) have notified him that I have informed the deputy to the Chair of the Bar Council, given that, at the current stage of the proceedings, he has not appointed counsel.” 22. Following the investigating judge ’ s examination, which finished at 5.42 p.m., the judge observed that a psychiatrist needed to be called immediately. He formally charged the applicant with the premeditated murder of M.B. An arrest warrant was issued to the applicant on the same day and he was remanded in custody. 23. It is not in dispute that the applicant was not allowed to communicate with a lawyer between the time of his surrender to the Belgian authorities and the end of his period in police custody on 31 December 2007. He was only allowed to consult with a lawyer, in accordance with the applicable law, once the decision had been taken by the investigating judge to remand him in custody (see paragraphs 21 above and 55-56 below). Moreover, even though he was subsequently assisted by a lawyer during the judicial pre-trial investigation, that lawyer did not attend the police interviews, examinations by the investigating judge or other investigative acts which took place throughout that phase of the proceedings (see paragraph 59 below). 24. On 11 January 2008 the applicant was again interviewed by the criminal investigation police. He confirmed his previous statements about M.B. ’ s death and provided further particulars about what had happened. The applicant stated that he had indeed seen a person passing by in the street who had witnessed the blows inflicted by the victim ’ s son, and that this witness had been accompanied by a woman, and he admitted to having threatened the witness with a fake gun that had subsequently been found in his car after his arrest. When the officers pointed out the inconsistencies in his account, the applicant acknowledged that he had been carrying a real gun at the time but continued to deny that he was the murderer. 25. There is no indication in the interview record of 11 January 2008, or elsewhere in the file, that the applicant had actually been assigned a lawyer following the notification to the Bar on 31 December 2007, or that he had been in contact with a lawyer prior to that interview. 26. In parallel to the investigation into the murder of M.B., the applicant was interviewed by the police on four occasions between 6 and 7 March 2008 for “criminal association” in respect of car thefts. 27. When examined again by the investigating judge on 17 March 2008, the judge asked the applicant if he had chosen a lawyer. He replied in the affirmative and mentioned that he had been in contact with a lawyer at the Brussels Bar. The applicant was informed that the psychiatric assessment had been received and that it had identified an antisocial personality disorder. When questioned about the facts related to M.B. ’ s murder, the applicant confessed to having stolen a document from the case file, although the authorities had been unaware of this. Subsequently, having repeated that the perpetrator of M.B. ’ s murder was her son, the applicant changed his account of the events. He mentioned the presence of C.L. at the scene of the crime at the time when M.B. was attacked. He explained that he had witnessed an argument between the two women and that he had had to wrest a hammer from C.L. ’ s hands. 28. On 25 March 2008 the criminal investigation police interviewed the applicant for the purposes of a morality and personality assessment. A second police interview was held on the same day concerning bodily harm inflicted on C.L. on 17 September 2007. The applicant acknowledged that he had invited C.L., then pregnant, to get into his car. He stated that he had punched C.L. in the face to “protect” her from a possible encounter with M.B. that had been planned with the aim of stealing the latter ’ s mobile phone and bank card. He explained that M.B., with the help of an accomplice, had then pushed C.L. into the canal. 29. A neuropsychological assessment of the applicant was carried out on 28 April 2008 and sent to the investigating judge. The expert psychologist concluded that the applicant had limited verbal skills but that his reasoning was not abnormal. The expert also highlighted his significant lack of empathy and sociability. 30. On 6 June 2008 a reconstruction of the events of 5 November 2007 was held at the scene of the crime. The two eyewitnesses took part in the reconstruction (see paragraphs 10 and 24 above). The applicant ’ s lawyer was absent, as the law did not provide for the attendance of a lawyer at any investigative act (see paragraph 59 below). In the context of the reconstruction, the applicant mentioned when interviewed that another person, A.N., had also been at the scene on the day in question. He changed his version of events again and stated that he had falsely accused the victim ’ s son. He claimed that the fatal blows had in fact been struck by C.L. and that he had fired a gun to intimidate C.L. 31. During the interview conducted on the same day by the criminal investigation police, the applicant challenged the account given by the two eyewitnesses at the reconstruction and confirmed his new version of the facts. There is no evidence in the file that the applicant sought to communicate with his lawyer before or after the reconstruction or the interview of the same day. 32. An arrest warrant was issued on 8 August 2008 extending the investigating judge ’ s remit, on the basis of the submissions of the Crown Prosecutor dated 23 May 2008 and 7 July 2008, to three additional offences: the attempted murder of M.B. on 25 October 2007, and two offences committed on 17 September 2007 against C.L., namely robbery with violence or threats, and fraud. 33. The applicant was examined on that subject by the investigating judge on 18 August 2008. The information provided for by Article 47 bis of the Code of Criminal Procedure (see paragraph 65 below) was repeated to him; he was also notified of his right to refuse the extension of the charges and to consult with his lawyer on this matter beforehand. The record of the examination shows that he agreed to the extension, thereby renouncing his entitlement to the speciality rule that had been granted by the French authorities (see paragraph 12 above). He also expressed his wish that his lawyer should confirm his position. 34. On 5 December 2008 the applicant was heard by the Crown Prosecutor as to whether he agreed to the extension of the charges. He replied that he wished to consult with his lawyer on this matter. 35. Acknowledging that the applicant had not ultimately given his consent, in a judgment of 13 January 2009 the Investigation Division of the Douai Court of Appeal agreed to extend his surrender for the purposes of a criminal prosecution to the three above-mentioned additional charges. 36. At the close of the judicial investigation stage, the applicant was committed to stand trial before the Assize Court of Hainaut Province by a judgment of 31 August 2009 of the Indictment Division ( chambre des mises en accusation ) of the Mons Court of Appeal. The Indictment Division found that there were serious indications of the applicant ’ s guilt in the light, principally, of the witness statements, the investigators ’ findings, the real evidence gathered and the forensic medical and psychiatric assessments. C. Proceedings in the Assize Court 37. At the start of the trial in the Assize Court, on 1 February 2010, the applicant, assisted by his Belgian counsel, filed a submission in which he requested that the records of the interviews conducted without legal assistance and the ensuing acts should be annulled and that the prosecution case should be declared inadmissible. He argued that his lack of access to a lawyer while in police custody, on 31 December 2007, and during the subsequent interviews and examinations had entailed a breach of an essential formal requirement directly affecting his defence rights and thus irretrievably vitiating the arrest warrant. The applicant complained that the absence of a lawyer had necessarily caused him damage. 38. Referring to the Court ’ s case-law and in particular the judgments in Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008) and Dayanan v. Turkey (no. 7377/03, 13 October 2009), the applicant submitted that it laid down an absolute principle not allowing for any case-specific assessment, given that the restriction arising from Belgian law was one of a general and mandatory nature, and that Belgian law did not meet the requirements of the Convention in such matters. 39. The Assize Court, in an interlocutory judgment of the same day, dismissed the applicant ’ s plea to dismiss the prosecution case. It began by pointing out that the Court ’ s case-law did not guarantee, in an absolute manner, the presence of a lawyer at all stages of the criminal proceedings from the first interview onwards and that the Court had emphasised the need to take account of the proceedings as a whole when assessing whether the right to a fair trial had been upheld. It explained that, in principle, defence rights would be irretrievably affected only where incriminating statements were made. The Assize Court further found that courts had no power to substitute their own solutions for those of the legislature in order to make good the shortcomings complained of by the applicant. 40. As to the consequences of the Court ’ s case-law for the proceedings in the present case, the Assize Court took the view that, in respect of the French part of the proceedings, the applicant had initially waived his right to legal assistance. Later, before the Investigation Division of the Douai Court of Appeal he had been assisted by a lawyer. The Assize Court dismissed his allegation of pressure by the French gendarmes on the grounds that in one of his interviews (namely in the context of the reconstruction of 6 June 2008 referred to in paragraph 30 above) the applicant had given a different explanation as to why he had falsely accused the victim ’ s son, allegedly under duress, at the time of his arrest. 41. As to the Belgian part of the proceedings, the Assize Court found that the applicant had not incriminated himself in respect of the charges, had not claimed that he had been put under any pressure by the investigators, had not been interviewed in a state of particular vulnerability, had expressed himself freely on the facts and had not in any way been compelled to incriminate himself, even being able to exercise his right to remain silent. The applicant had been able to confer with his lawyer after each police interview and examination by the investigating judge to discuss his defence and had been afforded every opportunity to consult with his lawyer throughout the investigation stage. He had also been able, for the two years of his pre-trial detention, to prepare his defence with his lawyer every time he had appeared before the pre-trial courts ( juridictions d ’ instruction ), but he had failed, on those occasions, to mention the omission of which he later complained in the Assize Court. 42. Furthermore, the Assize Court noted that the applicant had been committed to stand trial before it in the light of indications of guilt which stemmed primarily from material other than his own statements (see paragraph 36 above) and that he had availed himself of the right to request the performance of additional investigative acts. After pointing out that the jury ’ s inner conviction was formed during the oral proceedings before it, the Assize Court concluded that the applicant ’ s defence rights had been observed and that there was no reason to declare the interview/examination records or prosecution invalid. It therefore declared the prosecution case admissible and ordered that the proceedings be continued. 43. The bill of indictment drawn up by the Principal Crown Prosecutor on 23 November 2009 was read out at the hearing in the Assize Court. Containing twenty-one pages, it set out the facts and how they had occurred, the investigative acts and their results, and the forensic medical assessments, together with the applicant ’ s background and family life. The indictment referred to the particulars that had been acknowledged by the applicant (his presence at the scene of M.B. ’ s murder, the threatening of a witness and the fact that he had been alone with C.L. and had struck her). It also reproduced the various versions of the events that he had given during his police interviews and examinations by the investigating judge, explaining that those accounts were inconsistent with the investigators ’ factual findings and were contradicted by the various witness statements. 44. At the close of the trial, on 9 February 2010, the jury found the applicant guilty, principally of the premeditated murder of M.B. on 5 November 2007 and of the attempted premeditated murder of C.L. on 17 September 2007. 45. The jury ’ s reasons were set out in the Assize Court ’ s “reasoning judgment” ( arrêt de motivation ) of the same day. The relevant parts read as follows: “... the main reasons for the decision given by the jury are as follows: – The first and second questions [concerning the murder of M.B. on 5 November 2007] The jury considered decisive the consistent and mutually corroborative testimony of the youngsters who had seen only the defendant and the victim at the scene of the crime, without any other person being present, the threats previously made by the defendant against his victim and the various steps taken by Philippe Beuze (in particular the fact of hiding the axe in a bush) in preparation for the crime. – The third and fourth questions [concerning the attempted murder of M.B. on 25 October 2007] [Finding of not guilty] – The fifth and sixth questions [concerning the attempted murder of C.L. on 17 September 2007] The jury found that the following evidence proved both the actual occurrence of the acts and the homicidal intention which had driven the defendant: – the defendant had deliberately arranged to be alone with a pregnant woman, whom he knew was thus placed in a weakened position; – he violently struck C.L., as shown by the medical findings, and left her for dead; – he then fled the scene without calling for help, even though he had the means to do so; – he subsequently sent text messages clearly showing his intention to kill C.L. The jury also took the view that the acts committed by the defendant before going off towards the canal at the end of a long walk (simulation of a flat tyre, deliberate car crash, etc.) all constituted evidence of premeditation.” 46. In a sentencing judgment dated 10 February 2010, the Assize Court sentenced the applicant to life imprisonment. D. Proceedings before the Court of Cassation 47. The applicant lodged an appeal on points of law against the Assize Court judgments of 1, 9 and 10 February 2010. Alleging a violation of Article 6 §§ 1 and 3 (c) of the Convention, as interpreted in the Court ’ s case-law, he relied on the right to be assisted by a lawyer and submitted that the presence of a lawyer during questioning was mandatory under the Convention. 48. In a judgment of 26 May 2010 the Court of Cassation dismissed that ground of appeal as follows: “3. Sections 1, 2, 16(2) and (4), and 20(1) of the Law of 20 July 1990 on pre ‑ trial detention do not provide for the presence of a lawyer to assist the person in police custody during the twenty-four hour period laid down by Article 12, paragraph 3, of the Constitution. The secrecy imposed by Article 28 quinquies, § 1, first paragraph, and Article 57 § 1, first paragraph, of the Code of Criminal Procedure precludes, as a rule, the lawyer ’ s attendance at acts performed during the preliminary investigation by the public prosecutor and the judicial pre-trial investigation. 4. These provisions cannot be said in themselves to violate the right to a fair trial. There are two reasons for this. First, the impugned restriction must be assessed in relation to the full set of legal safeguards made available to the defendant with a view to ensuring the effective protection of his defence rights from the time the prosecution is brought. Secondly, the appellant ’ s interpretation of Article 6 of the Convention must be examined with reference to the constitutional principle of the legality of criminal proceedings. 5. In the light of the following elements, there can be no automatic finding that it is irretrievably impossible for a person questioned by the police and the investigating judge without a lawyer to have a fair trial: the formal requirements laid down for the questioning of a suspect in Article 47 bis of the Code of Criminal Procedure, the brevity of the police custody period, the immediate issuance to the person charged (upon notification of the arrest warrant) of all the documents referred to in sections 16(7) and 18(2) of the Law of 20 July 1990, the right of the person charged to communicate immediately with his lawyer in accordance with section 20(1) and (5) of that Law, access to the file as governed by section 21(3) of the Law, the lawyer ’ s presence at the recapitulatory examination provided for in section 22(1), (2) and (3), and the rights set forth, in particular, in Articles 61 ter, 61 quater, 61 quinquies, 136 and 235 bis of the Code of Criminal Procedure. 6. As a rule, Article 12, paragraph 2, of the Constitution does not allow the court to amend the formalities of criminal proceedings as laid down by the law of a democratic State. The only exception is where a domestic rule, if declared incompatible, may be set aside without distortion by the court of the legal framework of which it is part. On account of its lack of precision, the weight that the appellant attaches to a fair trial cannot trump the above-mentioned principle of legality, whereby the investigation, prosecution and trial can only proceed in accordance with pre-existing and accessible statutes. The submission does not determine the extent to which the court should set aside the domestic statute in order to render the trial fair for the purposes of Article 6 of the Convention according to its proposed evolutive interpretation. Therefore, neither the appellant nor the case-law on which he relies indicate clearly whether the trial would have been fair on the sole condition that the lawyer had been present during the police custody period or whether it would have been necessary to extend that assistance to all investigative acts. The right to a fair trial also implies that none of the parties should be placed in a more favourable or less advantageous situation than that of another party. It cannot therefore be regarded as established that the proceedings submitted to the court ’ s review would have been fairer, within the meaning of the appellant ’ s submission, simply if a lawyer had been present at all his interviews, without an equivalent advantage being secured to the other parties. 7. The submission that the alleged right of the accused is absolute in nature must accordingly be rejected, and it is necessary to consider in concrete terms whether, in the light of the proceedings taken as a whole, the matter complained of by the appellant may have vitiated those proceedings. This does not appear to have been the case. As can be seen from the following findings of the judgment appealed against [of 1 February 2010]: (i) the appellant made no self-incriminating statements while in police custody; (ii) prior to his first interview by the French gendarmerie, he expressly waived the legal assistance to which he was entitled under Article 63-4 of the French Code of Criminal Procedure; (iii) the appellant was assisted by a lawyer from the time of his appearance before the Investigation Division of the Douai Court of Appeal and for the two years of his pre-trial detention; (iv) the appellant was at no point compelled to incriminate himself, and at all times expressed himself freely. The Assize Court therefore acted within the law in refusing to declare the prosecution case inadmissible.” | The applicant, sentenced to life imprisonment for intentional homicide, complained that he had been denied access to a lawyer while in police custody, had been insufficiently informed of his right to remain silent and not to incriminate himself, and had also been deprived of legal assistance when he was questioned, or subjected to other investigative acts, during the judicial pre-trial investigation. |
847 | null | 2. The four applicants are two lawyers and two non-governmental organisations related to them. 3. The first applicant, Mr Ekimdzhiev, was born in 1964 and lives in Plovdiv. He is a lawyer whose practice includes acting as counsel in various domestic cases and representing applicants before this Court. 4. The second applicant, the Association for European Integration and Human Rights, was founded in 1998 and has its registered office in Plovdiv. The first applicant, Mr Ekimdzhiev, is the chairman of its board. 5. The third applicant, Mr A.E. Kashamov, was born in 1971 and lives in Sofia. He is also a lawyer whose practice includes acting as counsel in various domestic cases and representing applicants before this Court. 6. The fourth applicant, the Access to Information Foundation, was set up in 1997 and has its registered office in Sofia. The third applicant, Mr A.E. Kashamov, is the head of its in-house legal team. 7. The first and second applicants were initially represented before the Court by Ms S. Stefanova and Ms G. Chernicherska, lawyers practising in Plovdiv, and then by, respectively, Ms T. Ekimdzhieva and Ms M. Dokova-Kostadinova, likewise lawyers practising in Plovdiv. 8. The third applicant was represented by Mr A.A. Kashamov, a lawyer practising in Sofia. The fourth applicant was represented by the third applicant, Mr A.E. Kashamov. 9. The Government were represented by their Agent, Ms M. Dimitrova of the Ministry of Justice. 10. The applicants asserted that the nature of their activities put them at risk of both secret surveillance and of having their communications data accessed by the authorities under the laws authorising that in Bulgaria. They did not allege that they had in fact been placed under surveillance or had had their communications data accessed by the authorities. | The applicants – two lawyers and two non-governmental organisations – alleged, in particular, that under the system of secret surveillance in Bulgaria the communications of anyone in the country could be intercepted, and that under the system of retention and subsequent accessing of communications data the communications data of anyone in the country could be accessed by the authorities. They submitted that the laws governing those two matters, as applied in practice, did not provide sufficient safeguards against arbitrary or abusive secret surveillance and accessing of communications data. |
721 | Right to liberty and security (Article 5 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 13. The applicant was born in 1935 and lives in Greece. 14. On 13 November 2002 the ship Prestige, flying the flag of the Bahamas, was sailing in the Spanish exclusive economic zone off the coast of Galicia, carrying 70,000 tonnes of fuel oil. At a distance of 28 miles from Cape Finisterre it sent out an SOS after sustaining sudden and severe damage which produced a leak and caused the contents of its tanks to spill into the Atlantic Ocean. 15. As the Prestige was in danger of sinking, the maritime authorities launched a large-scale operation to rescue its crew. The ship was adrift and was approaching the coast, spilling its cargo into the sea. The applicant, who was the ship ’ s Master, was taken by helicopter to the offices of the Corunna ( A Coruña ) harbourmaster, where he was arrested. 16. The spillage of the ship ’ s cargo caused an ecological disaster whose effects on marine flora and fauna lasted for several months and spread as far as the French coast. The shores of the Atlantic coast of Cantabria and Galicia were severely polluted by the numerous waves of oil which were washed up. The oil spill blackened beaches and cliffs, destroyed marine life, adversely affected water quality and had an immediate environmental impact on numerous animal species. It caused damage to protected natural areas and had considerable repercussions on several sectors of the economy in the regions concerned, particularly on fishing, commerce and tourism. 17. By a decision of 17 November 2002, the Corunna no. 4 investigating judge remanded the applicant in custody and set bail at 3,000,000 euros (EUR), after finding that the facts of the case disclosed sufficient indicative evidence to justify opening a criminal investigation. While acknowledging that the oil spill had been caused by an accident, the judge said that some of the information in the file, although still provisional at that stage in the proceedings, suggested that the applicant had been at fault in several respects, in particular in failing to cooperate sufficiently with the port authorities when they had tried to take the vessel in tow. The applicant ’ s conduct could constitute an offence of causing damage to natural resources and the environment and one of failing to comply with the instructions of the administrative authorities. In the judge ’ s opinion, the seriousness of the offences in question and the fact that the applicant was a foreign national who had no particular ties with Spain justified the high sum set for bail. The relevant part of the decision reads as follows: “The information obtained discloses indicative evidence – still provisional at the preliminary investigation stage – of an offence of causing damage to natural resources and the environment for the purposes of Article 325 and, possibly, Article 326 of the Criminal Code, and of an offence of failure to comply with the instructions of the administrative authorities, punishable under Article 556 of the Code. The investigation has produced sufficient indicative evidence to suggest that Mr Apostolos Mangouras could be criminally responsible for the offences in question. In view of the penalties laid down in the Criminal Code for these offences, and the fact that the application provided for in Article 504 bis § 2 and Article 539 of the Code of Criminal Procedure was made at the mandatory hearing, an order should be made, in accordance with Articles 503 and 504 of that Code, for the accused ’ s pre-trial detention as a preventive measure, accompanied by the right for the accused to communicate with others and the possibility of release on bail. The reasonable indications referred to above emerge from the documents in the case file and, in particular, from detailed examination of the testimony of the witnesses who appeared this morning. All the evidence indicates that the severe damage to the Prestige was caused by the unforeseeable phenomenon of a storm surge, but that actions were taken which could form the basis of a criminal prosecution, as indicated in the previous paragraph. It should be stressed that the steps taken hitherto and the conclusions to be drawn for the purposes of this decision are of a wholly provisional nature and that many further steps and much more expert evidence will be needed in order to fully elucidate the facts. However, it is clear at this stage that the Prestige did not have any emergency towing equipment or that if it did, it was not in working order, as demonstrated by the recordings of conversations. It is also clear that the ship ’ s Master, by repeatedly ignoring the instructions of the port authorities, hampered meaningful joint efforts to lessen the extremely serious risks. It appears that the Master of the Prestige refused for almost three hours to cooperate and subsequently continued to do so indirectly, creating difficulties by refusing to take the necessary steps to ensure effective towing of the vessel or to start the engine so that the ship could advance, however slowly. These events occurred within the country ’ s 24-mile limit and, by definition, within the 200-mile zone. It is true, as already indicated, that further investigative elements are required, in particular the ship ’ s log, which has been urgently requested, and that it will be necessary to verify all the other information contained in the recordings of conversations, transcripts of which appear to be in the possession of the Cape Finisterre control centre. Without prejudice to all of the above, the accused ’ s detention could be dispensed with subject to bail being furnished in the amount of three million euros. In the court ’ s view, the security in question is justified in view of the seriousness of the offences concerned and the heavy sentence they carry and also because the investigation is in the early stages, the accused ’ s release could impede the investigation, the case has clearly caused a major public outcry and, in addition to the issues of criminal responsibility raised, there are significant civil liability issues at stake involving substantial sums. Furthermore, Mr Mangouras has no ties in Spain and could leave the country at any time and thus evade prosecution. For all the reasons outlined above it is necessary and unavoidable, in the present circumstances, to fix bail. Bail cannot, for the time being at least, be replaced by a less restrictive measure.” 18. On 19 November 2002 the applicant requested his release and, in the alternative, the reduction of bail to EUR 60,000 to reflect his personal situation. He also submitted that his advanced age should be taken into account. In a decision of 27 November 2002, the Corcubión (Corunna) no. 1 investigating judge refused the applicant ’ s request. The judge took the view that the seriousness of the offences of which the applicant stood accused justified his continued pre-trial detention and that the latter measure was exceptional, subsidiary, temporary and proportionate in nature and thus satisfied the remaining criteria laid down by the case-law of the Constitutional Court. As to the amount set for bail, the judge stated that the applicant ’ s appearance at trial was vital in order to elucidate the sequence of events following the leak in the vessel. He also reiterated the arguments of the first investigating judge to the effect that the seriousness of the offences, the public outcry caused by the marine pollution, the applicant ’ s Greek nationality, the fact that his permanent address was abroad and the fact that he had no ties with Spain justified setting a high level of bail in order to rule out any risk that the applicant might fail to appear. 19. On 7 December 2002 the same investigating judge confirmed the decision, rejecting an application from the applicant to set it aside ( recurso de reforma ). 20. An appeal by the applicant was dismissed on 3 January 2003 by the Corunna Audiencia Provincial on the ground that there was sufficient evidence to charge the applicant with serious offences and that the amount of bail was justified by the unusual circumstances of the case. The court pointed out that the applicant had been remanded in custody on account of his “alleged involvement in the acts of which he is accused, namely acting in a manner liable to cause a disaster, failing to comply with the instructions of the port authorities and committing an offence of causing damage to natural resources”. It further pointed out that the investigating judge had offered the applicant the possibility of avoiding custody on grounds of “alleged responsibility for offences against natural resources and the environment and an offence of failure to comply with the instructions of the administrative authorities”, subject to the posting of bail in the amount of EUR 3,000,000. The Audiencia Provincial noted the outcry caused by the alleged offences and took the view that the impugned decision was not open to criticism on any account, “including with regard to the amount of bail”. The Audiencia Provincial stressed that the prima facie evidence taken into consideration by the investigating judge in ordering the applicant ’ s pre ‑ trial detention concerned serious offences, that it was too early to rule on whether the offence had been committed intentionally and that the applicant ’ s detention pursued the legitimate aim of preventing the risk of his absconding, a risk closely linked to the seriousness of the alleged offence and his lack of any particular ties in Spain. It referred in that regard to the category of offences in question and the severity of the likely sentence, the fact that the accused ’ s presence was essential to the investigation, the possibility that the trial might collapse if he absconded and the public outcry surrounding the established facts. The Audiencia Provincial dismissed the ground of appeal based on the applicability of Article 230 of the United Nations Convention on the Law of the Sea of 10 December 1982, holding that the provision in question referred only to administrative offences relating to pollution of the marine environment committed by foreign vessels beyond the territorial sea, for which only monetary penalties could be imposed, and not to wilful and serious acts of pollution in the territorial sea. 21. On 6 February 2003 the Corcubión (Corunna) no. 1 investigating judge recorded the lodging of a bank guarantee in an amount corresponding to the sum set for bail, which was provided as a one-off, spontaneous humanitarian gesture by the London Steamship Owners ’ Mutual Insurance Association Limited (“the London P&I Club”), which insured the ship ’ s owner. Accordingly, on 7 February 2003, the judge ordered the applicant ’ s provisional release after eighty-three days in detention, subject to the following conditions: “ (a) that [the applicant] supply an address in Spain; (b) that he report every day before 1 p.m. to the police headquarters corresponding to the address supplied; (c) that he remain in the country and surrender his passport to the court ’ s registry.” 22. On 28 May 2003 the London P&I Club and the ship ’ s owner, Mare Shipping Inc., paid out EUR 22,777,986 in compensation for the damage for which they were civilly liable within the limits laid down by Article V of the 1992 International Convention on Civil Liability for Oil Pollution Damage (“ the CLC 1992”, see paragraph 54 below). 23. Relying on Article 17 of the Constitution (right to liberty and security), the applicant lodged an amparo appeal with the Constitutional Court. While he did not appeal against his pre-trial detention, for which he considered sufficient reasons to have been given, the applicant complained of the amount set for bail, arguing that it had been excessive and disproportionate in view of his financial circumstances and had made any prospect of provisional release unrealistic. He alleged that the amount had been fixed without account being taken of his personal circumstances, in disregard of the requirements of the court ’ s case-law. 24. By a reasoned decision ( auto ) of 29 September 2003, the Constitutional Court declared the appeal inadmissible. It began by observing that, according to its case-law, the fact that the applicant had been released did not render the amparo appeal devoid of purpose, given that “... in the event of a breach of the fundamental right asserted, the [c] ourt should allow the appeal and grant the applicant amparo relief”. 25. However, on the merits, the Constitutional Court ruled as follows: “... Article 531 of the Code of Criminal Procedure stipulates that the amount set for bail should take into account, among other factors, the nature of the offence, any previous convictions and other circumstances that might prompt the accused to seek to evade justice. According to the case-law of the European Court of Human Rights, the object of bail is to secure the presence of the accused at the trial ... and the amount should act as a deterrent against any wish to abscond. ... The rulings given in the instant case concerning the amount of bail and the refusal to reduce it provided ample reasons based on the primary objective of securing the accused ’ s presence at the trial, the seriousness of the offences in question, the national and international disaster caused by the oil spill, the fact that the accused is a non ‑ national and the fact that he has no ties in Spain. These circumstances led the courts to consider that the risk of flight could only be reduced by setting such a high sum for bail ... They also took into consideration the accused ’ s personal and financial circumstances and his professional environment. ... In fixing bail at a level such as to dispel any wish to abscond, they further took account of other aspects of the accused ’ s personal situation, namely his Greek nationality, the fact that his permanent address is abroad and the fact that he has no ties whatsoever in Spain. It follows that bail was fixed on the basis of criteria of proportionality ... The exceptional amount reflects the exceptional nature of the situation.” 26. Subsequently, in March 2005, the Spanish authorities authorised the applicant ’ s return to his country of origin, where he is now living, on condition that the Greek authorities ensured his compliance with the periodic supervision to which he had been subject in Spain. The applicant is therefore required to report every two weeks to a police station on the island of Icaria, where he was born, or in Athens, where his children live. 27. The criminal proceedings are currently pending before the Corcubión (Corunna) no. 1 investigating judge. | The applicant was formerly the captain of the ship Prestige, which in November 2002, while sailing off the Spanish coast, discharged the 70,000 tonnes of fuel oil it was carrying into the Atlantic Ocean when its hull sprang a leak. The oil spill caused an ecological disaster whose effects on marine flora and fauna lasted for several months and spread as far as the French coast. A criminal investigation was opened and the applicant was remanded in custody with the possibility of release on bail of three million euros. He was detained for 83 days and granted provisional release when his bail was paid by the shipowner’s insurers. The applicant complained in particular that the amount of bail required had been excessively high and had been fixed without regard for his personal situation. |
1,057 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. PARTICULAR CIRCUMSTANCES OF THE CASE 6. The applicant company, Gasus Dosier- und Fördertechnik GmbH (hereinafter "Gasus"), are a limited liability company under German law with their registered office in Würzburg, Germany. A. Background to the case 7. On 17 June 1980 Gasus ’ s agent in the Netherlands received an order from a Netherlands company, Atlas Junior Beton B.V. (hereinafter "Atlas") of Leiderdorp, for a concrete-mixer and ancillary equipment. The order was confirmed in writing by Gasus themselves on 18 June 1980. Gasus appended to their letter their general conditions of sale, which contained the following passages: "We retain ownership of the goods delivered until all amounts due, both present and future, including ancillary claims arising from business with the customer, have been settled in full." and "In the case of foreign business (Auslandsgeschäfte), only the law of the German Federal Republic shall apply." Gasus subsequently received an order for additional ancillary equipment and confirmed it in writing on 21 July 1980, again appending their general conditions of sale. It was understood, inter alia, that Atlas would provide lifting equipment and some of the manpower needed for assembling the machine, the main part of which weighed five tonnes. Between 25 July and 28 August 1980 Gasus sent Atlas invoices totalling 125,401.24 German marks (DEM), to which Atlas did not object. Gasus received only DEM 21,672 in payment before the events complained of. B. Seizure of the concrete-mixer and bankruptcy of Atlas 8. The machine was installed on Atlas ’ s premises by Gasus; the work took from 28 July until 2 August 1980. 9. On 31 July 1980 the Tax Bailiff (belastingdeurwaarder) seized all the movable assets on Atlas ’ s premises for forced sale in pursuance of three writs of execution (dwangbevelen) issued by the Collector of Direct Taxes (Ontvanger der directe belastingen - the "Tax Collector") totalling 67,741.59 Netherlands guilders (NLG). The official record (proces-verbaal) contains a mention of the concrete-mixer. Notice of the seizure was served on Atlas but not on Gasus. 10. Being unable to meet their financial obligations, Atlas sought a moratorium (surséance van betaling) which was granted by the Hague Regional Court (arrondissementsrechtbank) on 16 October 1980. 11. The receiver (bewindvoerder), a lawyer appointed by the Regional Court, saw that it was not possible for Atlas to continue their activities independently and managed to interest another company, Van Baarsen Wandplaten B.V. ("Van Baarsen"), in taking them over. Under pressure from Atlas ’ s clients, who insisted that a satisfactory arrangement for continuing production should be reached by 23 October 1980, Atlas, the receiver and Van Baarsen reached an agreement on that date for a takeover by Van Baarsen. This agreement was only able to come about with the co-operation of Atlas ’ s mortgagees - two banks who had financed Atlas and had stipulated that the ownership of certain of its movable assets should be fiduciarily transferred as a security - and the Tax Collector, who had seized all the movable assets present on Atlas ’ s premises. The agreement was subject to the condition that no third parties could assert a better right to the goods covered by it. Van Baarsen would pay a lump sum of NLG 500,000 for taking over Atlas ’ s machines and inventory goods. Half that sum would be paid to the tax authorities and the other half to a bank, NIB, which was the fiduciary owner of certain goods not subject to seizure by the tax authorities. Van Baarsen continued Atlas ’ s activities on the latter ’ s premises from 27 October, using what had been Atlas ’ s workforce and machines. 12. On 21 October 1980 Gasus sent a letter to Atlas ’ s receiver, which reached him on 24 October. In it they stated that of the moneys due to them from Atlas they had received only DEM 21,672 and they requested payment of the remainder. They also gave notice that the concrete-mixer would be taken back on 30 October if sufficient guarantees for payment were not provided by 28 October. No payment was made but it does not appear that Gasus took any action. 13. Atlas were declared bankrupt on 30 October 1980, at the request of their receiver and with the agreement of their management, and the receiver was reappointed as trustee in bankruptcy (curator). The bankruptcy proceedings were terminated on 20 June 1990 for lack of any further assets to distribute. None of Atlas ’ s unsecured creditors recovered any part of their claims. 14. On 4 March 1981 the Commissioner of Direct Taxes (directeur der directe belastingen) received a letter from Gasus in which they, being by then aware of the fact that the machine had been seized, filed an administrative objection (bezwaarschrift) to the seizure. By a letter of 15 May 1981 the Commissioner declared the administrative objection inadmissible because it had not been filed within seven days of the seizure as required by section 16 (1) of the 1845 Tax Collection Act (Invorderingswet 1845, "the 1845 Act" - see paragraph 29 below), adding that in any case he saw no reason to rescind the seizure order and that in deciding not to do so, he had not been influenced by the fact that the administrative objection was out of time. C. Proceedings before the Utrecht Regional Court 15. On 22 May 1981 Gasus brought proceedings against Atlas ’ s trustee in bankruptcy and Van Baarsen before the Utrecht Regional Court to obtain an order for the concrete-mixer to be returned. In the proceedings before the Commission Gasus stated that both the trustee and Van Baarsen had acknowledged Gasus ’ s ownership but had refused to give up the machine as it was still being held by the tax authorities. These proceedings appear not to have been pursued to a conclusion. 16. On 17 September 1981 Gasus sued the Tax Collector, the trustee in bankruptcy and Van Baarsen in the Hague Regional Court, objecting to the seizure and seeking an order to the Tax Collector to release the concrete-mixer from seizure and another order to the trustee and Van Baarsen not to hinder the exercise of Gasus ’ s rights. Gasus ’ s position may be summarised as follows. Their objection to the seizure (verzet) was based on the argument that the concrete-mixer had not been operational on 31 July 1980, so that it could not have been part of the "furnishings of a house or farmstead" within the meaning of section 16 (3) of the 1845 Act (see paragraph 29 below). In the alternative, the seizure was, on various grounds, wrongful in civil law (onrechtmatig). Finally, the fact that section 16 (3) prevented third parties from challenging a seizure affecting their own goods amounted to a denial of "access to court" as guaranteed by Article 6 para. 1 (art. 6-1) of the Convention. 17. The Tax Collector filed lengthy pleadings in reply. The trustee and Van Baarsen did not themselves make any submissions on the merits but requested that the Tax Collector ’ s statements in defence (conclusie van antwoord) and subsequent rejoinder (conclusie van dupliek) be treated as their own. 18. The Regional Court delivered its judgment on 21 December 1983. Taking the same view as the Tax Collector, it held that the fact that the concrete-mixer had not been operational at the time of the seizure did not invalidate the seizure itself. Since the proceedings concerned an objection to seizure under section 16 (3) of the 1845 Act, the court could not entertain Gasus ’ s complaint that the seizure was unlawful; the only permissible purpose of such proceedings was to examine whether the requirements of section 16 (3) were met. Furthermore, Article 6 para. 1 (art. 6-1) of the Convention did not apply - and had therefore not been violated - because section 16 related to the imposition and collection of taxes, empowering State authorities to make decisions in the normal discharge of their duties under public law, and thus did not concern "civil rights and obligations". D. Proceedings before the Hague Court of Appeal 19. Gasus appealed to the Hague Court of Appeal, summoning Atlas ’ s trustee in bankruptcy on 19 March 1984 and the Tax Collector and Van Baarsen on 20 March. Gasus ’ s first ground of appeal (grief) was that the Regional Court had erred in holding that the seizure was valid even though the concrete-mixer had not been operational at the time. The second and third grounds of appeal were founded on the Regional Court ’ s refusal to deal with Gasus ’ s allegations of unlawfulness and to accept their arguments based on Article 6 para. 1 (art. 6-1) of the Convention. The Tax Collector replied that Gasus ’ s complaints concerning section 16 (3) of the 1845 Act amounted to an allegation of deprivation of their possessions in violation of Article 1 of Protocol No. 1 (P1-1). He denied, however, that there had in fact been such violation. 20. Following the exchange of pleadings by the parties to the proceedings, a hearing was held on 16 September 1986. At this hearing counsel for Gasus continued to rely on Article 6 para. 1 (art. 6-1) of the Convention. In his view, what was decisive for that provision (art. 6-1) to be applicable was whether the plaintiff sought protection of a right that was to be classed as "civil" within the meaning of the provision (art. 6-1). Since Gasus sought to be protected against infringement by the Tax Collector of their ownership of the concrete-mixer, undoubtedly a "civil" right within the meaning of the provision (art. 6-1), Article 6 para. 1 (art. 6-1) applied; it had, moreover, been violated since section 16 (3) of the 1845 Act amounted to a limitation of access to court with respect to assets of the kind mentioned in it. While agreeing that Gasus had been deprived of one of their possessions and had suffered damage as a result, Gasus ’ s counsel expressly declined to rely on Article 1 of Protocol No. 1 (P1-1). Contrary to what the Tax Collector had suggested both at first instance and on appeal, section 16 (3) had nothing to do with deprivation of property but barred access to court for those who sought to be protected from the seizure and sale of their property. That was clear from its wording. That also followed, incidentally, from Article 14 of the Constitution, which prohibited expropriation without compensation: if section 16 (3) were a provision concerning deprivation of property, it would contravene Article 14 of the Constitution. On the principle that a provision of Netherlands legislation could not be construed so as to be incompatible with the Constitution, section 16 (3) therefore had to be construed as merely barring access to court. The questions raised by section 16 (3) were thus of a "procedural", not a "substantive" nature, and therefore the more appropriate Convention provision was Article 6 para. 1 (art. 6-1) and not Article 1 of Protocol No. 1 (P1-1). Since section 16 (3) obviously violated Article 6 para. 1 (art. 6-1), it should - pursuant to Article 94 of the Constitution - not be applied. This meant that section 456 and the following sections of the Code of Civil Procedure applied without restriction, and this in turn meant that Gasus could rely on their right of ownership of the concrete-mixer, which was therefore not subject to seizure. 21. The Court of Appeal gave judgment on 3 December 1986. Like the Regional Court, it held that the seizure was not vitiated by the fact that the concrete-mixer had not been fully operational at the time; the concrete-mixer ’ s intended use had already been established and all efforts had been directed towards making it operational and ensuring that it would serve Atlas on a lasting basis. The concrete-mixer thus qualified as "furnishings" of Atlas ’ s factory building. The first ground of appeal therefore failed. The second and third grounds of appeal were also dismissed. After establishing that the right claimed by Gasus was a "civil right" for the purposes of Article 6 para. 1 (art. 6-1), the Court of Appeal went on to hold: "The question is therefore whether in the present case access to a tribunal and due process were sufficiently secured to Gasus. To answer this, it is necessary to ascertain what provisions, in so far as relevant to the present case, govern ownership and the procedure connected with it. In the Articles of ... section I [of the Convention] apart from the aforementioned Article 6 (art. 6), a number of fundamental rights are laid down and - where necessary - defined. The right of ownership is not one of them. This is provided for in Protocol No. 1 (P1) to the Convention ... [Article 1 of Protocol No. 1 (P1-1)] does therefore authorise national legislatures to pass laws restricting the enjoyment of possessions or even entirely depriving the individual of that enjoyment for specific purposes relating to the general interest; however, when it comes to the question of whether such a law has been properly applied in a specific case, the owner concerned remains entitled, as provided in Article 6 (art. 6) of the Convention, to access to a tribunal and to due process in order to have the application of the law assessed. One such provision of domestic law which is authorised by Article 1 of Protocol No. 1 (P1-1) is section 16 (3) of the 1845 Act. The rule laid down therein implies that seizure levied by the tax authorities in order to collect a tax debt in fact deprives a third party of his ownership of an item of movable property provided that when the seizure was effected the item of property was on the tax debtor ’ s premises and served as ‘ furnishing ’ of them. Whether, when judged by this condition, the seizure of his property was rightly effected is a matter which any affected third party can have reviewed by the ordinary civil courts in proper legal proceedings. In assessing the lawfulness of the seizure, the court may not take into account whether or not the relevant property is owned by the tax debtor, because precisely this point is not relevant - save for certain exceptions which are of no consequence here - in view of the scope of the subsection. This also reveals the meaning of the provision that third parties may ‘ never bring an action to challenge seizures for tax purposes ’. It means not that they may not bring an action before the courts but rather that, having brought an action in the courts, they may not successfully submit, as a basis for their action, that the seizure is unlawful because the goods seized belong to them and not to the tax debtor. Consequently, the provisions of section 456 (1) of the Code of Civil Procedure are of no avail to them in this respect because section 16 (3) of the 1845 Act derogates from them as a lex specialis. It follows from the above that there has been no violation of Article 6 (art. 6) of the Convention and that the Regional Court was correct in not dealing with the allegation that the Collector acted unlawfully by seizing the concrete-mixer belonging to Gasus ..." E. Proceedings before the Supreme Court 22. Gasus entered an appeal on points of law (beroep in cassatie) with the Supreme Court (Hoge Raad) on 3 March 1987. They filed grounds (middelen van cassatie) that were each subdivided into a large number of parts. The Advocate-General (advocaat-generaal) noted that several grounds and many of their component parts were merely variations on a single theme. The Court of Appeal had erred in considering the matter under Article 1 of Protocol No. 1 (P1-1). Section 16 (3) of the 1845 Act was a "procedural" provision, not a "substantive" one, and should therefore have been examined only in the light of Article 6 (art. 6); the fact that lack of access to a tribunal could lead to loss of property indicated only that the interests protected by Article 6 (art. 6) were very real. Gasus went on to submit that section 16 (3) violated Article 6 (art. 6) as it only allowed third parties to challenge seizure of their goods on the premises of another by the tax authorities on the ground that those goods were not "fruit", or "furnishings", or intended for the "cultivation or use of land". If the goods concerned fell into one of those categories, there was no other ground on which to base an action. Section 16 (3) had been inspired by the need to prevent tax evasion, but had been rendered obsolete by developments in business practice and commercial law, retention of title now being a generally accepted and quite legal form of security. The Tax Collector had acted unlawfully in seizing the concrete-mixer since Gasus had not actually been conniving at tax evasion. In any event, even if Article 1 of Protocol No. 1 (P1-1) applied (which Gasus submitted it did not), it only allowed States to interfere with the tax debtor ’ s peaceful enjoyment of his possessions to secure payment of the taxes he owed. It did not allow them to deprive third parties of their possessions. It was not to be assumed that Article 1 of Protocol No. 1 (P1-1) legitimised greater interferences with citizens ’ rights than did Article 14 of the Constitution, which forbade expropriation without compensation. If section 16 (3) of the 1845 Act were seen as a "substantive" provision, it clearly amounted to a provision making deprivation of property by the State possible in the public interest. Finally, the Tax Collector had not at any time informed Gasus of the seizure as he should have done. 23. Following the advisory opinion (conclusie) of its Procurator-General (procureur-generaal), the Supreme Court rejected the appeal on 13 January 1989. Its reasoning was as follows: "3.1. The purport of grounds of appeal I-III is to argue that the provisions of section 16 (3) of the 1845 Act of 22 May 1845 ... are incompatible with Article 6 (art. 6) of the Convention and/or Article 1 of Protocol No. 1 (P1-1). In the assessment of this argument, the following is of importance: (a) Section 16 of the 1845 Act, in particular the third paragraph thereof, implies that the Tax Collector has a right of recovery against third parties ’ goods listed in that paragraph and `situated on the premises of the tax debtor at the time of the seizure ’. (b) The objection which third parties may make before the civil courts to the seizure of their goods is in principle limited to the question whether the conditions for its applicability described in section 16 (3) have been satisfied; in other respects, third parties may file an administrative objection to the Commissioner of Direct Taxes by means of the complaint procedure referred to in subsection 1 of that section ... (c) It follows from the provisions of chapter V of the General State Taxes Act (Algemene wet inzake rijksbelastingen) and section 5, opening words and subsection (m), of the Administrative Decisions Appeals Act (Wet administratieve rechtspraak overheidsbeschikkingen) that no appeal lies to an administrative tribunal against the Commissioner ’ s decision on the administrative objection. Consequently, the third party may bring an action against such a decision in the civil courts, possibly in summary proceedings (kort geding), on the basis that there has been an unlawful act. In so doing, the third party may also base his claim of unlawfulness on the allegation that the Commissioner has acted in breach of a general principle of good governance (algemeen beginsel van behoorlijk bestuur). (d) The provisions of the 1961 Tax Collection Guidelines (Leidraad invordering - Resolution of 8 December 1961, no. B 1/18516), in particular paragraph 30, are also of importance in this connection. Although the 1961 Guidelines do not contain rules of law, principles of good governance imply that the Commissioner may not deviate to the disadvantage of a third party from the rules laid down in the Guidelines, as the court considers they should be interpreted. If he does depart from them, he is in principle acting unlawfully vis-à-vis the third party. (e) As regards the content of paragraph 30 of the Guidelines, the following features of the provisions contained in sub-paragraph 9 should be mentioned briefly. It is in keeping with the Commissioner ’ s policy that the third party ’ s title will in principle be respected in cases of `real ownership ’. But recovery against the goods of a third party is generally justified if `the circumstance that the goods legally belong to another person has mainly been brought about to exclude the possibility of recovery against such goods for debts of the taxpayer or to ensure that the third party has a priority right to recover against such goods ’. One of the examples quoted here is where a supplier of goods reserves the ownership of them. It has been established that Gasus did this as supplier of the goods which are the subject of the litigation. (f) It is also provided in paragraph 30, sub-paragraph 8, of the 1961 Guidelines that an administrative objection made by a third party shall be dealt with even if it is not filed in time, i.e. within the said period of seven days from the date of seizure as referred to in section 16 (1) of the 1845 Act. It follows that a third party who files an administrative objection out of time is entitled to have it dealt with. As the third party need not be aware that the seizure has occurred and thus that time has started to run - neither the law nor the Collection Guidelines require service on, or any other form of warning to, a third party - it must be assumed - partly in the light of Article 6 (art. 6) of the European Convention - that the third party may have recourse to the civil courts in this case in the manner described above under (c) and (d). 3.2. Against this background, the arguments advanced in grounds of appeal I-III cannot be accepted as correct. A third party whose goods have been seized has opportunities for redress against the acts of the Tax Collector or the Commissioner as the case may be, before an independent and impartial tribunal established by law such that the requirements of Article 6 para. 1 (art. 6-1) of the Convention are met. Nor can it be said that the recovery, on the basis of section 16 (3) of the 1845 Act, of goods belonging to a third party such as Gasus - who as supplier of the goods has reserved title to them - is not compatible with Article 1 of Protocol No. 1 (P1-1). That is because section 16 (3) is to be regarded as a statutory provision which the State regards as necessary in order to secure the payment of taxes in such a manner as to ensure that this payment is not frustrated by reservation of title by a third-party supplier. Grounds of appeal I-III fail in view of the above, irrespective of the validity of the arguments set out by the Court of Appeal, which these grounds attack. 3.3. As, according to the explanation given of it, ground of appeal IV builds on the previous grounds, it must fail likewise. In so far as it is suggested that section 16 (3) should not be applied as it has been `rendered obsolete by developments in business practice and commercial law ’, the ground is unfounded. 3.4. Ground of appeal V takes issue with the Court of Appeal ’ s opinion that the Tax Collector does not have a duty to give notice, in the sense that he should have given notice to Gasus after the seizure of the goods that they had been seized. The ground fails. As already indicated at 3.1. (f) above, neither the 1845 Act nor the Tax Collection Guidelines contain any such obligation to provide a warning. Although such an obligation may in special circumstances be inferred from unwritten law, no such special circumstances have been alleged by Gasus in this connection. 3.5. Since none of the grounds of appeal justifies overturning the judgment appealed against, the appeal must be dismissed." The above judgment of the Supreme Court was published in the Rechtspraak van de Week, (Weekly Law Reports - RvdW) 1989, 28; in the Vakstudie Nieuws (Professional Studies News) 1989, p. 363; in the Nederlandse Jurisprudentie (Netherlands Law Reports - NJ) 1990, 211, and in the Beslissingen in Belastingzaken (Reports of Decisions in Taxation Cases - BNB) 1989/129. It was welcomed by commentators as providing clarity as to the scope of judicial protection available against use by the tax authorities of section 16 (3) (commentaries on the Supreme Court ’ s judgment in the present case, by E.A. Alkema in NJ 1990, 211, and by H.J. Hofstra in BNB 1989/129; commentary by W.H. Heemskerk of the Supreme Court ’ s judgment of 26 May 1989, NJ 1990, 131). | In June 1980 the applicant company sold a concrete-mixer and ancillary equipment to a Dutch company, subject to the condition that they remained its property until the full price had been paid. One month later the Tax Bailiff seized all the movable assets on the Dutch company’s premises for forced sale in pursuance of three writs of execution issued by the Collector of Direct Taxes. The applicant company complained about the seizure of the concrete mixer by the tax authorities and its subsequent sale with their complicity. |
1,014 | Military presence | A. The parties’ submissions 1. The applicant 2. The Government B. The Court’s evaluation of the facts II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION A. The parties’ submissions 1. The applicant 2. The Government B. The Court’s assessment III. ALLEGED VIOLATION OF ARTICLE 5 §§ 1, 2, 3 AND 4 OF THE CONVENTION A. Jurisdiction 1. The parties’ submissions 2. The Court’s assessment B. The merits of the complaints under Article 5 §§ 1, 2, 3 and 4 1. The parties’ submissions 2. The Court’s assessment OPERATIVE PART PARTLY DISSENTING OPINION OF JUDGE SPANO JOINED BY JUDGES NICOLAOU, BIANKU AND KALAYDJIEVA In the case of Hassan v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of: Dean Spielmann, President, Josep Casadevall, Guido Raimondi, Ineta Ziemele, Mark Villiger, Isabelle Berro-Lefèvre, Dragoljub Popović, George Nicolaou, Luis López Guerra, Mirjana Lazarova Trajkovska, Ledi Bianku, Zdravka Kalaydjieva, Vincent A. De Gaetano, Angelika Nußberger, Paul Mahoney, Faris Vehabović, Robert Spano, judges, and Michael O’Boyle, Deputy Registrar, Having deliberated in private on 11 December 2013 and 25 June 2014, Delivers the following judgment, which was adopted on that last date: PROCEDURE 1. The case originated in an application (no. 29750/09) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Iraqi national, Mr Khadim Resaan Hassan (“the applicant”), on 5 June 2009. 2. The applicant was represented by Mr P. Shiner, a solicitor practising in Birmingham, together with Mr T. Otty, QC, and Mr T. Hickman, barristers practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Tomlinson, Foreign and Commonwealth Office. 3. The applicant alleged that his brother was arrested and detained by British forces in Iraq and was subsequently found dead in unexplained circumstances. He complained under Article 5 §§ 1, 2, 3 and 4 of the Convention that the arrest and detention were arbitrary and unlawful and lacking in procedural safeguards and under Articles 2, 3 and 5 that the United Kingdom authorities failed to carry out an investigation into the circumstances of the detention, ill-treatment and death. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Its examination of the application was adjourned pending adoption of the judgment in Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, ECHR 2011. Subsequently, on 30 August 2011, the application was communicated to the Government. 5. On 4 June 2013 the Chamber decided to relinquish jurisdiction to the Grand Chamber. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. 6. The applicants and the Government each filed further written pleadings on the admissibility and merits and third-party comments were received from Professor Françoise Hampson and Professor Noam Lubell, of the Human Rights Centre, University of Essex (“the Third Party”). 7. A hearing took place in public in the Human Rights Building, Strasbourg, on 11 December 2013 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMs R. Tomlinson, Agent, Mr J. Eadie QC, Mr C. Staker, Counsel, Mr M. Addison, Ms A. McLeod, Advisers; (b) for the applicantMr T. Otty QC, Mr T. Cleaver, Counsel, Mr P. Shiner, Ms B. Shiner, Ms L. Shiner, Advisers. The Court heard addresses by Mr Eadie and Mr Otty and their answers to questions put by the Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The facts of the case, as submitted by the parties, may be summarised as follows. Where certain facts are in dispute, each party’s version of events is set out. A. The invasion of Iraq 9. On 20 March 2003 a coalition of armed forces under unified command, led by the United States of America with a large force from the United Kingdom and small contingents from Australia, Denmark and Poland, commenced the invasion of Iraq from their assembly point across the border with Kuwait. By 5 April 2003 British forces had captured Basrah and by 9 April 2003 United States troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003. B. The capture of the applicant’s brother by British forces 10. Prior to the invasion, the applicant was a general manager in the national secretariat of the Ba’ath Party and a general in the Al-Quds Army, the army of the Ba’ath Party. He lived in Umm Qasr, a port city in the region of Basrah, near the border with Kuwait and about 50 kilometres from Al-Basrah (Basrah City). After the British army entered into occupation of Basrah, they started arresting high ranking members of the Ba’ath Party. Other Ba’ath Party members were killed by Iraqi militia. The applicant and his family therefore went into hiding, leaving the applicant’s brother, Tarek Resaan Hassan (henceforth, “Tarek Hassan”), and his cousin to protect the family home. 11. According to information given by the Government, members of a British army unit, the 1 st Battalion The Black Watch, went to the applicant’s house early in the morning of 23 April 2003, hoping to arrest him. The applicant was not there, but the British forces encountered Tarek Hassan, who was described in the contemporaneous report drawn up by the arresting unit (“the battalion record”) as a “gunman”, found on the roof of the house with an AK-47 machine gun. The battalion record indicated that the “gunman” identified himself as the brother of the applicant and that he was arrested at approximately 6.30 a.m. It further indicated that the house was found by the arresting soldiers to contain other firearms and a number of documents of intelligence value, related to local membership of the Ba’ath Party and the Al-Quds Army. 12. According to a statement made by the applicant and dated 30 November 2006, Tarek Hassan was arrested by British troops on 22 April 2003, in the applicant’s absence. According to this statement, “When my sisters approached the British military authority they were told that I had to surrender myself to them before they would release my brother”. In a later statement, dated 12 September 2008, the applicant did not mention his sisters but instead stated that he asked his friend, Saeed Teryag, and his neighbour Haj Salem, to ask British forces for information about Tarek Hassan. The applicant asked these friends because he could trust them; Haj Salem was a respected businessman and Saeed Teryag had been to university and spoke English. According to the applicant, “[W]hen they approached the British military authorities the British told them I had to surrender myself to them before they would release my brother”. 13. According to a summary of a telephone interview with the applicant’s neighbour, Mr Salim Hussain Nassir Al-Ubody, dated 2 February 2007, Tarek Hassan was taken away by British soldiers on an unknown date in April at around 4.30 a.m., with his hands tied behind his back. Mr Al-Ubody stated that he approached one of the Iraqis who accompanied the soldiers to ask what they wanted, and was told that the soldiers had come to arrest the applicant. Three days later, the applicant telephoned Mr Al-Ubody and asked him to find a guard for his house and to find out from the British army what had happened to Tarek Hassan. Two days later, Mr Al-Ubody went to the British headquarters at the Shatt ‑ Al ‑ Arab Hotel. He asked an Iraqi translator if he could find out anything about Tarek Hassan. Two days later, when Mr Al-Ubody returned, the translator informed him that the British forces were keeping Tarek Hassan until the applicant surrendered. The translator further advised Mr Al-Ubody not to return, as this might expose him to questioning. C. Detention at Camp Bucca 14. Both parties agreed that Tarek Hassan was taken by British forces to Camp Bucca. This Camp, situated about 2.5 kilometres from Umm Qasr and about 70 kilometres south of Al-Basrah was first established on 23 March 2003 as a United Kingdom detention facility. However, it officially became a United States facility, known as “Camp Bucca”, on 14 April 2003. In April 2003 the Camp was composed of eight compounds, divided by barbed wire fencing, each with a single entry point. Each compound contained open-sided tents capable of housing several hundred detainees, a water tap, latrines and an uncovered area. 15. For reasons of operational convenience, the United Kingdom continued to detain individuals they had captured at Camp Bucca. One compound was set aside for internees detained by the United Kingdom on suspicion of criminal offences. In addition, the United Kingdom operated a separate compound at the Camp for its Joint Forward Interrogation Team (JFIT). This compound had been built by British forces and continued to be administered by them. Although detainees captured by both the United Kingdom and the United States armies were interrogated at the JFIT compound, and teams of United Kingdom and United States interrogators worked there, the United Kingdom JFIT team controlled the detention and interrogation of all prisoners held there. Elsewhere in the Camp, the United States army was responsible for guarding and escorting detainees and the United Kingdom was obliged to reimburse the United States for costs involved in maintaining United Kingdom captured detainees held at the Camp. The British Military Provost Staff (military police) had an “overseeing responsibility” for United Kingdom detainees transferred to United States custody, except those detained in the JFIT compound. United Kingdom detainees who were ill or injured were treated in British field hospitals. The United Kingdom authorities were responsible for liaising with the International Committee of the Red Cross (ICRC) about the treatment of United Kingdom detainees and the notification of their families regarding the detention (see further paragraph 20 below). The United Kingdom also remained responsible for classifying detainees under Articles 4 and 5 of the Third Geneva Convention (see paragraph 33 below). 16. In anticipation of the United Kingdom using shared facilities to hold United Kingdom detainees, on 23 March 2003 the United Kingdom, United States and Australian Governments entered into a Memorandum of Arrangement (“MOA”) relating to the transfer of custody of detainees, which provided as follows: “This arrangement establishes procedures in the event of the transfer from the custody of either the US, UK or Australian forces to the custody of any of the other parties, any Prisoners of War, Civilian Internees, and Civilian Detainees taken during operations against Iraq. The Parties undertake as follows: 1. This arrangement will be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, as well as customary international law. 2. US, UK, and Australian forces will, as mutually determined, accept (as Accepting Powers) prisoners of war, civilian internees, and civilian detainees who have fallen into the power of any of the other parties (the Detaining Power) and will be responsible for maintaining and safeguarding all such individuals whose custody has been transferred to them. Transfers of prisoners of war, civilian internees and civilian detainees between Accepting Powers may take place as mutually determined by both the Accepting Power and the Detaining Power. 3. Arrangements to transfer prisoners of war, civilian internees, and civilian detainees who are casualties will be expedited, in order that they may be treated according to their medical priority. All such transfers will be administered and recorded within the systems established under this arrangement for the transfer of prisoners of war, civilian internees, and civilian detainees. 4. Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power will be returned by the Accepting Power to the Detaining Power without delay upon request by the Detaining Power. 5. The release or repatriation or removal to territories outside Iraq of transferred prisoners of war, civilian internees, and civilian detainees will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power. 6. The Detaining Power will retain full rights of access to any prisoner of war, civilian internees and civilian detainees transferred from Detaining Power custody while such persons are in the custody of the Accepting Power. 7. The Accepting Power will be responsible for the accurate accountability of all prisoners of war, civilian internees, and civilian detainees transferred to it. Such records will be available for inspection by the Detaining Power upon request. If prisoners of war, civilian internees, or civilian detainees are returned to the Detaining Power, the records (or a true copy of the same) relating to those prisoners of war, civilian internees, and civilian detainees will also be handed over. 8. The Detaining Powers will assign liaison officers to Accepting Powers in order to facilitate the implementation of this arrangement. 9. The Detaining Power will be solely responsible for the classification under Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of potential prisoners of war captured by its forces. Prior to such a determination being made, such detainees will be treated as prisoners of war and afforded all the rights and protections of the Convention even if transferred to the custody of an Accepting Power. 10. Where there is doubt as to which party is the Detaining Power, all Parties will be jointly responsible for and have full access to all persons detained (and any records concerning their treatment) until the Detaining Power has by mutual arrangement been determined. 11. To the extent that jurisdiction may be exercised for criminal offenses, to include pre-capture offenses, allegedly committed by prisoners of war, civilian internees, and civilian detainees prior to a transfer to an Accepting Power, primary jurisdiction will initially rest with the Detaining Power. Detaining Powers will give favourable consideration to any request by an Accepting Power to waive jurisdiction. 12. Primary jurisdiction over breaches of disciplinary regulations and judicial offenses allegedly committed by prisoners of war, civilian internees, and civilian detainees after transfer to an Accepting Power will rest with the Accepting Power. 13. The Detaining Power will reimburse the Accepting Power for the costs involved in maintaining prisoners of war, civilian internees, and civilian detainees transferred pursuant to this arrangement. 14. At the request of one of the Parties, the Parties will consult on the implementation of this arrangement.” 17. According to the witness statement of Major Neil B. Wilson, who served with the Military Provost Staff at Camp Bucca during the period in question, the usual procedure was for a detainee to arrive at the Camp with a military escort from the capturing unit. On arrival he would be held in a temporary holding area while his documents were checked and his personal possessions were taken from him. Medical treatment would be provided at this point if required. The detainee would then be processed through the arrivals tent by United Kingdom personnel with the aid of an interpreter. A digital photograph would be taken and this, together with other information about the detainee, would be entered on the database used by the United Kingdom authorities to record a wide range of military personnel information during the operations in Iraq, including detainee information, known as the AP3-Ryan database. 18. Examination of this database showed that there was no entry under the name Tarek Resaan Hassan but there was an entry, with a photograph, for “Tarek Resaan Hashmyh Ali”. In his witness statement the applicant explained that for official purposes Iraqis use their own first name, followed by the names of their father, mother, grandfather and great-grandfather. “Ali” was the applicant’s great-grandfather’s name and it appeared that Hassan (his grandfather’s name) was omitted by mistake. Tarek Hassan was issued with a wristband printed with his United Kingdom internment serial number UKDF018094IZSM; with “DF” denoting “detention facility”, “IZ” meaning allegiance to Iraq and “SM” standing for “soldier male”. Screen shots from the AP3-Ryan database also show that Tarek Hassan was asked whether he consented to the national authorities being informed of his detention and that he did not consent to this. 19. Following the United Kingdom registration process, detainees would be transferred to the United States forces for a second registration. This involved the issue of a United States number, printed on a wrist band. Tarek Hassan’s United States registration number was UK912-107276EPW46. The “UK” reference indicated that the United Kingdom was the capturing nation and “EPW” indicated that he was treated by the United States forces as an enemy prisoner of war; however, at this stage all detainees were classified as prisoners of war except those captured by British forces on suspicion of having committed criminal offences. After registration, detainees were usually medically examined, then provided with bedding and eating and washing kits and transferred by United States forces to the accommodation areas. 20. The Government submitted a witness statement by Mr Timothy Lester, who was charged with running the United Kingdom Prisoner of War Information Bureau (UKPWIB) in respect of Iraq from the start of military operations there in March 2003. He stated that the UKPWIB operated in Iraq as the “National Information Bureau” required by Article 122 of the Third Geneva Convention and monitored details of prisoners of war internees and criminal detainees in order to facilitate contact with their next ‑ of-kin. The Third Geneva Convention also required the establishment of a “Central Prisoners of War Information Agency”. This role was subsumed by the Central Tracing Agency of the International Committee of the Red Cross (ICRC). The ICRC collected information about the capture of individuals and, subject to the consent of the prisoner, transmitted it to the prisoner’s country of origin or the power on which he depended. In practice, details of all prisoners taken into custody by British forces were entered by staff at the detention facility in Iraq and sent to Mr Lester in London, who then transferred the data to a spread-sheet and downloaded it to the ICRC’s secure website. He stated that during the active combat phase he typically passed data to the ICRC on a weekly basis, and monthly thereafter. However, Tarek Hassan’s details were not notified to the ICRC until 25 July 2003, because of a delay caused by the updating of UKPWIB computer system. In any event, it was noted on Tarek Hassan’s record that he did not consent to the Iraqi authorities being notified of his capture (see paragraph 18 above). In the absence of consent, Mr Lester considered it unlikely that the ICRC would have informed the Iraqi authorities and that those authorities would, in turn, have informed the Hassan family. D. The screening process 21. According to the Government, where the status of a prisoner was uncertain at the time of his arrival at Camp Bucca, he would be registered as a prisoner of war by the United Kingdom authorities. Any detainee, such as Tarek Hassan, captured in a deliberate operation was taken immediately to the JFIT compound for a two-stage interview. According to the Government, there were United Kingdom and United States interrogation teams working in the JFIT compound, and both teams interviewed both United Kingdom- and United States-captured detainees. The first interview may have been undertaken simply by whichever team was available when the detainee arrived. The aim of the interview process was to identify military or paramilitary personnel who might have information pertinent to the military campaign and, where it was established that the detainee was a non-combatant, whether there were grounds to suspect that he was a security risk or a criminal. If no such reasonable grounds existed, the individual was classified as a civilian not posing a threat to security and ordered to be released immediately. 22. A print-out from the JFIT computer database indicated that in Camp Bucca Tarek Hassan was assigned JFIT no. 494 and registration no. UK107276. His arrival was recorded as 23 April 2003 at 16.40 and his departure was recorded as 25 April 2003 at 17.00, with his “final destination” recorded as “Registration (Civ Cage).” Under the entry “Release/Keep” the letter “R” was entered. Under the heading “TQ”, which stood for “tactical questioning”, there was the entry “231830ZAPR03 ‑ Steve” and under the heading “Intg 1” was the entry “250500ZAPR03”. According to the Government, the first of these entries meant that Tarek Hassan was first subjected to tactical questioning on 23 April 2003 at 18.30 Zulu (“Zulu” in this context meant Coordinated Universal Time, also known as Greenwich Mean Time). On 23 April, 18.30 Zulu would have been 21.30 Iraqi time. The second entry indicated that Tarek Hassan was again subject to questioning on 25 April 2003 at 5.00 Zulu, or 8.00 local time and then released into the civilian pen at Camp Bucca at 20.00 local time on 25 April 2003. 23. The Government provided the Court with a copy of a record of an interview between Tarek Hassan and United States agents, dated 23 April 2003, 18.30 Zulu, which stated as follows: “EPW [Enemy Prisoner of War] was born in BASRA on August 3, 1981. He currently resides in his home with his father, mother, older brother (Name: Qazm; born in the 1970s), and his little sister (age; unexploited). Home is across from the Khalissa school in the Jamiyat region in N. BASRA. EPW left middle school as a recruit to play soccer. He currently plays in the Basra Soccer Club and his position is attacker/forward. His team receives money from the government and the Olympic committee to pay for team expenses. EPW has no job since soccer is his life and they pay for all of his soccer expenses. EPW knows that he was brought in because of his brother, Qazm. Qazm is a Othoo Sherba in the Ba’ath party and he fled his home four days ago to an unknown destination. Qazm joined the Ba’ath party in 1990 and is involved in regular meetings and emergency action planning (nothing else exploited). Before the war, Qazm received a pickup from the Ba’ath party. When the coalition forces entered BASRA, Qazm gave the pickup to a neighbour (name not exploited) to safeguard it and Qazm went to a hotel in downtown BASRA (name of hotel is unknown). Qazm made a few phone calls during that time, but never mentioned where he was staying. A problem arose when the original owners of the pickup, the local petroleum company, came to reclaim the vehicle they had lent the Ba’ath party. Qazm became frustrated with the whole mess and fled soon after that. EPW seems to be a good kid who was probably so involved with soccer that he didn’t follow his brother’s whereabouts all that much. But it seems they have a close knit family and EPW could know more about his brother’s activities in the Ba’ath party, and some of his friends involved in the party, too. Using any type of harsh approach is not going to be effective. EPW loves his family and soccer. EPW will cooperate, but he needs someone he can trust if he’s going to tell information about his brother that is going to harm him. EPW seems to be innocent of anything himself, but may help with information about others around him.” 24. A record of the second questioning was provided by the Government in the form of a Tactical Questioning Report. This document indicated that it related to “PW 494” with the “date of information” recorded as “250445ZAPR03”, that is 4.45 Zulu or 7.45 local time on 25 April 2003. The report stated: “1. EPW [Enemy Prisoner of War] is 22 years old, single, living with his 80 year old father (who is a Sheik) and his mother in the Jamiyet district of BASRAH. He works as a handyman and has not done his military service due to his status as a student. He stated that an AK 47 was present in their house at the time of his arrest but it was only kept for personal protection. The EPW and his father are not Ba’ath Party members. 2. EPW says he was arrested at his house by United States troops [sic] who were looking for his brother, Kathim. His brother is a Ba’ath Party member, an Uthoo Shooba. He joined the party in 1990 when he became a law student in the school of law in the Shaat Al Arab College. His brother is still a student, in his last year of study, married but with no children. He has alternated study with periods of work as a car trader. His brother was in fear of his life because of fear of reprisals against Ba’ath Party members and so had run away possibly to SYRIA or IRAN. The EPW last spoke with his brother 5 days ago by phone. His brother did not disclose his location. JFIT COMMENT : EPW appears to be telling the truth and has been arrested as a result of mistaken identity. He is of no intelligence value and it is recommended that he is released to the civilian pen. JFIT COMMENT ENDS. ” E. Evidence relating to Tarek Hassan’s presence in the civilian holding area at Camp Bucca and his possible release 25. The applicant submitted a summary of an interview dated 27 January 2007 with Fouad Awdah Al-Saadoon, the former chairman of the Iraqi Red Crescent in Basrah and a friend of the applicant’s family. He had been arrested by British troops and detained at Camp Bucca, in a tent holding approximately 400 detainees. He stated that on 24 April 2003 at around 6 p.m. Tarek Hassan was brought to the tent. Mr Al-Saadoon stated that Tarek Hassan seemed scared and confused but did not mention that Tarek Hassan complained of having been ill-treated. Tarek Hassan was not interrogated during the time they were together in Camp Bucca. Since Mr Al-Saadoon was in ill-health, Tarek Hassan brought him food and cared for him. Mr Al-Saadoon was released on 27 April 2003, in a batch of 200 prisoners, since the United Kingdom authorities had decided to release all detainees aged 55 or older. The detainees were released at night, on a highway between Al-Basrah and Al-Zubair and had to walk 25 miles to the nearest place they could hire cars. Following his release, he informed the applicant’s family that he had seen Tarek Hassan at Camp Bucca. According to the applicant, this was the only information received by the family about his brother’s whereabouts following the latter’s arrest. In response to this statement, the Government submitted that Mr Al-Saadoon might have been mistaken about the date, because it appeared from the interrogation records that Tarek Hassan was released to the civilian holding area on 25 April 2003. They also emphasised that stringent efforts were made to return individuals to their place of capture or to an alternate location if requested, and that 25 miles was much greater than the distance between Al-Basrah and Al-Zubair. 26. According to the witness statement, provided by the Government, of Major Neil Wilson, who commanded a group of soldiers from the Military Provost Staff who advised on detention issues within the United Kingdom area of operations in Iraq during the relevant period, the decision to release United Kingdom captured detainees held at Camp Bucca, other than those facing criminal charges, was taken by a tribunal convened by United Kingdom military legal officers. Details were then passed to the United States guards, before those released were processed out of the Camp, with their details checked and entered on the AP3 ‑ Ryan database. According to the orders made by the United Kingdom’s Military Divisional Headquarters based in Basrah and applying at that time, the United States forces were responsible for the repatriation of all prisoners to the areas within their field of operation and the United Kingdom forces were responsible for returning prisoners to areas within their field of operation, namely South East Iraq, regardless of which force had captured the prisoners. The ICRC was to have access to all those being released. Again according to the applicable orders, prisoners repatriated by British forces were to be loaded on to buses with armed guards on-board and armed military escort vehicles to the front and rear. Release was to be to specific repatriation points in daylight hours, with sufficient food and water to last the individuals being released until they got home. According to the evidence of Major Wilson, efforts were made to return individuals to their point of capture. There were four drop-off points within the United Kingdom field of operation, including “Al-Basrah GR TBC [grid reference to be confirmed]”. Umm Qasr was not listed as a drop ‑ off point but could be entered as a point of release on the records of individuals being processed for release. 27. The Government also submitted a military order dated 27 April 2003 (FRAGO 001/03), the purpose of which was to ensure the release from detention of the maximum possible number of civilians and prisoners of war prior to the cessation of hostilities (which was subsequently announced on 1 May 2003). The annex to the order set out the procedures to be followed. A number of individuals would continue to be detained on security grounds or because they were suspected of being criminals; they had already been identified by JFIT, with the decision recorded on the AP3-Ryan database, and a list given to the United States authorities to ensure they were not released. The remaining population would stay within the individual compounds and await release processing by the United Kingdom authorities. At the processing tent, a three-point check would be made of each detainee’s wrist-band, face and digital profile held on AP3-Ryan. The following information was then required to be entered into the database: “(1) Releasing Force Element; (2) Release Date; (3) Releasing Nation; (4) Selected Place of Release.” The text of the order itself referred to four drop ‑ off points (Al-Basrah, Najef, Al-Kut and An Nasariah (the latter three towns were to the north of Al-Basrah), but the annex listed in addition Um Qasr (south of Al-Basrah and 2.5 kilometres from the Camp) as a drop-off point. The United Kingdom forces would then retain the detainee’s identity card and pass him back to the United States authorities for final processing, including the issue of food and water and the return of personal belongings. Four holding areas would be established, “one for each release location”, from which the detainees would then be transported to the agreed repatriation points and released in daylight hours. The order also required a final audit to be conducted to check that all United Kingdom detainees listed on the AP3-Ryan database had either been released or continued to be detained. Should the record be identified of any person who had neither been released nor detained, a board of inquiry had to sit to determine what had happened. 28. In addition, the Government submitted a witness statement dated 29 October 2007 by Warrant Officer Class 2 Kerry Patrick Madison, who had responsibility for the management of the AP3-Ryan database. He stated that by 22 May 2003 AP3-Ryan showed that the United Kingdom forces had captured and processed 3,738 detainees in Iraq since the start of hostilities and had released all but 361. Annexed to Warrant Officer Madison’s statement were a number of screen prints showing entries on the database relating to Tarek Hassan. They showed that an entry was made on AP3-Ryan on 4 May 2003 at 1.45 p.m. recording the release of “Tarek Resaan Hashmyh Ali” at 00.01 on 2 May 2003. The releasing authority was stated to be “United Kingdom (ARMD) DIV SIG REGT”; the place of release was stated to be “Umm Qasr”; the method of release was “By Coach” and the ground of release was recorded as “End of Hostilities”. A further entry was made in the United Kingdom AP3-Ryan system on 12 May 2003 at 10.13 p.m. recording that: “PW was found to be absent from the internment facility when 100% check was conducted. PW was released on AP3 on 12 May 03”. According to the Warrant Officer Madison, some 400 individuals’ records included the statement “PW was released on AP3 on 12 May 03”, when they had in fact been released earlier and it was therefore likely that the Camp’s computer release records were brought up to date on 12 May following a physical check. The United States computer system did not record any release until 17 May 2003 but again, according to the Government, this was probably explained by a reconciliation of the United States Camp Bucca database with a physical check of occupants of the Camp by the United States authorities on 17 May. F. The discovery of Tarek Hassan’s body 29. According to the applicant, Tarek Hassan did not contact his family during the period following his purported release. On 1 September 2003 one of the applicant’s cousins received a telephone call from a man unknown to them, from Samara, a town north of Baghdad. This man informed them that a dead man had been found in the nearby countryside, with a plastic ID tag and piece of paper with the cousin’s telephone number written on it in the pocket of the sport’s top he was wearing. According to the applicant, Tarek Hassan was wearing sportswear when he was captured by British forces. The applicant’s cousin called him and, together with another brother, the applicant went to the forensic medical station of the Tekrit General Hospital in Samara. There they saw the body of Tarek Hassan with eight bullet wounds from an AK-47 machine gun in his chest. According to the applicant, Tarek Hassan’s hands were tied with plastic wire. The identity tag found in his pocket was that issued to him by the United States authorities at Camp Bucca. A death certificate was issued by the Iraqi authorities on 2 September 2003, giving the date of death as 1 September 2003, but the sections reserved for the cause of death were not completed. A police report identified the body as “Tariq Hassan” but gave no information about the cause of death. G. Correspondence with Treasury Solicitors and legal proceedings 30. The applicant remained in hiding in Iraq until October 2006, when he crossed the border to Syria. In November 2006, through a representative in Syria, he made contact with solicitors in the United Kingdom. The applicant’s solicitors wrote to the Government’s Treasury Solicitors on 21 December 2006 requesting explanations for the arrest and detention of Tarek Hassan and the circumstances that resulted in his death. It took some time to identify the applicant’s brother, because he was entered in the Camp Bucca databases under the name “Tarek Resaan Hashmyh Ali” (see paragraph 18 above). However, in a letter dated 29 March 2007 Treasury Solicitors stated that a check of the United Kingdom’s prisoner of war computer records had produced a record of Tarek Resaan Hashmyh Ali being detained at Camp Bucca. In a further letter dated 5 April 2007 Treasury Solicitors stated that further computer records had been recovered which “confirm the handover” of Tarek Hassan from the United Kingdom authorities to the United States authorities at Camp Bucca and which recorded his release on 12 May 2003. 31. The applicant commenced proceedings in the High Court on 19 July 2007 seeking declarations in respect of breaches of his brother’s rights under Articles 2, 3 and 5 of the Convention, as set out in Schedule 1 to the Human Rights Act 1998, financial compensation and an order requiring the Government to initiate an independent and public investigation into the fate of the deceased after he was detained by British forces on 22 April 2003. The claim was heard on 19 and 20 January 2009 and was rejected in a judgment delivered by Walker J on 25 February 2009 ([2009] EWHC 309 (Admin)). The judge held that, in the light of the judgment of the House of Lords in Al-Skeini (see further the summary of the House of Lords’ judgment in Al-Skeini v. the United Kingdom, cited above, §§ 83-88), it could not be said that Tarek Hassan was within the United Kingdom’s jurisdiction under Article 1 of the Convention at any time. In Al-Skeini the House of Lords had recognised a number of exceptions to the general rule that a State did not exercise jurisdiction extra-territorially, but these did not include detention of a person unless this took place within a military prison or other comparable facility controlled by the Contracting State. The judge’s analysis of the MOA (see paragraph 16 above) indicated that Camp Bucca was a United States rather than a United Kingdom military establishment, for the following reasons: “... It is plain that the detaining power [the United Kingdom] relinquishes, until such time as it requires return of the individual in question, responsibility for maintaining and safeguarding those transferred. Accountability in that regard is the responsibility of the accepting power [the United States]. As regards adjudications concerning the individual’s contact after transfer to the accepting power the detaining power relinquishes to the accepting power primary jurisdiction. Overall this amounts to a legal regime in which the detaining power has no substantial control over the day to day living conditions of the individual in question.” 32. The applicant was advised that an appeal would have no prospect of success. | This case concerned the capture of the applicant’s brother by British armed forces and his detention at Camp Bucca in Iraq (close to Um Qasr). The applicant alleged in particular that his brother had been arrested and detained by British forces in Iraq and and that his dead body, bearing marks of torture and execution, had subsequently been found in unexplained circumstances. |
1,050 | Work during detention | 13. The purpose of the Government ’ s application is to submit the De Wilde, Ooms and Versyp cases for judgment by the Court. On several points the Government therein expresses its disagreement with the opinion stated by the Commission in its report. 14. The facts of the three cases, as they appear from the said report, the memorials of the Government and of the Commission, the other documents produced and the addresses of the representatives appearing before the Court, may be summarised as follows: A. De Wilde case 15. Jacques De Wilde, a Belgian citizen, born on 11th December 1928 at Charleroi, spent a large part of his childhood in orphanages. On coming of age, he enlisted in the French army (Foreign Legion) in which he served for seven and a half years. As a holder of books for a fifty per cent war disablement pension and a military retirement pension, he draws from the French authorities a sum which in 1966 amounted to 3,217 BF every quarter. He has work, from time to time at any rate, as an agricultural labourer. 16. The applicant reported on 18th April 1966 at 11.00 a.m. to the police station at Charleroi and declared that he had unsuccessfully looked for work and that he had neither a roof over his head nor money as the French Consulate at Charleroi had refused him an advance on the next instalment of his pension due on 6th May. He also stated that he had "never" up to then "been dealt with as a vagrant". On the same day at 12 noon, Mr. Meyskens, deputy superintendent of police, considered that De Wilde was in a state of vagrancy and put him at the disposal of the public prosecutor at Charleroi; at the same time, he asked the competent authorities to supply him with information about De Wilde. A few hours later, after being deprived of his liberty since 11.45 a.m., De Wilde attempted to escape. He was immediately caught by a policeman and he disputed the right of the police to "keep him under arrest for twenty four hours". He threatened to commit suicide. The information note, dated 19th April 1966, showed that between 17th April 1951 and 19th November 1965 the applicant had had thirteen convictions by courts of summary jurisdiction or police courts and that, contrary to his allegations, he had been placed at the Government ’ s disposal five times as a vagrant. 17. On April 19th, at about 10 a.m., the police court at Charleroi, after satisfying itself as to "the identity, age, physical and mental state and manner of life" of De Wilde, decided, at a public hearing and after giving him an opportunity to reply, that the circumstances which caused De Wilde to be brought before the court had been established. In pursuance of Section 13 of the Act of 27th November 1891 "for the suppression of vagrancy and begging" ("the 1891 Act") the court placed the applicant "at the disposal of the Government to be detained in a vagrancy centre for two years" and directed "the public prosecution to execute the order". 18. After being first detained at the institution at Wortel and then from 22nd April 1966 at that of Merksplas, De Wilde was sent on 17th May 1966 to the medico-surgical centre at St. Gilles-Brussels from where he was returned to Merksplas on 9th June 1966. On 28th June 1966, he was transferred to the disciplinary prison at Turnhout for refusal to work (Section 7, sub-section 2, of the 1891 Act), and on 2nd August 1966 to that of Huy to appear before the criminal court which, on 19th August, sentenced him to three months ’ imprisonment for theft from a dwelling house. He was returned to Turnhout shortly afterwards. 19. On 31st May and 6th June 1966, that is, about a month and a half after his arrest and four weeks after sending his first letter to the Commission (3rd May 1966), the applicant wrote to the Minister of Justice invoking Articles 3 and 4 (art. 3, art. 4) of the Convention. He underlined the fact that on 6th May he had received 3,217 BF in respect of his pension and showed surprise that he had not yet been released. He also complained of being forced to work for the hourly wage of 1.75 BF. He added that he had refused to work in protest against the behaviour of the head of the block at Merksplas who had wrongfully claimed to be entitled to "take" from him 5% of his pension. Finally, he complained of the disciplinary measures taken on such refusal - punishment in a cell and confinement without privileges - and of hindrance to correspondence. On 7th June 1966, the Ministry of Justice requested the governor of the prison at St. Gilles to inform De Wilde "that his request for release" of 31st May would "be examined in due course". The applicant took up his complaints again on 13th June and later on 12th July 1966. In this last letter, he enquired of the Minister why he had been transferred to the prison at Turnhout. He also pointed out that there was no work available at this institution which would enable him to earn his "release savings". On 15th July, the Ministry had him notified that his release before the prescribed period had expired could "be considered" "provided that his conduct at work (was) satisfactory" and "adequate arrangements for rehabilitation (had) been made". De Wilde wrote again to the Minister on 8th August 1966. Due to his pension, he argued, he had "sufficient money"; in any case, "the results of (his) work" already amounted to more than 4,000 BF. As regards his rehabilitation, he stated that his detention made it "impossible"; it prevented him from corresponding freely with employers and the welfare officer had failed to help him. Nevertheless, on 12th August 1966, the Ministry considered that his application "(could) not at present be granted". On 13th August 1966, the applicant wrote once again to the Minister claiming he could find board and lodging and work on a farm. 20. On 25th and 26th October 1966, the Ministry of Justice decided that, at the expiry of the sentence he had received on 19th August, the applicant could be released once his rehabilitation seemed ensured by the Social Rehabilitation Office of Charleroi (Section 15 of the 1891 Act). De Wilde regained his freedom at Charleroi on 16th November 1966. His detention had lasted a little less than seven months, of which three months were spent serving the prison sentence. 21. According to a report of the Prisons ’ Administration, the applicant received only one disciplinary punishment between the beginning of his detention (19th April 1966) and the date of his application to the Commission (17th June 1966): for refusal to work at Merksplas, he was not permitted to go to the cinema or receive visits in the general visiting room until his transfer to Turnhout. 22. In his application lodged with the Commission on 17th June 1966 (No. 2832/66) De Wilde invoked Articles 3 and 4 (art. 3, art. 4) of the Convention. He complained in the first place of his "arbitrary detention" ordered in the absence of any offence on his part, without a conviction and in spite of his having financial resources. He also protested against the "slavery" and "servitude" which, in his view, resulted from being obliged to work in return for an absurdly low wage and under pain of disciplinary sanctions. The Commission declared the application admissible on 7th April 1967; prior to this, the Commission had ordered the joinder of the case with the applications of Franz Ooms and Edgard Versyp. B. Ooms case 23. On 21st December 1965 at 6.15 a.m., Franz Ooms, a Belgian citizen born on 12th April 1934 at Gilly, reported to Mr. Renier, deputy superintendent of police at Namur, in order "to be treated as a vagrant unless one of the social services (could find him) employment where (he could) be provided with board and lodging while waiting for regular work". He explained that of late he had been living with his mother at Jumet but that she could no longer provide for his upkeep; that he had lost a job as a scaffolding fitter at Marcinelle and, in spite of his efforts, had failed to find another job for over a month; that he no longer had any means of subsistence and that he had been "convicted" in 1959 for vagrancy by the police court at Jumet. 24. On the same day at about 10 a.m., the police court at Namur, after satisfying itself as to "the identity, age, physical and mental state and manner of life" of Franz Ooms, considered at a public hearing and after giving him an opportunity to reply that the circumstances which had caused him to be brought before the court had been established. In pursuance of Section 16 of the 1891 Act, the court placed him "at the disposal of the Government to be detained in an assistance home" and directed "the public prosecution to execute this order". 25. Ooms was detained partly at Wortel and partly at Merksplas. He also spent some weeks at the prison medico-surgical centre at St. Gilles-Brussels (June 1966). 26. On 12th April 1966, that is less than four months after his arrest and about five weeks before applying to the Commission (20th May 1966), the applicant petitioned the Minister of Justice for his release. He alleged he was suffering from tuberculosis and that his family had agreed to take him back with them and place him in a sanatorium. On 5th May, the Ministry, after receiving the unfavourable opinion of the doctor and of the director of the institution at Merksplas, considered the request to be premature. Franz Ooms again made a petition for release on 6th June, this time to the Prime Minister. He pleaded that as "he had been ill since his detention" he had been unable to earn by his own work the 2,000 BF needed to make up his release savings, and repeated that his mother was willing to have him with her and to take care of him. The Ministry of Justice, to whom the Prime Minister ’ s office had transmitted the request, also considered it to be premature; on 14th June, it requested the governor of St. Gilles prison to inform the applicant accordingly. On 25th June 1966, the welfare department of the Salvation Army at Brussels certified that Franz Ooms would "be given work and lodging in (their) establishments immediately on his release". The applicant sent this declaration to the director of the welfare settlement at Wortel on 1st July, but without result. His mother, Mme. Ooms, confirmed her son ’ s declarations by letter of 15th July 1966 to the same director. In his reply of 22nd July, the director asked her to produce a certificate of employment, pointing out that "at the time of his possible discharge", the applicant had to have, besides a resting place, "a definite job by which he (could) ensure his upkeep". Mme. Ooms also wrote to the Minister of Justice on 16th July, asking for a "pardon for (her) son". On 3rd August 1966, the Ministry informed her that he would be freed when "he (had) earned, by his prison work, the sum of money prescribed in the regulations as the release savings of vagrants interned for an indefinite period at the disposal of the Government". In a report of 31st August 1966 drawn up for the Ministry of Justice, the director of the Wortel settlement pointed out that Franz Ooms had already received several criminal convictions, that this was his fourth detention for vagrancy, that his conduct could not be described as exemplary, and that his earnings amounted to only 400 BF. According to a medical certificate appended to the report, physical examinations of the applicant had revealed nothing wrong. As a result, on 6th September 1966, the Ministry instructed the director to inform the detainee "that his complaints had been found groundless". On 26th September 1966, Ooms again petitioned the Prime Minister. To justify this step, he cited the negative attitude of the Department of Justice. He stated that he was the victim of "monstrous injustices" which he attributed to his being a Walloon. He alleged, in particular, that on 23rd March 1966, at Merksplas, he had been punished with three days in the cells and a month ’ s confinement without privileges for refusing to sleep in a foul-smelling dormitory where the light was kept on all night, that he had been locked up naked and later "lightly clad" in a freezing cell which had brought on an attack of pneumonia and of tuberculosis for which he had had to spend three months in the sanatorium at the Merksplas institution. He also protested against the dismissal of the many petitions for release presented both by himself and by his mother. He finally declared his agreement to the opening of an enquiry for the purpose of verifying the truth of his allegations and he stated that he was ready to take action, if necessary, before a "national authority" within the meaning of Article 13 (art. 13) of the Convention. Two days later, the Prime Minister ’ s office informed the applicant that his letter had been transmitted to the Department of Justice. Ooms was released ex officio at Charleroi on 21st December 1966, one year to the day after being put at the disposal of the Government (Section 18, first sentence, of the 1891 Act). 27. In his application lodged with the Commission on 20th May 1966 (No. 2835/66), the applicant mentioned that he was in the sanatorium of the Merksplas institution but that his mother had agreed to have him hospitalised in a "civil" clinic. He added that his illness completely prevented him from working and thereby earning the 2,000 BF for his release savings; in any case, he would need at least a year to earn such a sum, at the rate of 1.75 BF per hour. He was therefore surprised that the Ministry of Justice had considered his request for release to be premature. Ooms, who had meanwhile been transferred to the prison at St. Gilles-Brussels, supplemented his original application on 15th June 1966. He declared that he had for the moment been cured of his pulmonary disease caused by ill-treatment and undernourishment, but his illness had left "traces" which made it impossible for him to perform "any heavy work". He also stressed that his mother, who was in receipt of a pension, wanted him home with her. In these circumstances he considered he was entitled to be released, and he complained of the Belgian authorities ’ refusal to recognise this right. Invoking Article 6, paragraph (3) (b) and (c) (art. 6-3-b, art. 6-3-c), of the Convention he further maintained that on his arrest he had asked in vain for free legal aid; this fact was contested before the Court by the Government ’ s Agent. That part of the application where Franz Ooms complained – apparently in subsequent letters - of ill-treatment and of a violation of his liberty of conscience and religion (Articles 3 and 9 of the Convention) (art. 3, art. 9) was declared inadmissible on 11th February 1967 as manifestly ill-founded (Appendix II to the Commission ’ s report). On 7th April 1967, the Commission declared the remaining part of his application admissible, after having ordered its joinder with the applications of Jacques De Wilde and Edgard Versyp. C. Versyp case 28. Edgard Versyp, a Belgian citizen born in Bruges on 26th April 1911, works, at least from time to time, as a draughtsman; he seems to have had his residence at Schaarbeek. On 3rd November 1965, at 9 p.m., he appeared before Mr. Meura, deputy superintendent of police at Brussels; he carried a letter from the Social Rehabilitation Office requesting that he be given a night ’ s shelter. He stated he had no fixed abode, no work or resources, and "(begged) to be sent to a welfare settlement"; he pointed out that he had "previously (been) in Merksplas" and did not wish for "any other solution". After spending the night in the municipal lock-up, where he had already been the night before, he was taken in charge by the Social Rehabilitation Office on 4th November at 9 a.m. On the same day, this office certified that so far as its services were concerned there was no objection to Versyp "being but in the charge of the prosecuting officer with a view to his possible placement in a state welfare settlement": he was "well-known to both (the) after-prison care and vagrancy sections" at the office and attempts so far to rehabilitate him had failed due to "his apathy, idleness and weakness for drink"; in any case, he refused "any other welfare action", except his detention. As a result, Versyp was immediately put at the disposal of the public prosecutor ’ s office. 29. A few hours later, the police court in Brussels, having satisfied itself as to "the identity, age, physical and mental state and manner of life" of the applicant, considered, at a public hearing and after giving Edgard Versyp an opportunity to reply, that the circumstances which had caused him to be brought before the court had been established. In pursuance of Section 13 of the 1891 Act, the court placed him "at the disposal of the Government to be detained in a vagrancy centre for two years". It entrusted the execution of this order to the public prosecutor, who on that same day, 4th November 1965, required the director of the vagrancy centre of Merksplas to receive Versyp into his institution. 30. Versyp was detained at different times at Wortel, Merksplas and Turnhout. 31. On 7th February 1966, that is more than three months after his arrest and more than six months before applying to the Commission (16th August 1966), he wrote from Wortel to the Minister of Justice requesting his transfer to the solitary confinement division in Merksplas. His request was not transmitted to Brussels due to the imminent visit of the inspector-general who granted his request the next day. On 10th May 1966, the applicant requested his transfer form Merksplas to the prison at St. Gilles-Brussels where, he thought, the Head of the Social Rehabilitation Service could succeed in getting him "work outside" to allow him "to live as an honest citizen". He stated that living "with other vagrants in Wortel and Merksplas" had "shattered" his morale and that he had neglected his work as he had had to receive treatment in hospital twice; he promised, however, to attend to "(his) business outside more efficiently in order to avoid a similar situation recurring". In a report of 16th May, the director of the Merksplas institution pointed out that Versyp, who had nine criminal convictions and had been detained four times for vagrancy, had spent the greater part of his detention in solitary confinement and could not adapt himself to communal life; the director therefore suggested his transfer to a solitary confinement prison (op zijn vraag naar een celgevangenis ), in accordance with his request. As a result, he was sent on 23rd May to Turnhout Prison and not to that of St. Gilles; on 6th June, he complained of this to the Ministry of Justice, which ordered his return to Wortel. On 22nd August 1966, Versyp begged the Ministry to grant him the opportunity of rehabilitating himself "in society according to (his) aptitudes through the good offices of the Brussels ’ Social Service". On 6th September, the authorities of the Wortel settlement informed him, on the instructions of the Ministry, that his case would be examined when the amount of his release savings showed that he was capable of doing a suitable job of work. On 26th September, the applicant protested to the Ministry against this reply. According to him, he had been prevented "by devious means" from earning anything both at Wortel and Turnhout in order "that (he) could then be held for an even longer period". Thus, at Wortel they wanted to make him do work for which he was not fit - potato picking - and refused to give him other work which he was able to do. Furthermore, they had purported to forbid him to correspond with the Commission but without success as he had invoked the regulations and informed the public prosecutor ’ s office. In short, he felt himself exposed to hostility which made him want to leave Wortel for Merksplas, or better still, for St. Gilles prison where, he claimed, the Social Rehabilitation Service would find him a suitable job and accommodation "in a hostel in Brussels ". The Ministry of Justice filed this letter without further action; on 28th September 1966, the director of the state welfare settlement at Wortel was requested so to inform the applicant. Versyp was released on 10th August 1967, by virtue of a ministerial decision of 3rd August (Section 15 of the 1891 Act) and after one year, nine months and six days of detention. On 1st August the authorities of the Wortel settlement had given a favourable opinion on the new request for release which he had made some time before; they noted, amongst other things, that he would more easily find a job at that time than at the expiry of the term fixed in 1965 by the Brussels magistrate, that is in the month of November. 32. In the application which he lodged with the Commission on 16th August 1966 (No. 2899/66) and supplemented on 6th September 1966, the applicant invoked Articles 4, 5 and 6 (3) (c) (art. 4, art. 5, art. 6-3-c) of the Convention. He complained in the first place of his detention: he emphasised that he had a fixed abode at Brussels-Schaarbeek and had never begged and so he was surprised at having been placed in a vagrancy centre. He further alleged that he had had no opportunity of defending himself before the Brussels police court on 4th November 1965 as the hearing had lasted "scarcely two minutes" and he had not been granted free legal aid. He also complained of various features of the regime to which he was subjected. In order to prevent him accumulating the 2,000 BF required to constitute release savings, he had been left, he alleged, for several months without sufficient work. In a general way, he added, the directors of the various institutions acted in concert in order to prolong the detention of vagrants as much as possible; the Government, for its part, "encouraged" vagrancy which gave it a labour force almost without cost (1.75 BF per hour at manual work) and huge profits. Finally, Versyp maintained that his numerous letters addressed to the competent authorities, such as, for example, the inspector of prisons, the public prosecutor ’ s office (July 1966) and the Minister of Justice (June and August 1966), invariably returned "to the director" who filed them without further action; these letters were not the object of any decision or, like his request for a transfer to Brussels, met with a refusal. One of them, that addressed on 7th February 1966 to the Minister of Justice by registered post, had even been opened by the director of the Wortel settlement who had not sent it. On 7th April 1967, the Commission declared the application admissible; it had previously ordered its joinder with the applications of Jacques De Wilde and Franz Ooms. D. Factors common to the three cases 33. According to Article 347 of the Belgian Criminal Code of 1867 "vagrants are persons who have no fixed abode, no means of subsistence and no regular trade or profession". These three conditions are cumulative: they must be fulfilled at the same time with regard to the same person. 34. Vagrancy was formerly a misdemeanour (Criminal Code of 1810) or a petty offence (Act of 6th March 1866), but no longer of itself constitutes a criminal offence since the entry into force of the 1891 Act: only "aggravated" vagrancy as defined in Articles 342 to 345 of the present Criminal Code is a criminal offence and these articles were not applied in respect of any of the three applicants. "Simple" vagrancy is dealt with under the 1891 Act. 35. According to Section 8 of the said Act "every person picked up as a vagrant shall be arrested and brought before the police court" - composed of one judge, a magistrate. The public prosecutor or the court may nonetheless decide that he be provisionally released (Section 11). "The person arrested shall be brought before the magistrate within twenty-four hours and in his ordinary court, or at a hearing applied for by the public prosecutor for the following day". If that person so requests "he (shall be) granted a three days ’ adjournment in order to prepare his defence" (Section 3 of the Act of 1st May 1849); neither De Wilde, nor Ooms nor Versyp made use of this right. 36. Where, after having ascertained "the identity, age, physical and mental state and manner of life" of the person brought before him (Section 12), the magistrate considers that such person is a vagrant, Section 13 or Section 16 of the 1891 Act becomes applicable. Section 13 deals with "able-bodied persons who, instead of working for their livelihood, exploit charity as professional beggars", and with "persons who through idleness, drunkenness or immorality live in a state of vagrancy"; Section 16 with "persons found begging or picked up as vagrants when none of the circumstances specified in Section 13 ... apply". In the first case the court shall place the vagrant "at the disposal of the Government to be detained in a vagrancy centre, for not less than two and not more than seven years"; in the second case, the court may "place (him) at the disposal of the Government to be detained in an assistance home" for an indeterminate period which in no case can exceed a year (see paragraph 40 below). Section 13 was applied to Jacques De Wilde and Edgard Versyp and Section 16 to Franz Ooms. The distinction between the "reformatory institutions" referred to as "vagrancy centres" and "assistance homes" or "welfare settlements" (Sections 1 and 2 of the Act) has become a purely theoretical one; it has been replaced by a system of individual treatment of the persons detained. Detention in a vagrancy centre is entered on a person ’ s criminal record; furthermore, vagrants "placed at the disposal of the Government" suffer certain electoral incapacities (Articles 7 and 9 of the Electoral Code). 37. Magistrates form part of the judiciary and have the status of an officer vested with judicial power, with the guarantees of independence which this status implies (Articles 99 and 100 of the Constitution). The Court of Cassation, however, considers that the decisions given by them in accordance with Sections 13 and 16 of the 1891 Act are administrative acts and not judgments within the meaning of Section 15, sub-section 1, of the Act of 4th August 1832. They are not therefore subject to challenge or to appeal nor - except when they are ultra vires (see paragraph 159 of the Commission ’ s report) – to cassation proceedings. The decisions of the highest court in Belgium are uniform on this point. As to the Conseil d ’ État, it has so far had to deal with only two appeals for the annulment of detention orders for vagrancy. In a judgment of 21st December 1951 in the Vleminckx case, the Conseil d ’ État did not find it necessary to examine whether the Brussels police court ’ s decision taken on 14th July 1950 in pursuance of Section 13 of the 1891 Act emanated from an authority which was "acting as an administrative authority within the meaning of Section 9 of the Act of 23rd December 1946"; the appeal lodged by Mr. Vleminckx on 31st July 1950 had been dismissed because: "the decision appealed against (was) a preliminary decision which (had been) followed by the Government ’ s decision to detain the appellant in a vagrancy centre ...; the appellant (could) not establish that he (had) any interest in the annulment of a decision which merely (allowed) the Government to detain him, while the actual decision by which he was interned (had not) been appealed against". As against this, on 7th June 1967, that is two months after the Commission had declared admissible the applications of Jacques De Wilde, Franz Ooms and Edgard Versyp, the Conseil d ’ État gave a judgment annulling the decision by which on 16th February 1965 the Ghent police court had placed a Mr. Du Bois at the disposal of the Government in pursuance of Section 16 of the 1891 Act. Before examining the merits, the Conseil d ’ État examined the admissibility - contested by the Minister of Justice - of the appeal lodged by Mr. Du Bois on 14th April 1965. In the light of the legislative texts in force, of the preparatory work thereto and of "the consistent case-law of the ordinary courts", the Conseil d ’ État considered that the placing of a vagrant at the disposal of the Government does not result from "the finding of a criminal offence" but amounts to "an administrative security measure" and that the decision ordering it is therefore "of a purely administrative nature" "so that no form of appeal is open to the person concerned ... before the ordinary courts". It added that "such an administrative decision by the magistrate" could not be considered as "a preliminary measure enabling the Government to take the effective decision on the matter of detention but is itself the effective decision placing the person concerned in a different legal position and is therefore of itself capable of constituting a grievance"; in any event, "the person concerned is immediately deprived of his liberty without any further decision by the Government". Section 20, sub-section 2, of the Act of 23rd December 1946 constituting the Conseil d ’ État provides that where both this body and "an ordinary court rule that they are either competent or incompetent to entertain the same proceedings, the conflict of jurisdiction is settled, on the motion of the most diligent party, by the Court of Cassation" in plenary session. No such conflict appears to have come before the highest court of Belgium in vagrancy matters up to the present time. The Belgian Government has had the reform of the 1891 Act under consideration for some time. According to the information given to the Court on 17th November 1970, the Bill which it is preparing to submit to Parliament provides in particular that an appeal against the magistrates ’ decisions may be made to the court of first instance. 38. "Able-bodied persons detained in a vagrancy centre or assistance home" are "required to perform the work prescribed in the institution" (Section 6 of the 1891 Act). Persons who, like Jacques De Wilde, and Edgard Versyp, refuse to comply with this requirement without good reason, in the opinion of the authorities, are liable to disciplinary measures. "Infirmity, illness or punishment may lead to a suspension, termination or stopping of work" (Articles 64 and 95, read in conjunction, of the Royal Decree of 21st May 1965 laying down general prison regulations). "Unless stopped for disciplinary reasons", detained vagrants are entitled to "a daily wage" known as "allowances". Sums are retained "for administrative expenses" - "for the benefit of the State" – and "to form the release savings" which shall be "granted ... partly in cash and partly in clothing and tools". The Minister of Justice fixes the amount of the said release savings and, having regard to the various categories of detained persons and of work, the wages and the sums to be retained (Sections 6 and 17 of the 1891 Act; Articles 66 and 95, read in conjunction, of the Royal Decree of 21st May 1965). At the time of the detention of the three applicants, the amount of the release savings which had to be thus accumulated - sums of money which a vagrant may receive from other sources not being taken into account - was fixed at 2,000 BF, at least for the "inmates" of welfare settlements (ministerial circular of 24th April 1964 ). The minimum hourly allowance "actually paid" to detainees - save any deductions made for "wastage and poor work" - was 1,75 BF up to 1st November 1966, on which date it was increased by 25 centimes (ministerial circulars of 17th March 1964 and 10th October 1966). The allowance was not capable of assignment or liable to seizure in execution and was divided into two equal parts: "the reserved portion" which was credited to the person concerned and enabled him to form his release savings and the free portion which he received immediately (Articles 67 and 95, read in conjunction, of the Royal Decree of 21st May 1965). 39. According to Articles 20 to 24 and 95 of the Royal Decree of 21st May 1965, the correspondence of detained vagrants - who, in this as well as in other respects, are assimilated to convicted persons - may be subjected to censorship except any correspondence with the counsel of their own choice, the director of the institution, the inspector-general and the director-general of the prison administration, the secretary-general of the Ministry of Justice, the judicial authorities, the ministers, the chairmen of the legislative Chambers, the King, etc. Their correspondence with the Commission is not mentioned in this Decree but the Minister of Justice informed the governors of prisons and Social Protection Institutions, including those at Merksplas and Wortel, that "a letter addressed to this organ by a detainee is not to be censored but should be forwarded, duly stamped for abroad by the sender ..., to the Legal Department ... which shall undertake to transmit it to its destination" (circular of 7th September 1957 as it was in force at the time of the detention of the applicants; see also paragraph 31 above). 40. "Persons detained in an assistance home" - as Franz Ooms - may not "in any case be kept against their will for more than one year" (Section 18, first sentence, of the 1891 Act). They regain their freedom, as of right, before the expiry of this period "when their release savings (have reached) the amount ... fixed by the Minister of Justice", who shall, moreover, release them if he considers their detention "to be no longer necessary" (Sections 17 and 18, second sentence, of the 1891 Act). As regards vagrants detained in a vagrancy centre - such as Jacques De Wilde and Edgard Versyp - they leave the centre either at the expiry of the period varying from two to seven years "fixed by the court" or at an earlier date if the Minister of Justice considers "that there is no reason to continue their detention" (Section 15 of the 1891 Act); the accumulation of the release savings and any other means which the detainee might have do not suffice for this purpose. It seems that no detained vagrant has to date lodged an appeal with the Conseil d ’ État, under Article 9 of the Act of 23rd December 1946, for the annulment of a ministerial decision which had rejected his application for release. 41. Before the Commission and Sub-Commission, the three applicants invoked Articles 4, 5 (1), 5 (3), 5 (4), 6 (1), 6 (3) (b) and (c), 7, 8 and 13 (art. 4, art. 5-1, art. 5-3, art. 5-4, art. 6-1, art. 6-3-b, art. 6-3-c, art. 7, art. 8, art. 13) of the Convention. Two of them, De Wilde and Versyp, also alleged that Article 3 (art. 3) had not been observed. 42. In its report of 19th July 1969, the Commission expressed the opinion: - that there was a violation of Articles 4 (art. 4) (nine votes to two), 5 (4) (art. 5-4) (nine votes to two) and 8 (art. 8) (ten votes to one); - that there was no violation of Articles 3 (art. 3) (unanimous) and 5 (1) (art. 5-1) (ten votes to one); - that Articles 5 (3) (art. 5-3) (unanimous), 6 (1) (art. 6-1) (ten votes to one), 6 (3) (art. 6-3) (ten votes to one) and 7 (art. 7) (unanimous) were inapplicable. The Commission was further of the opinion that "it (was) no longer necessary to consider Article 13 (art. 13)" (unanimous). The report contains several individual opinions, some concurring, others dissenting. 43. After the cases were brought before the Court the applicants repeated, and sometimes developed, in a memorandum which the Commission appended to its memorial, the greater part of their earlier arguments. They indicated their agreement or otherwise, according to the case, with the opinion of the Commission, to which De Wilde and Versyp "bowed" as regards Article 3 (art. 3) of the Convention. | The applicants were found to be vagrants and detained in vagrancy centres where they were made to work in exchange of payment at a low rate. They complained about having been obliged to work in return for an absurdly low wage and under pain of disciplinary sanctions. |
958 | Risk of being stoned to death | 10. The applicant was born in 1974. On 30 November 1998 he applied for asylum in Sweden. He claimed mainly that he was sought by the Iranian authorities as he had had a relationship with a married woman whose husband was a mullah. The mullah and his followers had been planning to apprehend him and he had therefore fled his home town. Before leaving Iran, he had been told that a warrant for his arrest had been issued and he also believed that he and the woman had been sentenced to death by stoning. 11. On 14 April 1999 the National Immigration Board ( Statens invandrarverk ) rejected the application and ordered that the applicant be expelled to Iran. The Board did not find his allegations plausible and also noted that the evidentiary requirements in cases of adultery were very high in Iran. 12. The applicant appealed against the decision and claimed that, despite the rules on evidence concerning adultery, he could still be convicted on less evidence for having offended public morals and be sentenced to be lashed. He also stated that he had converted to Christianity on 7 February 1999, for which he could be sentenced to death in Iran. 13. On 13 November 2000 the Aliens Appeals Board ( Utlännings-nämnden ) rejected the appeal. It noted that the applicant had not produced any evidence showing that he had had the above-mentioned relationship or that he would be subjected to inhuman treatment on account of it. In regard to his conversion, the Board stated that conversion to Christianity was regarded by the Iranian authorities as a “technical” step to acquire asylum. 14. On 14 December 2000 the applicant lodged a new application for a residence permit with the Aliens Appeals Board. He submitted two Iranian documents, issued in May or June 1998 and in November 1999, which purportedly contained a summons for him to appear before an Iranian court to answer charges of adultery. Claiming that he would rather commit suicide than return to Iran, the applicant also submitted a medical certificate issued on 5 January 2001 by Mr Lars Odefors and Mr Nahid Mohseni, qualified psychologists, who stated that the applicant showed signs of desperation and expressed suicidal thoughts which should be taken seriously and that he was in need of treatment in a psychiatric ward. 15. On 16 January 2001, following the Court's indication under Rule 39 of the Rules of Court, the National Migration Board ( Migrationsverket; previously the National Immigration Board ) stayed the enforcement of the expulsion order. 16. By a decision of 23 September 2004 the Aliens Appeals Board revoked the expulsion order and granted the applicant a permanent residence permit. While considering that the Iranian documents relied on by the applicant were falsifications and that he could not be regarded as a refugee, the Appeals Board found that there were humanitarian reasons to grant him a residence permit. In this respect, it noted that the new application had been pending for a long time, that the applicant had been residing legally in Sweden since January 2001 and that the validity of its decision of 13 November 2000 to expel him would expire on 13 November 2004. | The applicant, an Iranian national, had applied for asylum in Sweden in November 1998. The National Immigration Board had rejected the application and ordered that the applicant be expelled to Iran. The applicant claimed that, if expelled to Iran, he would risk, among other things, facing death by stoning for having had a relationship with a mullah’s wife. He relied on Article 2 (right to life) and Article 3 (prohibition of inhuman treatment) of the Convention and Article 1 (abolition of the death penalty) of Protocol No. 6 to the Convention. |
29 | Affiliation- and inheritance-related rights | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1943 and lives in Orléans. A. Background to the case 10. The applicant was recognised by his father at birth. At the time of the applicant’s conception, his mother – Mrs M., née R. – was married and two children had been born of that marriage: A., born in 1923, and J.L., born in 1941. By a decree of 28 February 1967, the applicant’s mother and her husband, Mr M., were pronounced judicially separated. 11. By a deed of 24 January 1970, Mr and Mrs M. divided their property inter vivos ( donation-partage ) between their two legitimate children. The deed, which was signed before a notary, provided for a life interest in their favour and for revocation of the gift in the event of a breach of its terms and conditions. When signing the deed Mr and Mrs M. declared that the two donees were their only offspring. 12. In a judgment of 24 November 1983 the Montpellier tribunal de grande instance declared the applicant to be the “illegitimate” child of Mrs M., after finding that his status of “illegitimate” child had been fully established. 13. In 1984 the applicant expressed his intention to challenge the 1970 deed of inter vivos division. On that date his lawyer informed him that the deed could not be challenged during the donor’s lifetime and that his only option was to bring an action for abatement within five years of the donor’s death. 14. The applicant’s mother died in July 1994. The notary administering the estate informed the applicant by letter of 7 September 1994 that, as a child “born of adultery”, he was entitled to only half the share he would have received if he had been a legitimate child (at that time the applicable law provided that a child “born of adultery” could inherit only half the share of a legitimate child – see paragraphs 26 and 27 below). He added that the applicant’s half-brother and half-sister were willing to pay him 298,311 French francs (FRF) (approximately 45,477 euros (EUR)) in cash, while specifying that “in the event of a reduction following the subsequent birth of a child, only a monetary abatement [was] possible and in no circumstances an abatement in kind”. No agreement was reached between the three children. B. Action for abatement brought by the applicant 15. By a writ of action dated 7 January 1998, the applicant brought proceedings against his half-brother J.L. and his half-sister A. seeking an abatement of the inter vivos division in accordance with Article 1077-1 of the Civil Code (see paragraph 25 below). He claimed a reserved portion equal to their share of his mother’s estate. 16. After the Court had found against France in the case of Mazurek v. France (no. 34406/97, 1 February 2000, ECHR 2000 ‑ II), France passed Law no. 2001-1135 of 3 December 2001 (hereafter “the 2001 Law”), amending its legislation and granting children “born of adultery” identical inheritance rights to those of legitimate children (see paragraph 28 below). That new Law came into force before judgment was given in the proceedings instituted by the applicant. Its transitional provisions provided that, subject to any prior agreement between the parties or final court decision, the provisions relating to the new inheritance rights of children born outside marriage whose father or mother was, at the time of their conception, bound by marriage to another person were applicable to successions that were already open on the date of publication of the Law in the Official Gazette (4 December 2001) and had not given rise to division prior to that date (section 25(2) of the 2001 Law, see paragraph 30 below). 17. In his recapitulatory pleading of 20 February 2003, the applicant relied on the provisions of the 2001 Law. In his submission, that Law repealed section 14 of the Filiation Law of 3 January 1972 (hereafter “the 1972 Law”, see paragraphs 27 and 29 below), a transitional provision stipulating that the rights of heirs entitled under that Law to a reserved portion of the estate could not be exercised to the detriment of inter vivos gifts granted prior to the date on which it came into force. The applicant argued that as that provision had been repealed, he was entitled to bring an action for abatement under Article 1077-1 of the Civil Code even though the deed of inter vivos division had been signed on 24 January 1970. 1. Judgment at first instance 18. In a judgment of 6 September 2004, the Béziers tribunal de grande instance upheld the applicant’s claim. It found that section 14 of the 1972 Law was contrary to Articles 8 and 14 of the Convention. The court referred in that connection to the Marckx v. Belgium judgment (13 June 1979, Series A no. 31) which recognised “that family life also comprise[d] interests of a material kind”, and to several judgments of the Court “which ha[d] continued to rule that differences of treatment in inheritance matters between children born within and children born outside marriage were discriminatory ( Mazurek, Inze and Vermeire )”. It also found that the provision was contrary to the new 2001 Law. It held that the applicant had the same inheritance rights in respect of the estate as his half-brother and half-sister, for the following reasons:- “Section 25(1) of the Law of 3 December 2001 provides that this Law is applicable from the date on which it comes into force to successions that are already open; subject to any prior agreement between the parties or final court decision, the provisions of this Law are applicable to successions already open on the date of publication of the Law in the Official Gazette of the French Republic where these have not given rise to division prior to that date. In the present case there has not yet been division of Mrs M.’s estate; accordingly, the provisions relating to the new inheritance rights of children born outside marriage whose father or mother was, at the time of their conception, bound by marriage to another person will apply. ... Indeed, it cannot reasonably be argued that the legislature, in enacting the Law of 3 December 2001, intended to maintain a provision contrary to the spirit and aim of the new Law.” 2. Judgment on appeal 19. In October and December 2004 J.L. and the heirs of A., who had died during the proceedings, appealed against the judgment. 20. In a judgment of 14 February 2006, the Montpellier Court of Appeal set aside the lower court’s judgment and declared that, under section 14(2) of the Law of 1972, the applicant was not entitled to bring an action for abatement of the inter vivos division. It held that “... under [that section], the rights acquired to a reserved portion of the estate under the present Law or arising from the new rules regarding the establishment of filiation cannot be exercised to the detriment of inter vivos gifts granted before that Law came into force. This provision, which lays down a general rule regarding, among other things, the retroactive effects of the new rules relating to the establishment of filiation deriving from the Law of 3 January 1972, has not been expressly repealed by the Law of 3 December 2001; neither can it be deduced from the terms of the later Law that it has been tacitly repealed, firstly because its provisions do not conflict with the later Law and secondly because it was not limited solely to application of Article 915 of the Civil Code, which was repealed by that Law.” According to the Court of Appeal, that conclusion did not conflict with the general principle of equality of rights regardless of birth, as guaranteed by Article 1 of Protocol No. 1 and Articles 8 and 14 of the Convention: “Firstly, the sole purpose of the provisions of section 14 of the Law of 1972 is to prohibit heirs who have acquired rights to a reserved portion of the estate under that Law – and extended by the Law of 3 December 2001 – from exercising them to the detriment of inter vivos gifts granted prior to 1 August 1972, without depriving the said heirs of their inheritance rights. Next, there is objective and reasonable justification for section 14 of the Law of 1972 in the light of the legitimate aim pursued, namely, ensuring peaceful family relations by securing rights acquired in that context – sometimes long-standing ones – without at the same time creating an excessive imbalance between heirs, it being observed that [these provisions] are of limited scope both in terms of time and the type of voluntary disposition concerned.” 3. Judgment of the Court of Cassation 21. The applicant lodged an appeal on points of law. In his grounds of appeal based on a violation of Article 1 of Protocol No. 1 and Article 14 of the Convention, he argued that peaceful family relations could not take precedence over equality, in terms of civil rights, between children born within marriage and children born outside marriage. 22. In his opinion, which was communicated to the parties, the advocate ‑ general at the Court of Cassation recommended dismissing the appeal. He made the following submissions to the judges of the First Civil Division of the Court of Cassation: “... should the court not consider that the succession that had been opened did not give rise to division before the date of publication of the Law, seeing that an action for abatement was pending on that date? The difficulty submitted for your examination does indeed arise from the different approach proposed by the transitional provisions of the 1972 and 2001 Laws. Whilst neither successions already open, nor inter vivos gifts granted prior to the coming into force of the Law of 1972, could be challenged under that Law, the Law of 2001 allows children born outside marriage whose father or mother was, at the time of conception, bound by marriage to another person to assert inheritance rights in respect of successions already open prior to publication of that Law. That difference justifies a non-restrictive application of the provisions of the Law of 2001. Only where there has been actual division, or an agreement has been reached between the parties or a final court decision delivered can the new inheritance rights of such children be excluded where the succession has already been opened. On account of the action for an abatement, the succession already open on the date of publication of the Law of 2001 cannot have “given rise to division” on the date of publication of that Law. I therefore find the submission that the Law of 3 December 2001 is not applicable difficult to sustain. The terms of section 14 of the Law of 3 January 1972, however, are entirely unambiguous. Heirs who have acquired rights under this Law to the reserved portion of the estate cannot exercise those rights “ to the detriment of inter vivos gifts granted before the Law came into force”. Should, then, these provisions be deemed to have been tacitly repealed? Without having regard to the time factor, the applicant maintains in his supplementary pleadings that it must be concluded from the clear contradiction between the transitional provisions of the two Laws that those governing the Law of 1972 have been tacitly repealed. Whilst the approach is different between the transitional provisions enacted in 1972 and those enacted in 2001, they do not, however, appear to me to conflict. By excluding any challenge to inter vivos gifts granted prior to the coming into force of the Law of 1972, the legislature intended to guarantee the legal security required by such gifts. There is nothing to justify calling that legal security into question in 2002, since the earlier transitional provisions complement those laid down by the 2001 Law. It is on those grounds that I invite you to dismiss the first ground of the appeal: the inter vivos gift made on 24 January 1970 cannot be called into question on account of inheritance rights arising from new rules concerning the establishment of filiation. In that connection, whilst it remains debatable whether there had actually been division prior to publication of the Law of 3 December 2001, the existence of an inter vivos gift granted prior to the coming into force of the Law of 3 January 1972 is not in dispute. ...” 23. The Court of Cassation dismissed the appeal in a judgment of 14 November 2007, substituting of its own motion a new legal ground. It found that the effect of the transitional provisions of the 2001 Law was that, subject to any prior agreement between the parties or a final court decision, the provisions relating to the new inheritance rights of children born outside marriage whose father or mother was, at the time of conception, bound by marriage to another person were applicable only to successions that were already open on 4 December 2001 and had not given rise to division before that date (see paragraph 16 above). It found that as division had been triggered by Mrs M.’s death – in July 1994, and thus prior to 4 December 2001 – the above-mentioned provisions were not applicable. | The applicant was born in 1943 of a liaison between his father and a married woman who was already the mother of two children born of her marriage. At the age of 40, he was judicially declared the latter’s “illegitimate” child. Following his mother’s death in 1994, he sought an abatement of the inter vivos division, claiming a reserved portion of the estate equal to that of the donees, namely, his mother’s legitimate children. In a judgment of September 2004, the tribunal de grande instance declared the action brought by the applicant admissible and upheld his claim on the merits. Following an appeal by the legitimate children, the court of appeal set aside the lower court’s judgment. The applicant unsuccessfully appealed on points of law. Before the Court, the applicant complained that he had been unable to benefit from a law introduced in 2001 granting children “born of adultery” identical inheritance rights to those of legitimate children, passed following delivery of the Court’s judgment in Mazurek v. France of 1 February 2000 (see above). |
88 | Taking of children into care | I. THE PARTICULAR CIRCUMSTANCES OF THE CASE 6. The applicant met his girlfriend Miss V. ("V.") in May 1986. They lived together from February 1987 until February 1988. Around Christmas 1987 they decided to have a child. Subsequently, on 14 February 1988, they became engaged to be married. On 22 February 1988 it was confirmed that V. was pregnant. Shortly after this the relationship between the applicant and V. broke down and they ceased co-habiting. On 29 September 1988 V. gave birth to a daughter S. of whom the applicant was the father. The applicant visited V. at a private nursing home and saw the baby when it was one day old. Two weeks later he visited V. ’ s parents ’ home but was not permitted to see either V. or the child. 7. During her pregnancy V. had made arrangements to have the child adopted and on 17 November 1988 she had the child placed by a registered adoption society with the prospective adopters. She informed the applicant of this in a letter dated 22 November 1988. A. The proceedings before the Circuit Court 8. The applicant subsequently instituted proceedings before the Circuit Court to be appointed guardian under section 6A, sub-section 1, of the Guardianship of Infants Act 1964, which would have enabled him to challenge the proposed adoption. He also applied for custody of the child. Pursuant to the Adoption Act 1952, an adoption order cannot be made, inter alia, without the consent of the child ’ s mother and the child ’ s guardian (see paragraph 19 below). While a married man is a guardian of his children, an unmarried man is not unless so appointed by the court (see paragraphs 25 and 26 below). 9. On 29 May 1989 the Circuit Court appointed the applicant guardian and awarded him custody. B. The proceedings before the High Court 10. Following an appeal against the judgment of the Circuit Court by V. and the prospective adopters, the High Court found in July 1989 that the applicant was a fit person to be appointed guardian and that there were no circumstances involving the welfare of the child which required that the father ’ s rights be denied. Mr Justice Barron of the High Court stated: "I am of the opinion that in considering the applications both for custody and guardianship I must have regard to circumstances as they presently exist and that in considering the welfare of the child I must take into account the fact that she has been placed for adoption. Each application must be taken as part of a global application and not as a separate and distinct one. The test therefore is: (1) whether the natural father is a fit person to be appointed guardian, and, if so: (2) whether there are circumstances involving the welfare of the child which require that, notwithstanding he is a fit person, he should not be so appointed. In the present case, I am of the opinion that he satisfies the first condition and that unless the welfare of the child is to be regarded as the sole consideration, he satisfies the second condition ... In my opinion, having regard to the purposes of the Status of Children Act 1987, the rights of the father should not be denied by considerations of the welfare of the child alone, but only where - and they do not exist in the present case - there are good reasons for so doing." C. The proceedings before the Supreme Court 11. After the conclusion of the High Court proceedings Mr Justice Barron acceded to an application by V. and the prospective adopters to state a case for the opinion of the Supreme Court. The questions put to the Supreme Court by the judge were as follows: "(1) Am I correct in my opinion as to the manner in which section 6A of the Guardianship of Infants Act 1964, as inserted by section 12 of the Status of Children Act 1987, should be construed? (2) If not, what is the proper construction of that section and what other, if any, principles should I have applied or considered whether in relation to guardianship or custody which derive either from law or from the provisions of the Constitution?" 12. Delivering the majority judgment of the Supreme Court on 1 December 1989, Chief Justice Finlay stated that the High Court had incorrectly construed section 6A of the 1964 Act as conferring on the natural father a right to be a guardian. He considered that the Act only gave the natural father a right to apply to be guardian. It did not equate his position with that of a married father. The first and paramount consideration in the exercise of the court ’ s discretion was the welfare of the child, and the blood link between child and father as merely one of the many relevant factors which may be viewed by the court as relevant to that question. He added, inter alia: "... although there may be rights of interest or concern arising from the blood link between the father and the child, no constitutional right to guardianship in the father of the child exists. This conclusion does not, of course, in any way infringe on such considerations appropriate to the welfare of the child in different circumstances as may make it desirable for the child to enjoy the society, protection and guardianship of its father, even though its father and mother are not married. The extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed, depending on the circumstances of each individual case. The range of variation would, I am satisfied, extend from the situation of the father of a child conceived as the result of a casual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all of the characteristics of a constitutionally protected family, when the rights would be very extensive indeed ..." He concluded that: "... regard should not be had to the objective of satisfying the wishes and desires of the father to be involved in the guardianship of and to enjoy the society of his child unless the Court has first concluded that the quality of welfare which would probably be achieved for the infant by its present custody which is with the prospective adoptive parents, as compared with the quality of welfare which would probably be achieved by custody with the father is not to an important extent better". The matter was then referred back to the High Court for the case to be decided in light of this interpretation. D. The subsequent proceedings before the High Court 13. The High Court resumed its examination of the case in early 1990. It heard, inter alia, the evidence of a consultant child psychiatrist who considered that the child would suffer short-term trauma if moved to the applicant ’ s custody. In the longer term she would be more vulnerable to stress and be less able to cope with it. She would also have difficulty in forming "trust" relationships. 14. In his judgment of 9 February 1990 Mr Justice Barron recalled that the applicant wished bona fide to have custody of his daughter and that he felt the existence of an emotional bond. He had also noted that if the child remained with the adopters she would obtain the benefit of a higher standard of living and would be likely to remain at school longer. However, he considered that differences springing solely from socio-economic causes should not be taken into account where one of the claimants is a natural parent. In his view "to do otherwise would be to favour the affluent as against the less well-off which does not accord with the constitutional obligation to hold all citizens as human persons equal before the law". Applying the test laid down by the Supreme Court in the light of the dangers to the psychological health of the child he allowed the appeal of the natural mother and the prospective adopters and concluded as follows: "The result, it seems to me, is this. If the child remains where she is, she will if the adoption procedures are completed become a member of a family recognised by the Constitution and freed from the danger of psychological trauma. On the other hand if she is moved she will not be a member of such a family and in the short and long term her future is likely to be very different. The security of knowing herself to be a member of a loving and caring family would be lost. If moved, she will I am sure be a member of a loving and caring unit equivalent to a family in her eyes. Nevertheless the security will be lost and there will be insecurity arising from the several factors which have been enumerated. In my view these differences and the danger to her psychological health are of such an importance that I cannot hold that the quality of welfare likely to be achieved with the prospective adopters would not be to an important extent better than that likely to be achieved by custody with the father. That being so, his wish and desire to be involved in the guardianship of and to enjoy the society of his child is not a factor which I am to take into account. In these circumstances, the welfare of the infant requires her to remain in her present custody. Accordingly the application for relief must be refused." 15. An adoption order was subsequently made in respect of the child. | The applicant complained that his child had been placed for adoption without his knowledge or consent and that national law did not afford him even a defeasible right to be appointed guardian. He also alleged that he had had no access to a court in respect of the proceedings before the Adoption Board. |
14 | Family reunification rights | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in Somalia on 1 November 1987 as the youngest of five siblings. Currently she lives in Esbjerg. 7. From 1991 to 1995 the applicant lived with her family in Kenya. 8. In April 1994 the applicant ’ s father and a sister were granted asylum in Denmark. 9. Having been granted a residence permit in November 1994, on 11 February 1995 the applicant, who at the relevant time was seven years old, her mother and three siblings joined them. A few years later, the applicant ’ s parents divorced. The parents maintained joint custody of the applicant, who lived with her mother. From 1995 until August 2002, the applicant attended various schools, some of which expelled her due to disciplinary problems. 10. The applicant also had difficulties with her parents, who disapproved of certain aspects of her behaviour. Consequently, in May 2003, when the applicant was fifteen years old, her father decided to take her to Kenya to take care of her paternal grandmother, who was living at the Hagadera refugee camp in north ‑ eastern Kenya. It appears that the applicant ’ s mother did not want her to go but reluctantly agreed on the understanding that it would be a short trip. It also appears that the applicant believed that she was going on a short trip to visit her grandmother. 11. When the applicant ’ s father returned to Denmark, he was summoned for an interview with the Immigration Service on 10 November 2003 because the latter had been informed that he, who had been recognised as a refugee, had visited his country of origin. On 17 December 2003 the Immigration Service ( Udlændingeservice ) took the stand that the applicant ’ s father ’ s residence permit had not lapsed. In that connection, the applicant ’ s father was advised on the regulation regarding lapse of residence permits. 12. On 9 August 2005, three months before the applicant turned eighteen years old, she contacted the Danish Embassy in Nairobi with a view to returning to live with her mother and siblings in Denmark. Her father had joined her in Nairobi to help her submit the application for family reunification. He also remarried in Nairobi at the relevant time. An interview was conducted with the help of an English/Somali interpreter although it was stated that the applicant spoke Danish. The applicant explained that she had taken care of her grandmother, who had fallen seriously ill, until some of the grandmother ’ s children had arrived from Somalia to take over the care of their mother. 13. In a letter of 24 November 2005 to the Immigration Service the applicant ’ s mother stated, inter alia, that at the relevant time it had been decided temporarily to send the applicant to Kenya where the family had a network so that she could attend school and that the applicant had been living with her father ’ s friends. 14. On 21 December 2006 the Immigration Service found that the applicant ’ s residence permit had lapsed pursuant to section 17 of the Aliens Act because she had been absent from Denmark for more than twelve consecutive months; because she had not contacted the Immigration Service until August 2005; and because there was no information indicating that she could not have contacted the authorities in due time. They also considered that the applicant was not entitled to a new residence permit under section 9, subsection 1 (ii), of the Aliens Act, in force at the relevant time, since the applicant was 17 years old and the said provision only extended a right to family reunification to children below the age of 15. Finally, it found that no special circumstances existed to grant her a residence permit under section 9 c, subsection 1, of the Aliens Act. It noted in that connection that the applicant had not seen her mother for four years; that it had been the latter ’ s voluntary decision to send the applicant to Kenya; that she could still enjoy family life with her mother to the same extent as before; that she had stayed with the grandmother; and that except for the grandmother ’ s age, there was no information that the applicant could not continue to live with her or the grandmother ’ s children. 15. On 11 April 2007 the applicant appealed against the decision and maintained that it had not been her decision to leave the country; that from the refugee camp where she lived with her grandmother she was not able herself to go to Nairobi; and that during her stay outside Denmark she had not stayed in her country of origin. 16. According to the applicant, in June 2007 she re-entered Denmark clandestinely to live with her mother. It is disputed whether the Danish authorities were aware of this. 17. On 13 July 2007 the Immigration Service received a questionnaire from the applicant dated 12 July 2007 used for requests for exemption from the authorities revoking a residence permit despite a stay outside Denmark for a certain period. It was partly filled out and stated, inter alia, that it had been the applicant ’ s parents ’ decision that she should leave Denmark at the relevant time; that the applicant spoke Danish, but could not read or write the language; that she spoke the language of the country in which she was currently residing, but that she could not read or write that language either; and that she was very afraid and could not reside in her country of origin as there was unrest. The applicant did not specify that she had actually returned to Denmark, but her signature was dated as set out above in Esbjerg, Denmark. It was also stated that her sister had assisted her in answering the questionnaire. 18. On 1 October 2007 the Ministry of Refugee, Immigration and Integration Affairs ( Ministeriet for flygtninge, indvandrere og integration ) upheld the decision by the Migration Service of 21 December 2006. It stated among other things: “ ... The Ministry emphasises that there is no information available of any circumstances that would lead to [the applicant ’ s] residence permit being deemed not to have lapsed ... [the applicant ’ s] parents did not apply for retention of [her] residence permit before she left, and neither she nor her parents contacted the immigration authorities during her stay abroad, and it has not been substantiated that illness or other unforeseen events prevented such contact. Thus, the Ministry finds that the illness of [the applicant ’ s] grandmother did not prevent [the applicant] or her parents from contacting the immigration authorities. Although the distance from Hagadera to Nairobi is significant [485 km] and it can be assumed that [the applicant] did not have the means to travel to Nairobi, the Ministry finds that these circumstances did not prevent [the applicant ’ s] parents from contacting the immigration authorities before [the applicant ’ s] departure, which was planned. The fact that [the applicant] stayed in Kenya and not in Somalia does not change the fact that [she] has resided abroad for more than twelve consecutive months. It is stated for the record that it was not [the applicant ’ s] decision to leave Denmark and stay away so long. The ministry finds that this will not lead to a different outcome of the case as [the applicant ’ s] parents had custody over her at the time of her departure ... they could thus lawfully make decisions about [her] personal circumstances ... ” 19. Upon request from the applicant, who was represented by counsel, on 11 December 2007 the Immigration Service brought the case concerning section 17 and section 9, subsection 1 (ii), of the Aliens Act before the City Court of Copenhagen ( Københavns Byret ), before which the case was decided on the documents submitted, without any parties being summoned. On 25 April 2008 it found against the applicant. It added that section 9, subsection 1 (ii), of the Aliens Act had been amended, limiting the right to family re-unification to children under 15 years instead of under 18 years in order to discourage the practice of some parents of sending their children on “re-upbringing trips” for extended periods of time to be “re-educated” in a manner their parents consider more consistent with their ethnic origins. It was preferable in the legislator ’ s view for foreign minors living in Denmark to arrive as early as possible and spend as many of their formative years as possible in Denmark. It found that such decision did not contravene Article 8 of the Convention as invoked by the applicant. 20. The decision was appealed against to the High Court of Eastern Denmark ( Østre Landsret ), henceforth the High Court, before which the applicant ’ s representative in his written submissions stated that the applicant remained in Kenya. On 30 October 2008 the High Court upheld the City Court ’ s decision. By way of introduction, it stated that according to section 52 of the Aliens Act, it could not review a final administrative decision of refusal of a residence permit under section 9c, subsection 1, of the Aliens Act. As to section 9, subsection 1 (ii) it confirmed that the applicant failed to fulfil the conditions. It took into account that the applicant ’ s parents had sent her voluntarily to Kenya to live with family for an indefinite period; that the applicant was seventeen years and nine months old, when in August 2005 she applied to re- enter Denmark; that her father visited her during her stay in Kenya; and that her mother would also be able to visit the applicant in Kenya to enjoy family life there. 21. Leave to appeal to the Supreme Court ( Højesteret ) was refused on 19 January 2008. 22. By letter of 27 January 2010 the Ministry of Refugee, Immigration and Integration Affairs advised the applicant of her duty to leave Denmark pursuant to section 30 of the Alien ’ s Act and the possibility of submitting an application for asylum under section 7 of the Aliens Act. The applicant was also advised that an application should be submitted in person to the Immigration Service or the police. 23. So far the applicant has not applied for asylum. | At the age of fifteen the applicant, a Somali national who had been living with her parents and siblings in Denmark since the age of seven, was sent against her will to a refugee camp in Kenya by her father to take care of her paternal grandmother. Two years later, when still a minor, she applied to be reunited with her family in Denmark, but her application was turned down by Danish immigration on the grounds that her residence permit had lapsed as she had been absent from Denmark for more than twelve consecutive months. She was not entitled to a new residence permit as, following a change in the law that had been introduced to deter immigrant parents from sending their adolescent children to their countries of origin to receive a more traditional upbringing, only children below the age of fifteen could apply for family reunification. |
949 | Deprivation of voting rights as part of a criminal investigation | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1957 and lives in Ostuni ( province of Brindisi ). A. The special supervision by the police 10. In an order of 24 March 1994, filed with the registry on 30 March 1994, the Brindisi District Court imposed a preventive measure on the applicant, who was placed under special police supervision for one year. 11. The Brindisi District Court found that numerous criminal complaints had been made against the applicant. In particular, it found that in 1991 and 1992 a series of criminal complaints had been lodged alleging that he had received stolen goods under cover of his vehicle dismantling and spare parts business. On 13 May 1992 a preventive measure in the form of a warning ( avviso sociale ) was imposed on the applicant for one year. On 13 June 1992 a criminal complaint was lodged against him for aiding and abetting theft and trading in stolen goods; he was acquitted by a judgment of 2 July 1993. On 5 May 1993 the applicant was arrested with two others in connection with another complaint for receiving stolen goods which had been lodged against him. In the light of the foregoing, the District Court considered that there were reasonable grounds for believing that, in spite of his clean record, the applicant was a habitual offender and thus “socially dangerous”, within the meaning of section 1 of Law no. 1423/56 of 27 December 1956. It refused, however, to make a compulsory residence order ( obbligo di soggiorno ) against him. 12. The order imposing the preventive measure was forwarded for enforcement to the Brindisi prefect on 7 April 1994 and served on the applicant on 3 May 1994. 13. The applicant appealed, but his appeal was dismissed by the Lecce Court of Appeal on 29 July 1994. The order became final on 24 September 1994 and was subsequently served on the Ostuni municipality on 27 September 1994. 14. On 25 July 1995 the Ostuni police drafted, in the applicant ’ s presence, a document setting out the obligations imposed on him ( verbale di sottoposizione agli obblighi ). 15. The applicant was required: (a) to look for a suitable job within two months from the date of service of the order; (b) not to change his place of residence; (c) not to leave his home without informing the authorities responsible for supervising him; (d) to live an honest life and not to arouse suspicion; (e) not to associate with persons who had a criminal record or who were subject to preventive or security measures; (f) not to return home later than 8 p.m. in summer and 6 p.m. in winter or to leave home before 7 a.m., unless due cause could be shown and in all cases only after informing the authorities responsible for supervising him; (g) not to keep or carry weapons; (h) not to go to bars or attend public meetings; (i) to report to the relevant police station on Sundays between 9 a.m. and 12 noon; (j) to have on him at all times the card setting out his precise obligations under the preventive measure and a copy of the court order. 16. On 31 July 1995 the applicant applied to the Brindisi District Court for a declaration that the preventive measure had expired on 2 May 1995, that is, one year after the date on which the order of 24 March 1994 was served on him. 17. In an order of 7 October 1995, the Brindisi District Court found that, even if pursuant to section 11 of Law no. 1423/ 56 the special supervision period began on the day on which the person on whom the preventive measure was imposed was served with the relevant order, compliance with that formality was necessary but not sufficient to constitute an initial step in the implementation of the measure. For there to be such an initial step, it was also necessary under section 7 of Law no. 1423 /56 for the relevant order to be forwarded for enforcement to the competent police authority. The District Court observed that, under the Court of Cassation ’ s case-law, special supervision did not lapse at the end of the period for which it had been imposed, independently of when it was implemented. In the case before it, the initial step in the implementation of the measure had been taken on 25 July 1995, the day on which the Ostuni police had drafted the document setting out the obligations imposed on the applicant. Consequently, it held that the preventive measure had not ceased to apply. 18. The applicant appealed to the Lecce Court of Appeal. He maintained that the preventive measure had automatically ceased to apply on 2 May 1995 or, at the latest, on 2 8 September 1995, which was one year after the date on which the order had been served on the Brindisi police and the Ostuni municipality. In any event, the applicant sought an order discharging the measure, arguing that there were no grounds for it to remain in force. 19. In a judgment of 29 April 1996, the Court of Appeal upheld the order of 7 October 1995, observing that the case fell outside those for which statute provided the automatic lapse of special supervision. It considered that the preventive measure could not automatically cease to apply on the date stated in the order of 24 March 1994 independently of when it was implemented. Consequently, it concluded that the starting- point for the application of the preventive measure was the day on which the first steps had been taken to implement it. In this case that had been 25 July 1995, when the police had drafted the document setting out the applicant ’ s obligations under the order. 20. The applicant appealed on points of law to the Court of Cassation. 21. In a judgment of 16 December 1996, which was filed with the registry on 6 February 1997, the Court of Cassation ruled that the order for special supervision of the applicant had ceased to apply on 2 May 1995. It observed that section 11 of Law no. 1423/56 expressly provided that the period of special supervision started to run on the day the person to be supervised was served with the relevant order. Consequently, contrary to the opinion of the Court of Appeal, it found that the date on which the document setting out the obligations imposed on the applicant was drafted was not relevant for the purposes of identifying the date on which the preventive measure first took effect. It concluded that the period of special supervision had started to run on the day on which the relevant order was served on the applicant ( 3 May 1994 ). 22. In the meantime, on 20 September 1996 the Ostuni police had informed the Brindisi District Court that the order for special supervision of the applicant had ceased to apply on 24 July 1996. B. The disenfranchisement 23. As a result of the special supervision measure imposed on the applicant, the Ostuni Municipal Electoral Committee decided on 10 January 1995 to strike the applicant off the electoral register on the ground that his civic rights had been suspended pursuant to Presidential Decree no. 223 of 20 March 1967. 24. The applicant was subsequently prevented from taking part in the regional council ( Consiglio Regionale ) election of 23 April 1995. 25. On 28 July 1995 the applicant ’ s name was restored to the electoral register. 26. In a certificate issued on 22 November 1995, however, the mayor of Ostuni stated that the applicant had been subject to a further year ’ s special supervision by a decision of the Brindisi police of 25 July 1995. On 15 December 1995 the mayor declared that the applicant would be struck off the electoral register for another year. 27. On 12 April 1996 the Ostuni Municipal Electoral Committee refused the applicant ’ s request to be allowed to take part in the national parliamentary election on 21 April 1996. 28. The applicant lodged an appeal with the Lecce Court of Appeal in which he contended that the preventive measure had ceased to apply on 2 May 1995 and that, accordingly, there were no grounds for excluding him from the election. 29. In a judgment of 18 April 1996, the Lecce Court of Appeal dismissed the appeal on the ground that the disenfranchisement could be challenged only after the preventive measure had actually been implemented. | In 1994 a District Court ordered that the applicant be placed under police supervision and made subject to a regime of preventive measures for one year. The court found that numerous criminal complaints had been made against the applicant. On 10 January 1995 until 28 July 1995 the applicant was struck off the electoral register as a result of the special measures and, in December 1995, he was struck off for another year in view of a decision by the police to prolong his special supervision. In December 1996 the Court of Cassation ruled that the order for special supervision of the applicant had ceased to apply in May 1995, one year after the order had been served on him. As a result of the special measures, he was prevented from voting in the regional council (Consiglio Regionale) elections of April 1995 and the national parliamentary elections of April 1996. |
293 | In the context of terrorism and national security considerations | 2. The first, second and third applicants live in Mantes-la-Jolie. The fourth and fifth applicants live in Les Mureaux. They were represented by Mr W. Bourdon, lawyer. 3. The French Government were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry for Europe and Foreign Affairs. 4. Born in France in 1974, the first applicant acquired French nationality by a declaration of nationality registered on 26 May 1992. 5. Born in Morocco in 1975, the second applicant acquired French nationality on 22 August 1991 through the collective effect of his father’s naturalisation (Article 84 of the French Nationality Code). 6. Born in France in 1976, the third applicant acquired French nationality on 16 June 1994 as a result of the registration of his express voluntary declaration under Article 21-7 of the Civil Code. 7. Born in Morocco in 1977, the fourth applicant acquired French nationality on 19 February 2001 by a declaration of nationality registered on 30 November 2001. 8. Born in Morocco in 1975, the fifth applicant acquired French nationality on 14 February 2000 by a declaration of nationality registered on 19 December 2000. 9. In a judgment of 11 July 2007 the Paris Criminal Court convicted the five applicants (and three other individuals) of participation in a criminal conspiracy to commit an act of terrorism in the years 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003 and 2004. They were found to have provided financial and logistical support to the “Moroccan Islamist Combatant Group” ( Groupe islamiste combattant marocain – “GICM”), which was close to the Salafiya Jihadia organisation (to which the perpetrators of the 16 May 2003 bombings in Casablanca, Morocco, were linked), on account, inter alia, of working in businesses supporting the activity of the GICM, harbouring GICM members clandestinely (except in the fourth applicant’s case) and obtaining passports intended, after falsification, to facilitate the movement of GICM members. The Criminal Court handed down the following sentences: to the first applicant, seven years’ imprisonment with a minimum term of fifty-six months; to the second applicant, eight years’ imprisonment with a minimum term of sixty-four months; for the third applicant, six years’ imprisonment with a minimum term of forty-eight months; for the fourth applicant, six years’ imprisonment with a period of security of forty-eight months; and for the fifth applicant, eight years’ imprisonment with a minimum term of sixty-four months. 10. The third and fourth applicants appealed to the Paris Court of Appeal, which upheld their convictions in a judgment of 1 July 2008. 11. In April 2015 the Minister of the Interior sent a letter to the applicants informing them that, in view of the judgment of 11 July 2007 convicting them of an offence constituting an act of terrorism, he had decided to initiate against them the procedure for deprivation of nationality provided for in Articles 25 and 25-1 of the Civil Code (see paragraph 19 below). Referring to Article 61 of Decree no. 93-1362 of 30 December 1993 on declarations of nationality and decisions on naturalisation, on redintegration, and on the loss, deprivation and withdrawal of French nationality (see paragraph 21 below), he invited the applicants to submit their observations within one month. The Minister specified that at the end of this period the Conseil d’État would be asked to give its opinion on the proposed deprivation of nationality, adding that this measure could be ordered only with its assent. 12. After receiving the assent of the Conseil d’État on 1 September 2015 (not produced for the file), the Prime Minister, by five orders of 7 October 2015, deprived the applicants of their French nationality. The orders were based on Article 25 of the Civil Code and Article 25-1 of the same Code as amended by Law no. 2006-64 of 23 January 2006 (see paragraph 19 below), and referred to the applicants’ criminal convictions. 13. The applicants made urgent applications to the Conseil d’État seeking the suspension of the orders of 7 October 2015 together with actions for judicial review. 14. The urgent applications were rejected by five similar decisions of 20 November 2015. 15. In the context of the judicial review procedure, the public rapporteur emphasised the following points in his opinion addressed to that court: “... I am of the opinion ... that it is necessary for the court ... to bring its case-law up to date in order to recognise that, in this type of dispute, Article 8 of the [Convention] can be relied upon. As your case-law stands, you have consistently held that Article 8 of the Convention ... cannot be invoked in nationality cases. ... This is also the approach of the Constitutional Council, which, again in its decision [no. 2014-439 QPC of 23 January 2015], dismissed as invalid the complaint that the right to private life of individuals deprived of their nationality had been breached. In a judgment of 11 October 2011, Genovese v. Malta, no. 53124/09, the Court ..., however, further developed its case-law by its disapproval of the Maltese legislation which drew a distinction, for the granting of Maltese nationality by descent, depending on whether a child had been born in or out of wedlock, considering that in that case such discrimination ... undermined the applicant’s social identity, which was itself protected by Article 8 of the Convention in respect of private life. It relied only on the head of private life, being a component of Article 8, as you know, being distinguishable from family life, which is not mentioned in this case-law. It reiterated this approach in its Mennesson and Labassée judgments (26 June 2014, Mennesson v. France, application no. 65192/11, and Labassée v. France, application no. 65941/11), concerning the status of children born of surrogacy arrangements abroad, and you yourselves entered into this line of reasoning on the question whether a certificate of nationality should be issued to those same children, in your decision Association juristes pour l’enfance et autres (CE, 12 December 2014, no. 365779, A). In my view it is both necessary and appropriate to recognise the operation of Article 8 in relation to the measure depriving a person of nationality. It is simply a matter of recognising the reality that a person’s nationality is a constituent element of his or her identity, not only legally, but also at a personal level. This will lead you to carry out a more in-depth review, which could, for example, take into account the circumstances in which the nationality was originally acquired by the person who has been deprived of it. However, my proposition is that you should recognise, exactly as the Court does in its case-law, that Article 8 can only be invoked with regard to the private life of the persons concerned, i.e. their personal identity, and not to any interference with their family life, because as the Court ... itself has pointed out, the consequences of deprivation of nationality for one’s right of abode or place of abode are not automatic. It is noteworthy that in the opinion given by the Conseil d’État on 11 December 2015 on the constitutional bill for the ‘protection of the nation’, family life was also mentioned, but it is my opinion that on this matter you should remain as closely as possible to the Court’s findings ... This twofold development that I am proposing to you, namely full review and applicability of Article 8, is probably more of jurisprudential than of practical interest in the current state of the legislation and administrative practice: not only are the conditions laid down by law for deprivation of nationality exceptional and confined, in practice one can see that such measures are rarely adopted. Thus, since the grounds for deprivation of nationality have to be criminal convictions for very serious offences, only in cases where the overall sanction imposed is light would it be possible to consider that such a measure may not be justified by the weight in the balance. But this development is nevertheless proposed with the firm conviction that it is not insignificant, in such matters, be it for the administrative authorities today, or for those, whether a legislator or the European court, who may be called upon to consider whether Articles 25 and 25-1 of the Civil Code provide a balanced response, for you to clearly set out the framework of your review. ... [As regards the criticism relating to] proportionality, [which can be expressed] both: in the field of EU law in line with the Rottmann case-law, which you have already engaged with, as has been said; under Article 8 of the Convention ...; and in the context of the full review in which you are now invited to engage. In this connection, it must first be stressed that the acts for which the individuals concerned were convicted are serious ... With regard to the consequences of the measure for those concerned, it is important to emphasise that the loss of nationality does not in itself have a definite impact on the right of abode of the persons concerned. It is not certain that the applicants, or at least not all of them, can be expelled or deported to their country of origin, especially if they are able to show that they would be exposed to a risk of treatment in breach of Article 3 of the Convention. The Court has been willing to enter into such an examination and has recognised the existence of a violation in certain cases (see the judgment of 3 December 2009, no. 19576/08, Daoudi v. France ). In your office, you do yourselves ensure compliance with the Convention, as interpreted by the Court, of course, and regardless of the criticisms that may be made of it and which may affect you as well. In this connection, I would strongly emphasise that it is the responsibility of the authorities, when they seek to expel an alien, even on grounds of absolute urgency, to ensure that the Court’s case-law is adhered to, and to ensure that the right of appeal is guaranteed, as well as the effectiveness of any such appeal. Lastly, with regard to the interference with personal identity, I am of the view that it can certainly be regarded as more detrimental for Mr Turk, Mr Ghoumid and Mr Charouali, the first two having been born in France and having acquired nationality by declaration when they reached the age of their majority, the third having become French at the age of 16 by the collective effect of his father’s naturalisation. But at the same time, I cannot but note that the allegiances revealed by the actions which justified their criminal convictions also demonstrate that their allegiance to France and its values has been of scant importance to them in the construction of their personal identity. In sum, therefore, I submit that the deprivation of nationality appears to be proportionate to the seriousness of the acts committed. I would add that there is nothing in the subsequent behaviour of the individuals concerned that would negate this assessment of the proportionality of the sanctions. ...” 16. The Conseil d’État dismissed the applicants’ actions to have the measures set aside in five similar decisions of 8 June 2016. It concluded that they could not validly claim that the orders appealed against had breached Article 4 of Protocol No. 7, which “was only applicable to criminal proceedings, [whereas] deprivation of nationality was an administrative sanction”. 17. It further found as follows: “... whilst, as regards the imposition of administrative sanctions, only acts constituting a breach of obligations defined by legislative or regulatory provisions in force at the time when these acts were committed are punishable, on the other hand, and save where otherwise provided, texts laying down the conditions for bringing proceedings and the forms of procedure apply immediately, even if they lead to the punishment of misconduct predating their entry into force; that it is the case for the texts setting the time-limits within which an administrative sanction can be issued, unless the previously applicable time-limits had already expired before they entered into force. ... in the present case, the most recent acts for which [the applicants were] convicted were committed in 2004. The Law of 23 January 2006 increased from ten to fifteen years the time-limit set in Article 25-1 of the Civil Code within which deprivation of nationality may be decided, from the time of commission of the acts giving rise to conviction for a serious offence constituting an act of terrorism. On the date of entry into force of this law, the previously applicable ten-year period within which the sanction of deprivation of nationality could be imposed on [the applicants] had not expired. As a result, the argument that by applying the time-limit provided for in Article 25-1 of the Civil Code, as amended by the Law of 23 January 2006, the impugned order[s] [were] based on inapplicable legislative provisions must be rejected; ... it is clear from the documents in the file that [the applicants were] convicted [and given the sentences set out in paragraph 9 above] for providing financial and logistical support to an organisation known as the ‘Moroccan Islamist Combatant Group’ (GICM), which was close to the ‘Salafiya Jihadia’ organisation, to which the perpetrators of the attacks in Casablanca, Morocco, on 16 May 2003 were linked, and that these acts were classified by the criminal court as participation in a criminal conspiracy to commit an act of terrorism. It can be seen from the findings of fact made by the criminal court that they had, inter alia, worked in businesses which supported the activity of the GICM, provided clandestine accommodation for its members [except in the fourth applicant’s case], and obtained passports intended to facilitate, after falsification, the movement of GICM members. Having regard to the nature and seriousness of the acts committed by the applicant[s] which led to [their] criminal conviction, the penalty of deprivation of French nationality was not, in the circumstances of the case, disproportionate. The subsequent conduct of the applicant[s] does not call this assessment into question. ... the sanction of deprivation of nationality, as provided for in Articles 25 and 25-1 of the Civil Code, seeks to strengthen the prevention of terrorism. An order depriving a person of French nationality in itself has no effect on that person’s presence in France, or on his or her family relationships, and therefore does not affect the person’s right to respect for his or her family life. However, such an order does affect a constituent element of that person’s identity and is thus capable of infringing that person’s right to respect for his or her private life. In the present case, having regard to the seriousness of the acts committed by the applicant(s), the impugned orders did not disproportionately infringe the right to respect for private life guaranteed by Article 8 of the Convention ...” 18. The fourth and fifth applicants were heard by the Deportation Board of Les Yvelines on 8 September 2016. On 21 October 2016 the prefect of Les Yvelines informed them that she had given an opinion in favour of their deportation. They were summoned on 26 October 2016 by the police but were not notified of their deportation orders. | This case concerned five individuals, formerly having dual nationality, who were convicted of participation in a criminal conspiracy to commit an act of terrorism. After serving their sentences they were released in 2009 and 2010, then stripped of their French nationality in October 2015. The applicants argued in particular that the revocation of their nationality had breached their right to respect for their private life. They added that their loss of nationality was a “disguised punishment” constituting a sanction for conduct in respect of which they had already been convicted and sentenced in 2007 by the Paris Criminal Court. |
386 | Strip searches | 2. The applicant was born in 1960 and is currently serving a life sentence in Straubing Prison. He had been granted legal aid and was represented by Mr D. Thenhausen, a lawyer practising in Bielefeld. 3. The Government were represented by one of their Agents, Mr H. ‑ J. Behrens, of the Federal Ministry of Justice and Consumer Protection. 4. The facts of the case, as submitted by the parties, may be summarised as follows. BACKGROUND TO THE CASESThe Federal Constitutional Court’s decision of 5 November 2016 The Federal Constitutional Court’s decision of 5 November 2016 The Federal Constitutional Court’s decision of 5 November 2016 5. On 5 November 2016 the Federal Constitutional Court, on a constitutional complaint lodged by a different person detained in Straubing Prison, declared that the random strip search of that detainee prior to his receiving outside visitors had been unconstitutional (file no. 2 BvR 6/16). The court found that the search had been carried out on an order issued by the prison authorities under section 91(2) of the Bavarian Execution of Sentences Act (see paragraph 30 below) to the effect that one prisoner out of five was to be strip-searched on that day. As the order did not permit such a search to be dispensed with in a particular case, it constituted a disproportionate interference with the detainee’s personality rights ( allgemeines Persönlichkeitsrecht ) under Article 2 § 1 of the Basic Law read in conjunction with Article 1. 6. The Federal Constitutional Court considered that strip searches involving the inspection of body orifices that were usually covered constituted a serious interference with the personality rights of the individual concerned. This was also reflected in the case-law of the European Court of Human Rights regarding strip searches, which was to be taken into account in the interpretation of the Basic Law. In order to strike a fair balance between the detainee’s personality rights and respect for his privacy on the one hand, and the prison’s security interests on the other hand, it would have been necessary for the search order to permit the prison staff to dispense with a strip search in cases where an abuse of visiting rights by the prisoner concerned was very unlikely. The court’s decision was published on 8 December 2016. The decisions of the courts dealing with the execution of sentences on the lawfulness of the strip searches of the applicant 7. The applicant brought several sets of proceedings in the criminal courts dealing with the execution of sentences, requesting that a number of the strip searches he had been obliged to undergo in Straubing Prison be declared unlawful. 8. On 28 December 2016 the Nuremberg Court of Appeal declared that the random strip search of the applicant conducted prior to a prison visit by a records clerk of the Straubing District Court on 24 August 2015 had been unlawful. It referred to the reasons given in the Federal Constitutional Court’s decision of 5 November 2016 (see paragraphs 5 et seq. above) which had concerned the same practice of strip searches in Straubing Prison. On 18 September 2017 the Regensburg Regional Court further declared that a strip search of the applicant carried out on 11 February 2016 before a visit by a records clerk of the district court had been unlawful. 9. Furthermore, on 8 February, 7 April and 4 October 2017 respectively the Regensburg Regional Court, referring to the aforementioned decision of the Federal Constitutional Court, declared that the strip searches of the applicant on 3 December 2015, 13 June 2016 and 1 September 2016, which had been carried out after he had received visitors, had been unlawful. Following appeals against the first two decisions, those decisions were upheld by the Nuremberg Court of Appeal. 10. On 2 October 2017 the Nuremberg Court of Appeal, referring to its previous decisions, further found that the order for a strip search of the applicant on 19 January 2017 after a visit by a records clerk of the district court, and also the disciplinary measures taken against the applicant for refusing to undergo the search, had been unlawful. It considered that the applicant had a legal interest in that finding as there was a risk of repetition of such searches, given that the applicant would receive further visits in the future. THE PROCEEDINGS AT ISSUE IN APPLICATION NO. 6780/18 The proceedings before the Regensburg Regional Court The proceedings before the Regensburg Regional Court The proceedings before the Regensburg Regional Court 11. On 6 February 2017 the applicant applied to the Regensburg Regional Court for legal aid in order to bring official liability proceedings under Article 839 of the Civil Code read in conjunction with Article 34 of the Basic Law (see paragraph 31 below). He intended to claim compensation for non-pecuniary damage on account of random strip searches based on section 91(2) of the Bavarian Execution of Sentences Act (see paragraph 30 below) and carried out prior to visits he had received in prison. He stated that he had had to undergo such illegal strip searches on 23 January 2014, 11 February 2014, 29 September 2014, 13 October 2014, 24 August 2015 and 11 February 2016. 12. The applicant stated that during these searches he had been obliged to undress completely. He had then been searched under the armpits and in the mouth and had had to bend down for an inspection of his anus. The searches had been ordered on a random basis in respect of one in five prisoners, without any exceptions being made. No security reasons for such searches had been demonstrated in his case. The searches had been carried out prior to his receiving visits from clerks of the district court registry who had come to take a record of the remedies of which he wished to avail himself before the courts. He stated his intention to claim compensation of 1,000 euros (EUR) per illegal strip search. 13. On 20 March 2017 the Regensburg Regional Court dismissed the applicant’s legal aid request. It found, following a summary examination, that the official liability proceedings which the applicant intended to bring did not have sufficient prospects of success (see Article 114 § 1, first sentence, of the Code of Civil Procedure, paragraph 36 below). Sufficient prospects of success existed only where the court, having regard to the claimant’s description of the facts and the documents before it, considered the claimant’s position to be at least arguable and was persuaded that the claimant could prove his or her allegations. 14. The Regional Court argued that, having regard to the case-law of the Federal Court of Justice and the Federal Constitutional Court (see paragraphs 33-34 below), not each and every breach of an individual’s personality rights warranted the payment of compensation for non ‑ pecuniary damage. Compensation was to be paid only for sufficiently serious breaches of those rights which could not be compensated for adequately by other means. 15. The Regional Court found that, in the applicant’s case, adequate compensation had already been granted by other means. It referred in that regard to the findings of the Nuremberg Court of Appeal in its decision of 28 December 2016 (see paragraph 8 above) and those of the Federal Constitutional Court in its decision of 5 November 2016. It further considered that there had been no fault on the part of the prison staff, as the Regional Court itself had confirmed the lawfulness of random strip searches prior to the aforementioned decision of the Federal Constitutional Court. The proceedings before the Nuremberg Court of Appeal 16. On 17 May 2017 the Nuremberg Court of Appeal dismissed an appeal lodged by the applicant. It confirmed that the applicant’s intended official liability action had insufficient prospects of success. Having regard to all the circumstances of the case, it found that it was not necessary to award the applicant monetary compensation for the breach of his personality rights. 17. The Court of Appeal clarified that the strip searches of the applicant had been unlawful and had constituted a serious interference with his personality rights. The searches had been disproportionate as there had been no possibility of dispensing with a search in an individual case. This followed from the Federal Constitutional Court’s decision of 5 November 2016 and the Court of Appeal’s decision of 28 December 2016 (see paragraphs 5 and 8 above). The court further conceded that an abuse of visiting rights had been unlikely in the circumstances of the applicant’s case. 18. However, the fault on the part of the prison staff who had ordered and carried out the searches in question prior to the Federal Constitutional Court’s decision of 5 November 2016 had at most been minor. Both the Regional Court and the Court of Appeal had considered random strip searches of prisoners prior to visits to be lawful before the Federal Constitutional Court’s decision, arguing that the surprise element of random searches was decisive for their effectiveness. Moreover, according to the defendant’s statements, the rules on strip searches in Straubing Prison had immediately been brought into line with the Federal Constitutional Court’s decision, so that there was no risk of future random searches without an examination of the particular circumstances of the case. 19. The Court of Appeal further considered that the applicant had obtained sufficient just satisfaction also by virtue of the Nuremberg Court of Appeal’s finding in its decision of 28 December 2016 (see paragraph 8 above) that one of the impugned strip searches, namely the search on 24 August 2015, had been unlawful. The reasons given in that decision applied equally to the other searches at issue in the applicant’s case. The proceedings before the Federal Constitutional Court 20. On 19 June 2017 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Regional Court and the Court of Appeal refusing to grant him legal aid. He argued, in particular, that the impugned decisions had breached his personality rights and his right to court proceedings. Given the gravity of the interference with his personality rights on account of the strip searches, he should have been granted monetary compensation for the non-pecuniary damage suffered. 21. On 23 January 2018 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 1 BvR 1688/17). THE PROCEEDINGS AT ISSUE IN APPLICATION NO. 30776/18 22. On 9 October 2017 the applicant again applied to the Regensburg Regional Court for legal aid in order to bring official liability proceedings claiming compensation for non-pecuniary damage on account of strip searches carried out after visits he had received in prison. He had had to undergo such strip searches, based on section 91(3) of the Bavarian Execution of Sentences Act (see paragraph 30 below), on 27 February 2014, 18 June 2015, 3 December 2015, 13 June 2016, 1 September 2016 and 19 January 2017. He had received visits from a police officer on one occasion, and from clerks of the court registry recording various appeals he wished to lodge with the courts on the remaining occasions. He again intended to claim compensation of EUR 1,000 per illegal strip search. 23. On 20 March 2018 the Regensburg Regional Court granted the applicant legal aid in order to bring official liability proceedings claiming EUR 200 in compensation regarding the strip search of 19 January 2017. It dismissed the remainder of the applicant’s request on the grounds that his intended action lacked sufficient prospects of success in this regard (Article 114 § 1 of the Code of Civil Procedure). 24. The Regional Court considered that until the publication of the Federal Constitutional Court’s decision of 5 November 2016 on 8 December 2016 it had been possible to grant adequate compensation for a breach of the applicant’s personality rights by alternative means to monetary compensation. In particular, the Regensburg Regional Court, in its decisions of 8 February and 4 April 2017 which had been upheld on appeal, had declared that the strip searches of the applicant after the visits on two of the occasions at issue, on 3 December 2015 and 13 June 2016, had been unlawful (see paragraph 9 above). The court also gave the same reasons as in its decision of 20 March 2017 for concluding that additional monetary compensation was unnecessary in respect of the five searches between 27 February 2014 and 1 September 2016 (see paragraph 15 above). 25. In contrast, the assessment of the further strip search of 19 January 2017, which had come after the publication of the Federal Constitutional Court’s decision, raised difficult legal questions which had to be resolved in the main proceedings adjudicating on the official liability action. That action had sufficient prospects of success in respect of a claim for compensation amounting to EUR 200 as, if compensation was indeed appropriate, that amount appeared adequate. Moreover, as required under Article 114 § 1 of the Code of Civil Procedure on the conditions for being granted legal aid, the applicant was unable to afford the costs of the official liability proceedings. 26. On 4 June 2018 the Court of Appeal dismissed the appeal lodged by the applicant against the rejection of his legal aid request concerning the five strip searches carried out before the publication of the Federal Constitutional Court’s decision of 5 November 2016. It repeated in substance the reasons it had given in its decision of 17 May 2017 (see paragraphs 16-19 above). 27. On 18 June 2018 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Regional Court and the Court of Appeal refusing to grant him legal aid. 28. On 29 August 2018 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 1 BvR 1322/18). 29. The applicant does not appear to have brought official liability proceedings in respect of any search on 19 January 2017, having realised that on that day he had not in fact undergone a strip search but had been sanctioned for refusing to undergo the strip search that had been ordered (see paragraph 10 above). | This case concerned the applicant’s complaint about repeated random strip searches in prison and the domestic courts’ refusal to grant him compensation for non-pecuniary damage. |
714 | Right to form, to join or not join a trade union | 2. The applicant was born in 1959 and lives in Šibenik. 3. The applicant was granted leave for self-representation. The Government were represented by their Agent, Ms Š. Stažnik. 4. The facts of the case may be summarised as follows. Background to the case 5. At the beginning of 2007 the applicant held the position of representative ( povjerenik ) of the Šibenik branch of the Croatian Customs Officers’ Trade Union ( Carinski sindikat Hrvatske, hereinafter: “the CSH”). 6. The CSH is an independent and autonomous trade union designed to protect the employment rights and interests of customs officers employed in the Customs Administration of the Ministry of Finance ( Ministarstvo financija, Carinska uprava ). It has no public powers and membership of the union is on a purely voluntary basis. The CSH’s major source of income is membership fees. It receives no direct financial support from the State or other public funds (see paragraph 32 below). At the relevant time, the CSH was not the only trade union representing customs officers; another trade union operated within the Šibenik Customs Office. 7. Between 3 January and 16 February 2007, acting in his capacity as the trade union representative, the applicant refused the applications of fifteen employees of the Šibenik Customs Office, including P.N., P.M., G.Š. and I.Z., for membership of the Šibenik branch of the CSH. 8. According to the applicant, in so doing he acted in accordance with an agreement with other members of the trade union not to extend the membership of the CSH at the relevant time. He also wanted to prevent a manoeuvre by their employer to get a number of “its people” into the trade union, thereby changing the governing structures within the union. On 25 January 2007, acting as the trade union representative, he sent a letter to all those concerned within the Šibenik Customs Office, explaining that decision. 9. At the same time, there were various disagreements between the applicant and the president of the CSH, D.C., concerning the manner in which the trade union should be governed. Despite the applicant’s refusal to extend the membership of the Šibenik branch of the CSH, in the period between 3 January and 16 February 2007, D.C., acting as the president of the CSH, enrolled the fifteen would-be members, including P.N., P.M., G.Š. and I.Z, in the Šibenik branch of the union (see paragraph 7 above). 10. On 1 March 2007 twenty-one members of the Šibenik branch of the CSH, including the fifteen new members, called for an extraordinary session of the union’s assembly. The extraordinary session was held on 9 March 2007. The applicant’s refusal to accept the fifteen new members was discussed and a decision was adopted (by 25 votes of those present, two abstentions and no votes against) to remove him from his position as the trade union representative. I.Z. was appointed as the new representative, and P.N. as his deputy. 11. On 10 May 2007 the Šibenik branch of the CSH lodged a criminal complaint against the applicant with the Šibenik Municipal State Attorney’s Office ( Općinsko državno odvjetništvo u Šibeniku, hereinafter: “the State Attorney’s Office”) in relation to charges of preventing citizens from joining trade unions under Article 109 of the Criminal Code (see paragraph 30 below), in connection with his refusal to accept the applications of the fifteen would-be members of the CSH in the period between 3 January and 16 February 2007 (see paragraph 7 above). The criminal complaint was signed by the representative I.Z. and co-signed by other members of the governing structures of the union, including P.N., P.M. and G.Š. Criminal proceedings against the applicant 12. In connection with the CSH’s criminal complaint, the State Attorney’s Office instructed the police to conduct a further inquiry into the matter. 13. On 7 May 2008 the police reported that on the basis of available documents concerning the admission of the fifteen would-be members to the union and interviews with all those concerned, they had established that there was a reasonable suspicion that the applicant had committed the offence of preventing citizens from joining trade unions under Article 109 of the Criminal Code. 14. On 16 May 2008, relying on the police report, the State Attorney’s Office asked an investigating judge of the Šibenik County Court ( Županijski sud u Šibeniku, hereinafter: “the County Court”) to conduct an investigation into the case. 15. In the course of the investigation, the applicant and a number of witnesses were heard. The applicant stated that he had not prevented anyone from joining trade unions. He stressed that there were two trade unions operating within the Šibenik Customs Office, and that the would-be members had previously been members of the CSH but had voluntarily terminated their membership. He argued that when refusing to accept their applications, he had acted on the basis of a decision adopted by the Šibenik branch of the CSH not to extend its membership before an upcoming ordinary annual assembly was held. 16. In their statements to the investigating judge, the would-be members explained how they had wanted to join the CSH but the applicant had refused their applications, so they had needed to apply through the central office of the CSH. They further explained that the relations within the Šibenik branch of the CSH had been disturbed during the applicant’s term in office. The new representative of the union, I.Z., also explained how the new members had managed to organise an extraordinary assembly and remove the applicant from his post as trade union representative. 17. For his part, D.C. explained that at the relevant time he had been president of the CSH. This meant that he had coordinated the work of representatives of the local branches of the CSH, but had not been superior to them. He also stated that the Statute of the CSH had not provided for any special conditions for becoming a member of the CSH, and that he had advised the applicant that a decision of the Šibenik branch of the CSH not to extend its membership did not have a basis in the Statute. Acting as the president of the CSH, D.C. had therefore enrolled the would-be members in the Šibenik branch of the CSH. In D.C.’s view, the applicant had refused to accept new members because the Šibenik branch of the CSH had had some thirty members, so he had been afraid that the fifteen new members could remove him from his position as trade union representative. 18. On the basis of the results of the investigation conducted by the investigating judge, on 17 October 2008 the State Attorney’s Office indicted the applicant in the Šibenik Municipal Court ( Općinski sud u Šibeniku; hereinafter: “the Municipal Court”). It argued that the applicant, acting as the trade union representative, had prevented fifteen would-be members from joining the Šibenik branch of the CSH, and had thus committed the offence of preventing citizens from joining trade unions under Article 109 of the Criminal Code (see paragraphs 7 above and 30 below). 19. On 28 October 2008 the Municipal Court accepted the indictment and issued a penal order ( kazneni nalog ), finding the applicant guilty as charged and sentencing him to three months’ imprisonment, suspended for a year. 20. On 12 November 2008 the applicant objected to the penal order, and the case was sent for trial before the Municipal Court. 21. At a hearing on 23 September 2010 the applicant accepted that all evidence obtained by the investigating judge, including witness statements, would be read out at the trial without there being further examination. He also asked the Municipal Court to question three further witnesses who could give evidence on the reasons why the fifteen would-be members had wanted to join the CSH. 22. On the same day the Municipal Court dismissed the request for the witnesses to be questioned on the grounds that the reasons why the applicant wanted to hear them were irrelevant. It also found the applicant guilty as charged and sentenced him to four months’ imprisonment, suspended for a year. The applicant was ordered to pay the costs of the proceedings, 400 Croatian kunas (HRK; approximately 53 euros (EUR)). 23. In a short statement of reasons, the Municipal Court found that there was no dispute between the parties that the applicant had prevented the fifteen would-be members from joining the Šibenik branch of the CSH. In the Municipal Court’s view, that had clearly been contrary to the Constitution and relevant domestic law, as well as the Statute of the CSH. The Municipal Court thus found that the applicant had committed the offence of preventing citizens from joining trade unions under Article 109 of the Criminal Code. 24. The applicant challenged that judgment before the County Court. He argued that the fifteen would-be members had been free to form and join other trade unions, and he had in no way prevented them from doing that. In his view, their right to form and join trade unions could not be interpreted in a manner allowing them to join the Šibenik branch of the CSH irrespective of whether they had views and interests which were possibly divergent from those of the trade union. He pointed out that pluralism in trade union activity meant that employees were free to form and join trade unions that represented their values and ideas. The applicant also argued that the Municipal Court’s decision to dismiss his proposal to hear further witnesses had prevented it from establishing all the relevant facts of the case. 25. On 16 December 2010 the County Court dismissed his appeal and upheld the first-instance judgment, endorsing the reasoning of the Municipal Court. In the County Court’s view, there was no doubt that the applicant had acted contrary to the Constitution, the relevant law and the Statute of the CSH, and this was sufficient to find him guilty as charged. The County Court also considered that the Municipal Court’s decision not to hear further witnesses had been justified. 26. On 18 April 2011 the applicant lodged a constitutional complaint before the Constitutional Court ( Ustavni sud Republike Hrvatske ), arguing in particular that he had acted as the trade union representative, who, under the Statute of the CSH, had a duty to protect the interests of the trade union and its members. He pointed out that the lower courts had provided no reasoning as to the restriction on his right and the right of other members of the Šibenik branch of the CSH not to be in the same trade union as the fifteen persons who had wanted to join their union and who had not shared their interests. He also stressed that he had in no way limited the right of the would-be members to form or join other trade unions, but had simply sought to protect the interests of the existing membership of the union. In his view, the lower courts’ decisions had set a dangerous precedent whereby any person would have a right to join any trade union or other association, irrespective of the wishes or interests of the existing members of the union or association. 27. On 17 October 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded, endorsing the reasons for his conviction. 28. The decision of the Constitutional Court was served on the applicant’s representative on 30 October 2012. | In this case, which concerned the right of trade unions to control their membership vis-à-vis the right to freedom of association of would-be members, the applicant, a trade-union representative, complained that he had been convicted of preventing 15 would-be members from joining his union. He complained in particular that his conviction had been arbitrary and excessive, submitting that he had acted in the interests of the existing members of the trade union, who had not wished to extend membership at the time. |
963 | Death penalty as such contrary to the European Convention on Human Rights | I. THE CIRCUMSTANCES OF THE CASE 9. The facts of the case and the relevant legal framework may be summarised as follows. A. The occupation of Iraq 10. On 20 March 2003 a coalition of armed forces (the Multinational Force or “MNF”), led by the United States of America with a large force from the United Kingdom and smaller contingents from Australia and Poland, commenced the invasion of Iraq. 11. Major combat operations in Iraq ceased at the beginning of May 2003. The United States of America and the United Kingdom thereafter became occupying powers within the meaning of section III of the Hague Regulations on the Laws and Customs of War on Land ( 19 07) and the Convention (IV) relative to the Protection of Civilian Persons in Time of War ( Geneva, 1949 ) (“the Fourth Geneva Convention”). Article 27 of the Fourth Geneva Convention placed an obligation on the United Kingdom, within the area it occupied, to protect the civilian population against all acts of violence and Articles 41, 42 and 78 gave the United Kingdom the power, inter alia, to intern Iraqi civilians where necessary for imperative reasons of security. 12. The Coalition Provisional Authority (CPA) was created by the government of the United States of America as a “caretaker administration” until an Iraqi government could be established. It had power, inter alia, to issue legislation. On 13 May 2003 the US Secretary for Defence, Donald Rumsfeld, issued a memorandum formally appointing Ambassador Paul Bremer as Administrator of the CPA with responsibility for the temporary governance of Iraq. The CPA administration was divided into regional areas. CPA South remained under United Kingdom responsibility and control, with a United Kingdom regional coordinator. It covered the southernmost four of Iraq ’ s eighteen provinces, each having a governorate coordinator. British troops were deployed in the same area. The United Kingdom was represented at CPA headquarters through the office of the United Kingdom Special Representative. Although the United Kingdom Special Representative and his office sought to influence CPA policy and decisions, he had no formal decision-making power within the CPA. All the CPA ’ s administrative and legislative decisions were taken by Ambassador Bremer. 13. CPA Regulation No. 1 gave the CPA authority to issue binding regulations and orders and memoranda in relation to the interpretation and application of any regulation and order. CPA Order No. 7, dated 9 June 2003, modified the Iraqi Penal Code to remove certain offences and, in section 3(1), suspended the operation of the death penalty in Iraq. CPA Memorandum No. 3 of 18 June 2003 was entitled “Criminal Procedures” and contained, inter alia, the following provisions: Section 6 : Criminal Detentions “ (1) Consistent with the Fourth Geneva Convention, the following standards will apply to all persons who are detained by Coalition Forces solely in relation to allegations of criminal acts and who are not security internees (hereinafter ‘ criminal detainees ’ ): (a) Upon the initial induction into a Coalition Force detention centre a criminal detainee shall be apprised of his rights to remain silent and to consult an attorney. (b) A criminal detainee suspected of a felony offence may consult an attorney 72 hours after induction into a Coalition Force detention centre. (c) A criminal detainee shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them. (d) A criminal detainee shall be brought before a judicial officer as rapidly as possible and in no instance later than 90 days from the date of induction into a Coalition Force detention centre. (e) Access to detainees shall be granted to official delegates of the International Committee of the Red Cross (ICRC). ... (2) Where any criminal detainee held by Coalition Forces is subsequently transferred to an Iraqi court, a failure to comply with these procedures shall not constitute grounds for any legal remedy or negation of process, but any period spent in detention awaiting trial or punishment shall be deducted from any period of imprisonment imposed. ” Section 7 : Coalition Force Security Internee Process “ (1) Consistent with the Fourth Geneva Convention, the following standards will apply to all persons who are detained by Coalition Forces where necessary for imperative reasons of security (hereinafter ‘ security internees ’ ): (a) In accordance with Article 78 of the Fourth Geneva Convention, Coalition Forces shall, with the least possible delay, afford persons held as security internees the right of appeal against the decision to intern them. (b) The decision to intern a person shall be reviewed not later than six months from the date of induction into an internment facility by a competent body established for the purpose by Coalition Forces. (c) The operation, condition and standards of any internment facility established by Coalition Forces shall be in accordance with section IV of the Fourth Geneva Convention. (d) Access to internees shall be granted to official delegates of the International Committee of the Red Cross (ICRC). ... (e) If a person is subsequently determined to be a criminal detainee following tribunal proceedings concerning his or her status, or following the commission of a crime while in internment, the period that person has spent in internment will not count with respect to the period set out in section 6(1)(d) herein. (f) Where any security internee held by Coalition Forces is subsequently transferred to an Iraqi court, a failure to comply with these proceedings shall not constitute grounds for any legal remedy, but may be considered in mitigation in sentence.” 14. The invasion had gone ahead after the abandonment of the efforts by the coalition States to obtain the backing of a United Nations Security Council (UNSC) resolution (UNSCR). UNSCR 1483 was adopted by the UNSC on 22 May 2003. Acting under Chapter VII of the United Nations Charter, the UNSC called on the coalition of occupying States, in conformity with the United Nations Charter and other relevant international law, to promote the welfare of the Iraqi people and work towards the restoration of conditions of stability and security. The UNSC further requested the Secretary - General to appoint a Special Representative in Iraq: he was to report regularly to the UNSC on his activities under the UNSCR, which were to coordinate the activities of the United Nations and other international agencies engaged in post-conflict processes and humanitarian assistance in a number of specified ways, including the protection of human rights. 15. In July 2003 the Governing Council of Iraq was established, which the CPA was to consult on all matters concerning the temporary governance of Iraq. 16. UNSCR 1511, adopted on 16 October 2003, underscored the temporary nature of the CPA ’ s role; determined that the Governing Council of Iraq and its ministers were the principal bodies of the Iraqi interim administration which embodied the sovereignty of the State of Iraq during the transitional period until an internationally recognised, representative government was established and assumed the responsibilities of the CPA; called upon the CPA to return governing responsibilities and authorities to the people of Iraq as soon as practicable; and invited the Governing Council of Iraq to produce a timetable and programme for the drafting of a new constitution for Iraq and for the holding of democratic elections under that constitution. It authorised the MNF to take all necessary measures to contribute to the maintenance of security and stability in Iraq and provided that the requirements and mission of the MNF would be reviewed within one year of the date of the UNSCR and that in any case the mandate of the MNF was to expire upon the completion of the political process to which the resolution had previously referred. 17. Pursuant to UNSCR 1483 (see paragraph 14 above), provision was made by CPA Order No. 48 of 10 December 2003 for the setting up of an Iraqi Tribunal to try members of the previous Iraqi regime alleged to be responsible for crimes and atrocities. In the Order, the CPA delegated to the interim government the following authority : “ The Governing Council is hereby authorised to establish an Iraqi Special Tribunal (the ‘ Tribunal ’ [subsequently known as the ‘ Iraqi High Tribunal ’ or ‘ IHT ’ ]) to try Iraqi nationals or residents of Iraq accused of genocide, crimes against humanity, war crimes or violations of certain Iraqi laws, by promulgating a statute, the proposed provisions of which have been discussed extensively between the Governing Council and the CPA ...” 18. On 8 March 2004 the Governing Council of Iraq promulgated the Law of Administration for the State of Iraq for the Transitional Period (known as the “Transitional Administrative Law”). This provided a temporary legal framework for the administration of Iraq for the transitional period which was due to commence by 30 June 2004 with the establishment of an interim Iraqi government (“the interim government”) and the dissolution of the CPA. Section 26 of the Transitional Administrative Law made provision for the laws in force in Iraq at the time of that change to continue in effect unless rescinded or amended by the interim government, and specifically for the laws, regulations, orders and directives issued by the CPA to remain in force until rescinded or amended by legislation duly enacted and having the force of law. 19. Further provision for the new regime was made in UNSCR 1546, adopted on 8 June 2004. The UNSCR endorsed “the formation of a sovereign interim government of Iraq ... which will assume full responsibility and authority by 30 June 2004 for governing Iraq” ( Article 1) and welcomed “that, also by 30 June 2004, the occupation will end and [the CPA] will cease to exist, and that Iraq will reassert its full sovereignty” ( Article 2). It noted that the presence of the MNF was at the request of the incoming interim government (as set out in correspondence between the Iraqi Prime Minister and the US Secretary of State annexed to the resolution) and reaffirmed the authorisation for the MNF to remain in Iraq, with authority to take all necessary measures to contribute to the maintenance of security and stability there. Provision was again made for the mandate of the MNF to be reviewed within twelve months and to expire upon completion of the political process previously referred to. 20. A revised version of CPA Memorandum No. 3 was issued on 27 June 2004 (“CPA Memorandum No. 3 (Revised)”) which amended the law and procedure in relation to detention. It provided as follows : Section 1: Purpose “ (1) This Memorandum implements CPA Order No. 7 by establishing procedures for applying criminal law in Iraq, recognising that effective administration of justice must consider: (a) the continuing involvement of the Multinational Force (MNF ) in providing critical support to some aspects of the administration of justice; (b) the need to transition from this support; (c) the need to modify aspects of Iraqi law that violate fundamental standards of human rights; (d) the ongoing process of security internee management in accordance with the relevant and appropriate standards set out in the Fourth Geneva Convention which shall be applied by the MNF as a matter of policy in accordance with its mandate. ... ” Section 5: Criminal Detentions “ (1) A national contingent of the MNF shall have the right to apprehend persons who are suspected of having committed criminal acts and are not considered security internees (hereinafter ‘ criminal detainees ’ ) who shall be handed over to Iraqi authorities as soon as reasonably practicable. A national contingent of the MNF may retain criminal detainees in facilities that it maintains at the request of the appropriate Iraqi authorities based on security or capacity considerations. Where such criminal detainees are retained in the detention facilities of a national contingent of the MNF the following standards will apply: (a) Upon the initial induction into the detention centre a criminal detainee shall be apprised of his rights to remain silent and to consult an attorney by the authority serving an arrest warrant. (b) A criminal detainee suspected of a felony offence may consult an attorney 72 hours after induction into the detention centre. (c) A criminal detainee shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them by the authority serving an arrest warrant. (d) A criminal detainee shall be brought before a judicial officer as rapidly as possible and in no instance later than 90 days from the date of induction into the detention centre. (e) Access to detainees shall be granted to the Iraqi Prisons and Detainee Ombudsman (hereinafter ‘ the Ombudsman ’ ). ... (f) Access to detainees shall be granted to official delegates of the International Committee of the Red Cross (ICRC). ... (2) Where any criminal detainee held by a national contingent of the MNF is subsequently transferred to an Iraqi court, a failure to comply with these procedures shall not constitute grounds for any legal remedy or negation of process, but any period spent in detention awaiting trial or punishment shall be deducted from any period of imprisonment imposed. ” Section 6: MNF Security Internee Process “ (1) Any person who is detained by a national contingent of the MNF for imperative reasons of security in accordance with the mandate set out in UNSCR 1546 (hereinafter ‘ security internees ’ ) shall, if he is held for a period longer than 72 hours, be entitled to have a review of the decision to intern him. (2) The review must take place with the least possible delay and in any case must be held no later than 7 days after the date of induction into an internment facility. (3) Further reviews of the continued detention of any security internee shall be conducted on a regular basis but in any case not later than six months from the date of induction into an internment facility. (4) The operation, condition and standards of any internment facility established by the MNF shall be in accordance with section IV of the Fourth Geneva Convention. (5) Security internees who are placed in internment after 30 June 2004, must in all cases only be held for so long as the imperative reasons of security in relation to the internee exist and in any case must be either released from internment or transferred to the Iraqi criminal jurisdiction not later than 18 months from the date of induction into an MNF internment facility. Any person under the age of 18 interned at any time shall in all cases be released not later than 12 months after the initial date of internment. ... (9) If a person is subsequently determined to be a criminal detainee following a review of his or her status, or following the commission of a crime while in internment, the period that person has spent in internment will not count with respect to the period set out in section 5(2) herein ...” 21. CPA Order No. 17 (Revised), dated 27 June 2004, dealt with the status of MNF personnel in Iraq. Section 2 established the immunity from Iraqi legal process of MNF personnel, as follows: Section 2: Iraqi Legal Process “ (1) Unless provided otherwise herein, the MNF, the CPA, Foreign Liaison Missions, their Personnel, property, funds and assets, and all International Consultants shall be immune from Iraqi legal process. (2) All MNF, CPA and Foreign Liaison Mission Personnel, and International Consultants shall respect the Iraqi laws relevant to those Personnel and Consultants in Iraq including the Regulations, Orders, Memoranda and Public Notices issued by the Administrator of the CPA. (3) All MNF, CPA and Foreign Liaison Mission Personnel, and International Consultants shall be subject to the exclusive jurisdiction of their Sending States. They shall be immune from any form of arrest or detention other than by persons acting on behalf of their Sending States, except that nothing in this provision shall prohibit MNF Personnel from preventing acts of serious misconduct by the above-mentioned Personnel or Consultants, or otherwise temporarily detaining any such Personnel or Consultants who pose a risk of injury to themselves or others, pending expeditious turnover to the appropriate authorities of the Sending State. In all such circumstances, the appropriate senior representative of the detained person ’ s Sending State in Iraq shall be notified immediately. (4) The Sending States of MNF Personnel shall have the right to exercise within Iraq any criminal and disciplinary jurisdiction conferred on them by the law of that Sending State over all persons subject to the military law of that Sending State. ...” Section 9(1) of the Order provided for the inviolability of MNF facilities, as follows: “The MNF may use without cost such areas for headquarters, camps or other premises as may be necessary for the conduct of the operational and administrative activities of the MNF. All premises currently used by the MNF shall continue to be used by it without hindrance for the duration of this Order, unless other mutually agreed arrangements are entered into between the MNF and the Government. While any areas on which such headquarters, camps or other premises are located remain Iraqi territory, they shall be inviolable and subject to the exclusive control and authority of the MNF, including with respect to entry and exit of all personnel. The MNF shall be guaranteed unimpeded access to such MNF premises. Where MNF Personnel are co-located with military personnel of Iraq, permanent, direct and immediate access for the MNF to those premises shall be guaranteed.” B. The transfer of authority from the CPA to the Iraqi government and the United Kingdom-Iraq Memorandum of Understanding 22. On 28 June 2004 the occupation came to an end when full authority was transferred from the CPA to the interim government and the CPA ceased to exist. Subsequently the MNF, including the British forces forming part of it, remained in Iraq pursuant to requests by the Iraqi government and authorisations from the UNSC. In accordance with section 26 of the Transitional Administrative Law (see paragraph 18 above), the CPA Memorandum and Order set out above remained in force. 23. In August 2004 the Iraqi National Assembly reintroduced the death penalty to the Iraqi Penal Code in respect of certain violent crimes, including murder and certain war crimes. 24. On 9 October 2004 the Iraqi National Assembly established the Iraqi High Tribunal (IHT). The IHT was given jurisdiction over a list of offences, including war crimes, committed in Iraq or elsewhere during the period 17 July 1968 to 1 May 2003. Article 19 of its Statute provided for a number of fair trial guarantees for accused persons. Article 24 provided that the IHT should impose the penalties prescribed by the Iraqi Penal Code. 25. On 8 November 2004 a memorandum of understanding ( MOU ) regarding criminal suspects was entered into between the United Kingdom contingent of the MNF and the Ministries of Justice and of the Interior of Iraq (collectively referred to as “the Participants”). The preamble to the MOU recited the authority of the United Kingdom contingent of the MNF, “in accordance with the mandate conferred by UNSCR 1546”, to intern persons for imperative reasons of security, and the power of national contingents of the MNF, “in accordance with CPA Memorandum No. 3 (Revised)”, to apprehend persons who were suspected of committing criminal acts. It also stated that “[w]hereas Iraq is developing its own custodial capacity with the aim of being able to confine all criminal suspects in its own facilities, it may, in the meantime, request [the United Kingdom contingent of the MNF] to confine persons who are suspected of having committed criminal acts in safe and secure detention facilities, subject to security and capacity considerations”. The substantive provisions of the MOU included the following: Section 1: Purpose and Scope “ This Memorandum of Understanding ( MOU ) sets out the authorities and responsibilities in relation to criminal suspects. For the purpose of this MOU, ‘ criminal suspects ’ are: ... (c) individuals who are suspected of having committed criminal acts who are held at the request of the Iraqi authorities. ” Section 2: Authorities and Responsibilities Generally “( 1 ) The interim Iraqi government (and any successor) has legal authority over all criminal suspects who have been ordered to stand trial and who are waiting trial in the physical custody of [the United Kingdom contingent of the MNF] in accordance with the terms of this Memorandum of Understanding ( MOU ). ( 2 ) The [United Kingdom contingent of the MNF] has a discretion whether to accept any particular criminal suspect into its physical custody and whether to continue to provide custody for a suspect who is in its physical custody at the time this MOU comes into operation or who, at any time in the future, comes into its custody. ... ” Section 3: Authorities and Responsibilities in relation to individual criminal suspects “ ( 1 ) In relation to any criminal suspect being held in the physical custody of the [United Kingdom contingent of the MNF], the Ministry of Justice will: (a) provide [the United Kingdom contingent of the MNF] with a written request for his delivery up to attend a court appearance or for any other purpose connected with the criminal process and will give as much advance notice of the proposed date when the presence of the suspect is required as is practicable; ... (d) ensure that any criminal proceedings commenced against a criminal suspect progress without undue delay. ( 2 ) In relation to any criminal suspect being held in the physical custody of [the United Kingdom contingent of the MNF], [the United Kingdom contingent of the MNF]: (a) will provide humane treatment and will not subject any criminal suspect to torture or to cruel, inhuman or degrading treatment or punishment; ... (c) will take appropriate steps to ensure that the conditions of custody meet the standards set out in CPA Memoranda Nos. 2 and 3; ... ( 3 ) In relation to any criminal suspect apprehended by [the United Kingdom contingent of the MNF] and handed over to the Iraqi authorities as soon as reasonably practicable, in accordance with section 5 of the CPA Memorandum No. 3 (Revised), the Ministry of Justice and the Ministry of the Interior, as the case may be: (a) will provide humane treatment and will not subject any criminal suspect to torture or to cruel, inhuman or degrading treatment or punishment; and (b) will hold the criminal suspect in accordance with Iraqi law. ( 4 ) In relation to any criminal suspect transferred to the Ministry of the Interior or the Ministry of Justice by [the United Kingdom contingent of the MNF] from its detention facilities, the Ministry of Justice and the Ministry of the Interior, as the case may be, will: (a) inform [the United Kingdom contingent of the MNF] before releasing any individual and will comply with any request by [the United Kingdom contingent of the MNF] that [the United Kingdom contingent of the MNF] should reassume custody if, (i) the individual is wanted for prosecution by any State that has contributed forces to the MNF for breaches of the laws and customs of war, or (ii) the internment of the individual is necessary for imperative reasons of security, in which case [the United Kingdom contingent of the MNF] will assume custody of that individual after consultation between the Participants to reach an agreed solution. ... (c) provide an assurance that during any temporary periods when a suspect is in the hands of the Iraqi authorities whether at the [the United Kingdom contingent of the MNF] ’ s detention facility or elsewhere and at any time following the transfer of a suspect to Iraqi facilities, (i) the suspect will be treated humanely and will not be subject to torture or to cruel, inhuman or degrading treatment or punishment; and (ii) the requirements of CPA Orders with respect to cooperation with and reasonable access to be provided to the Iraqi Ombudsman for Penal and Detention Matters and the International Committee of the Red Cross will be adhered to. ( 5 ) If [the United Kingdom contingent of the MNF] decides that it is no longer prepared to provide custody facilities for a particular suspect, it shall give notice of this decision to the Ministry of Justice as soon as possible to enable the Ministry of Justice to make other arrangements for the custody of that suspect if it so wishes. The Ministry of Justice will then notify [the United Kingdom contingent of the MNF] of the arrangements it has made or alternatively will indicate that the suspect should be released. [The United Kingdom contingent of the MNF] will then use its best endeavours to enable any such alternative arrangements to be put in place.” 26. The last relevant UNSCR, 1790 of 18 December 2007, extended the MNF ’ s mandate to remain, for the last time, until 31 December 2008. Annexed to the Resolution was a letter from the Iraqi Prime Minister which stated, inter alia : “The government of Iraq requests that the Security Council should consider extending the mandate of MNF-1 in the light of Iraq ’ s achievements over the past few years, namely, the strengthened capacity of its Army and security forces and its significant successes in the security, political and economic spheres. A review of the role and authority of MNF-1 will thus be required in order to strike a balance between, on the one hand, the need to extend, one last time, the mandate of the force and, on the other hand, progress made by Iraq in the area of security. In this regard, it is important for Iraq to be treated as an independent and fully sovereign State and, in seeking the aforementioned balance, the following objectives should be highlighted: ... 4. The government of Iraq will be responsible for arrest, detention and imprisonment tasks. When those tasks are carried out by MNF-1, there will be maximum levels of coordination, cooperation and understanding with the government of Iraq. ” C. Information submitted by the Government about measures taken by them to express concern about the reintroduction of the death penalty in Iraq 27. In July 2004 the United Kingdom Government made representations to the Iraqi Deputy Prime Minister, Barham Saleh, and the Iraqi Minister of Human Rights that Iraq should not adopt the death penalty Order ( which restored the death penalty for certain specified offences ) of the interim Iraqi government. 28. Further representations were considered before the MOU was signed in November 2004. However, that MOU was intended to set out the authorities and responsibilities of the respective parties. Consequently, primarily as a result of the reintroduction by Iraq of the death penalty for certain specified offences, the judgment was made that Iraq would not respond favourably to requests that the MOU reverse the effect of the recently adopted Iraqi Order and prohibit the imposition or use of the death penalty. The judgment was made that it was better to pursue the United Kingdom ’ s opposition to the imposition and use of the death penalty by other means. 29. Further representations were made on this issue. During the United Kingdom ’ s Presidency of the European Union in the second half of 2005, the Government made representations to the Iraqi Deputy Minister for Foreign Affairs advocating the abolition of the death penalty. 30. The Government supported a démarche against the use of the death penalty issued by the Austrian Presidency to the Ministry of Foreign Affairs in April 2006. 31. On 15 October 2006 the British ambassador made representations to the Iraqi President, Jalal Talibani, that he should not sign a death warrant in the event that a death penalty was passed on those involved in the abduction of Phillip Sands and Norman Kember. 32. The Prime Minister ’ s Special Envoy for Human Rights in Iraq wrote to the President of Iraq on 28 February 2007 to request a stay of execution for four Iraqi women sentenced to death. The opposition to the imposition or use of the death penalty under any circumstances was reiterated. 33. In March 2007 the Government supported a démarche opposing the use of the death penalty following the imposition of the death penalty on Taha Yassin Ramadan. 34. The Government strongly supported the resolutions adopted by the United Nations General Assembly in December 2007 ( A /Res/62/149) and in November 2008 (A/Res/63/168), calling upon all States that maintain the death penalty to establish a moratorium on executions with a view to abolition. 35. In response to recent executions in Iraq, the Government joined other European member States in a démarche against the death penalty delivered on 8 March 2009 and reissued on 13 April 2009 by the Czech European Union Presidency to Iraqi Vice President Tariq al-Hashemi and to the Head of the Iraqi Prime Minister ’ s Office. D. The legal basis for the presence of British armed forces in Iraq from 1 January 2009 36. The Iraqi Council of Ministers Resolution 439/2008, passed on 16 December 2008, stated as follows: Article 1 “ The forces of the United Kingdom of Great Britain and Northern Ireland are permitted to stay in Iraq to complete the tasks they are given, and for these tasks to end no later than the 31 st of May 2009 and to fully withdraw from Iraq no later than the 31 st of July 2009. ... ” Article 4 “ (a) Members of the forces referred to in Articles 1 and 2 of the Law and members of the Ministries of Defence of the countries to which those aforementioned forces belong, who are working with those forces, shall be subject to the jurisdiction of Iraq with the exception of crimes committed by them while on duty which are not committed with intent or do not arise from gross negligence, and with the exception of those committed by them inside agreed facilities and military installations used by them, in which case they shall be subject to the jurisdiction of the country to which they belong. ... (c) An accused member of the forces or the Ministry of Defence of the countries referred to in Articles 1 and 2 of this Law, shall be held in the custody of the authorities of the country to which the accused belongs. These authorities should make available the accused to the Iraqi authorities for the purposes of investigation and trial. ... ” Article 6 “ The task and activities of the forces referred to in Articles 1 and 2 of this Law and their facilities and military installations during their temporary presence in Iraq are to be specified by the government of Iraq with the agreement of the governments and parties concerned, providing that these troops do not carry out any operations or military activities within Iraqi land, airspace and waters without prior approval from the government of Iraq.” 37. The Iraqi Council of Ministers Resolution 50/2008 of 23 December 2008, which took effect from 1 January 2009, authorised the Council of Ministers to take all necessary measures to achieve the withdrawal of forces no later than 31 July 2009 and to regulate their activities in accordance with Resolution 439/2008 in the meantime. It also provided that CPA Order No. 17 (Revised) (see paragraph 21 above) should be suspended until repealed according to standard procedure. 38. On 30 December 2008 the United Kingdom and Iraqi governments signed a further memorandum of understanding (“the second MOU ”), which came into effect on 1 January 2009. It recorded that British forces would complete specified tasks, mainly confined to training and advising Iraqi security forces, no later than 31 May 2009 and withdraw fully no later than 31 July 2009. Paragraph 5 of the second MOU provided that the British and Iraqi forces would waive all claims against each other arising out of the specified tasks. The main facilities and military installations to be used by the British forces during their temporary presence in Iraq were identified in paragraph 3, but the second MOU did not provide for the inviolability of those premises. E. The applicants ’ arrest and detention 39. The applicants are Sunni Muslims from southern Iraq. The first applicant joined the Ba ’ ath Party in 1969, aged 17. In 1996 he became the Branch Member of the Al-Zubair branch of the Ba ’ ath Party (reporting to the second applicant, the General Secretary of the Al-Zubair branch). The second applicant joined the Ba ’ ath Party in 1968, aged 18. In February 2001 he became the General Secretary of the Al-Zubair branch, the highest rank in the province of Al-Zubair. 40. On or around 23 March 2003, two British servicemen, Staff Sergeant Cullingworth and Sapper Allsopp, were ambushed in Al-Zubair, southern Iraq, by Iraqi militia forces. Their bodies were found on 10 April 2003 buried in the grounds of a government building in Al-Zubair. They were found to have been killed by multiple gunshot wounds. 41. British forces in Basra arrested the first applicant on 30 April 2003 and the second applicant on 21 November 2003. They were initially detained at a facility run by American forces known as “ Camp Bucca ”. On 15 December 2003 they were transferred to a British-run facility in Iraq known as the “Divisional Temporary Detention Facility”. On 20 April 2007 they were transferred to another British detention facility in Iraq, the “Divisional Internment Facility ”, where they remained until 31 December 2008. 42. The applicants were initially classified as “security internees”. Their notices of internment stated that they were suspected of being senior members of the Ba ’ ath Party under the former regime and of orchestrating anti-MNF violence by former regime elements, and that it was believed that if they were released they would represent an imperative threat to security. 43. Between March 2003 and October 2004 the Special Investigations Branch of the United Kingdom ’ s Royal Military Police conducted an investigation into the deaths of Staff Sergeant Cullingworth and Sapper Allsopp and found evidence that the applicants were part of a group who slapped and rifle-butted the soldiers, at a time when they were prisoners of war; entered into an agreement to kill them; and were among those seen to have shot at them. 44. The minutes of the meetings of the Divisional Internment Review Committee (DIRC ) referring to the applicants read as follows: DIRC minute dated 27 July 2004 “ UK SofS [Secretary of State] is concerned about the death penalty and the [Iraqi] prosecutor is not sure that there is a realistic prospect of conviction as the offence happened too close to the actual hostilities. Negotiations are continuing at a high level.” DIRC minute dated 31 August 2004 “ Referred to SofS over proposed transfer to CCCI [Central Criminal Court of Iraq ] because the death penalty might be imposed. There has now been a case conference between prosecutor, MoJ [Iraqi Ministry of Justice] and FCO legal [United Kingdom Foreign and Commonwealth Legal Advisers]. CCCI is still considering whether to take the case. Comd [Commander] Legal will chase SofS and progress from CCCI .” DIRC minute dated 28 September 2004 “A case conference was held in Baghdad on 24 Sep 04. This has convinced the prosecutors that there is a good case. However they have cold feet about prosecuting it as the matter is so high profile. Legal Branch will be considering with SBMR-I [Senior British Military Representative – Iraq] POLAD [Political Adviser] how to proceed; we may have to bring a prosecutor or assistant out from UK.” DIRC minute dated 19 October 2004 “ S03 Legal [a military legal officer] has asked ALS [Army Legal Service] Brig Prosecutions to look into establishing a new post in Baghdad for an ALS officer to assist with the prosecution of this case. The requirements will be discussed between S03 Legal and the US JAG [Judge Advocate General] liaison team to the CCCI when S03 Legal attends Baghdad on Thursday 21 Oct 04.” DIRC minute dated 2 November 2004 “ SIB [Royal Military Police Special Investigation Branch] have now completed final interviews, which have not progressed the case in any material way. Discussions between Legal Branch, SBMR-I POLAD and DALS [Directorate of Army Legal Services] are ongoing reference the bid for an ALS officer/civilian lawyer to assist with the prosecution of this case. S03 Legal [ British military legal officer, Capt HRB Mynors] will go to Baghdad from 03 to 05 Nov 04 to begin to assess the paperwork and decide what further work is needed and how long it will take, in order better to decide on the requirement for the assistant prosecutor .” DIRC minute dated 9 November 2004 “ S03 Legal visited Baghdad to consider the requirements for a CCCI LO [Iraqi Central Criminal Court Legal Officer]. The [ deleted] Case is almost ready to take to court but the EOD [explosive ordinance disposal] case ... will need a significant amount of work. The decision over who will take on these cases has been staffed back to Brig ALS Advisory. Barry Burton (SBMR-I POLAD) thinks it should be an ALS officer, the ALS hierarchy are not sure. Due to the sensitivity of these cases it will probably be decided at ministerial level .” DIRC minute dated 16 November 2004 “ The CCCI LO issue over who is to liaise with the CCCI over the prosecution of the EOD murder case ... is still being considered in the UK. Comd Legal will be chasing Brig ALS Advisory today. HQ DALS, MOD [Ministry of Defence] and FCO are discussing who will take this case forward at the CCCI. The US LOs are not prepared to take the case on and have asked for a UK LO. It is not yet clear who this will be. Once it has been decided who will lead on the case, SIB will need to make further enquiries.” DIRC minute dated 24 November 2004 “APA [the Army Prosecuting Authority] has informed Legal Branch that Major Richard Allen ALS has been designated as the LO to the CCCI. Date of commencement tbc [to be confirmed]. This will affect internees 088888 and 090537 [the applicants] as they may eventually be transferred to the CCCI if it is decided to prosecute them.” DIRC minute dated 30 November 2004 “ The issue is over who will conduct the case. It has been agreed that Major Richard Allen ALS will be sent to liaise with the CCCI in Baghdad wef [with effect from] Jan 05 to progress prosecutions. However it now appears that there is confusion over whether he will be allowed to progress this particular case (although others will be OK). S03 Legal will chase ALS to find out what will be decided about progress on this case. This case needs more investigations and a decision clarifying how many accused/what offences before it can be passed to the investigative magistrate of the CCCI and a remand order can be sought.” DIRC minute dated 31 January 2005 “The ALS CCCI LO is currently examining all the case papers and will produce a case analysis as to potential prosecution of all individuals implicated, including this internee. The case analysis is expected to be available in fourteen days. It will then be circulated within the MOD/FCO and other interested parties in order for a decision as to the way forward to be made, particularly given the potential death penalty issue. Upon distribution of the case analysis from the ALS CCCI LO, pressure should be maintained on MOD/FCO to identify the way forward given the potential death penalty difficulties. POLAD to action.” DIRC minute dated 3 April 2005 “ The ALS CCCI LO has now considered all the case papers and prepared a case analysis as to the strength and viability of a potential prosecution of all individuals implicated, including this internee. Pursuant to a meeting with Comd Legal at HQ MND(SE) [Multinational Division (South- East) (Iraq)] on 09 Mar 05, it has been assessed that there exists sufficient evidence to prosecute the case against this internee. The case analysis is now with the MOD/FCO in London, where a meeting is expected to take place between PJHQ [Permanent Joint Head Quarters], the MOD and the FCO within the next fourteen days focusing on the legal ramifications surrounding the transfer of the case to the CCCI in Baghdad for prosecution, particularly given the potential death penalty issue. Pressure should be maintained on the MOD/FCO to expedite the way forward in providing guidance on the potential death penalty difficulties now that the case analysis is complete and the early phases of the operation are underway. POLAD to action.” DIRC minute dated 3 May 2005 “ The case analysis is now with the MOD/FCO in London and governmental discussions are ongoing (although currently stalled) on the legal ramifications surround [ sic ] the transfer of the case to the CCCI in Baghdad for prosecution, particularly given the possible application of the death penalty. Pressure must continue to be maintained on the MOD/FCO to expedite the way forward now that the case analysis is with the Government for consideration. In particular, guidance must be sought on the safeguards that can be imposed before transferring the case to the CCCI, especially in light of the potential death penalty difficulties. POLAD to action.” DIRC minute dated 4 December 2005 [Having noted that the case analysis was still with the MOD/FCO in London] “Comd Legal ’ s hope is this internee ’ s case, together with 090537, will be submitted before the CCCI in Baghdad during the week commencing 5 Dec 05 with the ultimate aim these internees be transferred out of the DTDF [Divisional Temporary Detention Facility] and handed over into the ICJS [Iraqi Criminal Justice System]. Comd Legal was of the view it would be easier to secure witness evidence in any CCCI case owing to the fact this internee, together with 0888888, were senior Ba ’ athists. Issues may arise over the detention of potential co-accused. Again, however it is assessed that the detention of such individuals who are still alive may prove less problematic than many other detention questions.” Minute of the Joint Detention Committee dated 30 December 2005 “This internee (together with ... Al-Saadoon ...) is, as a result of extensive investigation by the Special Investigative Branch of the Royal Military Police, believed to be responsible for the deaths (on or about 23 March 2003) of Staff Sergeant Cullingworth and Sergeant Allsopp, both of the British Army. The investigation has resulted in eye witness testimony that alleges this accused (who was a civilian and head of the Az Zuabyr Ba ’ ath Party) was one of a group of people who slapped and rifle-butted the two above-named soldiers at a time when they were prisoners of war and were, therefore, protected persons under the Geneva Convention Relative to the Treatment of Prisoners of War dated 12 August 1949. This internee was a party to an agreement to kill the soldiers and was seen to be one of those who shot the two soldiers. The police investigation is now complete and the United Kingdom intends to lodge the evidence with the Iraqi High Tribunal in the near future.” F. The referral of the applicants ’ cases to the Iraqi courts 45. On 16 December 2005 the cases against the applicants concerning the deaths of Staff Sergeant Cullingworth and Sapper Allsopp were formally referred by the United Kingdom contingent of the MNF to the Chief Investigative Judge of the Central Criminal Court of Iraq. The cases were subsequently transferred to the Basra Criminal Court and on 1 2 April 2006 a British officer attended that court to make a statement of complaint in respect of the killing of the two soldiers. 46. On 18 May 2006 the applicants appeared before the Special Investigative Panel of the Basra Criminal Court to give evidence in response to the complaint. The court issued arrest warrants under the Iraqi Penal Code and made an order authorising the applicants ’ continued detention by the United Kingdom contingent of the MNF. On 21 May 2006 the United Kingdom authorities decided to reclassify the applicants from “security internees” to “criminal detainees”. 47. After an initial investigation, the Basra Criminal Court decided that, since the alleged offences constituted war crimes, the applicants ’ cases should be transferred to the IHT (see paragraph 24 above) and the IHT accepted that it had jurisdiction. The applicants twice appealed against the decision to transfer their cases to the IHT but the Basra Criminal Court in its appellate capacity dismissed the first appeal on 27 November 2006 and the Federal Appeal Court in Basra dismissed the second appeal on 16 May 2007. 48. The IHT first requested that the applicants be transferred into its custody on 27 December 2007 and repeated that request on several occasions until May 2008. When asked by the English Court of Appeal to clarify why the applicants were not transferred by the United Kingdom contingent of the MNF to the IHT between December 2007 and May 2008, counsel for the Government explained: “We took the view that there was then a genuine issue, because there had been no decision by any court as to whether or not there was the international - law obligation that we say existed or any decision on the question of jurisdiction. That was resolved by the Divisional Court, and thereafter we have said it is not now possible for us to give that undertaking [not to transfer them].” G. The judicial review proceedings and the approaches made by the United Kingdom Government to the Iraqi authorities concerning the application of the death penalty to the applicants 49. On 12 June 2008 the applicants issued judicial review proceedings in England challenging, inter alia, the legality of their proposed transfer. Shortly after proceedings were issued, the Government provided an undertaking that it would not transfer the applicants pending the determination of their claim before the English courts. 1. Approaches made by the United Kingdom Government to the Iraqi authorities concerning the application of the death penalty to the applicants 50. Five days later, on 17 June 2008, Abda Sharif (Legal Adviser at the British embassy in Baghdad) met with the President of the IHT, President Aref, to reiterate the United Kingdom ’ s strong opposition to the death penalty. During this discussion President Aref invited letters from the victims ’ families and from the British embassy in Baghdad opposing the imposition of the death penalty in this case, as that would be a factor which would be taken into account by the court. President Aref also indicated that it would be helpful if the British embassy waived its right to civil compensation. 51. On 29 June 2008 the Second Secretary Human Rights Officer at the British embassy in Baghdad, Mr Gordon Ross, met with President Aref to further discuss the situation and what would be the effect if only one of the families of the two victims were to write to seek clemency. The President indicated that if only one of the two families sought clemency, the letter from one family would be taken into account by the court and the fact that the other family had not done so would not significantly affect matters. 52. The Government were able to contact one of the families of the two victims. That family agreed to support a plea for clemency and the non-imposition of the death penalty in the event that the applicants were convicted of a capital offence. 53. The British embassy in Baghdad also wrote seeking the non-imposition of the death penalty. It also waived any right to civil compensation. 54. Abda Sharif held a further meeting with President Aref on 18 August 2008 and presented him with the letter from the British embassy, outlining the United Kingdom ’ s opposition to the imposition of the death penalty. The letter was signed by the British ambassador, Christopher Prentice, and waived the right to compensation. This was accompanied by a letter dated 6 August 2008 from one of the families seeking clemency, with an Arabic translation. 2. The proceedings in the Divisional Court 55. The hearing before the Divisional Court took place on 18 to 20 November 2008. Claims by the applicants concerning the legality of their detention by British forces were adjourned. 56. At the hearing the court expressed its concerns about what would happen to the applicants after the expiry of the United Nations mandate on 31 December 2008. The Government put before the court evidence about the intergovernmental negotiations between the United Kingdom and Iraq that were then continuing as to whether and pursuant to what terms British forces would be permitted to remain in Iraq post-31 December 2008. This included the following statement of Mr Watkins, one of the leaders of the United Kingdom ’ s negotiating team: “... I recognised that, if possible, it would be desirable for UK forces to be in a position to continue to hold the claimants for a period of time whilst this litigation is resolved. I therefore considered with colleagues whether it would be appropriate to raise this issue with the Iraqi negotiating team. I cannot comment in detail on sensitive inter-governmental negotiations, but the judgment was made that to introduce the issue of UK forces continuing to hold detainees, whether generally or specifically in relation to these two claimants, risked adversely affecting the conduct and outcome of these important and urgent negotiations. Furthermore, the judgment was made that raising the issue would not in any event have resulted in any agreement with the Iraqi authorities whereby the claimants remained in the custody of the British forces in Iraq, still less that they would agree to the removal of the claimants from Iraq. Given the fact that the Iraqis are seeking the transfer of detainees from the US to Iraq and the fact that these two claimants are Iraqi nationals accused of crimes within Iraq and that the Iraqi courts have repeatedly requested the transfer of these two claimants in order to complete investigations and if appropriate try them, there was no realistic prospect of Iraq agreeing to allow them to remain within the custody of the UK. To have raised the issue would therefore have resulted in my judgment in no change in relation to the position of the claimants, but would have risked adversely affecting the conduct and outcome of the negotiations with the government of Iraq. ... I have considered whether there may be any other means whereby UK forces could continue to hold the claimants for a period of time beyond the end of this year pending the outcome of this litigation. Conceivably, we might ask the government of Iraq to submit draft legislation to the CoR [Council of Representatives] specifically to permit the UK to hold the claimants indefinitely or pending the outcome of this litigation. Given the facts set out in the previous paragraph, I consider that there is no reasonable prospect that the government of Iraq would accede to such a request. Furthermore, the process of drafting and passing such legislation would extend beyond the end of this year. And even raising the issue would in my considered opinion risk adversely affecting the passage of the legislation and finalising of the inter-governmental arrangement. There is no likelihood in my view of the UK being able to secure any agreement from the Iraqi authorities that we may continue to hold the claimants either indefinitely or pending the outcome of this litigation.” 57. Judgment was delivered on 19 December 2008. The Divisional Court noted that the applicants had been subject to the jurisdiction and legal authority of the Iraqi courts since no later than 18 May 2006 (see paragraph 46 above). CPA Memorandum No. 3 (Revised) (see paragraph 20 above), which was the Iraqi law in force at the time, required the British forces to hand over “criminal detainees” to the Iraqi authorities as soon as practicable. This requirement was also reflected in the United Kingdom-Iraq MOU of 8 November 2004 (see paragraph 25 above). Nonetheless, the Divisional Court rejected the Government ’ s argument that the actions of the United Kingdom in respect of the applicants were attributable to the Iraqi authorities: the British forces were lawfully present in Iraq, pursuant to a United Nations mandate, as part of the MNF subject to the exclusive jurisdiction of the United Kingdom and independent of the Iraqi State. The British forces had physical custody and control of the applicants and had it in their power to refuse to transfer them to the custody of the IHT, even if to act in such a way would be contrary to the United Kingdom ’ s international - law obligations. The applicants therefore fell within the United Kingdom ’ s jurisdiction for the purposes of Article 1 of the Convention and the Human Rights Act 1998. 58. The Divisional Court then considered whether the applicants could rely on the principle against refoulement in Soering v. the United Kingdom, (7 July 1989, Series A no. 161). It rejected the Government ’ s argument that the Soering principle could apply only to transfers across territorial boundaries, but it considered itself bound by the Court of Appeal ’ s judgment in R(B) v. Secretary of State for Foreign and Commonwealth Affairs ( [2004] EWCA Civ 1344 : see paragraph 94 below), which held that where a fugitive was within the jurisdiction of the United Kingdom but on the territory of another sovereign State (for example, within an embassy or consulate), the United Kingdom was under an international - law obligation to surrender him unless there was clear evidence that the receiving State intended to subject him to treatment so harsh as to constitute a crime against humanity. 59. The Divisional Court considered expert evidence relating to the fairness of proceedings before the IHT. It found no cogent evidence to support the applicants ’ claims that detainees held by the Iraqi authorities were subjected to torture to extract confessions and that evidence obtained by torture would be used against them. It found that although, during the first two trials before the IHT in which Saddam Hussein was one of the defendants (the Dujayl and Anfal trials), there had been a number of fatal attacks on IHT staff and defence lawyers, the situation had improved and no lawyers, witnesses or IHT staff members had been kidnapped or killed in 2008. It did not, therefore, consider that IHT staff and counsel would be so concerned about their safety as to prevent the applicants from having a fair trial and it found that adequate security measures were taken to protect witnesses. There had been no permanent replacements of judges in current trials and there was not a sufficient risk of replacement of the judiciary to operate as a factor prejudicing the possibility of the applicants ’ receiving a fair trial. The court noted examples of concerns expressed by third parties relating to the independence of the IHT, but observed that these related to events during the Dujayl and Anfal trials in early 2007, with no more recent examples of such concerns. Taking everything together, it was satisfied that the IHT was sufficiently independent to meet the requirements of a fair trial. There was no real risk of defence counsel being prevented from doing a proper job for the applicants in the event of a trial. The IHT Statute and its rules had been modelled on the International Criminal Tribunals for the Former Yugoslavia and Rwanda and the International Criminal Court. The protection afforded to defendants included the presumption of innocence; the right to be informed of charges; the right to defence counsel; the right to be tried without undue delay; the right to be present during trial; the right to examine or confront witnesses; the privilege against self-incrimination; the right not to have silence taken into account in determining guilt; the right of disclosure of exculpatory evidence and witness statements; the exclusion of coerced evidence; the right to ensure that interrogations are videotaped; the right to pose questions directly to the witness; and the right to appellate review. The Divisional Court concluded with regard to the risk of a breach of Article 6 of the Convention : “The overall picture which emerges is that, although initially there were deeply unsatisfactory aspects of the IHT and trial environment, which cast doubt on the ability to provide defendants with a fair trial at that time, there have been many significant improvements since then. ... To date the claimants have appeared before the Iraqi courts and have denied the allegations made against them; and there can be no complaint about the way in which the courts have dealt with them. As to the future, looking at the various points individually and cumulatively, the evidence before us falls a long way short of establishing substantial grounds for believing there to be a real risk that a trial of the claimants would involve a flagrant breach of the principles guaranteed by Article 6. Thus, even if the Convention were to apply in the normal way, we would reject the claim that transfer of the claimants into the custody of the IHT would be contrary to Article 6.” 60. Next, the Divisional Court considered the evidence relating to the likelihood that the applicants would be subjected to the death penalty. It concluded: “Taking the evidence as a whole, we are satisfied that substantial grounds have been shown for believing there to be a real risk of the claimants being condemned to the death penalty and executed, contrary to Protocol No. 13, if they are transferred into the custody of the IHT. In particular: (a) the penalties for the offences with which the applicants are charged include the death penalty; (b) there is clear evidence that persons convicted of such offences are liable in practice to be sentenced to death; (c) the matters relied on as mitigating against the imposition of the death penalty are not sufficiently cogent or certain to negative the real risk; (d) in spite of the efforts made on behalf of the Secretary of State, no assurance has been given that the death penalty will not be imposed in this case; and (e) in any event, even if President Aref [the President of the IHT] had given such an assurance, we are not satisfied it would necessarily be effective because he does not have the authority to bind the appeal chamber which would automatically have to consider the appropriate sentence, whatever decision the trial chamber had reached.” However, the court found that although the death penalty was prohibited by the Convention, it was not yet contrary to internationally accepted norms, at least where it was imposed for serious crimes following conviction at a trial that met minimum standards of fairness. It followed that “however repugnant the death penalty may be within our domestic legal system and under the Convention, its imposition would not be contrary to international law” and the risk that the applicants might be executed did not therefore operate to relieve the United Kingdom of its public international - law obligation to transfer them to the custody of the IHT. 61. The Divisional Court next examined the issues under Article 3 of the Convention. It found that the IHT had requested that, prior to trial, the applicants should be detained in Compound 4 of Rusafa Prison, which was run by the Iraqi Ministry of Justice; if the applicants were convicted and sentenced to over ten years of imprisonment, they would be sent to Fort Suse Prison, also run by the Ministry of Justice. The court referred to a report by the Provost Marshall, the British army officer responsible for conducting inspections of British overseas military detention facilities, who had inspected Rusafa Prison in April 2008 and found that Compound 4 “satisfied the requirements [of the Fourth Geneva Convention]” in respect of the applicants, providing “relative segregation, protection from elements and reasonable living conditions”. Although the Provost Marshall ’ s inspectors had received complaints from some detainees about the lack of visits and the quality of the food, no one had complained of mistreatment. The Divisional Court also referred to an inspection report by the United States International Criminal Investigative Training Assistance Programme on Compounds 1 to 6A at Rusafa Prison, which found no indication that detainees were subjected to intentional or overt acts of mistreatment. Conditions at Compound 4 were found to comply with basic human rights standards; detainees were allowed regular visits from legal representatives and relatives; force was used only as a last resort when necessary to prevent prisoners from harming themselves or others; corporal punishment was forbidden and the prisoners interviewed stated that they had never known it to be used; and there was a robust system for the reporting of any mistreatment. In addition, the court had reference to the fact that, in accordance with paragraph 4(c) of section 3 of the MOU of 8 November 2004 (see paragraph 25 above), the Iraqi authorities had provided an assurance that, following transfer to Iraqi facilities, the applicants would be treated humanely. Although the applicants had adduced expert evidence concerning the conditions at Rusafa Prison, this evidence did not establish any instances of actual mistreatment of prisoners. The evidence relating to Fort Suse Prison did not indicate that, if detained there, the applicants would be at risk of ill-treatment. The court therefore concluded that the evidence fell well short of establishing substantial grounds for believing that the applicants would face a real risk of treatment contrary to Article 3 of the Convention if transferred into the custody of the IHT. 62. The Divisional Court concluded that the proposed transfer would be lawful and it dismissed the claim for judicial review, but added: “Whilst we have been led to that conclusion by our analysis of the legal principles and the factual evidence, we are seriously troubled by the result, since on our assessment the claimants, if transferred, will face a real risk of the death penalty in the event that they are convicted by the Iraqi court. In all normal circumstances the Convention (as well as the Extradition Act 2003 in extradition cases) would operate to prevent such a result. It arises here only because of the highly exceptional circumstances of the case and the application to them of the principles in R(B) v. Secretary of State for Foreign and Commonwealth Affairs, as we have understood the judgment of the Court of Appeal in that case. ...” 63. The Divisional Court granted the applicants leave to appeal to the Court of Appeal and, on 19 December 2008, granted an interim injunction prohibiting their transfer until 4 p.m. on 22 December 2008 to allow an application for interim relief to be made to the Court of Appeal. 3. The proceedings in the Court of Appeal 64. The applicants appealed against the Divisional Court ’ s judgment, principally on the grounds that (1) the court had erred in concluding that there was a relevant public international - law context which could have the effect of modifying the principle in Soering (cited above); (2) even if the court had applied the right test, it had been wrong to hold that the death penalty and execution were not contrary to internationally accepted norms; (3) Article 3 of the Convention and international law prevented transfer in circumstances where substantial grounds had been shown for believing there to be a real risk of the applicants being condemned to death by hanging; (4) it was incorrect to conclude that any United Kingdom jurisdiction to try the applicants either did not exist or was subordinate to Iraqi claims; (5) the court had applied the incorrect test in respect of the applicants ’ claims concerning the fairness of any trial before the IHT; and (6) the court had erred in concluding that the evidence before it did not establish substantial grounds for believing there to be a real risk that the applicants ’ trial would involve a flagrant breach of the principles guaranteed by Article 3. 65. On 22 December 2008 the Court of Appeal directed that the full appeal hearing would take place on 29 to 30 December 2008. It made an injunction prohibiting the applicants ’ transfer before 4.30 p.m. on 30 December 2008. 66. Among the evidence placed before the Court of Appeal was a further statement by Mr Watkins concerning the ongoing negotiations with Iraq. He explained, inter alia, that the question of British forces being permitted to exercise detention powers in Iraq had been expressly rejected by Iraq in the course of the negotiations: “In the course of discussions on Sunday 21 December, Iraqi officials made clear that, even in relation to any proposed authorised tasks, they did not consider it acceptable for UK forces to exercise detention powers after 31 December 2008. It remains my firm and considered view that, in all the circumstances, there is no likelihood of the UK being able to secure any agreement from the Iraqi authorities that we may continue to hold the claimants either indefinitely or pending the outcome of this litigation. Further, as I said in my first witness statement, even raising the issue would risk adversely affecting the conduct and outcome of the current negotiations.” 67. The Court of Appeal dismissed the appeal at 2.30 p.m. on 30 December 200 8, with the following short oral reasons. “ ( i) On the facts the United Kingdom is not exercising jurisdiction over the appellants within the meaning of ECHR, Article 1. See in particular Banković v. UK (2001) 11 BHRC 4. In essence the United Kingdom detains the appellants only at the request and to the order of the IHT, and is obliged to return them to the custody of the IHT by force of arrangements made between the United Kingdom and Iraq, and the United Kingdom has no discretionary power of its own to hold, release or return the appellants. They are acting purely as agents of the IHT. ( ii) R(B) v. Secretary of State for Foreign and Commonwealth Affairs [2005] QB 643 shows that an obligation of this kind to return persons to the host State has to be respected, albeit that the holding State in question is subject to ECHR obligations, unless – paragraph 88 – to return the appellants would expose them to a crime against humanity. We are bound by that decision, being a decision of this court. ( iii) Neither the death penalty generally, nor the death penalty by hanging, is shown to be a crime against humanity or an act of torture. ( iv) Accordingly, even if the United Kingdom is exercising Article 1 jurisdiction, contrary to our opinion, it is obliged to return the appellants to the custody of the IHT. That is so before 31 December 2008; a fortiori after 31 December 2008, when there will be no UN mandate, no provision as between the United Kingdom and Iraq granting inviolability to the British base or allowing for any detention of the appellants by the United Kingdom forces, save to the order of the IHT. In short, the United Kingdom will have no colour of legal power whatever after 31 December to do anything other than return the appellants to the order of the IHT. There will be no power to move the appellants anywhere else, nor indeed to prevent the Iraqis taking the appellants from British custody. British troops could not be ordered to take any steps to prevent that happening. Before 31 December it is true that the base at Basra is inviolable under local arrangements made between the United Kingdom and Iraq, but that inviolability ceases tomorrow. That is why the United Kingdom is thereafter entirely legally powerless to take action other than in compliance with the wishes of the IHT or to resist any action taken by the Iraqi authorities. ( v) No freestanding claim against the United Kingdom under customary international law can run, nor is there on the facts any viable claim under ECHR, Article 6.” 68. The Court of Appeal refused the applicants permission to appeal to the House of Lords, stating that: “Certainly there are some important issues that have been raised but in the context of this case, having regard to the position that obtains post-31 December 2008, it would not be right to grant permission.” 69. The Court of Appeal also refused to grant the applicants interim relief pending either an application to the House of Lords for permission to appeal and for interim relief, or to this Court for interim measures. Shortly after 3 p.m. the Court of Appeal lifted the injunction which had prevented the applicants ’ transfer until 4.30 p.m. on the same day. 70. The Court of Appeal handed down its full written judgment on 21 January 2009 ( [2009] EWCA Civ 7 ). It found, firstly, that there were substantial grounds for believing that the applicants would face a real risk of execution if they were transferred to the custody of the IHT, for the following reasons. “It is common ground that the death penalty is a punishment available under Iraqi law for the offences with which the appellants are charged. The Divisional Court held (paragraph 148) that that was enough to give rise prima facie to a real risk of its being applied to the appellants. Accordingly, following the approach commended by the Strasbourg Court in Saadi v. Italy ( application no. 37201/06, judgment of 28 February 2008), in particular at paragraph 129, the burden effectively shifted to the Secretary of State to show that such a risk was not in fact made out. Mr Lewis QC for the Secretary of State relied on evidence to the effect that the family of one of the victims had written to President Aref of the IHT to seek clemency for the appellants if they were found guilty. President Aref had earlier invited letters of this kind through the British embassy, indicating that it would be helpful if the embassy could waive claims to civil compensation and that he would then pass such letters to the trial chamber for their consideration. Ms Abda Sharif, Legal Adviser and Head of the Justice and Human Rights Section at the British embassy in Baghdad, has given evidence of legal advice to the effect that the impact of a plea of clemency by the families of the victims in Iraq is likely to be that the Iraqi court ‘ will not impose the death penalty in any particular case ’. Ms Sharif says that President Aref has confirmed that such a plea for clemency is likely to be an important factor for any court in assessing what sentence would be imposed on the claimants. She also produces a letter from President Aref, given to her at a meeting on 21 October 2008, in which the court ’ s procedures for considering sentence are described in some detail. The Divisional Court observed (paragraph 155): ‘ That letter represents President Aref ’ s considered written position. It is striking that the letter gives no indication whatsoever that the death penalty would not be or even probably would not be imposed. ’ Mr Lewis relied on the evidence of Mr Spillers, an American attorney who was the Rule of Law Liaison to the IHT between July 2008 and 22 December 2008. Mr Spillers had also met President Aref, on 27 October 2008. The President explained the factors which would influence the IHT against imposing a death sentence. These were ‘ an admission of the crime by the claimants, a request for forgiveness from the family of the victims, a request for forgiveness of the court for the acts, and a request for leniency from the family of a victim ’ (Divisional Court, paragraph 156). Mr Spillers reported the President as indicating that an assurance that the death penalty would not be imposed was ‘ implicit ’ in his account of these factors. Mr Spillers has provided a further statement since the Divisional Court ’ s judgment was delivered. He describes the outcome of the IHT proceedings in what has been called the 1991 Uprising case. The fifteen defendants were all former high-ranking members of Saddam Hussein ’ s regime charged with crimes against humanity. Three were acquitted. Ten received very substantial terms of imprisonment. Only the remaining two were sentenced to death, including one ( ‘ Chemical Ali ’ ) who was already under sentence of death following an earlier trial. ... In my judgment there is no sufficient basis for departing from the balanced assessment of the Divisional Court on this point. Mr Spillers ’ new evidence concerning the 1991 Uprising case, while helpful to the Secretary of State, is not so substantial as to overturn the lower court ’ s conclusion. The real risk test is satisfied.” 71. In support of its conclusion that the applicants did not fall within the United Kingdom ’ s jurisdiction for the purposes of the Convention and the Human Rights Act 1998, the Court of Appeal observed as follows. “ The Legal Position Relating to the Appellants ’ Detention – Before 31 December 2008 32. Until 31 December 2008 the United Kingdom forces at Basra enjoyed the guarantees of immunity and inviolability provided by CPA Order No. 17 (Revised). But those measures prohibited invasive sanctions; they did not confer executive power. In my judgment, from at least May 2006 until 31 December 2008, the British forces at Basra were not entitled to carry out any activities on Iraq ’ s territory in relation to criminal detainees save as consented to by Iraq, or otherwise authorised by a binding resolution or resolutions of the Security Council. So much flows from the fact of Iraq ’ s sovereignty and is not contradicted – quite the reverse – by any of the United Nations measures in the case. Thus the MNF mandate was extended by the Security Council at Iraq ’ s express request. The letter requesting its extension (which was attached to Resolution 1790 (2007)) expressly stated at paragraph 4, ‘ [t]he government of Iraq will be responsible for arrest, detention and imprisonment tasks ’. The various material Security Council Resolutions (1483 (2003), 1546 (2004) and 1790 (2007)) all emphasise the primacy of Iraqi sovereignty. As regards criminal detentions, CPA Memorandum No. 3 (Revised) makes it [plain] that so far as criminal detainees may be held by any national contingent of the MNF, they are held, in effect, to the order of the Iraqi authorities. 33. In these circumstances the United Kingdom was not before 31 December 2008 exercising any power or jurisdiction in relation to the appellants other than as agent for the Iraqi court. It was not exercising, or purporting to exercise, any autonomous power of its own as a sovereign State. The Legal Position Relating to the Appellants ’ Detention – After 31 December 2008 34. As I stated earlier, once the mandate expired there remained under international law no trace or colour of any power or authority whatever for the MNF, or any part of it, to maintain any presence in Iraq save only and strictly at the will of the Iraqi authorities. [Counsel for the applicants] sought to submit that the British base at Basra would by force of customary international law remain inviolable after 31 December. But she was unable to identify any principle which might, on the facts, support that position; and it is to my mind wholly inescapable that after that date British forces remaining in Iraq have done so only by consent of the Iraqi authorities and on such terms as those authorities have agreed. And it must have been plain, as soon as it was known when the mandate would come to an end, that this would be the true state of affairs. 35. And there is no sensible room for doubt but that the terms on which British forces would be permitted to remain in Iraq by the Iraqi authorities would not encompass any role or function which would permit, far less require, British (or any other) forces to continue to hold detainees. ... 36. After 31 December 2008 British forces enjoyed no legal power to detain any Iraqi. Had they done so, the Iraqi authorities would have been entitled to enter the premises occupied by the British and recover any such person so detained. Conclusion on the Jurisdiction Question 37. It is not easy to identify precisely the scope of the Article 1 jurisdiction where it is said to be exercised outside the territory of the impugned State Party, because the learning makes it clear that its scope has no sharp edge; it has to be ascertained from a combination of key ideas which are strategic rather than lexical. Drawing on the Banković judgment and their Lordships ’ opinions in Al-Skeini, I suggest that there are four core propositions, though each needs some explanation. (1) It is an exceptional jurisdiction. (2) It is to be ascertained in harmony with other applicable norms of international law. (3) It reflects the regional nature of the Convention rights. (4) It reflects the indivisible nature of the Convention rights. The first and second of these propositions imply (as perhaps does the term jurisdiction itself) an exercise of sovereign legal authority, not merely de facto power, by one State on the territory of another. That is of itself an exceptional state of affairs, though well recognised in some instances such as that of an embassy. The power must be given by law, since if it were given only by chance or strength its exercise would by no means be harmonious with material norms of international law, but offensive to them; and there would be no principled basis on which the power could be said to be limited, and thus exceptional. ... It is impossible to reconcile a test of mere factual control with the limiting effect of the first two propositions I have set out, and, indeed, that of the last two, as I shall explain. 38. These first two propositions, understood as I have suggested, condition the others. If a State Party is to exercise Article 1 jurisdiction outside its own territory, the regional and indivisible nature of the Convention rights requires the existence of a regime in which that State enjoys legal powers wide enough to allow its vindication, consistently with its obligations under international law, of the panoply of Convention rights – rights which may however, in the territory in question, represent an alien political philosophy. 39. The ECHR ’ s natural setting is the espace juridique of the States Parties; if, exceptionally, its writ is to run elsewhere, this espace juridique must in considerable measure be replicated. In short the State Party must have the legal power to fulfil substantial governmental functions as a sovereign State. It may do so within a narrow scope, as an embassy, consulate, military base or prison; it may, in order to do so, depend on the host State ’ s consent or the mandate of the United Nations; but however precisely exemplified, this is the kind of legal power the State must possess: it must enjoy the discretion to decide questions of a kind which ordinarily fall to the State ’ s executive government. If the Article 1 jurisdiction is held to run in other circumstances, the limiting conditions imposed by the four propositions I have set out will be undermined.” 72. The Court of Appeal also considered the question of conflicting international - law obligations, which arose only if it was wrong about the lack of jurisdiction, and held that the Divisional Court had been correct in having regard to the United Kingdom ’ s obligation under international law to transfer the applicants to the custody of the IHT: “48. ... A State Party to the ECHR, exercising Article 1 jurisdiction in a foreign territory, may certainly owe duties arising under international law to the host State. Article 55 of the Vienna Convention [on Consular Relations, 1963], referred to in R(B) at paragraph 88, offers an obvious platform for such a potential duty. In this case the United Kingdom was plainly obliged under international law to transfer the applicants pursuant to the IHT ’ s request. In such instances, there may be a conflict between the State Party ’ s ECHR obligations and its international obligations. 49. One solution might have been to hold that the existence of such an international obligation is incompatible with the exercise of Article 1 jurisdiction, because it would show that the State Party ’ s legal power in the relevant foreign territory lacked the amplitude required to guarantee the Convention rights. In that case there would be no conflict. Such a comfort would of course be no comfort to the appellants – the duty to transfer them would without more negative the ECHR jurisdiction, so that they would enjoy no Convention rights. However, such an outcome would, I think, have been consistent with Banković; but this is not the direction our courts have taken. Both Al-Jedda and R(B) recognise that a State Party may be fixed with potentially inconsistent obligations arising under the ECHR and international law respectively. 50. With great respect I see no reason to doubt this position. While I have certainly asserted that the scope of the Article 1 jurisdiction has to accommodate the pressure on States Parties of international obligations apart from the ECHR, it by no means follows that the ECHR duty must always yield to the other obligation, so that no conflict can arise. No doubt it will be a matter for assessment in any case (where the issue sensibly arises) whether the international - law obligations are so pressing, or operate on so wide a front, as in effect to deprive the relevant State Party of the espace juridique which the Article 1 jurisdiction demands. They may not do so; and where they do not, this court ’ s decision in R(B) shows the correct juridical approach.” 73. The Court of Appeal rejected the applicants ’ argument, based on Öcalan v. Turkey ( [GC], no. 46221/99, ECHR 2005-IV ), that where the proposed refoulement was to a State where after the trial the applicant might suffer the death penalty, no flagrant breach of the right to a fair trial under Article 6 of the Convention needed to be shown, only a real risk of an unfair trial. The court observed that Öcalan was not a refoulement case and that in Bader and Kanbor v. Sweden ( no. 13284/04, ECHR 2005-XI ), the Court had held that it was necessary in a deportation or extradition case for the applicant to establish a risk of suffering a flagrant denial of a fair trial in the receiving State, the outcome of which was or is likely to be the death penalty, before the Court could find a violation of Article 2 or 3 of the Convention. The Court of Appeal accepted the Divisional Court ’ s assessment of the evidence about the fairness of proceedings before the IHT and therefore also dismissed the complaint under Article 6. 74. Finally, the Court of Appeal rejected the applicants ’ argument under international law that execution by hanging fell to be regarded as a crime against humanity, inhuman or degrading treatment or a form of torture. While terrible errors occurred from time to time, where for example the hanged man ’ s neck was not broken so that he suffocated, or the drop was too long so that he was decapitated, such evidence was anecdotal and partial. There was other evidence, such as that considered by the Royal Commission on Capital Punishment, in its report of 1949-53, which found that hanging was “speedy and certain”. The court concluded that, since the evidence before it regarding this method of execution was very limited, it was in no position to arrive at any overall finding as to the effects of hanging for the purpose of making an assessment of its compatibility or otherwise with norms of customary international law. 4. The House of Lords 75. The applicants ’ lawyers contacted the Judicial Office of the House of Lords between 19 and 22 December 2008 but were advised that the Judicial Office would be closed over the Christmas and New Year period and would not reopen until 12 January 2009. 76. On 7 January 2009 the applicants ’ request for legal aid to petition the House of Lords was refused, primarily on the basis that the transfer (see paragraph 80 below) meant that no effective remedy would be available. 77. On 6 February 2009 the applicants lodged a petition for leave to appeal with the House of Lords. It was refused on 16 February 2009. H. The Rule 39 interim measures and the applicants ’ transfer 78. On 22 December 2008, prior to the Court of Appeal hearing on interim relief, the applicants lodged an urgent application for interim measures under Rule 39 of this Court ’ s Rules. The Government made written representations to the Court as to why the applicants ’ application should not be granted, copies of which were provided to the applicants. 79. Shortly after being informed of the ruling of the Court of Appeal on 30 December 2008, the Court gave an indication under Rule 39, informing the Government that the applicants should not be removed or transferred from the custody of the United Kingdom until further notice. 80. The applicants were transferred into the physical custody of the Iraqi authorities and admitted to Rusafa Prison on 31 December 2008. 81. On the afternoon of the same day, the Government informed the Court and the applicants ’ solicitors that the applicants had been transferred. In their letter to the Court the Government stated: “... the Government took the view that, exceptionally, it could not comply with the measure indicated by the Court; and further that this action should not be regarded as a breach of Article 34 in this case. The Government regard the circumstances of this case as wholly exceptional. It remains the Government policy to comply with Rule 39 measures indicated by the Court as a matter of course where it is able to do so.” I. The applicants ’ trial before the IHT and the further approaches made by the United Kingdom authorities to the Iraqi authorities concerning the application of the death penalty to the applicants 82. In accordance with assurances given by the Iraqi Ministry of Justice in July and August 2008, the applicants were initially held at Rusafa Prison, Compound 4. In March 2009 they were transferred to Compound 1 of the same prison. 83. On 24 February 2009 Catherine Duncan (Legal Adviser at the British embassy in Baghdad) reminded President Aref of his previous statements on the death penalty. 84. The applicants ’ trial before the IHT commenced on 11 May 2009. Each was represented by an Iraqi lawyer. The applicants were originally charged with killing the two British soldiers when they had clearly surrendered, an offence carrying a maximum penalty of the death sentence. 85. On 30 June 2009 this Court declared the application admissible and put further questions to the parties (see paragraphs 7-8 above). In particular, it requested the United Kingdom Government to inform it of the representations, if any, which had been made to the Iraqi authorities since the time of the applicants ’ transfer with a view to ensuring that they would not be subjected to the death penalty if convicted. 86. On 21 July 2009, after the close of the evidence in the case, the prosecution read two letters to the trial chamber of the IHT. The first, dated 16 July 2009, was from the United Kingdom Government conveying their opposition to the death penalty and enclosing the letter received in August 2008 from the family of one of the murdered soldiers (see paragraphs 52 and 54 above). The second letter was from the sister of the other soldier, with whom the Government had made contact, also asking for clemency for the defendants. The Chief Trial Judge then read out a statement of charges against each applicant. The charges had been reduced from killing the soldiers to negligently handing them over to other Ba ’ ath Party officials who killed them, instead of protecting them and sending them for medical treatment as required by the Geneva Convention (I) for the Amelioration of the Condition of the Wounded in Armies in the Field of 1 2 August 1949. This charge did not carry a death sentence. 87. At the next hearing, on 29 July 2009, a further charge was added, namely torture or inhuman treatment of the soldiers, contrary to the Geneva Conventions. According to Articles 13 and 24 § § 1 and 5 of Law no. (10) 2005 on the Iraqi Higher Criminal Court, the penalty for this offence “ shall be determined by the court taking into account the gravity of the crime as well as the individual circumstances, judicial precedents and relevant sentences issued by international criminal courts”. The Government informed the Court by a letter of 31 July 2009 that the President of the trial chamber had informed a British official in Baghdad that “ [i] n his view, a death sentence was not the appropriate penalty in this case ”. 88. On 9 September 2009 the IHT gave its verdict. It decided to cancel the charges against the applicants, due to insufficient evidence, and ordered their immediate release. Shortly thereafter the prosecutor lodged an appeal against this decision to the Court of Cassation. 89. By a letter of 12 January 2010, the Government informed the Court that the Court of Cassation had decided that the investigation had been incomplete and had ordered that the case be remitted for reinvestigation by the Iraqi authorities and retrial. The applicants remain in custody. | This case concerned the complaint by the applicants, both Iraqi nationals and Sunny Muslims accused of involvement in the murder of two British soldiers shortly after the invasion of Iraq in 2003, that their transfer by the British authorities into Iraqi custody put them at real risk of execution by hanging. |
1,016 | Military presence | A. The circumstances of the case 1. The death of Mr Azhar Sabah Jaloud 2. The investigation 3. Domestic proceedings B. Weapons used in the incident 1. Diemaco C7A1 2. Kalashnikov AK-47 C. The Netherlands military presence in Iraq 1. General background 2. The letter to the Lower House of Parliament 3. Royal Military Constabulary presence in Iraq D. Instructions to Netherlands SFIR personnel 1. The aide-mémoire for SFIR commanders 2. The SFIR soldier ’ s card E. The Royal Military Constabulary F. The Military Chamber of the Arnhem Court of Appeal G. Relevant domestic law and procedure 1. The Constitution of the Kingdom of the Netherlands 2. The Criminal Code (Wetboek van Strafrecht) 3. The Military Criminal Code (Wetboek van Militair Strafrecht) 4. The Military Criminal Procedure Act (Wet Militaire Strafrechtspraak) 5. The Code of Criminal Procedure (Wetboek van Strafvordering) H. Relevant domestic case-law 1. The Eric O. case 2. The Mustafić and Nuhanović cases I. Other domestic documents 1. Evaluation report on the application of military criminal procedure in operations abroad 2. The report of the Van den Berg Committee 3. The final evaluation report J. Relevant international law 1. The Hague Regulations 2. The Fourth Geneva Convention 3. United Nations Security Council Resolutions 4. Case-law of the International Court of Justice 5. The International Law Commission ’ s Articles on State Responsibility K. Documents relevant to the occupation of Iraq 1. Coalition Provisional Authority Order no. 28 2. The MND (SE) (Multinational Division, South East) Memorandum of Understanding 3. The MND (C-S) (Multinational Division, Central-South) Memorandum of Understanding | This case concerned the investigation by the Netherlands authorities into the circumstances surrounding the death of an Iraqi civilian (the applicant’s son) who died of gunshot wounds in Iraq in April 2004 in an incident involving Netherlands Royal Army personnel. The applicant complained that the investigation into the shooting of his son had neither been sufficiently independent nor effective. |
122 | Harassment by teachers | 2. The applicant was born in November 1993. The applicant was represented by Mr M. Ščetar, a lawyer practising in Križevci. 3. The Government were represented by their Agent, Ms Š. Stažnik. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case 5. Between 2008 and 2012 the applicant was a student in a public high school. 6. On 19 September 2011 the applicant and several of his classmates were late for their mathematics class with teacher R.V. When they entered the classroom, R.V. started shouting, telling the applicant that he was “a moron [ kreten jedan ], an idiot [ idijot ], a fool [ budala ], hillbilly [ seljačina ], a stupid cop [ žandar glupi ]” (because the applicant’s father worked in the police). 7. On 20 September 2011, after the applicant had reported the insults to the head teacher, R.V. stated during his class that “... when you say to a fool that he is a fool, that should not be an insult for him. The head teacher called me saying that I had insulted some students. You don’t know what the insults are, but you will see what the insults are.” 8. On 28 September 2011, during class, R.V. approached the applicant and asked him to turn the page in a book. As the applicant turned the wrong page, R.V. said “You, fool, not that page. I didn’t mean to insult you, because I know you will call your dad.” 9. In the period between September and December 2011 on two occasions the applicant underwent psychological treatment related to the alleged harassment by R.V. His general practitioner gave a working diagnosis of post-traumatic stress disorder related to his harassment at school by R.V., and a psychologist in the local hospital found that due to the psychological harassment at school the applicant was suffering from an acute anxiety disorder and recommended increased support and understanding at school. The psychologist also found that the applicant was otherwise growing up in a functional family and that he was very good at school. 10. According to the applicant, his conflict with R.V. and R.V.’s subsequent involvement in his final mathematics exam resulted in his poor overall performance. He therefore failed to get on to his chosen university course. 11. According to a report of the National Centre for the External Evaluation of Education ( Nacionalni centar za vanjsko vrednovanje obrazovanja ) of 5 December 2014, which the Government provided to the Court, the exam process was anonymised and the reason for the applicant’s poor performance was his failure to follow properly the instructions for filling in the examination papers. administrative inquiry concerning the applicant’s allegations of harassment 12. By a letter of 21 September 2011 the applicant’s father informed the school authorities, the Ombudsperson for Children ( Pravobraniteljica za djecu ), the education inspectorate, the police and the competent State Attorney’s Office ( Općinsko državno odvjetništvo ) of the applicant’s harassment by R.V., and requested protection for him. He repeated the same complaints on 28 September 2011. 13. In connection with the applicant’s allegations, on 3 October 2011 the school psychologist invited R.V. for an interview. R.V. admitted that he had said the words alleged by the applicant during the event of 19 September 2011 (see paragraph 6 above) but denied using the insult “stupid cop”. He also argued that he had not addressed the applicant personally, but a group of students, and that he could not understand why the applicant felt so affected by the event. The school psychologist reproached R.V. for using inappropriate words, which he fully accepted, and he promised not to use insults anymore. 14. On 4 October 2011 the school psychologist interviewed the applicant. He stated that he felt stressed and uncomfortable during mathematics classes because of the situation with R.V. He also explained that he wanted to either change school or the class, or have the teacher removed from his class. The school psychologist insisted that the applicant should try to talk to R.V. and invited him to inform her by 6 October 2011 whether he would be willing to do that. The applicant did not inform the school psychologist of his decision. 15. On 7 October 2011 the applicant’s father informed the Ministry of Education ( Ministarstvo znanosti, obrazovanja i športa; hereinafter: “the Ministry”) of the applicant’s harassment by R.V. and requested protection for him. The Ministry replied on 4 November 2011, indicating that the case had been forwarded to the Education Agency ( Agencija za odgoj i obrazovanje; hereinafter: “the “Agency”). 16. The applicant’s father’s complaints resulted in an assessment of the situation by the Agency on 22 November 2011. This assessment consisted of an interview with R.V., the school psychologist, the head teacher, the applicant and his classmates. The Agency also analysed the relevant documents and conducted an anonymous survey amongst the students concerning their satisfaction with R.V.’s teaching. 17. The Agency found that R.V. was duly complying with all his teaching tasks. He was a renowned mathematics teacher, who had even received an award from the Minister of Education for his work. The anonymous survey showed that the students were satisfied with R.V., and that their major objection was that he should spend more time with less successful students. Only two students stated that they would like to change the teacher. 18. The same view was repeated in individual interviews with the students conducted by an Agency official. She also interviewed R.V., who stated that he had not had any malicious intention when being angry at the students for being late, and that he could not understand why the applicant had got so upset. The interviews with the head teacher and the school psychologist suggested that the applicant’s father had been very upset about the situation. He refused to discuss the matter further with them and preferred to have the competent institutions investigate the case. 19. In its conclusions, the Agency stressed that R.V. was a good teacher with good intentions, and that he felt sorry for not having an opportunity to discuss the possible problems with the applicant’s father. The Agency found that the situation created by the conflict had damaged the applicant’s progress. It suggested that the matter be resolved by a discussion between the school authorities and the applicant’s father. It also instructed the school authorities to report on the further developments in the case. 20. After several unsuccessful attempts to hold a meeting at the school, on 14 December 2011 the applicant’s father attended a meeting with the head teacher. According to a report from the meeting prepared by the head teacher, the applicant’s father had explained that his son was now satisfied with his relationship with R.V., and that their conflict had been settled. 21. The school authorities informed the Agency and the Ombudsperson for Children of the matter. The applicant’s criminal complaint 22. On 4 November 2011 the applicant lodged a criminal complaint with the police, alleging harassment by R.V. 23. In the course of the proceedings, the police and the relevant State Attorney’s Office questioned the applicant and a number of students and officials from the school, as well as R.V. They also obtained relevant documentation concerning the applicant’s complaints. 24. Several of the students or former students from the school stated that the teacher R.V. sometimes used inappropriate and insulting language. He was particularly harsh with those who were not good in mathematics, such as the applicant. A student, L.J., stated that he had even stopped paying attention to the words such as “fools”, “idiots” and “idlers” as it was a usual talk at the mathematics class. Some of the students considered the use of such a language to be a way of joking by the teacher. A former student, S.J., stated that the teacher had made some comments of a sexual nature concerning her during the class. Student M.J. explained that there had been an inquiry by the education authorities in the course of which the students had been asked to reply to a questionnaire. Most of the students had been afraid to answer the questions honestly and so was M.J. as he had not wanted to have problems. M.J. also explained that before this questionnaire, there had been another questionnaire organised within the school to which the students had answered honestly but then the teacher R.V. went “crazy” and yelled at them. It was one of the reasons why they had not honestly answered the questionnaire organised by the education authorities. 25. On 18 June 2012 the State Attorney’s Office rejected the applicant’s criminal complaint. The relevant part of the decision reads: “The statements of the students show that the suspect has an unconventional approach. Some of the students no longer pay attention to what he says when teaching, because on several occasions he has used improper words. However, he has never addressed a particular student. It can be therefore concluded in the case at issue, given the circumstances in which the impugned conduct occurred, that the insults were not of such intensity as to amount to harassment. In accordance with the courts’ case-law, examples of psychological harassment concern the recurrent insulting of minors, as a result of which they sustain severe psychological trauma damaging their physical and mental health. Although [the applicant] sought medical treatment in connection with the impugned conduct, and although he suffered certain health problems, they were not of such intensity that it can be concluded that his physical and mental health was damaged. Moreover, in order to amount to psychological harassment, insults should not only be the result of an aroused reaction, but the result of an intensive aversion to the victim, and an expression of cruel and inhuman behaviour. From the available information, and in particular from the statements of [the applicant’s] classmates, it cannot be concluded that the suspect’s conduct towards [the applicant] was of such a nature that it would [amount to] cruel and inhuman behaviour. This is particularly true in view of [the students’] statements that [R.V.] usually behaved in an unusual manner, and that some of the students did not pay attention [to such behaviour], and the victim himself did not suffer further [adverse consequences such as] bad marks at school.” 26. The State Attorney’s Office advised the applicant that he could take over the criminal prosecution as a subsidiary prosecutor in relation to the alleged offence of harassment or institute a private prosecution in relation to charges of insult. proceedings before the Constitutional Court 27. In August 2012 the applicant brought his complaints before the Constitutional Court ( Ustavni sud Republike Hrvatske ). He alleged, in particular, harassment by the teacher at school and inadequate response of the school, the Ministry, the Agency and the State Attorney’s Office concerning his complaints of harassment. He also challenged the decision concerning the evaluation of his final mathematics exam (see paragraphs 10-11 above). 28. On 18 October 2012 the Constitutional Court declared the applicant’s constitutional complaints inadmissible on the grounds that the State Attorney’s Office’s decision and the decision on the evaluation of his final mathematics exam had not been measures or decisions which had decided any of his rights on the merits against which a constitutional complaint was permitted. 29. The decisions of the Constitutional Court were served on the applicant on 30 October 2012. | The applicant, a student in a public high school at the relevant time, was subjected to several insults by his mathematics teacher. He complained about the harassment by the teacher at school, and the inadequate response of the relevant domestic authorities. |
351 | Expulsion or extradition cases | 10. The applicant was born in 1978. She is from Baghdad and is of Mandaean denomination. She was once married, but divorced her husband in 1999, after which she lived with their son, born in 1998, in Iraq while her former husband moved to the United States. 11. The applicant arrived in Sweden on 27 August 2007 and applied for a residence permit the following day and for asylum on 21 January 2008. She stated that she and her son had left Iraq on 25 July 2007 and had then stayed with relatives in Amman, Jordan, for a month. In Amman she had left behind her son, because she had not been able to afford his trip. Later, her former husband had come to Jordan and brought the son back with him to the United States. To the Swedish authorities the applicant submitted an Iraqi citizenship certificate, an identity card, divorce documents and a membership card for Mandaeans regarding her and her son. 12. Assisted by legal counsel, the applicant stated in essence the following in support of her application. Her main reason for leaving Iraq was the generally insecure situation for Mandaeans in Iraq, which had affected her and her family personally. Her fears had led to her son going to school only sporadically during the past year. Moreover, at the beginning of June 2007 her mother had received a threatening phone call from someone who had wanted to contact the applicant, presumably to forcibly remarry her with another man. If they did not comply, the applicant understood that her family would have to leave the neighbourhood. They had taken the threats very seriously and she had moved immediately with her son to her grandmother ’ s house in the al-Dora neighbourhood of Baghdad, where they had stayed for a month. The applicant further stated that her only remaining relative in Iraq was her mother. 13. On 31 October 2008 the Migration Board ( Migrationsverket ) rejected the application and ordered the applicant ’ s deportation to Iraq. The Board held that she had not proved her identity, but that she had made it plausible that she was from Iraq. It further considered that the situation in Iraq as such did not constitute grounds for asylum. While noting that Mandaeans were an exposed minority, their general situation did not suffice either for an individual be granted protection, but his or her personal circumstances would have to be assessed. The Board went on to state that the applicant had not submitted any written evidence in support of her allegations of persecution. Furthermore, she had received a threat on only one occasion and it had not been shown that the person threatening her had referred to her religious beliefs. Nor was there any other indication that she had been ill-treated on account of those beliefs or that she had received other threats before leaving Iraq. The Board then noted that the applicant ’ s brother, who had also applied for asylum in Sweden, had had his application rejected and his deportation to Iraq ordered and that, consequently, the applicant would likely not lack a male network upon return to Iraq. In conclusion, the Board found that she had not made it probable that she was at personal risk of being subjected to serious ill-treatment if she returned to Iraq. 14. The applicant ’ s brother, who had arrived in Sweden on 18 December 2007, had his application for a residence permit rejected by the Migration Board on 2 October 2008. 15. The applicant appealed, adding the following to her story. Mandaeans, being the smallest and most vulnerable minority in Iraq, were subjected to extortion, kidnappings and murder. Mandaean women and children had been forced to convert to Islam, often after having been assaulted and raped. The Mandaeans were not a large enough community to be able to protect and support each other and there was no particular region where they could settle safely. This was enough to show that she was in need of protection. The applicant asserted that the threat against her had to be seen against this background. Her whole existence had been marked by the threatening atmosphere and demands directed at non-Muslim women and in particular the Mandaeans. Her situation had been further aggravated by the fact that she is a single woman without a social network in Iraq. Her mother had had the intention of leaving the country as well, but the applicant had no information on her whereabouts. Furthermore, in Sweden the applicant had met a Muslim man from Iraq together with whom she now lived. This situation would never be accepted in Iraq. Also, when she had talked about her new relationship in Sweden, her family had reacted very negatively and had virtually frozen her out. 16. On 14 December 2009 the Migration Court ( Migrationsdomstolen ) upheld the decision of the Board. The court acknowledged the difficult situation for Mandaeans in Iraq and stated that, consequently, a lower threshold was applied in assessing the individual risks than in Iraqi cases in general. The general situation for Mandaeans did not suffice of itself to be granted protection, however; an assessment of the applicant ’ s individual circumstances was necessary. In the absence of written evidence, the court went on to examine the statements made by the applicant. It considered that the threat received concerning forced marriage was primarily related to the general security situation in Iraq at the time. In the two years since the applicant had left the country, the security situation had improved. While the Mandaeans remained disadvantaged, there was no sign that she was still being searched for in Iraq. Nor was there anything to indicate that her mother ’ s possible exile had been caused by continued threats. The court further found that the negative reaction of the applicant ’ s family to her new relationship did not imply a need of protection. In that connection, it further noted that the asylum appeal lodged by her brother, who had not turned his back on her, had been rejected on the same day. Thus, she could return to Iraq with him and thereby have a social network in the country. 17. On 16 February 2010 the Migration Court of Appeal ( Migrations- överdomstolen ) refused the applicant leave to appeal. On 25 February 2010 it refused leave to appeal also in the applicant ’ s brother ’ s case. 18. Subsequently, the applicant, as well as her brother, claimed that there were impediments to the enforcement of their deportation orders. Their petition mainly concerned the brother ’ s period of active duty in the Iraqi army, during which he had gained knowledge of important people in the army and their illegal actions. This knowledge would put both the applicant and her brother at risk if they were returned. The applicant further claimed that her mother had been kidnapped. 19. On 8 May 2010 the Migration Board rejected the petition, finding that no new circumstances justifying a reconsideration had been presented. It considered that the claims made in relation to the brother did not in any way show that there were threats against him or the applicant. The allegation that the mother had been kidnapped was actually new, but it was unclear when this incident was supposed to have happened and there was nothing to conclude that the possible kidnapping had any personal connection to the situation of the applicant and her brother. The applicant did not appeal against the Board ’ s decision. 20. On 23 August 2010 the applicant submitted a letter to the Migration Board, which was perceived by the Board as a new petition for reconsideration. The applicant stated that, if she were forced to return to Iraq, she would have to do so without her current partner or her brother, who were both in Sweden. Her partner had been issued a visa to Syria, as he was born in Damascus, and could not return to Iraq. Consequently, they would be separated, because she could not travel to Syria since she lacked a passport and would not be granted a visa. The applicant further asserted that she had no relatives in Iraq. 21. On 25 August 2010 the Migration Board decided not to reconsider the case. Although the fact that the applicant ’ s partner had been granted a visa to Syria was considered to be new, the Board stated that this fact did not constitute a lasting impediment to the enforcement of the deportation order. The applicant did not appeal against the Board ’ s decision. 22. The respondent Government submitted the following notes to the Court, taken from the files of the Migration Board. The applicant ’ s mother was living with relatives and friends in Baghdad. When the applicant left Iraq, her grandmother and cousins had been living in the al-Dora neighbourhood of Baghdad. In Sweden, the applicant had been living in the same flat as her brother and her partner from October 2009 onwards. Her partner had left Sweden in October 2010 to be reunited with his family in Syria, whereas her brother was still in Sweden. Furthermore, in reply to the Government ’ s request for information in the case, the Migration Board had stated that it was likely that the applicant had a large number of relatives left in Baghdad. 23. The applicant gave the following additional account to the Court. Following her divorce in 1999, she had gone to live with her parents and her brother. Her father, under whose protection she had been living, died in 2005. Her grandmother, with whom she had briefly lived after the threatening telephone call, had died in 2008. To her knowledge, she had no relatives left in Iraq, cousins or others. Several relatives were living abroad, in Sweden, France, the Netherlands, the United Kingdom, Spain and Canada. Her sister was living in Denmark. After the applicant and her brother had left Iraq, their mother had gone to live with a Christian family in Baghdad, from whom she had rented a room. In the beginning of 2010, the applicant and her brother had received information about their mother ’ s disappearance, and the applicant was still unaware of what had happened to her mother. However, given the time that had passed without any contact with her, she assumed that she was dead. The applicant was still in a relationship with the man she had met in Sweden, although he was now living in Syria. The people who had disowned her because of that relationship were her relatives in Sweden, with the exception of her brother. The brother had married a relative, a Swedish citizen, on 27 May 2012. He had left Sweden and applied at the Embassy in Tehran for a Swedish residence permit based on his marriage. By a decision of 5 November 2013 the Migration Board had granted him a residence permit until 5 November 2015. 24. On 16 February 2014 the deportation order against the applicant became statute-barred and could no longer be enforced. Ten days later, the applicant lodged a new request for asylum. 25. On 15 October 2014 the Migration Board granted the applicant a permanent residence permit in Sweden. While not considering her to be a refugee, the Board had regard to the prevailing general security situation in Baghdad, in combination with the fact that the applicant is a woman lacking a social network in Iraq and belonging to religious minority, and concluded that she was in need of protection. Moreover, given that hundreds of thousands of Iraqis had fled to the Kurdistan Region within the space of a few months, there was no internal relocation alternative for her. | This case concerned an asylum seeker’s threatened expulsion from Sweden to Iraq, where she alleged she would be at risk of ill-treatment as a single woman of Mandaean denomination, a vulnerable ethnic/religious minority. |
858 | Interception of communications, phone tapping and secret surveillance | THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1956 and lived in Yerevan prior to her detention. At the time when the applicant lodged her application with the Court she was serving her sentence in Abovyan correctional facility. 6. The applicant worked as the deputy chief of the women ’ s unit of Abovyan correctional facility. 7. On 2 February 2010 one of the prisoners in the same unit, A.S., reported to the Head of the Department Against Organised Crime of the Armenian Police (“the Department Against Organised Crime”) that the applicant had demanded a bribe in return for transfer to an open-type prison. 8. On the same date the Head of the Department Against Organised Crime applied to the Kentron and Nork-Marash District Court of Yerevan (“the District Court”), seeking authorisation to carry out operative and intelligence measures. The application stated the following: “On [2 February 2010] ... [A.S.] applied to the [Department Against Organised Crime] stating that ... [the applicant] had requested a bribe from her ... Thus, [A.S. ’ s] actions contain the elements of a crime prescribed by Article 311. In order to establish fully the circumstances of the crime in question and identify those involved it is necessary to carry out operative and intelligence measures, in particular, video and audio recordings. In view of the foregoing and with reference to the Operative and Intelligence Measures Act of [the Republic of Armenia] and Article 284 of the [Code of Criminal Procedure] I decide to lodge an application with the [District Court] seeking authorisation to carry out video and audio recordings for a period of one month.” 9. On 3 February 2010 the District Court granted the application. The relevant decision stated the following: “On [2 February 2010] ... [A.S.] applied to the [Department Against Organised Crime] stating that ... [the applicant] had requested a bribe from her ... Thus, [A.S. ’ s] actions contain the elements of a crime prescribed by Article 311. In view of the fact that in order to establish fully the circumstances of the crime in question and identify those involved it has become necessary to carry out operative and intelligence measures, the Head of the [Department Against Organised Crime] has submitted an application to carry out operative and intelligence measures, i.e. video and audio recordings. Having studied the collected materials and the application submitted, the court finds that the application is substantiated and must be granted. In view of the foregoing and with reference to Articles 14, 41, 278, 281, 284, 286 of the [Code of Criminal Procedure] and the Operative and Intelligence Measures Act of [the Republic of Armenia] the court decides: To grant the application. To authorise the conduct of video and audio recordings for a period of one month for the purpose of disclosure of the above-mentioned crime. To assign the execution of the decision to the [Department Against Organised Crime]. The decision is subject to appeal to the Criminal Court of Appeal within fifteen days.” 10. On the same date the police launched a covert operation targeting the applicant. A.S. contacted the applicant by telephone to set up a meeting during which the applicant, inter alia, asked A.S. whether she would be able finally to pay the money. This conversation was intercepted by the police. For their meeting, which took place later the same day, the police equipped A.S. with a tape recorder and instructed her to record her conversation with the applicant. A.S. and the applicant met near the applicant ’ s home and discussed matters related to the amounts to be paid. 11. On 4 February 2010 police officers gave A.S. banknotes treated with a special chemical, to be handed over to the applicant. On the same day the applicant received the money from A.S. and the conversation during their meeting was again recorded on a tape recorder. The moment after the applicant received the money the police approached and arrested her, while capturing this incident on video camera. 12. On 7 February 2010 the applicant was arrested and charged under Article 311 of the Criminal Code with bribe-taking involving a particularly large amount of money. The applicant did not admit her guilt and submitted that A.S. had owed her a certain amount of money, which she was actually returning. 13. On 8 February 2010 the recordings made as a result of the covert operation were submitted to the investigating authority. They were later examined by a forensic video/audio expert and an expert report was produced. 14. On 11 May 2010 the investigator brought new charges against the applicant under Articles 178 § 3 (1), 3 11 §§ 3 (3 and 4) and 4 (2) and 34 ‑ 313 § 2 (2) of the Criminal Code for fraud, bribe-taking and attempt to act as an intermediary in bribe-taking. 15. On 12 May 2010 the investigation was completed. On the same day the applicant and her lawyer were given access to the case file. On this day she became aware of the court warrant of 3 February 2010 and the secret surveillance conducted on the basis of that warrant. 16. On 25 May 2010 the bill of indictment was finalised and the case was sent to court. 17. In the proceedings before the District Court the applicant filed an application seeking to exclude from evidence the audio recordings made as a result of the covert operation and the relevant expert report. She argued that the warrant of 3 February 2010 was vague since it did not name her as the person to be subjected to secret surveillance. She alleged that the court warrant could have served as a basis for surveillance of any person. Thus, she had been subjected to secret surveillance without a court warrant, in violation of the requirements of Article 23 of the Constitution, including the right to respect for private life and to secrecy of communications, and Article 286 of the Code of Criminal Procedure. She further relied on Article 22 of the Constitution and Article 105 of the Code of Criminal Procedure as regards the admissibility of evidence. 18. According to the applicant ’ s submission, the District Court decided to adjourn the examination of this application and deal with it in the judgment. 19. By its judgment of 9 November 2010 the District Court found the applicant guilty as charged and handed down a nine-year sentence. In substantiating the applicant ’ s guilt, the District Court relied, inter alia, on the recordings made on the basis of the court warrant of 3 February 2010 and the conversations between the applicant and A.S. during their meetings of 3 and 4 February 2010, as well as the expert report of the forensic video/audio expert. The following evidence was further cited: the statement of A.S. who had been recognised as a victim in the proceedings, witness statements, the relevant banknotes, the expert report of the forensic chemical expert, A.S. ’ s personal file, the information received from mobile network operators concerning telephone calls made by the applicant to A.S. ’ s number, the application of 2 February 2010 and the court warrant of 3 February 2010. The District Court stated, inter alia, that the applicant ’ s allegations of procedural violations had not been confirmed. 20. The applicant lodged an appeal in which she raised similar arguments in respect of the warrant of 3 February 2010 and claimed that the results of the surveillance should not have been relied on by the District Court. 21. On 1 March 2011 the Criminal Court of Appeal rejected the applicant ’ s appeal finding, in particular, the following: “As regards the arguments raised in the appeal, that [the applicant] was video and audio-taped and that her telephone conversations were intercepted by the police in violation of her rights and freedoms guaranteed by the Constitution and the Code of Criminal Procedure, namely in the absence of a relevant court warrant authorising the video and audio recordings, it must be noted that the materials of the case include a judicial act granting such authorisation. Thus, the video and audio recordings in question were made in accordance with a procedure prescribed by law and in this case the relevant restrictions were justified. Consequently, the arguments of the defence are unsubstantiated and not based on the objective information available in the case and cannot have any legal consequences if granted. Furthermore, the arguments raised do not have any impact on the credibility of the information contained in the above-mentioned recordings and on reaching an accurate decision in this case.” 22. The applicant lodged an appeal on points of law which was declared inadmissible for lack of merit by a decision of the Court of Cassation of 28 April 2011. RELEVANT DOMESTIC LAWThe Constitution (as in force at the material time) The Constitution (as in force at the material time) The Constitution (as in force at the material time) 23. Article 22 prohibits the use of unlawfully obtained evidence. Article 23 provides that everyone has the right to respect for his private and family life. Everyone has the right to secrecy of his correspondence, telephone conversations and postal, telegraphic and other means of communication, which can be restricted only in cases and in accordance with a procedure prescribed by law and upon a court warrant. The Code of Criminal Procedure 24. Article 278 § 1 prescribes that applications seeking the implementation of investigative, operative and intelligence and procedural measures limiting a person ’ s constitutional rights are examined by the court. 25. Article 281 prescribes that operative and intelligence measures which restrict the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications of persons may be carried out upon a court decision. The types of operative and intelligence measures carried out upon a court order are set out in the Operative and Intelligence Measures Act. 26. Article 284 prescribes that operative and intelligence measures which restrict the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications of persons may be carried out only upon a judicial warrant, save in cases where one of the interlocutors has consented beforehand to his conversations being intercepted or monitored. It further prescribes the procedure for the judicial examination of applications for authorisation to carry out secret surveillance of telephone conversations filed by the head of the authority charged with carrying out operative and intelligence measures. The application must indicate the grounds justifying such measures, the information sought to be obtained through such measures, the place and time-limit for such measures, as well as all other relevant elements. The materials substantiating the need to carry out such measures must be attached to the application. The court must indicate the reasons for granting or refusing the application. 27. Article 286 prescribes that a court warrant must include: the date and the place of drafting the decision, the judge ’ s last name, the official who has submitted the application, an indication of the investigative activity or the operative and intelligence measure or the measure of restraint to be applied, specifying the activity or the measure and the persons in whose respect it is applied, the time-limit during which the measure is effective, the official or authority competent to carry out the warrant and the judge ’ s signature certified by a seal. 28. Article 289 prescribes that appeals against judicial warrants authorising the implementation of investigative and operative and intelligence measures and the application of measures of judicial restraint and their review are carried out in accordance with the rules contained in Articles 287 and 288 (which prescribe the procedure for lodging appeals against detention orders). 29. Article 376.1 (8) states that judicial acts other than those stated in the same provision are subject to appeal in cases prescribed by the Code of Criminal Procedure. 30. Article 379 sets out the time-limits for lodging appeals against judgments and decisions of first instance courts. According to Article 379 § 1 (3), appeals against all other procedural decisions ( գործն ըստ էության չլուծող մյուս ակտեր ) of a first instance court can be lodged within ten days from the date they are pronounced. Article 379 § 2 provides that appeals lodged out of time are not examined in which regard the court adopts a decision. The Operative and Intelligence Measures Act 31. Section 14 (1) prescribes the following types of operative and intelligence measures: 1) operative enquiry; 2) acquisition of operative information; 3) collection of samples for comparative examination; 4) control purchase; 5) controlled supply and purchase; 6) examination of items and documents; 7) external surveillance; 8) internal surveillance; 9) identification of a person; 10) examination of buildings, structures, locality, premises and means of transport; 11) interception of correspondence, postal, telegraphic and other communications; 12) interception of telephone conversations; 13) operative infiltration; 14) operative experiment; 15) ensuring access to financial data and secret surveillance of financial transactions; 16) simulation of taking and giving a bribe. Operative and intelligence measures are prescribed only by law. 32. Section 21 prescribes that external surveillance is the tracing of persons or monitoring the course of various events and developments in open air or public places, without infringing the inviolability of residence, and with or without the use of special and other technical means, as well as the recording of surveillance results with or without the use of video recording, photographic, electronic and other data-carrying devices. 33. Section 26 prescribes that interception of telephone conversations is the secret surveillance of conversations, including internet telephone conversations and electronic communication carried out with the use of special and other technical means. Relevant case-law of the Court of Cassation 34. In its decision no. S-903/05 of 28 March 2014 the Court of Cassation examined a complaint about the refusal of the Criminal Court of Appeal to admit an appeal lodged by a person in respect of whom criminal proceedings had been terminated, against a judicial warrant authorising search and seizure which had been issued years before the relevant proceedings were terminated and of which that person had become aware when granted access to the case file. The relevant parts of the decision read as follows: “ ... the purpose of the review of the disputed judicial act is to ensure uniform application of the law ... In this respect the Court of Cassation considers that there exists an issue of ensuring uniform application of the law in relation to providing a person with an effective remedy for judicial protection in the context of [application of] time-limits for lodging appeals against procedural judicial acts. Therefore, [the Court of Cassation] finds it necessary to state its legal position ... which could serve as guidance for the establishment of correct judicial practice in similar cases. ... a person ’ s right to appeal against a procedural judicial act rendered within the framework of pre-trial judicial supervision of the proceedings arises from the moment when the given judicial act actually becomes available to him... [That is] ... the person has actually received the procedural judicial act ... or has been actually acquainted with it. ... The moment when procedural judicial acts ... “actually become available” may vary. In particular, a person may be informed of a procedural decision ... during the performance of the given investigative measure (for instance, a search), upon completion of the investigation (for instance, in cases of surveillance of correspondence, telephone conversations, postal, telegraphic and other communications and in other cases), when sending the case to the court and so on. That is, the calculation of the time-limit for lodging an appeal against the above ‑ mentioned judicial act should start from: a) the moment when the person actually received or became acquainted with the [judicial] act in question (for instance, as regards cases of surveillance of correspondence, telephone conversations, postal, telegraphic and other communications...); b) the moment of starting the given investigative measure authorised by the judicial warrant, for example a search, if during the search the person is officially notified of the grounds for investigative measures being carried out ... ... in each case the court should find out at which moment a person ’ s right to become acquainted with the disputed decision had arisen and whether the latter had become acquainted with the relevant judicial act in a reasonable time...” | The applicant alleged that the police had not had a valid court warrant to place her under secret surveillance during a criminal investigation. She complained in particular about the covert surveillance and its subsequent use in the criminal proceedings against her. |
328 | Right to life (Article 2 of the European Convention on Human Rights) | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1951 and lives in Diyarbakır. He is the father of Tarık Ataykaya, born on 25 September 1983, who died on 29 March 2006. A. Incident of 29 March 2006 6. Following the death of fourteen members of the PKK (Kurdistan Workers ’ Party, an illegal armed organisation) in an armed clash on 24 March 2006, many illegal demonstrations took place in Diyarbakır between 28 and 31 March 2006, during which a number of demonstrators were killed. According to the Government, some 2,000 individuals took part in those demonstrations, in which the police headquarters was bombarded with stones, sticks and petrol bombs, with the police and their vehicles coming under attack around the city. It was reported that, during those incidents, nine people died and over 200 members of the police force and 214 higher-ranking officers, a doctor, a nurse, two journalists and an ambulance driver were wounded. Similarly, a number of offices and public buildings, including the school of medicine of Dicle University and police premises, were damaged. 7. On 29 March 2006, at around 13. 30 p.m. to 2 p.m., on leaving his workplace, Tarık Ataykaya found himself in the middle of a demonstration. The Government accepted the argument that Tarık Ataykaya had not taken part in the demonstration but had just been passing by, and explained that the police had fired a large number of tear-gas grenades to disperse the demonstrators. Tarık Ataykaya was struck on the head by one of the grenades and died a few minutes later. 8. On 30 March 2006, at 11. 15 a.m., an autopsy was carried out at the public hospital of Diyarbakır. The report ’ s conclusions read as follows : “ 1. Death was caused by a haemorrhage and brain damage inflicted by a firearm projectile ( tear-gas grenade – gaz fişeği ). 2. The characteristics of the projectile ’ s point of entry show that it had not been fired from a short distance ... ” 9. On 3 April 2006, I.D., an eyewitness and colleague of Tarık Ataykaya, went with M.S.D., another eyewitness and colleague of the latter, to the office of the Human Rights Association in Diyarbakır. I.D. stated in particular as follows : “... On 29 March 2006, at around 1. 30 p.m. to 2 p.m., we closed the workshop with Tarık Ataykaya, one of the workers, and returned home on foot. We saw tanks go past. People were very worried. Six or seven members of the security forces, armed and wearing the uniform of special teams (they were wearing special military uniforms with mixed colours, they were not ordinary policemen or soldiers), arrived. They started shooting at random. There was a great pandemonium. While we were running we heard gunfire ... We saw Tarık Ataykaya fall to the ground unconscious ( the security force personnel were firing with one knee on the ground and taking aim. That means they were not firing in the air but towards people). ... I realised that [Tarık Ataykaya] was wounded in the head. M.S.D. also realised this. We carried Tarık Ataykaya to an empty space near a building and called an ambulance ... ” 10. Following a request by the Diyarbakır public prosecutor ’ s office on 4 April 2006, a forensic report was drawn up on 12 April 2006 by the presidency of the criminal investigation department ’ s forensic laboratories attached to the Diyarbakır police headquarters. It showed that the object extracted from Tarık Ataykaya ’ s head was a plastic cartridge ( muhimmat ) from a tear-gas grenade of type no. 12. The report also stated that the cartridge did not bear any characteristic markings from which the firearm in question could have been identified. B. Administrative and criminal investigations 1. The applicant ’ s complaint 11. On 19 April 2006 the applicant filed a criminal complaint. Referring to the statements of I.D. and M.S.D. to the Human Rights Association in Diyarbakır ( see paragraph 9 above ), he asked the public prosecutor of Diyarbakır to identify the police officer who had fired at his son and to bring criminal proceedings against him for murder. He also asked that the object extracted from the deceased ’ s head be examined by a panel of experts from the forensic institute. 2. Attempts by the public prosecutor ’ s office to determine the identity and number of members of the security forces authorised to use grenade launchers 12. On 3 May 2006 the Diyarbakır public prosecutor ’ s office responsible for investigating organised crime declined jurisdiction to examine the case. It stated, inter alia, as follows : “ ... the autopsy carried out on the deceased showed that death had been caused by a cartridge striking [ the deceased ’ s head ]. [ Subsequently ], the forensic report established that this cartridge came from a tear-gas grenade of type no. 12, a type used by the security forces ... Consequently, the investigation must be carried out by the public prosecutor [ responsible for investigating ordinary crimes ]. ” 13. On 23 May 2006 the public prosecutor of Diyarbakır dealing with the case, following the decision to decline jurisdiction on 3 May 2006, sent a letter to the Diyarbakır police headquarters. He asked for information on the police units which had been equipped with tear-gas grenade launchers during the incident of 29 March 2006 and for the identification numbers of the personnel who had used them. However, it can be seen from the answers given by the Diyarbakır police headquarters, as summarised below, that it was not possible to establish with certainty the identity or number of all the members of the security forces who had been authorised to use that type of weapon. 14. First, in June 2006, the Diyarbakır police informed the Diyarbakır public prosecutor that during the incident in question three police officers from the special forces ( özel harekat ), whose identification numbers were indicated in the letter, had used grenade launchers in order, according to them, to disperse demonstrators who had been throwing stones and petrol bombs at the security forces. 15. In a letter of 13 July 2006 the head of the Anti- Terrorist Branch of the Diyarbakır police informed the Diyarbakır public prosecutor that it had not been possible to identify the individuals responsible for the death of Tarık Ataykaya. 16. On 30 October 2006 the Diyarbakır public prosecutor asked the Diyarbakır police headquarters to inform him of the positions to which the three police officers concerned had been assigned on the date of the incident in question. 17. On 1 December 2006 a document concerning the assignment of the three police officers was added to the file. It showed that these officers had been assigned to various zones during the incident. 18. In a letter of 10 April 2007, the head of the Anti- Terrorist Branch of the Diyarbakır police in turn informed the Diyarbakır public prosecutor ’ s office that twelve tear-gas grenade launchers had been listed in the names of twelve officers of the special forces, that those officers had not been posted to Goral avenue (near the site of the incident ) and that, in the course of the incident, those teams had been assigned to various zones on the instructions of the police chiefs. In addition, it stated that eleven other police officers of the Rapid Response Force ( çevik kuvvet ) had used grenade launchers and that they had been assigned to different zones during the incident. He lastly concluded that grenade launchers had been used by a total of twenty-three police officers attached to the Anti- Terrorist Branch. 3. Testimony obtained by the public prosecutor ’ s office 19. On 1 November 2006 the applicant was heard by the public prosecutor ’ s office. He requested the identification and punishment of those responsible for his son ’ s death. 20. On 14 February 2007, B.A., one of the three police officers whose identification numbers had been communicated previously ( see paragraph 14 above ), gave evidence to the public prosecutor ’ s office. He stated that, on the day of the incident, some 500 police officers and soldiers had used tear-gas grenade launchers and that, if Tarık Ataykaya had died as a result of a tear-gas grenade fired by the security forces, any one of those 500 police officers and soldiers could have fired it. He added that, during the incident, some 4, 000 to 5, 000 tear-gas grenades had been used by police officers from the special forces in order to disperse the demonstrators. 21. On 5 November 2007 the applicant was again heard by the public prosecutor ’ s office. He repeated his request for the identification and punishment of those responsible for his son ’ s death. 22. On 15 November 2007, I.D., an eyewitness and a colleague of Tarık Ataykaya, gave evidence to the public prosecutor ’ s office. He stated in particular as follows : “... On 29 March 2006 we were working with Tarık Ataykaya in the joinery workshop on Medine boulevard in Bağlar. Around noon, a large crowd had gathered on Medine boulevard because of the demonstrations ... We had to close the workshop. There were about 50-60 demonstrators and 5-6 police officers, wearing camouflage clothing and balaclavas. As we were locking up the workshop, I saw that masked policemen, with one knee on the ground ( yere diz çökerek ), were firing guns unremittingly towards the demonstrators. Tarık Ataykaya was with us. He did not take part in the demonstrations. After leaving the workshop Tarık Ataykaya went back there because the demonstrators were heading towards us. [ At that moment ], Tarık Ataykaya, hit by a bullet fired by one of the policemen, fell to the ground, which means that he was shot by police gunfire. Supporting him, we took him to an empty space near a building and called an ambulance. Tarık Ataykaya had been struck on the head and small pieces of his brain had come out. We took Tarık Ataykaya to hospital with a pick-up truck as there was no sign of the ambulance. As the policemen were masked, I am unable to identify them. ” I.D. added that, on the day of the incident, some of his friends had said that they had seen footage of the incident, probably on the private television channel NTV. 23. On the same day, M.S.D., an eyewitness and colleague of Tarık Ataykaya, also gave evidence to the public prosecutor ’ s office. He confirmed I.D. ’ s statements. 24. Also on 15 November 2007, R.K., a resident of the district where the incident had taken place was interviewed by the Diyarbakır public prosecutor ’ s office. She stated in particular : “ ... on 29 March 2006, at my home on Medine boulevard, I was waiting for my son to come home from school. It was about 1 p.m. The demonstrations had begun in the streets. My son was late and I went to look for him on Medine boulevard. I saw my son coming back from school. Tarık Ataykaya, with three of his colleagues, had closed the workshop and I think he was on his way home. The street was full of people. The policemen were advancing in our direction. They were firing their guns continuously towards the demonstrators. When I got home with my son, I saw that a masked policeman, with one knee on the ground, was firing towards Tarık Ataykaya, who had his back to the policeman. I saw Tarık Ataykaya fall to the ground. He was carried to the door of a building. An ambulance was called. When I checked Tarık Ataykaya ’ s heart, I realised that he was dead. The policemen who had come towards us were masked, so I would not be able to identify them. As my attention was totally focussed on Tarık Ataykaya, I did not see what the policeman was doing. The individuals present during the incident were I.D. and M.S.D. ... ” 25. On 21 January 2008 the Diyarbakır public prosecutor asked the Ankara public prosecutor ’ s office to take testimony from police officers N.O. and H.A., to establish whether they had been present on Medine boulevard or Goral avenue during the incident. 26. On 18 February 2008 N.O. and H.A. were interviewed by the public prosecutor ’ s office. They stated that they had not been assigned to those two places at the time the incident had taken place and had not witnessed it. 4. Administrative investigation 27. In the meantime, in a letter of 2 November 2007, the public prosecutor asked the Diyarbakır provincial governor ’ s office to open an administrative investigation and to transmit the relevant file to the public prosecutor ’ s office. He pointed out that in the context of that investigation it would be appropriate to take statements from the eleven police officers of the Rapid Response Force and the three police officers of the special forces. 28. It can be seen from the file that an administrative investigation was opened by the Diyarbakır provincial governor ’ s office in order to determine the responsibility of fourteen police officers in the incident. Following that investigation, on 30 January 2008, the police disciplinary board of the provincial governor ’ s office made up of the governor, the head of the health department and three police superintendents, decided not to impose any sanction on the police officers who had used tear gas during the demonstration of 29 March 2006. The board made the following observations in particular : “... It is appropriate to close the case having regard [ to the following points :] it was a major incident. According to the witness statements, the face of the officer who fired the tear-gas grenade which caused the death of the deceased was not visible because he was wearing a balaclava. All officers have undergone training in which they learned that the firing [ of grenades] must be carried out in such a way as not to hit the target directly. There is no document, evidence, sign or circumstantial evidence ( emare ) from which it could be established that the officers under investigation committed the offence in question ... ” 5. Permanent search notice 29. On 3 April 2008 the Diyarbakır public prosecutor ’ s office issued a permanent search notice for the purposes of tracing the person who fired the grenade in question, with effect until 29 March 2021, when the offence would become time-barred. Referring, inter alia, to the decision taken by the police disciplinary board to close the case, it found in particular as follows : “... The autopsy carried out on 30 March 2006 showed that the death was caused by a tear-gas grenade of type no. 12 which struck [ the deceased ’ s head] ... This projectile was used by the forces on duty at the time of the incident ... ... Under Article 6 appended to Law no. 2559 on the duties and powers of the police, the police are entitled to use physical force, material force and weapons in order to immobilise offenders, in a gradual manner and in proportion to the particularities and degree of resistance and aggressiveness of the offender. In those circumstances, it will be for the superior to determine the degree of force to be used ... [ Moreover ], under Article 24 of the Criminal Code, a person who complies with statutory obligations cannot be punished and a person who obeys an order given by a competent authority in the exercise of its power cannot be held responsible for his action. In the registers of the security forces, there is no information concerning the manner in which the death occurred. ... The deceased Tarık Ataykaya found himself among the demonstrators during the social demonstrations which took place on 29 March 2006 in the centre of Diyarbakır, either because he was taking part in those demonstrations or because he had just left the workshop where he was working. During the incidents, demonstrators were clashing with the police and throwing sticks and stones. The police intervened against the demonstrators using tear-gas grenades and rubber bullets. The casing of a tear-gas grenade thrown against the moving demonstrators struck the head [ of Tarık Ataykaya] and caused his death. This incident is not mentioned in the police documents. The witnesses to the incident stated that they could not identify the person who had fired it because his face was masked. It was not possible to determine which weapon had been used. The casing did not bear any characteristic mark of the weapon from which it was fired. Even though there is no tangible evidence to show that the person who fired was definitely a police officer, as no register suggested that other armed individuals had used tear-gas grenades [ it can be concluded that ] this grenade was probably used by the security forces which were operating at that time. [ However ,] it is not possible to identify the perpetrator, whether from the autopsy report, the statements of the complainant and witnesses, the forensic report or the case file as a whole ... ” This decision was notified to the applicant on 17 April 2008. | This case concerned the death of the applicant’s son, caused by a tear-gas grenade fired by the police during an illegal demonstration. The applicant alleged in particular that his son had died as a result of excessive use of force and that no effective investigation into his death had been carried out by the authorities. He also submitted that he did not have an effective remedy in domestic law that would allow him to sue the perpetrator of the fatal shot. |
33 | Education | I. THE CIRCUMSTANCES OF THE CASE 9. The applicants were born between 1988 and 1994 and live respectively in Orehovica, Podturen and Trnovec. Their names and details are set out in the appendix. 10. During their education, the applicants at times attended separate classes, comprising only Roma pupils, at a primary school in the village of Podturen for nine applicants ( the second to tenth applicants) and at a primary school in the village of Macinec, in Međimurje County, for five applicants ( the eleventh to fifteenth applicants ). In Croatia, primary education consists of eight grades and children are obliged to attend school from the age of seven to fifteen. The first four grades are considered as lower grades and each class is assigned a class teacher who in principle teaches all subjects. The fifth to eighth grades are upper grades in which, in addition to a class teacher assigned to each class, different teachers teach different subjects. The curriculum taught in any primary school class, including the Roma-only classes which the applicants attended, may be reduced by up to 30% in comparison to the regular, full curriculum. A. General overview of the two primary schools in question 1. Podturen Primary School 11. The proportion of Roma children in the lower grades (from the first to the fourth grade) varies from 33 % to 36%. The total number of pupils in Podturen Primary School in 2001 was 463, 47 of whom were Roma. There was one Roma-only class, with 17 pupils, while the remaining 30 Roma pupils attended mixed classes. 12. In 2001 a pre-school programme called “Little School” ( Mala škola ) was introduced in the Lončarevo settlement in Podturen. It included about twenty Roma children and was designed as a preparatory programme for primary school. Three educators were involved, who had previously received special training. The programme ran from 11 June to 15 August 2001. This programme has been provided on a permanent basis since 1 December 2003. It usually includes about twenty Roma children aged from 3 to 7. The programme is carried out by an educator and a Roma assistant in cooperation with Podturen Primary School. An evaluation test is carried out at the end of the programme. 13. In December 2002 the Ministry of Education and Sports adopted a decision introducing Roma assistants in schools with Roma pupils from the first to fourth grades. In Podturen Primary School, there was already a Roma assistant who had worked there since September 2002. A statement made by one such assistant, Mr K.B., on 13 January 2009 reads: “I started work at Podturen Primary School in September 2002. At that time there were two classes in the fourth grade. Class four ( b) had Roma pupils only and it was very difficult to work with that class because the pupils were agitated and disrupted the teaching. I contemplated leaving after only two months. At the request of teachers, I would give written invitations to the parents or I would invite them orally to come to talk with the teachers at the school. Some parents would come, but often not, and I had to go and ask them again. A lot of time was needed to explain Croatian words to the pupils because some of them continued to speak Romani and the teachers could not understand them. I told the pupils that they should attend school regularly. Some pupils would just leave classes or miss a whole day. I helped pupils with homework after school. I helped the school authorities to compile the exact list of pupils in the first grade. I no longer work at the school.” 14. Since the school year 2003/04 there have been no Roma-only classes in Podturen Primary School. 2. Macinec Primary School 15. The proportion of Roma children in the lower grades varies from 57 % to 75%. Roma-only classes are formed in the lower grades and only exceptionally in the higher grades. All classes in the two final grades (seventh and eighth) are mixed. The total number of pupils in Macinec Primary School in 2001 was 445, 194 of whom were Roma. There were 6 Roma-only classes, with 142 pupils in all, while the remaining 52 Roma pupils attended mixed classes. 16. Since 2003 the participation of Roma assistants has been implemented. 17. A “Little School” pre-school programme was introduced in 2006. B. Individual circumstances of each applicant 18. The applicants submitted that they had been told that they had to leave school at the age of 15. Furthermore, the applicants submitted statistics showing that in the school year 2006/07 16% of Roma children aged 15 completed their primary education, compared with 91% of the general primary school population in Međimurje County. The drop-out rate of Roma pupils without completing primary school was 84%, which was 9.3 times higher than for the general population. In the school year 2005/06, 73 Roma children were enrolled in the first grade and 5 in the eighth. 19. The following information concerning each individual applicant is taken from official school records. 1. Podturen Primary School (a) The first applicant 20. By a letter of 22 February 2007, the first applicant expressed the wish to withdraw his application. Thus in the Chamber judgment of 17 July 2008 the Court decided to discontinue the examination of the application in so far as it concerned the first applicant. (b) The second applicant 21. The second applicant, Mirjana Oršuš, was enrolled in the first grade of primary school in the school year 1997/98. She attended a mixed class that year and the following year, but in those two years she failed to go up a grade. In the school years 1999/2000 to 2002/03 she attended a Roma-only class. In 2003/04 to 2005/06 she attended a mixed class. In 2005/06 she took the sixth grade for the second time and failed. She failed the first and the sixth grades twice. Out of seventeen regular parent-teacher meetings organised during her primary schooling, her parents attended three. 22. She was provided with additional classes in Croatian in the fourth grade. From the first to the fourth grade she participated in extracurricular activities in a mixed group (that is to say a number of different activities organised for the same group of children), organised by the school. After reaching the age of 15, she left school in August 2006. Her school report shows that during her schooling she missed 100 classes without justification. (c) The third applicant 23. The third applicant, Gordan Oršuš, was enrolled in the first grade of primary school in the school year 1996/97 and passed the first grade. That year and the following year he attended a Roma-only class. In 1998/99 and 1999/2000 he attended a mixed class and after that a Roma-only class for the remainder of his schooling. In 2002/03 he passed the fourth grade. He failed the second grade three times. Out of fifteen regular parent-teacher meetings organised during his primary schooling, his parents attended two. 24. He was not provided with additional classes in Croatian. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15 he left school in September 2003. His school report shows that during his schooling he missed 154 classes without justification. 25. Later, he enrolled in evening classes in the People ’ s Open College in Čakovec, where he completed his primary education. (d) The fourth applicant 26. The fourth applicant, Dejan Balog, was enrolled in the first grade of primary school in the school year 1996/97. During the first and second years he attended a Roma-only class and the following two years a mixed class. In 2000/01 to 2002/03 he attended a Roma-only class. In 2003/04 to 2005/06 he attended a mixed class. In 2005/06 he took the fifth grade for the second time and failed. He failed the second grade three times, the fourth grade once and the fifth grade twice. Out of eleven regular parent-teacher meetings organised during his primary schooling, his parents attended two. 27. He was not provided with additional classes in Croatian. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in August 2006. His school report shows that during his schooling he missed 881 classes without justification. 28. Later, he enrolled in fifth-grade evening classes, but did not attend. (e) The fifth applicant 29. The fifth applicant, Siniša Balog, was enrolled in the first grade of primary school in 1999/ 20 00 and passed the first grade. In 1999/2000 to 2002/03 he attended a Roma-only class, after which he attended a mixed class. In 2006/07 he took the fifth grade for the third time and failed. He failed the fourth grade once and the fifth grade three times. Out of eleven regular parent-teacher meetings organised during his primary schooling, his parents attended one. 30. He was not provided with additional classes in Croatian. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in 2008. His school report shows that during his schooling he missed 1,304 classes without justification. In October 2006 the school authorities wrote to the competent social welfare centre informing them of the applicant ’ s poor school attendance. (f) The sixth applicant 31. The sixth applicant, Manuela Kalanjoš, was enrolled in the first grade of primary school in the school year 1996/97 and attended a Roma-only class. The following two years she attended a mixed class. In 1999/2000 to 2002/03 she attended a Roma-only class and passed the fourth grade, after which she attended a mixed class. From February 2003 she followed an adapted curriculum for the rest of her schooling on the ground that a competent expert committee – the Children ’ s Psycho-physical Aptitude Assessment Board ( Povjerenstvo za utvrđivanje psihofizičkog stanja djeteta ) had established that she suffered from developmental difficulties. In 2004/05 she took the fifth grade for the second time and failed. She failed the first grade three times and the fifth grade twice. Out of eleven regular parent-teacher meetings organised during her primary schooling, her parents attended three. 32. She was provided with additional classes in Croatian in her third grade. From the first to the fourth grade she participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, she left school in August 2005. Her school report shows that during her schooling she missed 297 classes without justification. 33. Later, she enrolled in fifth-grade evening classes, but did not attend. (g) The seventh applicant 34. The seventh applicant, Josip Oršuš, was enrolled in the first grade of primary school in 1999/2000 and attended a Roma-only class up to and including the school year 2002/03, after which he attended a mixed class. From May 2002 he followed an adapted curriculum in his further schooling on the ground that a competent expert committee – the Children ’ s Psycho-physical Aptitude Assessment Board ( Komisija za utvrđivanje psihofizičke sposobnosti djece ) had established that he suffered from developmental difficulties. In 2007/08 he took the sixth grade for the second time and failed. He failed the fifth and sixth grades twice. Out of fifteen regular parent-teacher meetings organised during his primary schooling, his parents attended two. 35. He was provided with additional classes in Croatian in the third grade in 2001/02. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in February 2008. His school report shows that during his schooling he missed 574 classes without justification. (h) The eighth applicant 36. The eighth applicant, Biljana Oršuš, was enrolled in the first grade of primary school in the school year 1996/97 and in her first three school years attended a Roma-only class, after which she attended a mixed class for two years. On 28 December 2000 the Međimurje County State Administration Office for Schooling, Culture, Information, Sport and Technical Culture ( Ured za prosvjetu, kulturu, informiranje, šport i tehničku kulturu Međimurske Županije ) ordered that she follow an adapted curriculum during the rest of her schooling on the ground that a competent expert committee – the Children ’ s Psycho-physical Aptitude Assessment Board – had established that she suffered from poor intellectual capacity, concentration difficulties and socio-pedagogical neglect. It was also established that she was in need of treatment from the competent social welfare centre. In 2001/02 and 2002/03 she attended a Roma-only class and passed the fourth grade. In the following two school years she attended a mixed class, took the fifth grade for the second time and failed. She failed the third grade three times and the fifth grade twice. Out of seven regular parent-teacher meetings organised during her primary schooling, her parents attended three. 37. She was provided with additional classes in Croatian in the third grade in 2001/02. She participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, she left school in August 2005. Her school report shows that during her schooling she missed 1,533 classes without justification. (i) The ninth applicant 38. The ninth applicant, Smiljana Oršuš, was enrolled in the first grade of primary school in the school year 1999/2000 and attended a Roma-only class up to and including 2002/03, after which she attended a mixed class. In 2006/07 she took the fifth grade for the third time and failed. She failed the fourth grade once and the fifth grade three times. Out of eleven regular parent-teacher meetings organised during her primary schooling, her parents attended three. 39. She was provided with additional classes in Croatian in the third grade in 2001/02. From the first to the fourth grade she participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, she left school in August 2007. Her school report shows that during her schooling she missed 107 classes without justification. (j) The tenth applicant 40. The tenth applicant, Branko Oršuš, was enrolled in the first grade of primary school in the school year 1997/1998 and attended a mixed class for the first two years. From 1999/00 to 2002/03 he attended a Roma-only class, after which he attended a mixed class. On 23 February 2005 the Međimurje County State Welfare Department ordered that he follow an adapted curriculum during the rest of his schooling on the ground that a competent expert committee – the Children ’ s Psycho-physical Assessment Board – had established that he suffered from developmental difficulties. In 2005/06 he failed the sixth grade. He failed the first grade twice and the fourth and sixth grades once. Out of eleven regular parent-teacher meetings organised during his primary schooling, his parents attended one. 41. He was provided with additional classes in Croatian in the third grade in the school year 2001/02. He participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in August 2006. His school report shows that during his schooling he missed 664 classes without justification. 2. Macinec Primary School (a) The eleventh applicant 42. The eleventh applicant, Jasmin Bogdan, was enrolled in the first grade of primary school in 1997/98. The preliminary tests carried out before his assignment to a particular class showed that he did not understand the Croatian language. He scored 15 out of 97 points ( 15.5% ). He was therefore assigned to a Roma-only class, where he spent his entire schooling. In 2004/05 he took the fifth grade for the second time and failed. He failed the first and the fourth grades once and the fifth grade twice. Out of twenty-four parent-teacher meetings organised during his entire primary schooling, his parents attended none. 43. He was provided with additional classes in Croatian in the third grade in the school year 2001/02. After reaching the age of 15, he left school in August 2005. His school report shows that during his schooling he missed 1,057 classes without justification. (b) The twelfth applicant 44. The twelfth applicant, Josip Bogdan, was enrolled in the first grade of primary school in 1999/2000. The preliminary tests carried out before his assignment to a particular class showed that he did not understand the Croatian language. He scored 8 out of 97 points ( 8.25% ). He was therefore assigned to a Roma-only class, where he spent his entire schooling. In 2006/07 he took the third grade for the second time and failed. He failed the first grade once, the second grade three times and the third grade twice. Out of thirty-seven regular parent-teacher meetings organised during his primary schooling, his parents attended none. 45. He was provided with additional classes in Croatian in the first, second and third grades. In the second grade he participated in a dancing group and in the third grade in a choir. After reaching the age of 15, he left school in August 2007. His school report shows that during his schooling he missed 1,621 classes without justification. (c) The thirteenth applicant 46. The thirteenth applicant, Dijana Oršuš, was enrolled in the first grade of primary school in the school year 2000/01. The preliminary tests carried out before her assignment to a particular class showed that she had inadequate knowledge of the Croatian language. She scored 26 out of 97 points ( 26.8% ). She was therefore assigned to a Roma-only class, where she spent her entire schooling. In 2007/08 she passed the fifth grade. She failed the first grade twice and the second grade once. Out of thirty-two regular parent-teacher meetings organised during her primary schooling, her parents attended six. 47. She was provided with additional classes in Croatian in the first grade. In the first grade she participated in extracurricular activities in a mixed group and in the fifth grade in a choir. After reaching the age of 15, she left school in August 2008. Her school report shows that during her schooling she missed 522 classes without justification. (d) The fourteenth applicant 48. The fourteenth applicant, Dejan Oršuš, was enrolled in the first grade of primary school in 1999/2000. The preliminary tests carried out before his assignment to a particular class showed that he did not understand the Croatian language. He scored 15 out of 97 points ( 15.5% ). He was therefore assigned to a Roma-only class, where he spent his entire schooling. In 2005/06 he passed the third grade. He failed the first grade three times and the third grade once. Out of twenty-eight regular parent-teacher meetings organised during his primary schooling, his parents attended five. 49. He was provided with additional classes in Croatian in the first grade. After reaching the age of 15, he left school in August 2006. His school report shows that during his schooling he missed 1,033 classes without justification. (e) The fifteenth applicant 50. The fifteenth applicant, Danijela Kalanjoš, was enrolled in the first grade of primary school in the school year 2000/01. The preliminary tests carried out before her assignment to a particular class showed that her understanding of the Croatian language was poor. She scored 37 out of 97 points ( 38.14% ). She was therefore assigned to a Roma-only class, where she spent her entire schooling. In 2007/08 she passed the fifth grade. She failed the first grade twice and the second grade once. Out of twenty-one regular parent-teacher meetings organised during her entire primary schooling, her parents attended two. 51. She was provided with additional classes in Croatian in the first grade. In the first grade she participated in extracurricular activities in a mixed group, in the second grade in dancing, in the third grade in handicraft classes, and in the fifth grade in a choir. After reaching the age of 15, she left school in August 2008. Her school report shows that during her schooling she missed 238 classes without justification. C. Proceedings before the national courts 52. On 19 April 2002 the applicants brought an action under section 67 of the Administrative Disputes Act in the Čakovec Municipal Court ( Općinski sud u Čakovcu ) against the above-mentioned primary schools and Kuršanec Primary School, the State and Međimurje County (“the defendants”). They submitted that the teaching organised in the Roma-only classes in the schools in question was significantly reduced in volume and in scope compared to the officially prescribed curriculum. The applicants claimed that the situation described was racially discriminating and violated their right to education as well as their right to freedom from inhuman and degrading treatment. They requested the court to order the defendants to refrain from such conduct in the future. 53. The applicants also produced the results of a psychological study of Roma children attending Roma-only classes in Međimurje, carried out immediately before their action was lodged, showing the following: – most children had never had a non-Roma child as a friend; – 86.9% expressed a wish to have a non-Roma child as a friend; – 84.5% expressed a wish to attend a mixed class; – 89% said they felt unaccepted in the school environment; – 92% stated that Roma and non-Roma children did not play together. Furthermore, the report asserted that segregated education produced emotional and psychological harm in Roma children, in terms of lower self-esteem and self-respect and problems in the development of their identity. Separate classes were seen as an obstacle to creating a social network of Roma and non-Roma children. 54. The defendants each submitted replies to the arguments put forward by the applicants, claiming that there was no discrimination of Roma children and that pupils enrolled in school were all treated equally. They submitted that all pupils were enrolled in school after a committee (composed of a physician, a psychologist, a school counsellor ( pedagog ), a defectologist and a teacher) had found that the candidates were physically and mentally ready to attend school. The classes within a school were formed depending on the needs of the class, the number of pupils, etc. In particular, it was important that classes were formed in such a way that they enabled all pupils to study in a stimulating environment. 55. Furthermore, the defendants submitted that pupils of Roma origin were grouped together not because of their ethnic origin, but rather because they were often not proficient in Croatian and it took more exercises and repetitions for them to master the subjects taught. Finally, they claimed that Roma pupils received the same quality of education as other pupils as the scope of their curriculum did not differ from that prescribed by law. 56. On 26 September 2002 the Čakovec Municipal Court dismissed the applicants ’ action, accepting the defendants ’ argument that the reason why most Roma pupils were placed in separate classes was that they were not fluent in Croatian. Consequently, the court held that this was not unlawful and that the applicants had failed to substantiate their allegations concerning racial discrimination. Lastly, the court concluded that the applicants had failed to prove the alleged difference in the curriculum of the Roma-only classes. 57. On 17 October 2002 the applicants appealed against the first-instance judgment, claiming that it was arbitrary and contradictory. 58. On 14 November 2002 the Čakovec County Court ( Županijski sud u Čakovcu ) dismissed the applicants ’ appeal, upholding the reasoning of the first-instance judgment. 59. Subsequently, on 19 December 2002, the applicants lodged a complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) under section 62 of the Constitutional Act on the Constitutional Court. In their constitutional complaint the applicants reiterated their earlier arguments, relying on the relevant provisions of the Constitution and of the Convention. 60. On 3 November 2003 the applicants ’ lawyer lodged an application with the Constitutional Court to expedite the proceedings. On 7 February 2007 the Constitutional Court dismissed the applicants ’ complaint in its decision no. U-III-3138/2002, published in Official Gazette no. 22 of 26 February 2007. The relevant parts of the decision read as follows. “The first-instance court established in the impugned judgment that the criteria for formation of classes in the defendant primary schools had been knowledge of the Croatian language and not the pupils ’ ethnic origin. The [first-instance] court considered that the complainants had failed to prove their assertion that they had been placed in their classes on the basis of their racial and ethnic origin. The [first-instance] court stressed that the complainants relied exclusively on the activity report of the Ombudsman for the year 2000. However, the Ombudsman said in his evidence that the part of the report referring to the education of Roma had been injudicious because all the relevant facts had not been established. The first-instance court relied on section 27 paragraph 1 of the Primary Education Act ... which provides that teaching in primary schools is in the Croatian language and Latin script, and considered a lack of knowledge of the Croatian language as an objective impediment in complying with the requirements of the school curriculum, which also transpires from the conclusion of a study carried out for the needs of the Croatian Helsinki Committee. The [first-instance] court found: ‘ pupils enrolling in the first year of primary schools have to know the Croatian language, so that they are able to follow the teaching, if the purpose of primary education is to be fulfilled. It is therefore logical that classes with children who do not know the Croatian language require additional efforts and commitment of teachers, in particular to teach them the Croatian language. ’ The first-instance court found that the defendants had not acted against the law in that they had not changed the composition of classes once established, as only in exceptional situations was the transfer of pupils from one class to another allowed. The [first-instance] court considered that this practice respected the integrity of a class and its unity in the upper grades. The [first-instance] court considered that classes should be formed so as to create favourable conditions for an equal approach to all pupils according to the prescribed curriculum and programme, which could be achieved only where a class consisted of a permanent group of pupils of approximately the same age and knowledge. Furthermore, the [first-instance] court found that the complainants had failed to prove their assertion that ... they had a curriculum of significantly smaller volume than the one prescribed for primary schools by the Ministry of Education and Sports on 16 June 1999. The [first-instance] court found that the above assertion of the complainants relied on the Ombudsman ’ s report. However, the Ombudsman said in his testimony that he did not know how the fact that in Roma-only classes the teaching followed a so-called special programme had been established. The [first-instance] court established that teaching in the complainants ’ respective classes and the parallel ones followed the same curriculum. Only in the Kuršanec Primary School were there some deviations from the school curriculum, but the [first-instance] court found those deviations permissible since they had occurred ... at the beginning of the school year owing to low attendance. After having established that the complainants had not been placed in their classes according to their racial and ethnic origin and that the curriculum had been the same in all parallel classes, the first-instance court dismissed the complainants ’ action. ... The reasoning of the first-instance judgment ... shows that the defendant primary schools replied to the complainants ’ allegations as follows: ‘ The [defendant schools] enrolled in the first year those children found psycho-physically fit to attend primary school by a committee composed of a physician, a psychologist, a school counsellor [ pedagog ], a defectologist and a teacher. They did not enrol Croatian children or Roma children as such, but children found by the said committee to be psychologically and physically fit to be enrolled in primary school. ... The defendant primary schools maintain that the first obstacle for Roma children in psychological tests is their lack of knowledge of the Croatian language in terms of both expression and comprehension. As to the emotional aspect of maturity, most of these children have difficulty channelling their emotions. In terms of social maturity, children of Roma origin do not have the basic hygienic skills of washing, dressing, tying or buttoning, and a lot of time is needed before they achieve these skills. ... It is therefore difficult to plan lessons with sufficient motivation for all children, which is one of the obligations of primary schools. There are classes composed of pupils not requiring additional schooling to follow the teaching programme and classes composed of pupils who require supplementary work and assistance from teachers in order to acquire the necessary [skills] they lack owing to social deprivation. ... ’ The reasoning of the same judgment cites the testimony of M.P.-P., a school counsellor and psychologist at Macinec Primary School, given on 12 December 2001 ...; ‘ Before enrolment the committee questions the children in order to establish whether they possess the skills necessary for attending school. Classes are usually formed according to the Gauss curve, so that the majority in a given class are average pupils and a minority below or above average. ... However, in a situation where 70% of the population does not speak Croatian, a different approach is adopted so as to form classes with only pupils who do not speak Croatian, because in those classes a teacher ’ s first task is to teach the children the language. ’ The above shows that the allocation of pupils to classes is based on the skills and needs of each individual child. The approach is individualised and carried out in keeping with professional and pedagogical standards. Thus, the Constitutional Court finds the approach applied correct since only qualified experts, in particular in the fields of pedagogy, school psychology and defectology, are responsible for assigning individual children to the appropriate classes. The Constitutional Court has no reason to question the findings and expert opinions of the competent committees, composed of physicians, psychologists, school counsellors [ pedagog ], defectologists and teachers, which in the instant case found that the complainants should be placed in separate classes. None of the facts submitted to the Constitutional Court leads to the conclusion that the placement of the complainants in separate classes was motivated by or based on their racial or ethnic origin. The Constitutional Court finds that their placement pursued the legitimate aim of necessary adjustment of the primary educational system to the skills and needs of the complainants, where the decisive factor was their lack of knowledge or inadequate knowledge of Croatian, the language used to teach in schools. The separate classes were not established for the purpose of racial segregation in enrolment in the first year of primary school but as a means of providing children with supplementary tuition in the Croatian language and eliminating the consequences of prior social deprivation. It is of particular importance to stress that the statistical data on the number of Roma children in separate classes in the school year 2001 / 02 ... are not in themselves sufficient to indicate that the defendants ’ practice was discriminatory (see also the European Court of Human Rights judgments Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001, and D.H. and Others v. the Czech Republic, no. 57325/00, § 46, 7 February 2006 ). Moreover, the complainants themselves maintain in their constitutional complaint that in the school year 2001 / 02 40.93% of Roma children in Međimurje County were placed in regular classes, which tends to support the Constitutional Court ’ s conclusion that there is no reason to challenge the correct practice of the defendant primary schools and expert committees. ... In their constitutional complaint the complainants further point out that, ‘ [e] ven if lack of knowledge of the Croatian language on enrolment in the first year was a problem, the same could not be said of the complainants ’ enrolment in upper grades ’. They therefore consider that their rights were violated by the courts ’ findings that it had been justified to maintain separate [Roma-only] classes in the upper grades in order to preserve the stability of the wholeness of a given class. The complainants submit that the stability of a class should not have been placed above their constitutional rights, multiculturalism and national equality. In that regard the Constitutional Court accepts the complainants ’ arguments. While the Constitutional Court considers correct and acceptable the courts ’ findings that lack of knowledge of the Croatian language represents an objective obstacle justifying the formation of separate classes for children who do not speak Croatian at all or speak it badly when they start school ... bearing in mind the particular circumstance of the present case, it cannot accept the following conclusion of the first-instance court: ‘ Furthermore, the integrity and unity of a class is respected in the upper grades. Therefore, transfer of children from one class to another occurs only exceptionally and in justified cases ... because a class is a homogeneous whole and transferring children from one class to another would produce stress. ... The continuity of a group is a precondition for the development of a class collective ... ’ Accordingly, the Constitutional Court cannot accept the following view of the appellate court: ‘ The classes are formed when the children enter the first year of their schooling, not every year, and their composition changes only exceptionally. They become a settled whole which makes for work of a higher quality and it is not pedagogically justified to change them. Therefore this court, like the first-instance court, concludes that maintaining established classes did not amount to an unlawful act. ’ The above views of the courts would have been acceptable had they referred to the usual situations concerning the assignment of pupils to upper grade classes in primary schools where no objective need for special measures existed, such as forming separate classes for children with inadequate command of Croatian. Considering the circumstances of the present case, the Constitutional Court finds that it is in principle objectively and reasonably justified to maintain separate classes in the upper grades of primary school only for pupils who have not attained the level of Croatian necessary for them to follow the school curriculum of regular classes properly. ... However, there is no objective or reasonable justification for not transferring to a regular class a pupil who has attained proficiency in Croatian in the lower grades of primary school and successfully mastered the prescribed school curriculum. ... Keeping such a pupil in a separate class against his or her will ... for reasons unrelated to his or her needs and skills would be unacceptable from the constitutional point of view with regard to the right of equality before the law, guaranteed under Article 14 § 2 of the Constitution. ... ... [A] constitutional complaint is a particular constitutional instrument for the protection of a legal subject whose human right or fundamental freedom guaranteed under the Constitution has been infringed in an individual act of a State or public body which determined his or her rights and obligations. The present constitutional complaint concerns impugned judgments referring to the school year 2001/02. However, not a single complainant alleges that in that school year he or she was a pupil in a separate [Roma-only] upper-grade class or was personally affected or concerned by the contested practice ... Although it does not concern the individual legal position of any of the complainants ..., in respect of the complainants ’ general complaint about the maintaining of Roma-only classes in the upper grades of primary school the Constitutional Court has addressed the following question: – was the continued existence of Roma-only classes in the upper grades of primary school ... caused by the defendants ’ intent to discriminate those pupils on the basis of their racial or ethnic origin? ... [N] one of the facts submitted to the Constitutional Court lead to the conclusion that the defendants ’ ... practice was aimed at discrimination of the Roma pupils on the basis of their racial or ethnic origin. ... The complainants further complain of a violation of their right to education on the ground that the teaching organised in those classes was more reduced in volume and in scope than the curriculum for primary schools adopted by the Ministry of Education and Sports on 16 June 1999. They consider that ‘ their placement in Roma-only classes with an inferior curriculum stigmatises them as being different, stupid, intellectually inferior and children who need to be separated from normal children in order not to be a bad influence on them. Owing to their significantly reduced and simplified school curriculum, their prospects of higher education or enrolment in high schools as well as their employment options or chances of advancement are slimmer ... ’ After considering the entire case file, the Constitutional Court has found that the above allegations are unfounded. The case file, which includes the first-instance judgment ..., shows that the allegations of an inferior curriculum in Roma-only classes are not accurate. The Constitutional Court has no reason to question the facts as established by the competent court. The possible difference in curricula between parallel classes for objective reasons (for example the low attendance at Kuršanec Primary School, where in the first term of the school year 2001/02 the pupils in classes 1c, 1d, 2b and 2c missed 4,702 lessons in total, 4,170 of which were missed for no justified reason) does not contravene the requirement that the curriculum be the same in all parallel classes. The Constitutional Court is obliged to point out that neither the Constitution nor the Convention guarantees any specific requirements concerning school curricula or their implementation. First and foremost the Constitution and the Convention guarantee a right of access to educational institutions existing in a given State, as well as an effective right to education, in other words that every person has an equal right to obtain official recognition of the studies which he or she has completed (a similar view was expressed by the European Court of Human Rights in a case relating to certain aspects of the laws on the use of languages in education in [ Case “relating to certain aspects of the laws on the use of languages in education in ] Belgium [ ” ] (merits), 23 July 1968, Series A no. 6 ). ... ... [T] he Constitutional Court finds the evidence submitted in the present proceedings insufficient to show beyond doubt that the complainants had to follow a school curriculum of lesser scope. ... Thus, the Constitutional Court considers the complainants ’ assertion about being stigmatised as a subjective value judgment, without reasonable justification. The Constitutional Court finds no factual support for the complainants ’ assertion that the source of their stigmatisation was an allegedly reduced curriculum owing to which their prospects for further education were lower, and dismisses that assertion as arbitrary. The competent bodies of the Republic of Croatia recognise the level of education a person has completed irrespective of his or her racial or ethnic origin. In that respect everyone is equal before the law, with equal chances of advancement according to their abilities.” III. COUNCIL OF EUROPE REPORTS CONCERNING CROATIA A. The European Commission against Racism and Intolerance (ECRI) 1. The first report on Croatia, published on 9 November 1999 65. The relevant part of the report concerning the situation of Roma reads: “32. Overall, Roma/Gypsy are reported to continue to face societal discrimination and official inaction when complaints are filed. Progress has been made in the fields of education and public awareness, through the publication of studies on the subject of Romani education, initiatives related to the organisation and financing of education of Roma children, training of Roma teachers, and public forums on the difficulties faced by Roma/Gypsy society. The authorities are encouraged to give further support to such initiatives, taking into account ECRI ’ s General Policy Recommendation No. 3 on combating racism and intolerance against Roma/Gypsies. ... ” 2. The second report on Croatia, published on 3 July 2001 66. The relevant parts of this report read: “ Access to education 41. Education of Roma/Gypsy children is a serious problem in Croatia. Many Roma/Gypsy children do not go to school, having either dropped out or having never attended. According to Roma/Gypsy representatives, there are regions where not a single Roma/Gypsy child attends school. ECRI understands that the reasons for this situation are complex, and there is no easy solution, however emphasises the need to increase the participation of Roma/Gypsy children at all levels of education. The Croatian authorities are encouraged to make special efforts in this regard. 42. ECRI wishes to draw attention to its General Policy Recommendation No. 3 on combating racism and intolerance against Roma/Gypsies, where the existence of discrimination in explaining the process of social exclusion is highlighted. An investigation should be carried out into the role of stereotypes and prejudices of teachers, which may lead to low expectations for Roma/Gypsy children. ECRI recommends, in this respect, that training be offered to teachers, including information about the particular needs and expectations of Roma/Gypsies and the ability to use this knowledge effectively. As insufficient knowledge of the Croatian language upon entry to classes may also present an obstacle, ECRI emphasises the importance of preparatory classes, additional training in the Croatian language and increased opportunities to study the Roma language in the early years of schooling, which might assist Roma/Gypsy children in integrating into the educational system. ECRI notes with interest initiatives such as the “ Programme for Including Roma children in the Education System of the Republic of Croatia ”, launched in 1998, and encourages the authorities in their efforts to continue to develop and implement appropriate measures in cooperation with Roma associations. Roma/Gypsy organisations have highlighted the connection between poverty, poor living conditions and school attendance. The Croatian authorities might consider creating special assistance programmes for Roma/Gypsy and other children from extremely poor families who may find the costs of textbooks, other school materials and proper school dress prohibitive.” 3. The third report on Croatia, published on 14 June 2005 67. The relevant parts of this report read: “ Education and awareness raising 83. ECRI is concerned to learn that schoolbooks sometimes convey negative images of certain minority groups, particularly ... Roma. ... Situation of the Roma community in Croatia ... 137. ECRI is pleased to learn that in October 2003 the government adopted a national programme for the Roma which aims to resolve many of the difficulties encountered by Roma in their day-to-day lives. The programme is based on the observation that Roma are largely marginalised in social and public activities and experience worse living conditions than the average majority population and other minorities. The programme aims to abolish all forms of discrimination, violence, stereotyping and prejudice against Roma, while ensuring that they do not lose their own identity, culture or traditions. In order to achieve this aim, the programme sets out a series of measures in areas such as access to citizenship, education, housing, access to public services and relations with the police. In 2004, a commission made up of government representatives, Roma and NGO [non-governmental organisation] representatives was set up to monitor the programme and develop a joint action plan for the different ministries. A number of measures have already been taken, such as the training of Roma as assistants in schools or as police officers and the training of young Roma at seminars on participation in public life. ... However, implementation of the programme has not really got off the ground yet and NGOs are critical of the lack of budgetary resources provided, though these are essential to the success of such a programme. The programme must be regarded as positive, although in ECRI ’ s view it does not sufficiently emphasise the part played by stereotyping and prejudice against Roma, both among the population and among representatives of the public authorities, in the difficulties encountered by this community. ECRI also notes with interest that the government is in the process of adopting a national action plan for Roma integration, which proposes a wide range of measures to improve the situation of Roma. ... Access to education for Roma children 141. In its second report on Croatia, ECRI recommended that the Croatian authorities make special efforts to increase the participation of Roma children at all levels of education. 142. The authorities have taken measures to facilitate Roma children ’ s access to education, such as setting up nursery school classes enabling them to learn Croatian, training teachers in Roma culture and training young Roma as assistants in schools. Some Roma now receive State grants to enrol in university. However, as they are very recent and applied on a small scale these measures are not enough to offset the fact that Roma children are very much behind in terms of equal opportunities in education. Many Roma children leave school at a very early age. They do not always have access to education in their mother tongue and their own culture in schools, in spite of the legislation on the rights of national minorities which provides for this possibility. The authorities have explained to ECRI that this is because the Roma have not asked for it themselves and because the Romani language is not standardised, with several Romani dialects in Croatia. However, some Roma representatives have expressed the wish that the school curriculum for Roma children should include teaching of their mother tongue and Roma culture, though they also emphasise the importance of learning Croatian. 143. ECRI is particularly concerned by allegations that separate classes solely for Roma children exist alongside classes for non-Roma children in some schools in the Međimurje region. According to several NGOs, including the European Roma Rights Centre, education in the classes set aside for Roma children is of poorer quality than in the other classes. According to the authorities, however, the sole reason why there are still classes comprising only Roma children is the de facto segregation which they face where housing is concerned, since Roma are sometimes in the majority in some areas. Nevertheless, this explanation does not provide a response to allegations that when the authorities tried to introduce mixed classes instead of separate classes in some schools, they came up against opposition from the non-Roma parents, who apparently signed petitions against this measure, with the result that the separate classes were maintained. ECRI notes that proceedings for racial segregation are pending before the national courts in this connection. Recommendations 144. ECRI urges the Croatian authorities to take measures without delay to improve equal opportunities for Roma children in education. It stresses the paramount importance of elaborating a short-, medium- and long-term policy in the matter and providing sufficient funds and other resources to implement this policy. In particular, it should be made easier for Roma children to learn Croatian while also allowing those who so wish to be taught their Romani dialect and Roma culture. 145. ECRI encourages the Croatian authorities to conduct an in-depth investigation into the allegations that segregation is practised between Roma and non-Roma children in some schools and to rapidly take all the necessary measures, where appropriate, to put an end to such situations. 146. ECRI reiterates its recommendations that a study be carried out on the influence of stereotyping and prejudices among teachers, which may lead to low expectations of Roma children. It encourages all measures designed to educate teachers about Roma culture.” B. Advisory Committee on the Framework Convention for the Protection of National Minorities 1. Opinion on Croatia adopted on 6 April 2001 68. The relevant parts of the opinion read: Article 4 “ ... 28. The Advisory Committee finds that Croatia has not been able to secure full and effective equality between the majority population and Roma and that the situation of Roma remains difficult in such fields as employment, housing and education. It appears, however, that Roma issues have recently received increasing attention from the central authorities. The Advisory Committee finds it important that this commitment increases the vigour with which sectoral projects for Roma, such as the ones in the field of education (see also comments under Article 12), are pursued and leads to the development, in consultations with Roma, of more comprehensive programmes and strategies to address the concerns of this national minority. ... ” Article 12 “ ... 49. While recognising that there appears to be no large-scale separation of Roma children within the educational system of Croatia, the Advisory Committee is highly concerned about reports that in certain schools, Roma children are placed in separate classes and school facilities are organised and operated in a manner that appears to stigmatise Roma pupils. The Advisory Committee stresses that placing children in separate classes should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests. The Advisory Committee supports the efforts of the office of the Ombudsman to review this situation with a view to ensuring that Roma children have equal access to, and opportunities to continue to attend, regular classes. The Advisory Committee is aware of the reservations expressed by some Roma with respect to the integration of Roma pupils into regular classes and supports efforts to involve Roma parents and Roma organisations in the process aimed at remedying the current situation. The Advisory Committee considers that a key to reaching this aim is to secure that the educational system reflects and takes fully into account the language and culture of the minority concerned, as stipulated in the principles contained in the Committee of Ministers; ’ Recommendation No. R (2000) 4 on the education of Roma/Gypsy children in Europe. The Advisory Committee notes that the government of Croatia adopted in July 1998 a “Programme of Integration of Roma Children in the Educational and School System” which contains a number of useful ideas in this respect. The text of the programme appears however rather cursory in nature, and the Advisory Committee considers that Croatia needs to develop, implement and evaluate further its measures aimed at improving the status of Roma in the educational system. ... ” V. Proposal for conclusions and recommendations by the Committee of Ministers “ ... In respect of Article 12 ... The Committee of Ministers concludes that in certain schools in Croatia, Roma children are reportedly placed in separate classes, and school facilities are organised and operated in a manner that appears to stigmatise Roma pupils. The Committee of Ministers recommends that this question be reviewed, and necessary measures taken, with a view to ensuring that Roma children have equal access to, and opportunities to continue to attend, regular classes, bearing in mind the principles contained in the Committee of Ministers ’ Recommendation No. R (2000) 4 on the education of Roma/Gypsy children in Europe.” 2. Comments submitted by the Croatian Government on 26 September 2001 69. The relevant parts of the comments read: Articles 12 and 14 “ ... The education of Roma is a serious problem caused by their way of life and their attitude towards the system, laws, rights and obligations of citizens and requires particular efforts and solutions. The Croatian Ministry of Education and Sports, in cooperation with the other ministries and state institutions, local administration and self-government, as well as non-governmental organisations, has initiated programmes to resolve this issue at two levels: ( a) Programme of integration of the Roma population into the educational system of the Republic of Croatia. ( b) Exercise of minority rights aimed at preserving their mother tongue and culture. Regarding pre-school education, the Ministry of Education and Sports, in cooperation with non-governmental organisations, initiated a programme for the inclusion of Roma children and their families, notably mothers, into the system, but only on a voluntary basis, while at the moment there are no effective mechanisms of obligatory inclusion. At the level of primary and secondary education, Roma children attend classes together with other children. Those children who do not speak the Croatian language may well be enrolled in special classes where they receive special attention with a view to learning the Croatian language. This practice is implemented only in the first and second grade of primary school, after which children attend classes together with children of other nationalities. Although this practice has yielded some positive results, priority is given to the organisation of pre-school preparation to help Roma children to overcome the language barrier, learn the basic rules of school conduct, hygienic habits and needs, and strengthen the feeling of affiliation and security in the school environment. The Ministry of Education and Sports, in cooperation with the local administration, has taken a number of measures for this purpose – additional assistance to overcome problems concerning the following and comprehension of school lessons, adaptation of curricula to the needs of Roma children, granting of accommodation for Roma pupils (attending secondary schools), follow up to the process of inclusion, assisting in the preparation of young Roma for the profession of teachers and trainers, providing free school meals and bus transport to and from school and so forth.” 3. Second opinion on Croatia adopted on 1 October 2004 70. The relevant parts of the opinion read: “Article 12 of the Framework Convention [for the Protection of National Minorities] ... Education of Roma children and contacts amongst pupils from different communities ... Present situation ( a) Positive developments 128. The authorities seem to be increasingly sensitive to the problems of Roma children in education and have launched new initiatives, including at the pre-school level, which are aimed at improving the situation and attendance of Roma children in schools. The National Programme for Roma Integration details a number of laudable measures that could help to further the protection of the Roma in the educational system, such as the employment of Roma assistant teachers in regular classes and the provision of free meals for children. ( b) Outstanding issues 129. The placing of Roma children in separate classes appears to be increasingly rare in Croatia, but this practice, which has been challenged in pending legal cases, continues in some schools in Međimurje County. The National Programme for Roma Integration also endorses the idea of separate first-grade Roma-only classes for those who have not attended pre-school and are not proficient in the Croatian language. Such classes do not appear to be set up to foster teaching in or of Roma language or other elements of Roma culture, but rather to assist the children to obtain basic Croatian language and other skills so that they can meet the demands of the educational system. While recognising that these are valuable aims, the Advisory Committee considers that pupils should not be placed in such separate remedial classes on the basis of their affiliation with a national minority but rather on the basis of the skills and needs of the individuals concerned, and where such placing is found necessary, it should be for a limited period only. ... Recommendations 131. Croatia should fully implement the valuable educational initiatives contained in the National Programme for Roma Integration, including those promoting increased attendance of Roma children in pre-schools. The envisaged remedial first-grade classes should, however, not be conceived a priori as Roma classes, but as classes in which individuals are placed on the basis of their skills and needs, regardless of their ethnicity. ... ” 4. Comments submitted by the Croatian Government on 13 April 2005 71. The relevant parts of the comments read: Education of Roma children and contacts amongst pupils from different communities “ The programme of pre-school education is intended to encompass as large a number of Roma children as possible and thus create the precondition for their successful entrance into the primary education system. The Ministry of Science, Education and Sports has also supported the establishment of kindergartens for Roma children in cooperation with Roma NGOs, international organisations and local authorities. The responsible bodies are also helping with the enrolment of Roma pupils in institutions of secondary and higher education and are providing student grants. By increasing the number of Roma children in pre-school education, conditions are created for their enrolment in regular primary schools.” C. Commissioner for Human Rights 1. Report by Mr Alvaro Gil- Robles, Commissioner for Human Rights, on his visit to the Republic of Croatia, 14 to 16 June 2004 72. The relevant parts of the report read: “ III. Situation of the Roma community ... 27. In spite of non-discrimination on a legal plane, the treatment meted out to the Roma minority still raises anxieties since this population continues to undergo social and economic discrimination. It should nevertheless be observed that efforts have been undertaken in institutional matters especially, the government having set up a National Council of Roma chaired by the Deputy Prime Minister. Locally, and around Međimurje in particular, most districts have had water and electricity connected and are served by school transport. ... A. Segregation in schools 30. The year 2002 saw the worsening of problems around the town of Čakovec which applied a practice of separating Roma and non-Roma pupils in schools. An atmosphere of intolerance took hold; non-Roma parents went so far as to stage a demonstration in front of a school at the start of the 2002/03 school year, denying entry to the Roma children. Under strong national and international pressure, the authorities recognised that these practices existed and undertook to review this question. 31. When I visited Čakovec, I had the opportunity to visit a primary school with a mixed enrolment. I hasten to thank the head and the staff of this school for their reception. My discussions with them satisfied me that the situation had substantially improved thanks to the commitment of all concerned. Certain difficulties still lingered, however. The Međimurje region has a high proportion of Roma and schools have a large enrolment of Roma pupils who make up as much as 80% of certain age bands. But these figures cannot justify any segregation whatsoever between children, who must be equally treated. I sincerely hope there will be no recurrence of the events which took place in the past, and it is imperative to guarantee that the social and ethnic mix is maintained for the sake of having Roma and non-Roma children educated together in the same classes. 32. Difficulties over Roma pupils ’ Croatian language proficiency were also reported to me. I would stress the importance of putting all pupils through the same syllabus and the same teaching process in one class. Nonetheless, the knowledge gap problem is not to be evaded. As a remedy to it, it could be useful to set up at national level pre-school classes for children whose mother tongue is not Croatian. That way, they will acquire a sufficient grounding in the Croatian language to be able to keep up with the primary school courses later, while at the same time familiarising themselves with the school institution. In the second place, it rests with the parents to ensure the sound learning of the language and their children ’ s regular attendance for the entire school course.” 2. Final report by Mr Alvaro Gil-Robles on the Human Rights Situation of the Roma, Sinti and Travellers in Europe (dated 15 February 2006) 73. In the third section of the report, which concerns discrimination in education, the Commissioner for Human Rights noted that the fact that a significant number of Roma children did not have access to education of a similar standard to that enjoyed by other children was in part a result of discriminatory practices and prejudices. In that connection, he noted that segregation in education was a common feature in many Council of Europe member States. In some countries there were segregated schools in segregated settlements, in others special classes for Roma children in ordinary schools. Being subjected to special schools or classes often meant that these children followed a curriculum inferior to those of mainstream classes, which diminished their opportunities of further education and finding employment in the future. At the same time, segregated education denied both Roma and non-Roma children the chance to know each other and to learn to live as equal citizens. It excluded Roma children from mainstream society at the very beginning of their lives, increasing the risk of their being caught in the vicious circle of marginalisation. 74. It was also noted that special classes or special curricula for Roma had been introduced with good intentions, for the purposes of overcoming language barriers or remedying the lack of pre-school attendance of Roma children. Evidently, it was necessary to respond to such challenges, but segregation or systematic placement of Roma children in classes which followed a simplified or a special Romani-language curriculum while isolating them from other pupils was clearly a distorted response. Instead of segregation, significant emphasis had to be placed on measures such as pre-school and in-school educational and linguistic support as well as the provision of school assistants to work alongside teachers. In certain communities, it was crucial to raise the awareness of Roma parents – who themselves might not have had the possibility to attend school – of the necessity and benefits of adequate education for their children. 75. In conclusion, the Commissioner made a number of recommendations related to education. Where segregated education still existed in one form or another, it had to be replaced by ordinary integrated education and, where appropriate, banned through legislation. Adequate resources had to be made available for the provision of pre-school education, language training and school assistant training in order to ensure the success of desegregation efforts. Adequate assessment had to be made before children were placed in special classes, in order to ensure that the sole criterion in the placement was the objective needs of the child, not his or her ethnicity. 76. The excerpt of the report concerning Croatia reads: “ 52. While visiting Croatia in 2004, I learned of a two-year programme, initiated in 2002, to prepare all Roma children for schools, under which children were taught various skills in the Croatian language. Under the Croatian Action Plan for the Decade for Roma Inclusion, special efforts to improve pre-school education for Roma children have been continued with a view to full integration in [to] the regular school system. ... ” IV. OTHER COUNCIL OF EUROPE DOCUMENTS A. The Committee of Ministers 1. Recommendation No. R (2000) 4 of the Committee of Ministers to member States on the education of Roma/Gypsy children in Europe (adopted by the Committee of Ministers on 3 February 2000 at the 696th meeting of the Ministers ’ Deputies) 77. The Recommendation provides as follows: “The Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe, Considering that the aim of the Council of Europe is to achieve greater unity between its members and that this aim may be pursued, in particular, through common action in the field of education; Recognising that there is an urgent need to build new foundations for future educational strategies toward the Roma/Gypsy people in Europe, particularly in view of the high rates of illiteracy or semi-literacy among them, their high drop-out rate, the low percentage of students completing primary education and the persistence of features such as low school attendance; Noting that the problems faced by Roma/Gypsies in the field of schooling are largely the result of long-standing educational policies of the past, which led either to assimilation or to segregation of Roma/Gypsy children at school on the grounds that they were ‘ socially and culturally handicapped ’; Considering that the disadvantaged position of Roma/Gypsies in European societies cannot be overcome unless equality of opportunity in the field of education is guaranteed for Roma/Gypsy children; Considering that the education of Roma/Gypsy children should be a priority in national policies in favour of Roma/Gypsies; Bearing in mind that policies aimed at addressing the problems faced by Roma/Gypsies in the field of education should be comprehensive, based on an acknowledgement that the issue of schooling for Roma/Gypsy children is linked with a wide range of other factors and pre-conditions, namely the economic, social and cultural aspects, and the fight against racism and discrimination; Bearing in mind that educational policies in favour of Roma/Gypsy children should be backed up by an active adult education and vocational education policy; ... Recommends that in implementing their education policies the governments of the member States: – be guided by the principles set out in the appendix to this Recommendation; – bring this Recommendation to the attention of the relevant public bodies in their respective countries through the appropriate national channels.” 78. The relevant sections of the Appendix to Recommendation No. R (2000) 4 read as follows: “ Guiding principles of an education policy for Roma/Gypsy children in Europe I. Structures 1. Educational policies for Roma/Gypsy children should be accompanied by adequate resources and the flexible structures necessary to meet the diversity of the Roma/Gypsy population in Europe and which take into account the existence of Roma/Gypsy groups which lead an itinerant or semi-itinerant lifestyle. In this respect, it might be envisaged having recourse to distance education, based on new communication technologies. 2. Emphasis should be put on the need to better coordinate the international, national, regional and local levels in order to avoid dispersion of efforts and to promote synergies. 3. To this end member States should make the ministries of education sensitive to the question of education of Roma/Gypsy children. 4. In order to secure access to school for Roma/Gypsy children, pre-school education schemes should be widely developed and made accessible to them. 5. Particular attention should also be paid to the need to ensure better communication with parents, where necessary using mediators from the Roma/Gypsy community which could then lead to specific career possibilities. Special information and advice should be given to parents about the necessity of education and about the support mechanisms that municipalities can offer families. There has to be mutual understanding between parents and schools. The parents ’ exclusion and lack of knowledge and education (even illiteracy) also prevent children from benefiting from the education system. 6. Appropriate support structures should be set up in order to enable Roma/Gypsy children to benefit, in particular through positive action, from equal opportunities at school. 7. The member States are invited to provide the necessary means to implement the above-mentioned policies and arrangements in order to close the gap between Roma/Gypsy pupils and majority pupils. II. Curriculum and teaching material 8. Educational policies in favour of Roma/Gypsy children should be implemented in the framework of broader intercultural policies, taking into account the particular features of the Romani culture and the disadvantaged position of many Roma/Gypsies in the member States. 9. The curriculum, on the whole, and the teaching material should therefore be designed so as to take into account the cultural identity of Roma/Gypsy children. Romani history and culture should be introduced in the teaching material in order to reflect the cultural identity of Roma/Gypsy children. The participation of representatives of the Roma/Gypsy community should be encouraged in the development of teaching material on the history, culture or language of the Roma/Gypsies. 10. However, the member States should ensure that this does not lead to the establishment of separate curricula, which might lead to the setting up of separate classes. 11. The member States should also encourage the development of teaching material based on good practices in order to assist teachers in their daily work with Roma/Gypsy pupils. 12. In the countries where the Romani language is spoken, opportunities to learn in the mother tongue should be offered at school to Roma/Gypsy children. III. Recruitment and training of teachers 13. It is important that future teachers should be provided with specific knowledge and training to help them understand better their Roma/Gypsy pupils. The education of Roma/Gypsy pupils should however remain an integral part of the general educational system. 14. The Roma/Gypsy community should be involved in the designing of such curricula and should be directly involved in the delivery of information to future teachers. 15. Support should also be given to the training and recruitment of teachers from within the Roma/Gypsy community. ...” 2. Recommendation CM/Rec(2009) 4 of the Committee of Ministers to member States on the education of Roma and Travellers in Europe (adopted by the Committee of Ministers on 17 June 2009 at the 1061st meeting of the Ministers ’ Deputies) 79. The relevant parts of the Recommendation read: “The Committee of Ministers ... 1. Recommends that the governments of member States, with due regard for their constitutional structures, national or local situations and educational systems: ... b. elaborate, disseminate and implement education policies focusing on ensuring non-discriminatory access to quality education for Roma and Traveller children, based on the orientations set out in the appendix to this recommendation; ... d. ensure, through local and regional authorities, that Roma and Traveller children are effectively accepted in school; ... ” 80. The relevant sections of the Appendix to Recommendation CM/Rec(2009)4 read as follows. “ I. Principles of policies ... 5. Member States should ensure that legal measures are in place to prohibit segregation on racial or ethnic grounds in education, with effective, proportionate and dissuasive sanctions, and that the law is effectively implemented. Where de facto segregation of Roma and Traveller children based on their racial or ethnic origin exists, authorities should implement desegregation measures. Policies and measures taken to fight segregation should be accompanied by appropriate training of educational staff and information for parents. 6. Educational authorities should set up assessment procedures that do not result in risks of enrolling children in special education institutions based on linguistic, ethnic, cultural or social differences but facilitate access to schooling. Roma and Traveller representatives should be involved in defining and monitoring these procedures. ... II. Structures and provision for access to education 9. Roma and Travellers should be provided with unhindered access to mainstream education at all levels subject to the same criteria as the majority population. To accomplish this goal, imaginative and flexible initiatives should be taken as required in terms of educational policy and practice. Appropriate measures should also be taken to ensure equal access to educational, cultural, linguistic and vocational opportunities offered to all learners, with particular attention to Roma and Traveller girls and women. 10. Attendance of pre - school education for Roma and Traveller children should be encouraged, under equal conditions as for other children, and enrolment in pre - school education should be promoted if necessary by providing specific support measures. ... III. Curriculum, teaching material and teacher training ... 19. Educational authorities should ensure that all teachers, and particularly those working in ethnically mixed classes, receive specialised training on intercultural education, with a special regard to Roma and Travellers. Such training should be included in officially recognised programmes and should be made available in various forms, including distance and online learning, summer schools, etc. 20. Teachers working directly with Roma and Traveller children should be adequately supported by Roma or Traveller mediators or assistants and should be made aware that they need to engage Roma and Traveller children more in all educational activities and not de-motivate them by placing lower demands upon them and encourage them to develop their full potential. ... ” B. The Parliamentary Assembly of the Council of Europe 1. Recommendation No. 1203 (1993) on Gypsies in Europe 81. The Parliamentary Assembly made, inter alia, the following general observations: “ 1. One of the aims of the Council of Europe is to promote the emergence of a genuine European cultural identity. Europe harbours many different cultures, all of them, including the many minority cultures, enriching and contributing to the cultural diversity of Europe. 2. A special place among the minorities is reserved for Gypsies. Living scattered all over Europe, not having a country to call their own, they are a true European minority, but one that does not fit into the definitions of national or linguistic minorities. 3. As a non-territorial minority, Gypsies greatly contribute to the cultural diversity of Europe. In different parts of Europe they contribute in different ways, be it by language and music or by their trades and crafts. 4. With central and east European countries now member States, the number of Gypsies living in the area of the Council of Europe has increased drastically. 5. Intolerance of Gypsies by others has existed throughout the ages. Outbursts of racial or social hatred, however, occur more and more regularly, and the strained relations between communities have contributed to the deplorable situation in which the majority of Gypsies lives today. 6. Respect for the rights of Gypsies, individual, fundamental and human rights and their rights as a minority, is essential to improve their situation. 7. Guarantees for equal rights, equal chances, equal treatment, and measures to improve their situation will make a revival of Gypsy language and culture possible, thus enriching the European cultural diversity. 8. The guarantee of the enjoyment of the rights and freedoms set forth in Article 14 of the European Convention on Human Rights is important for Gypsies as it enables them to maintain their individual rights. ...” 82. As far as education is concerned, the Recommendation states: “ vi. the existing European programmes for training teachers of Gypsies should be extended; ... viii. talented young Gypsies should be encouraged to study and to act as intermediaries for Gypsies; ...” 2. Recommendation No. 1557 (2002) on the legal situation of Roma in Europe 83. This Recommendation states, inter alia : “... 3. Today Roma are still subjected to discrimination, marginalisation and segregation. Discrimination is widespread in every field of public and personal life, including access to public places, education, employment, health services and housing, as well as crossing borders and access to asylum procedures. Marginalisation and the economic and social segregation of Roma are turning into ethnic discrimination, which usually affects the weakest social groups. 4. Roma form a special minority group, in so far as they have a double minority status. They are an ethnic community and most of them belong to the socially disadvantaged groups of society. ... 15. The Council of Europe can and must play an important role in improving the legal status, the level of equality and the living conditions of Roma. The Assembly calls upon the member States to complete the six general conditions, which are necessary for the improvement of the situation of Roma in Europe: ... c. to guarantee equal treatment for the Romany minority as an ethnic or national minority group in the field of education, employment, housing, health and public services. Member States should give special attention to: i. promoting equal opportunities for Roma on the labour market; ii. providing the possibility for Romany students to participate in all levels of education from kindergarten to university; iii. developing positive measures to recruit Roma in public services of direct relevance to Roma communities, such as primary and secondary schools, social welfare centres, local primary health care centres and local administration; ... d. to develop and implement positive action and preferential treatment for the socially deprived strata, including Roma as a socially disadvantaged community, in the field of education, employment and housing ... e. to take specific measures and create special institutions for the protection of the Romany language, culture, traditions and identity: ... ii. to encourage Romany parents to send their children to primary school, secondary school and higher education, including college or university, and give them adequate information about the necessity of education; ... v. to recruit Roma teaching staff, particularly in areas with a large Romany population; f. to combat racism, xenophobia and intolerance and to ensure non-discriminatory treatment of Roma at local, regional, national and international levels: ... vi. to pay particular attention to the phenomenon of discrimination against Roma, especially in the fields of education and employment; ...” C. ECRI 1. ECRI General Policy Recommendation No. 3 on combating racism and intolerance against Roma/Gypsies (adopted by ECRI on 6 March 1998) 84. The relevant sections of this Recommendation state: “The European Commission against Racism and Intolerance: ... Recalling that combating racism, xenophobia, anti -Semitism and intolerance forms an integral part of the protection and promotion of human rights, that these rights are universal and indivisible, and that all human beings, without any distinction whatsoever, are entitled to these rights; ... Noting that Roma/Gypsies suffer throughout Europe from persisting prejudices, are victims of a racism which is deeply rooted in society, are the target of sometimes violent demonstrations of racism and intolerance and that their fundamental rights are regularly violated or threatened; Noting also that the persisting prejudices against Roma/Gypsies lead to discrimination against them in many fields of social and economic life, and that such discrimination is a major factor in the process of social exclusion affecting many Roma/Gypsies; ... recommends the following to governments of member States: ... – to ensure that discrimination as such, as well as discriminatory practices, are combated through adequate legislation and to introduce into civil law specific provisions to this end, particularly in the fields of employment, housing and education; ... – to vigorously combat all forms of school segregation towards Roma/Gypsy children and to ensure the effective enjoyment of equal access to education; ...” 2. ECRI General Policy Recommendation No. 7 on national legislation to combat racism and racial discrimination (adopted by ECRI on 13 December 2002) 85. The following definitions are used for the purposes of this Recommendation: “ ( a) ’ racism ’ shall mean the belief that a ground such as race, colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons. ( b) ’ direct racial discrimination ’ shall mean any differential treatment based on a ground such as race, colour, language, religion, nationality or national or ethnic origin, which has no objective and reasonable justification. Differential treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. ( c) ’ indirect racial discrimination ’ shall mean cases where an apparently neutral factor such as a provision, criterion or practice cannot be as easily complied with by, or disadvantages, persons belonging to a group designated by a ground such as race, colour, language, religion, nationality or national or ethnic origin, unless this factor has an objective and reasonable justification. This latter would be the case if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.” 86. In the explanatory memorandum to this Recommendation, it is noted (point 8) that the definitions of “ direct ” and “ indirect ” racial discrimination contained in paragraph 1 ( b) and ( c) of the Recommendation draw inspiration from those contained in Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and in Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation and on the case-law of the European Court of Human Rights. | This case concerned fifteen Croatians national of Roma origin who complained that they had been victims of racial discrimination during their school years in that they had been segregated into Roma-only classes and consequently suffered educational, psychological and emotional damage. |
59 | Adoption | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born on 29 July 1957 and lives in Geneva. She is single and has a Master ’ s degree in music. Music constitutes her source of income. 5. According to the applicant, when she was about 30, a man with whom she had been in a relationship for some ten years died in an accident. Since then she had not wished to start a family with anyone else. However, driven by the desire to bring up children, she decided, after much thought, to adopt a first child. 6. On 16 April 1996 she sought authorisation from the Child Protection Department for the Canton of Geneva to receive a child with a view to adoption. 7. The applicant explained that, having been informed that she would probably receive a negative response on account of her marital status, she withdrew her application on 4 October 1996. 8. After settling in Delémont ( Canton of Jura), in 1998 she submitted a new application for authorisation to receive a child, and it was granted on the basis of the favourable opinion issued by the Welfare Department. 9. On 8 January 2000 she received a little girl, Violaine, born in Vietnam on 30 April 1999. 10. On the basis of a home study report of 12 December 2001, which recommended the child ’ s adoption, the supervisory authority of Delémont granted the adoption on 26 June 2002. 11. On 9 July 2002 the applicant sought authorisation to receive a second child with a view to adoption. 12. The Social Action Department of the Republic and Canton of Jura rejected that application by a decision of 5 September 2002, which was confirmed on appeal on 7 November 2002. 13. The Administrative Division of the Jura Cantonal Court upheld that refusal on 25 August 2003. 14. On 19 January 2004 the applicant – who had moved back to Geneva in 2003 – again sought authorisation to receive a second child with a view to adoption: a child from South America between one and three years old. 15. In a decision of 19 July 2004, the Child Protection Department rejected her application. 16. The applicant appealed against that decision but her appeal was declared out of time – and therefore inadmissible – on 28 September 2004 by the Court of Justice of the Canton of Geneva. 17. On 20 January 2005 she submitted a fresh application for authorisation to receive a child for purposes of adoption but it was rejected by the Youth Office of the Canton of Geneva in a decision of 12 September 2005. 18. On 7 December 2005, at an individual hearing before the cantonal authority, the applicant stated that she wished to receive a child no older than five and that she would prefer a child from Vietnam, like her first adopted child, whilst remaining open to the possibility of adopting a child from another country. 19. In a decision of 24 April 2006, the Court of Justice for the Canton of Geneva dismissed the applicant ’ s appeal and upheld the refusal to authorise provisional placement of a child with a view to adoption. It did not call into question the fact that the applicant ’ s educational qualities, based on love, respect and Christian values, were recognised. Moreover, the court considered that the applicant had sufficient resources as a result of her salaried jobs. It took the view, however, that the adoption of a second child could unfairly affect the situation of Violaine. Moreover, it found that the applicant had underestimated the specific difficulties of adoption, and in particular international adoption. The court further expressed certain reservations about the applicant ’ s availability and about the prospect of her father and brother being able to assist in caring for a second child. It thus concluded that the circumstances as a whole did not enable it to foresee that the adoption would further the child ’ s welfare. 20. In a judgment of 5 December 2006, notified to the applicant ’ s representative on 22 January 2007, the Federal Court dismissed the applicant ’ s administrative-law appeal, finding as follows : “... 2.1. Under Article 264 of the Civil Code – in the version in force since 1 January 2003 – a child may be adopted if the future adoptive parents have cared for it and provided for its education for at least one year, and if all the circumstances make it foreseeable that the establishment of a parent-child relationship will further the child ’ s welfare without unfairly affecting the situation of any other children of the adoptive parents. All adoptions must thus be preceded by a placement and fostering relationship of a certain duration. An imperative condition for adoption, this measure serves to justify the subsequent establishment of a parent-child relationship, to allow a probationary period for those concerned, and to provide the opportunity and means to ensure that the adoption will further the child ’ s welfare ( ATF [ Federal Court judgments ] 125 III 161 point 3a p. 162 and citations). Under Article 316 of the Civil Code, the placement of children with foster parents is subject to the authorisation and supervision of the supervisory authority or another office for the place of residence of the said parents, as designated by cantonal law ( § 1); where the child is placed with a view to its adoption, a single cantonal authority is competent ( § 1 bis, as in force since 1 January 2003); the Federal Council stipulates the requirements for implementation ( § 2). In accordance with Article 11b of the Federal Council Order of 19 October 1977 governing the placement of children for the purposes of support and with a view to adoption ( ‘ the OPEE ’; RS 211.222.338), as in force since 1 January 2003, placement authorisation is given only where the personal qualities, state of health and educational capacities of the future adoptive parents and other persons living in their household, together with the housing conditions, offer every guarantee that the placed child will benefit from appropriate care, education and training, and that the well-being of the other children living in the family will be safeguarded ( § 1 ( a ) ), that there is no statutory impediment to the future adoption and that all the circumstances put together, in particular the motives of the future adoptive parents, enable it to be foreseen that the adoption will further the child ’ s welfare ( § 1 ( b) ). The authority must particularly take the child ’ s interest into account where the age difference between the child and the adoptive parent is more than forty years ( Article 11b § 3 (a) OPEE; see, on this issue, ATF 125 III 161 point 7a p. 167/168). This primary condition of adoption – the welfare of the child ( Article 264 of the Civil Code ) – is not easy to verify. The authority must ascertain whether the adoption is really capable of ensuring the best possible development of the child ’ s personality and of improving his or her situation; that question must be examined in all respects ( emotional, intellectual, physical ), without attributing excessive weight to the material factor ( ATF 125 III 161 point 3a in fine p. 163 and citations). 2.2. Under Article 264b § 1 of the Civil Code, an unmarried person – whether single, widowed or divorced – may adopt alone if he or she is at least 35 years old. In this form of adoption, the parent-child relationship is established with a single parent. As a result of that situation, the adoptive parent must, on his or her own, assume the duties that meet the child ’ s needs and remain available to care for the child to a degree that exceeds that required of each parent in a couple adopting jointly. Accordingly, the authority must particularly take into account the child ’ s interest where the applicant is not married, or where he or she is unable to adopt jointly with his or her spouse ( Article 11b § 3 ( b ) OPEE ). The legislature ’ s intention was that joint adoption should be the rule and adoption by a single parent the exception ( ATF 111 II 233 point 2cc p. 234/235). It may indeed be considered that the child ’ s interest, which is paramount, consists in principle of living in a complete family. Nevertheless, the law does expressly permit adoption by a single person, without subjecting him or her – unlike those wishing to adopt an adult or a person deprived of legal capacity ( Article 266 § 1 Chapter 3 of the Civil Code ) – to the existence of ‘ valid reasons ’. In any event, where the requisite conditions for the child ’ s welfare are satisfied, and the adoption by a single person meets all the requirements for the child ’ s fulfilment and personality development, the adoption will be granted; in such cases, at the preliminary placement stage, the conditions laid down in Article 11b of the OPEE will be satisfied, and the placement authorisation must be granted ( ATF 125 III 161 point 4b p. 165 and citations). 3.1. The court below found that the appellant had appropriate educational qualities. She can count on a wide network of persons who support her in her project and have promised to help her take care of the children when she is busy. Since the refusal of the authorities of the Canton of Jura ( see B.a above ), she has changed the organisation of her life by moving to Geneva, where she carries on her professional activities; since November 2004 she has been renting accommodation in an area close to the parish church of which she is maître de chapelle and in a building that also houses the offices and secretariat of the music festival of which she is the artistic director. Lastly, her financial resources are sufficient (7, 000 [ Swiss francs ] per month ). Those points being established, it is not necessary to examine them again. 3.2. In her application of 19 January 2004 the appellant had sought authorisation to receive ‘ a second child, from South America, aged between 1 and 3 ’; it does not appear from the application lodged the following year that those criteria had changed. However, when she appeared personally before the cantonal authority on 7 December 2005 she declared that she wished to receive a child ‘ up to the age of five ’; pointing out that A. [ the first child adopted by the applicant ] was from Vietnam, she expressed a desire to be entrusted with a child who was ‘ born in that country ’, whilst ‘ of course remaining open to other countries ’. As this Court found in a recent case, such an approach cannot be admitted ( see judgment of 5A.11/2005 of 3 August 2005, point 3.1, published in FamPra.ch 2006 p. 177). The home study report ( Article 268a Civil Code and Article 11d OPEE ) is drawn up according to the age and origin of the child, factors that the applicant must indicate ( Article 11g § 2 ( a ) and ( c ) OPEE ). The Youth Office thus quite rightly, in its findings on the cantonal appeal, found that this document had been ‘ drawn up on the basis of an application for the adoption of a child aged between 1 and 3 at the time of its arrival ’. Any finding to the contrary would suggest that an application could be changed as and when the case so required, for a reduction of the age difference in this instance. It follows that the criticism of the cantonal court for not having granted an ‘ authorisation for an older child, in order to reduce the age difference ’ appears ill-founded. The fact that the Convention between Switzerland and Vietnam on cooperation in matters of child adoption came into force while the case was pending on appeal, that is to say on 9 April 2006 ( RO 2006 p. 1767), is immaterial; moreover, the appellant does not show that she would satisfy the conditions laid down in that agreement, or even – notwithstanding the opinion of the Youth Office ’ s representative ( see record of individual hearing on 5 April 2006) – that her project would in fact be feasible. 3.3. The appellant was born in 1957 and is thus 49 years old; in relation to a child of between one and three years old – leaving aside the waiting times in international adoption – the age difference would be between forty-six and forty-eight years. In the light of the Federal Court ’ s case-law such a difference appears excessive ( see judgment 5A.6/2004 of 7 June 2004, point 3.2, published in FamPra.ch 2004 p. 710 : single person ‘ of almost 50 years ’ wishing to adopt a ‘ girl under 5 years old ’; see also the references cited in ATF 125 III 161 point 7a, p. 167/168). As the cantonal authority rightly pointed out, even an age difference of forty-five years is too great. In that case the appellant would, at over 60, find herself the single parent of two teenagers, who, in addition to the problems arising in that period of life, may well face particular difficulties as adopted children (see, for example, judgment 5A.21/1999 of 21 December 1999, point 3d, published in FamPra.ch 2000 p. 546), especially as the future child might have specific needs. The appellant is thus wrong to rely on Federal Court judgment 125 III 161 ( age difference between forty-four and forty-six years ), where, moreover, the adoption of a single child was at stake ( see point 3.4 below ). 3.4. The opinion of the court below, according to which the appellant underestimated the burden represented by a second child, cannot be disputed. Whilst it may be admitted, from a theoretical standpoint, that the presence of a sister or brother may have beneficial effects in emotional and social terms ( see judgment 5A.25/1996 of 1 May 1997, point 6b, unpublished, in SJ 1997 pp. 597 et seq. ), that assessment should be nuanced as far as adopted children are concerned. The home study report noted that A., after enjoying exclusive maternal attention, faced the risk of ‘ reactivating a feeling of abandonment ’; the positive effects of a new adoption on her situation ( Article 264 in fine of the Civil Code, section 9 ( b ) LF- ClaH [Federal Law on the Hague Convention ], and Article 11b § 1 ( a ), in fine, OPEE ) are not therefore certain ( see, in general, Lücker -Babel, Adoption internationale et droits de l ’ enfant, Fribourg 1991, p. 44; this author observes that ‘ it is in families that have a number of adopted children or a number of biological children [ and only one adoptive child ] that the failure rate is the highest ’ ). In addition, it cannot be ruled out that the second child might have difficulties related to the deprivations suffered by children who have been abandoned ( judgment 5A.9/1997 of 4 September 1997, point 4b, published in RDT 1998 p. 118), and this might complicate the arrangements made by the appellant. These findings are consistent with those of the Jura Social Action Department in its additional report of 11 June 2003. The appellant disputes that assessment; she asserts, relying on statements from third parties, that the second adoption would be ‘ beneficial for A. ’ and criticises the cantonal judges for straying into ‘ theoretical conjectures ’. Those criticisms appear unjustified. Given that the placement authorisation precedes the adoption decision, the authority must inevitably make a prognosis. In view of the characteristics of an adoption by a single person and the dramatic consequences that a failed adoption would have for the child ( see, on this subject, Lücker -Babel in RDT 1994 pp. 86 et seq. ), the court below cannot be reproached for its rigour ( see Breitschmid, op. cit., n. 19 ad Article 264 of the Civil Code and the literature cited ), as was in fact required of it by Article 11b § 3 of the OPEE ( ‘ most particularly ’ ). It is not for this Court to substitute its own conception of the child ’ s welfare for that of the cantonal authority and of the investigators ( see FamPra.ch 2006 p. 178, point 3.2 in fine and citations), but solely to ascertain whether relevant circumstances have not been taken into consideration or, indeed, whether crucial factors have been overlooked. Notwithstanding the appellant ’ s categorical denials, that is not the case here. 3.5. The cantonal authority found that the assistance that the appellant ’ s father could provide was not a solution for the care of A. and a second child; the presence at home of an 85 -year-old father would represent, on the contrary, a handicap in the future, because his daughter would herself be required to provide him with help and support at some point. The appellant ’ s brother, who has no children – and it is not known whether his wife has a professional activity – could admittedly help her with the future child, as he has already done with A.; however, the brother lives in Lausanne. Similarly, the person intended to become the adopted child ’ s godfather lives in Lyons. Lastly, the support of neighbours in her building and of her very close friend, together with the presence of A. ’ s godfather and godmother, does not change anything, as the important criterion is the availability of the appellant herself; moreover, the education of children always rests with the parents, and it is easier to express an intention of assistance in the abstract context of a procedure than in everyday life and for some twenty years. This opinion is consistent with the case-law of this Court and with legal opinion ( FamPra.ch 2006 p. 178 point 3.2; Meier/ Stettler, Droit de la filiation, vol. I, 3 rd ed., no. 263, with other citations ). Whatever the appellant may claim, the cantonal authority did not minimise the involvement of her family and friends by preferring ‘ theoretical assertions ’. The Court had occasion to observe this in a recent case, where, in spite of her ‘ extended family ’, a mother applying for a second adoption had had to entrust her adopted daughter to a neighbour when she went into hospital ( FamPra.ch 2006 ibid. ). As to the possibility of having to care for her father, she merely asserts that her brother ‘ would be present ’, but the latter has not corroborated this claim and in addition is supposed to make up for any deficiencies of the appellant. Moreover, the child ’ s interest cannot be measured solely in terms of the availability of the parent who is seeking to adopt alone (Meier/ Stettler, ibid. ). The grounds set out above are, in any event, sufficient for the decision appealed against to be upheld. 4. In conclusion, having regard to the discretionary powers enjoyed by the placement authorities ( RDT 1998 p. 118 point 4b), the decision of the court below does not lay itself open to criticism. Accordingly, the appeal must be dismissed, with costs awarded against the appellant ( section 156 ( 1 ) of the Judicial Organisation Act ). ” | The applicant complained that the Swiss authorities had prevented her from adopting because of her age (47 and a half at the time of her last application). She claimed among other things that she had been discriminated against in comparison with other women of her age, who were able nowadays to give birth to children of their own. |
575 | Expulsion or extradition cases | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1956 and is currently in Sweden. A. Background and the request for asylum in Sweden 8. On 9 January 1993 the applicant arrived in Sweden and applied to the Immigration Board ( Invandrarverket ) for asylum and a residence permit, claiming that he had left Iraq due to his fear of Saddam Hussein and his regime. He brought his three children with him (born in 1987, 1988 and 1991, respectively) while his wife arrived in July 1994. At the initial interview held with the applicant on the day of his arrival in Sweden, he stated, inter alia, that he was Christian and had worked as a major in the Republican Guard where he had served in a transport division for heavy vehicles. He had deserted from the army fourteen days previously and had fled to the northern part of Iraq where, with the help of a smuggler, he had managed to get on a plane to Stockholm. He had had neither ticket nor passport and his wife had remained in northern Iraq. 9. In a written submission dated 20 January 1993 the applicant added mainly the following to his initial account. He was born in Basra but had moved to Baghdad in 1986 when he married. Between October 1981 and February 1990, during the war with Iran, he had served in the military and he had been called up again between August 1990 and January 1992, during the occupation of Kuwait, to serve in an armoured transport division assigned to transport tanks. He had been given four military awards for bravery and four medals, however such medals had been given to a large number of officers and soldiers. In October 1992 he had been called upon to carry out military assignments (allegedly murders and terrorist acts) against the Shi ’ as in Al Ahwar. As he had felt unable to murder his own people, he had deserted and left Iraq on 20 December 1992. In this respect, he submitted that he sympathised with all organisations working against Saddam Hussein and working towards a democratic government. Following his desertion, he had visited his relatives in Basra and then made his way, with his family, to northern Iraq, where he and his children had travelled to Sweden via Turkey with the help of smugglers. Since he had held the rank of major in the reserve and had deserted, he would be executed if he were forced to return to Iraq. Apart from his four medals he also had an identity card as a major which confirmed that he was one of Saddam Hussein ’ s friends. 10. At a second interview at the Immigration Board, held on 17 September 1993, the applicant confirmed the information provided by him and added, in particular, that he had not engaged in any political activities. 11. On 14 and 15 December 1993 another two in-depth interviews were held with the applicant in which he essentially stated the following. He was Christian and belonged to the Ba ’ ath Party where he had attained the level of “advanced sympathiser” which was the level before becoming a full member. He had been drafted to the military in October 1981, had become an officer in 1986 and had risen to major in 1990. He claimed that he had never participated in any combat or killed anyone since his military work had mainly consisted of ensuring the functioning of transports and support for the front line. As an officer, he had been placed under the orders of others and thus had never had any influence himself. He had participated in the war against Iran and when this ended in 1988 he had been transferred to an armoured tank division within the Republican Guard. In March 1992 he had received four medals for bravery from the Ministry of Defence. He stated that about 500 officers had received such medals and that they were mainly perceived as an encouragement to the officers. At this time he had also received a special identity card, “Friends of Saddam”, which almost every officer in the Republican Guard and some officers in the regular army received. He had never met Saddam Hussein personally but the card gave certain privileges, inter alia, in contacts with the authorities. During the interview on 15 December 1993, the applicant changed certain statements which he had previously given to the Immigration Board. In particular, he claimed that he had not been called back into service after he left the military in January 1992. Moreover, he stated that he had applied for a visa for a tourist trip to Malta with his family at the Maltese Embassy in Baghdad and that they had received both visas and exit permits for a month. Hence, on 4 October 1992, the family had travelled legally from Baghdad to Jordan and from there by plane to Malta. He and his children had then travelled to Sweden from Malta, with the help of smugglers. The applicant stated that he wished to return to Iraq if Saddam Hussein lost power. 12. One further supplementary interview was held with the applicant on 10 January 1994 in which he maintained that he had left Iraq legally on 4 October 1992 by car to Jordan, after the family had received valid passports, exit permits and visas. He also added that, from Jordan, the family had flown to Cyprus from where they had intended to continue to Greece. Since this had not been possible, they had returned to Jordan before travelling to Malta where they had arrived on 19 October 1992. Since the smugglers had not been able to arrange a passport for his wife, she had had to remain in Malta when the rest of the family went to Sweden. 13. In February 1994 the Swedish Security Police ( Säkerhetspolisen ) proposed a rejection of the applicant ’ s asylum request for security reasons. On the basis of this, the Immigration Board decided to transfer the case to the Government for consideration but it recommended that the application be rejected. In its view, the applicant had not convincingly shown that he was in need of protection in Sweden. Although it accepted the applicant ’ s military background, it did not believe his reasons for leaving Iraq, inter alia, because he had only admitted leaving Iraq legally with his own passport and an exit permit, and the route used, once confronted with facts. 14. Subsequently, in 1997, the Security Police informed the Government that they no longer had any objections to the application from the point of view of security. Hence, the case was transferred back to the Immigration Board. 15. On 11 June 1998 the Immigration Board rejected the application for asylum with reference to its recommendation to the Government and noting that it found no reason to change the evaluation made at that time. Moreover, it dismissed the applicant ’ s request for a residence permit on the ground that it was not competent to change or repeal a final court judgment concerning expulsion. The Board observed that only the Government could repeal an expulsion order based on a criminal conviction and, in that connection, consider a request for a residence permit. B. The criminal proceedings 16. In the meantime, on 2 May 1995, before the asylum application had been determined, the District Court ( tingsrätten ) of Tierp convicted the applicant of murder and sentenced him to forensic psychiatric care, the duration of which was subject to a medical evaluation. It further ordered that the applicant be expelled from Sweden with a prohibition on returning. The applicant had admitted that he had killed his wife but claimed that he had acted in psychosis and had not intended to kill her. He had suspected that she had been unfaithful and had conspired against him behind his back. In its judgment, the court noted that the applicant, after having locked the door to the children ’ s room, had repeatedly stabbed his wife while she was asleep. In these circumstances, the court found that the applicant had been completely indifferent as to whether his wife died or not and therefore should be convicted of murder. However, since a forensic psychiatric examination showed that he had committed the crime in a state of “serious mental disturbance” ( allvarlig psykisk störning ) and was still, during the examination, suffering from such a disturbance, the court concluded that he was in need of treatment and sentenced him to forensic psychiatric care. 17. As concerned the expulsion, the applicant had stated before the District Court that he had been an officer in Saddam Hussein ’ s army and often away on missions. Because of the war, he and his family had fled from Iraq in 1993 but he had psychological problems stemming from the war. 18. The District Court had also consulted the Immigration Board and it had submitted that, although it had not yet made a decision regarding the applicant ’ s application for asylum and a residence permit, it considered that there were no impediments to the expulsion of the applicant to his home country. The Board noted that the applicant, an army officer, had left Iraq legally with a valid Iraqi passport containing a one-month exit visa. He had not brought his national passport with him when he entered Sweden. Having regard to the Board ’ s view and noting that the applicant had committed a very serious crime, the District Court concluded that he should be expelled from Sweden for life. 19. The applicant did not appeal against the judgment which, consequently, gained legal force. 20. It would appear that, following the applicant ’ s criminal conviction, his children were taken into compulsory public care and placed with a Swedish family. Furthermore, a special guardian was appointed for them and they were granted permanent residence permits in Sweden. 21. On 14 December 2004 the County Administrative Court ( länsrätten ) of the County of Dalarna decided to end the forensic psychiatric care and to release the applicant. C. Requests for the expulsion order to be revoked 22. In the meantime, in July 1998, the applicant requested the Government to repeal the expulsion order against him. He insisted that he would be tortured and executed if he was returned to Iraq because he had deserted from the Iraqi army. 23. On 12 November 1998 the Government rejected the request as they found that no special reasons existed for repealing the expulsion order. 24. The applicant renewed his request in February 2001, maintaining his claims. Upon request by the Government, the Migration Board ( Migrationsverket ) submitted its view on the case, stating that the applicant ’ s reasons had been examined previously and that no new circumstances had appeared for which reason the enforcement of the expulsion could take place. However, the Board added that there had been practical impediments to enforcement for some time with regard to Iraq. 25. On 17 May 2001 the Government found that there were insufficient reasons for revoking the expulsion order. However, having regard to the situation in Iraq at the time, the Government decided to grant the applicant a temporary residence permit and work permit up until 17 November 2001. 26. In a new application, dated 7 November 2001, the applicant requested that the expulsion order be revoked and that he be granted a permanent residence permit or, in the alternative, that his temporary residence permit be extended for at least one year. 27. The Migration Board submitted its comments on the case on 12 December 2002, concluding that there were no legal or practical impediments to the enforcement of the expulsion order and that the applicant should be able to return to Iraq. 28. Following the fall of Saddam Hussein ’ s regime in April 2003, the Migration Board sent another submission to the Government on 17 November 2003 where it noted that the applicant ’ s case now had to be seen in another light. His reasons for fearing a return to Iraq had been removed now that Saddam Hussein was no longer in power. The Coalition Provisional Authority governing Iraq at the time was striving to build up a society characterised by democracy and respect for human rights and those who had been close to the old regime and who had committed war crimes and other crimes against humanity would be brought to justice. Thus, the Board considered that the applicant would not risk being tortured or treated inhumanely if sent back to Iraq and consequently there was no impediment to his expulsion. 29. In reply, the applicant claimed that since he had been an officer in the Republican Guard, he would be exposed to persecution and acts of revenge from primarily Shi ’ a Muslim groups and that there was no functioning legal system or police force which could give him protection against abuse. It followed that there existed impediments to the enforcement of his expulsion. 30. Since the Government had several pending cases concerning expulsion to Iraq, they requested the Iraq Office at the Swedish Embassy in Jordan to reply to some questions relating to the situation in Iraq. 31. In November 2004 the Iraq Office sent, inter alia, the following information to the Government, which was communicated to the applicant. In August 2004 the death penalty was reintroduced in Iraq for offences such as murder, kidnapping and crimes against national security. Moreover, according to the Iraqi Penal Code of 1969, a person who had been convicted or acquitted by final judgment in another country could not be retried in Iraq. However, it was not known whether this provision had been modified or changed by the Interim Government. Furthermore, it was difficult to assess “tribal justice” in Iraq due to the poor security situation in the country but it was possible that, if a person were to return to an area where he was known and his victim was also known, there could be a risk of revenge or “tribal justice”. It was further noted that there were reports of harassment against Christians and that attacks had been directed against Christians and other minorities during 2004. 32. The applicant commented on the information and stressed that he was Christian and that the Christian minority in Iraq was being persecuted. Moreover, he had held a prominent position in the Ba ’ ath Party, had belonged to the exclusive circle that had been given the “Saddam ’ s Friends” identity card and he was well known and hated by many. Thus, it was certain that he would be killed if returned to Iraq. 33. On 21 March 2005 the Minister of Justice at the time decided to suspend the enforcement of the expulsion order until otherwise decided or until the Government made a final decision on the case. He further decided that the applicant should report to the police three times per week in order to prevent him from going into hiding. 34. Subsequently, the Government requested the Iraq Office at the Swedish Embassy in Jordan to reply to some supplementary questions relating to the situation in Iraq, which it did on 3 November 2005. In its reply it noted that, at the time, it was very difficult to obtain a complete overview and clear information about Iraq. Still, it observed that persons who had been part of the Republican Guard, other special military units or the military in general were being arrested and tried in Iraq. According to sources such as the UNHCR, the activities of these persons within their organisation determined how they were being treated more than to which military unit they had belonged. However, their position and military rank was of relevance as an indication of who could be targeted. In this context it was noted that members from special units, such as the Republican Guard, were being re-employed into the current special units. Moreover, the UNHCR had stated that even though many Iraqis were harassed as a result of their former membership of the Ba ’ ath Party, this harassment did not necessarily amount to persecution. A careful individual assessment was always necessary. 35. The applicant, in a comment on the Iraq Office ’ s information, maintained that there was a real risk that he would be subjected to extrajudicial execution if returned to Iraq due to his previous connections to Saddam Hussein ’ s regime. 36. On 27 June 2006 the Migration Board submitted its opinion on whether the reintroduction of the death penalty in Iraq in 2004 had an impact on the enforceability of the applicant ’ s expulsion order. It considered that none of the information submitted by the applicant, in his detailed asylum interview in 1993 and later, regarding his position and activities until he left Iraq in 1992, indicated that he would risk legal measures, least of all the death penalty, from the current Iraqi government. Neither his membership of the Ba ’ ath Party nor his relatively subordinate position in a non-combat unit were likely to cause him problems with the Iraqi authorities upon return to his home country. Thus, there were no impediments to the enforcement of the expulsion order. 37. On 6 July 2006 the Government decided not to revoke the expulsion order and rejected the applicant ’ s request for a residence permit. It found that there was neither any impediment to the enforcement of the expulsion nor any other special reason under the Aliens Act to revoke the expulsion order. 38. As the expulsion order had become enforceable anew, the police authority, on 27 July 2006, detained the applicant awaiting the enforcement of his expulsion order. D. Application of Rule 39 of the Rules of Court and further developments in the case 39. On 15 August 2006 the applicant requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of his expulsion to Iraq. He alleged that he would be executed or tortured and imprisoned if returned to his home country because he had been an officer during Saddam Hussein ’ s regime and had belonged to his “inner circle”. Moreover, since he was Christian, he risked persecution on religious grounds. 40. On 17 August 2006 the Court decided to apply Rule 39 and to suspend the expulsion until 1 September 2006 in order to obtain some further information from the Swedish Government. In particular, the Government were requested to give their opinion on whether the applicant would risk being brought to trial before the Supreme Iraqi Criminal Tribunal (hereafter referred to as “the SICT”) and sentenced to death. 41. On the following day, the Minister of Justice at that time decided to suspend the expulsion of the applicant until further notice. He also decided to keep the applicant in detention since there was reason to believe that he would otherwise try to abscond. The detention decision was reconsidered every two months until 29 June 2007, when it was decided that he should be released and that he should report to the police twice a week. 42. In the meantime, on 31 August 2006, the Government replied to the Court ’ s request. They first observed that the SICT had jurisdiction over individuals residing in Iraq accused of war crimes, genocide, crimes against humanity and a number of “political” offences under Iraqi law, including waste of national resources and abuse of position. It applied the penalties available in Iraqi law, including the death penalty. The Iraqi Governing Council had agreed that the SICT should process a limited series of 10 to 15 trials, focusing on major events that showed the geographic and temporal spread of the regime ’ s crimes, and that only the highest-level perpetrators should be tried before the SICT. Other perpetrators should be tried by regular Iraqi courts. 43. The Government further noted that the applicant ’ s claim that he had belonged to Saddam Hussein ’ s inner circle was recent and did not correspond to the detailed statements given by him during the asylum proceedings. They also stressed that the applicant had neither claimed to have committed any crime, nor that he was, or might be, suspected of having committed a crime which fell under the jurisdiction of the SICT. The sole fact that he had held a subordinate position as an officer in the Republican Guard or been a member of the Ba ’ ath Party did not give reason to believe that he would be suspected of such serious or brought to trial before the SICT. 44. On 1 September 2006 the Court extended the application of Rule 39 until 15 September 2006 in order to enable the applicant to reply to the Government ’ s comments. 45. The applicant submitted his comments in reply to those of the Government on 13 September 2006. He stated that the Ba ’ ath Party had been an elite party with only a few full members. He had been an “ advanced sympathiser ” which meant that he had held a high position in the hierarchy. Moreover, although he had not been in the infantry, he had participated in battle in an armoured unit during the various wars until 1992 when he had left the country because he had been ordered to carry out military actions that were against international law. The Government ’ s allegation that he had said that he had not been or could not be suspected of crimes under the jurisdiction of the SICT was wrong. The assessment of his application for asylum took place in 1993, at a time when the SICT had not yet come into existence and he had also not been asked about it later. Apart from the risk of being sentenced by the SICT or another jurisdiction, there was a real risk that he would be the victim of an extrajudicial killing. Extremist militias tried to find and kill all officers who had fought for Saddam Hussein in the war against Iran or who had fought against the Shi ’ as in southern Iraq in 1991. The retaliation was collective and directed against all officers who had fought under Saddam Hussein. The applicant also stressed that as a Christian he would be without protection in Iraq and his situation upon return would thus be most serious. 46. On 13 September 2006 the Court extended the application of Rule 39 until 26 September 2006, on which date it was extended until further notice. III. INFORMATION ON IRAQ A. General background 56. During the regime of Saddam Hussein, Iraq was at war with Iran between 1980 and 1988. In August 1990, Iraq invaded Kuwait, which led to the “First Gulf War”, lasting for six weeks between 17 January and 28 February 1991. Between March and April 1991 the regime suppressed a Kurdish insurgency in northern Iraq and a Shi ’ a insurgency in the south of the country. In March 2003 the “Second Gulf War” started when US-led multinational forces invaded Iraq and overthrew Saddam Hussein ’ s regime. The Republican Guard was involved in all of these conflicts. It expanded rapidly during the Iraq-Iran War and comprised the best equipped and trained units among Saddam Hussein ’ s forces. In May 2003 the Republican Guard, the Iraqi army, the police and the Ba ’ ath Party were officially dissolved by the Coalition Provisional Authority (hereafter “the CPA”) in a process called the “ De-ba ’ athification” (through CPA Order Number 2 of 23 May 2003). Subsequently, in June 2004 power was transferred from the CPA to the Iraqi Interim Government and, in October 2005, a permanent government was elected by the Iraqis. B. Ba ’ ath Party membership 57. The Ba ’ ath Party membership lists have never been found and there is relatively little information about the inner workings of the party and its structure. However, it would appear that membership was originally highly restricted but that the rules were significantly relaxed in the 1990s, leading to a great expansion of the membership in order to bolster stability (International Center for Transitional Justice, Briefing Paper: Iraq ’ s New “Accountability and Justice” Law, 22 January 2008, hereafter “ ICTJ Briefing Paper”). There were several levels of membership (between 6 and 8, depending on the source) and training and probation periods (divided into 3 to 5 levels) were always required before becoming a full member of the party (Ibid. and Landinfo, Baath-partiet. Medlemskapsnivåer og partiorganisasjon [The Ba ’ ath Party. Membership levels and party organisation], 13 June 2008 – hereafter “Landinfo”). The total number of party members has been estimated to between 1 and 2.5 million ( Landinfo ). A person who was a “sympathiser” or an “ advanced partisan” was not a full member of the Party. Moreover, it would appear that persons who had been in the Ba ’ ath Party for at least 10 years were called “ Friends of Saddam” (UNGA, A/51/496, Note by the Secretary-General, Situation of Human Rights in Iraq, 15 October 1996). 58. The De-ba ’ athification process was widely criticised as it was seen as a collective punishment while, at the same time, providing impunity for others. Therefore, in January 2008 the Iraqi Parliament passed the Accountability and Justice Act which established a clearer legal framework for dismissals and reinstatements of former Ba ’ ath Party members and introduced an element of individual responsibility into the process. The law allows for some higher ranking members of the Ba ’ ath Party to apply for reinstatement (an estimated 30.000 persons) and makes most individuals who have been dismissed eligible for pensions, with the exception of some of the highest part members and those who have been involved in corruption or committed crimes (ICTJ Briefing Paper and International Herald Tribune, Solomon Moore, Uncertainty surrounds new Iraqi De- ba ’ athification law, 14 January 2008). C. The Iraqi High Tribunal and criminal responsibility 59. Holders of high positions in the Ba ’ ath Party who were suspected of having been close to the old regime and/or taken part in different violent actions could be, and had been, arrested and called to account. It was the person ’ s own background and the credibility of his or her account that determined the risk of judicial proceedings (Information from the Iraq Office of the Swedish Embassy in Jordan to the Swedish Government, dated 15 March 2007; hereafter “the Iraq Office ’ s Information” ). Hence, in 2003, the Iraqi High Tribunal (IHT, formerly the SICT) was created to try persons accused of committing war crimes, crimes against humanity, genocide and specified offences between 17 July 1968 and 1 May 2003. The IHT had already tried and convicted Saddam Hussein and a few of his closest collaborators. Several of them had been sentenced to death and some to life imprisonment. At least one defendant had been acquitted ( US Department of State, Iraq, Country Reports on Human Rights Practices 2007, 11 March 2008; hereafter “ US Country Report” ). 60. According to the Iraq Office ’ s Information, for individuals who did not “qualify” for examination by the IHT, there still remained a risk of review by the usual legal system and its criminal courts. The death penalty had been reintroduced in 2004 for, inter alia, crimes against national security, murder, kidnapping and drug trafficking and it was increasingly used. Moreover, in particular in Baghdad, southern and central Iraq, several Shi ’ a militia groups more or less systematically, and very extensively, sought out people who were guilty of acts of aggression under the former regime. The more well known a person had been as a representative of the former regime, the greater the risk of being discovered and punished. 61. In February 2008 the Iraqi parliament adopted an Amnesty Law which provided a general amnesty for all convicted Iraqis and those accused of crimes but who were still under investigation or trial. It did not apply to persons convicted of very serious crimes such as murder, rape, kidnapping, drug-related crimes and embezzlement (Reuters, Factbox: Iraq ’ s amnesty and provincial powers law, 18 February 2008). By October 2008 just over 122,000 detainees in Iraqi jails had been released by virtue of the Amnesty law, while roughly 30,000 remained in prison as the law did not apply to them ( Iraq Updates, Voices of Iraq, More than 120,000 detainees covered by amnesty law, 12 October 2008 ). D. The current security situation in Iraq 62. On 29 October 2008 the US military relinquished security responsibility to Iraqi forces of Wasit province, the 13 th province out of 18 to be placed under Iraqi control. Only Baghdad and the four Northern provinces remained under US command (Center for Excellence, Iraq Crisis Report, 29 October 2008). 63. The declared state of emergency lapsed in April 2007 and has not been renewed. However, there were reports that law enforcement activities often continued as if the state of emergency was still in effect (US Country Report). Civilians were targeted by attacks by Sunni and Shi ’ a groups across the country, and there were widespread and severe human rights abuses, including kidnappings, disappearances, torture and killings. The authorities frequently did not maintain effective control over security forces and did not have effective mechanisms to investigate and punish abuse and corruption (US Country Report). 64. In October 2008, the UN Special Representative of the Secretary General for Iraq stated there had been a noticeable drop in violence over the past year and that Iraq had made significant strides towards stability and institution building although the human rights situation continued to be serious (UNAMI press releases 24 October 2008, UNAMI Commemorates the 63 rd United Nations Day ). According to Iraq Body Count ( www.iraqbodycount.org as downloaded on 6 November 2008), civilian deaths in Iraq had gradually decreased since August 2007, with the exception of March and April 2008. Thus, there were 590 civilian deaths in August 2008 and 539 in September 2008, as compared to 2 ,324 in August 2007 and 1, 220 in September 2007. The decrease in civilian deaths has mainly been attributed to the cease-fire declared in August 2007 by Moqtada al-Sadr, the leader of the Mahdi Army (a Shi ’ a paramilitary force created in June 2003 to fight against the multinational forces). The ceasefire was initially declared for a period of six months but was prolonged and, in August 2008, al-Sadr announced an indefinite ceasefire and stated that anyone in his Mahdi Army who did not follow his order would not be considered a member of his group (United Press International, Sadr declares another ceasefire, 29 August 2008). Moreover, according to Human Rights Watch, violence has abated because Sunni and Shi ’ a populations have fled from mixed areas and thus have become increasingly divided into geographically distinct communities (Human Rights Watch, World Report – Iraq, 31 January 2008 ). 65. Another sign of the decrease in violence is the establishment of the World Health Organization ’ s (WHO) permanent office in Baghdad in June 2008 (UNAMI press release 28 June 2008, The World Health Organization Establishes Permanent Office in Baghdad ) and the activities of some 32 humanitarian international NGOs with programmes in Iraq, operating directly or via implementing partners, although the Iraqi Red Crescent Society was the only agency operating openly nation-wide through its 18 branches (Center of Excellence, Iraq Crisis Report, 29 October 2008). Furthermore, several Arab countries, including Bahrain and Kuwait, sent ambassadors to Iraq during September and October 2008 to open their Embassies ( Center of Excellence, Iraq Crisis Report, 22 October 2008). E. Christians in Iraq 66. The Iraqi Constitution provides for freedom of religion. Passports do not indicate an individual ’ s religion but the national identity card explicitly notes the holder ’ s religion. According to the official 1987 census, there were 1.4 million Christians living in Iraq. Although difficult to verify, the Christian Peace Association (CPA), estimated that about 450,000 Christians remained in Iraq at the end of October 2007, most of whom had moved to the northern provinces, although since September 2007 there had been attacks and threats against the community in Kirkuk and Mosul (The Humanitarian News and Analysis Service, IRIN, Iraq: Christians seek new life in Europe, 5 November 2007). The Iraqi Government and religious leaders publicly denounced all incidents of sectarian violence and repeatedly encouraged unity among the country ’ s religious groups. However, deficiencies in security force capabilities made it difficult for the Iraqi Security Forces and the justice system to investigate or address alleged violations (US Department of State, International Religious Freedom Report 2007 - Iraq, 14 September 2007). 67. Between 4 and 13 October 2008, 12 Christians were killed in Mosul and others were threatened to leave the city. About 11,000 Christians left as a result, although the Iraqi Prime Minister ordered the Iraqi Army and police in the Mosul area to protect the members of the Christian community. On 19 October 2008 security had been restored and the displaced persons were encouraged by the authorities to return. The Organisation of the Islamic Conference, among others, condemned the attacks (US Department of State, Iraq Weekly Status Report, 15 and 22 October 2008, and IRIN, Iraq : Uncertainty over who is behind attacks on Christians, 20 October 2008 ). F. Iraqi refugees 68. Currently there are about 2,700,000 Iraqis displaced within Iraq and over 2,000,000 Iraqis have left the country, most of them for Syria and Jordan ( Center of Excellence, Iraq Crisis Report, 22 October 2008). 69. Since March 2003, the UNHCR has advocated recognition of the international protection needs of Iraqis outside their country, and hence a suspension of forced returns, due to the objective situation of armed conflict and generalised violence in Iraq (UNHCR, Strategy for the Iraq Situation, as revised 1 January 2007 and Addenum to UNHCR ’ s Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-seekers, December 2007). In September 2008 the UNHCR stated that it hoped that the majority of Iraqi refugees would be able to return home in safety once the necessary conditions of stability and security were established but that these conditions were not yet present. The security environment remained precarious, particularly in Central and Southern Iraq, where issues relating to shelter and property restitution or compensation had not yet been solved (UNHCR, UNCHR urges reinforced EU commitment to protection of Iraqi refugees, 23 September 2008). 70. The United Nations and the International Organisation for Migration (IOM) have stated that, although they “do not necessarily encourage return at this time because of security concerns, both are committed to providing assistance to those who do decide to return” (IOM, Assessment of Iraqi Return, August 2008). The IOM has further noted that the rate of displacement in Iraq has slowed and that the rate of return has accelerated, mostly to Baghdad. So far, more than 100,000 people have returned to Baghdad, the absolute majority being internally displaced persons who have returned to their homes of origin ( Center of Excellence, Iraq Crisis Report, 22 October 2008). Moreover, the Iraqi Government have initiated a financial incentive and subsidy programme for returnee families and they are working to develop their capacity to register and assist the increasing number of returnees ( IOM, cited above ). According to the IOM, military operations, general insecurity and occupied houses are the primary reasons preventing Iraqis from returning home. 71. Amnesty International considered that Iraq was still in a situation of internal armed conflict and criticised several European countries, including Sweden, Denmark and the United Kingdom, for forcibly returning failed asylum seekers to all parts of Iraq (Amnesty International, Iraq - Rhetoric and reality: the Iraqi refugee crisis, June 2008). | The applicant alleged that, if deported to Iraq, he would face a real risk of being killed or subjected to torture or inhuman treatment on account of his Christian faith and background as a member of the Republican Guard and the Ba’ath Party. |
353 | Violence by private individuals | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1964 and lives in Split. She is unemployed and unwaged. A. Civil proceedings instituted by the applicant 6. From October 1996 the applicant occupied a room and common premises of a privately owned flat in Split together with other tenants. On 2 August 1999 the applicant found that the lock of the entrance door to the flat had been changed and that her belongings had been removed from the flat. The applicant called the police, who drew up a report. On 3 August 1999 the applicant brought a civil action in the Split Municipal Court ( Općinski sud u Splitu ) against two individuals, M.P. and I.P., seeking protection against the disturbance of her occupation of a room and common premises in the flat. 7. After a first-instance judgment by default of 16 September 1999 had been quashed at a hearing held on 9 November 1999 before the Split Municipal Court, subsequent hearings were held on 21 December 1999, 22 February, 28 March, 3 May and 7 June 2000, when a fresh judgment, allowing the applicant ’ s claim, was adopted. It was, however, quashed by the Split County Court ( Županijski sud u Splitu ) on 17 August 2000 and the case was remitted to the Municipal Court. 8. In the fresh proceedings the Municipal Court held hearings on 7 June, 5 September and 22 November 2001 and 22 January, 26 February, 3 April and 14 May 2002. On this latter date a judgment ordering that the applicant was to regain her co-occupation of the flat in question was adopted. A subsequent appeal by the defendants was declared inadmissible in a decision of the Split Municipal Court, adopted on 24 May 2002, which was upheld by the Split County Court on 7 March 2003. 9. Since the defendants in the civil proceedings had failed to comply with the judgment of 14 May 2002, the applicant applied to the Split Municipal Court on 31 March 2003, seeking an enforcement order. The order was issued on 10 April 2003. The defendants lodged an appeal. The execution of the order was scheduled for 5 June 2003. It was duly carried out. However, on 6 June 2003 the applicant was thrown out of the flat (see paragraph 13 below). Accordingly, on 2 July 2003 she requested the Split Municipal Court to resume the enforcement proceedings. 10. On 26 August 2004 the Split County Court allowed the defendants ’ appeal, quashed the enforcement order of 10 April 2003 and remitted the case to the Split Municipal Court. The latter, on 18 March 2005, invited the applicant to amend her request. The applicant submitted an amended request on 26 April 2005. On 29 March 2007 the Municipal Court again invited the applicant to amend her request. The applicant submitted the amended request on 13 April 2007. On 24 April 2007 the Municipal Court invited the applicant to adjust her request within eight days. On 8 January 2008 the Split Municipal Court dismissed the applicant ’ s request for the enforcement proceedings to be resumed. B. Remedies used by the applicant in respect of the length of the proceedings 11. On 9 August 2002 the applicant complained to the Constitutional Court ( Ustavni sud Repbulike Hrvatske ) about the length of the civil proceedings described above. In a decision of 18 March 2005 the Constitutional Court dismissed the complaint as ill-founded, finding that the proceedings had been concluded within a reasonable time. 12. On 10 April 2007 the applicant lodged a complaint about the length of the enforcement proceedings with the Split County Court. On 31 March 2008 the County Court allowed the complaint, found a violation of the applicant ’ s right to a hearing within a reasonable time, awarded her 5,000 Croatian kunas (HRK) in compensation and ordered the Municipal Court to complete the enforcement proceedings within three months, although in fact those proceedings had already ended with the Split Municipal Court ’ s decision of 8 January 2008. The County Court examined the length of the enforcement proceedings with reference to the period from 31 March 2003 until 31 March 2008. C. Minor-offences proceedings 13. On 6 June 2003, the day after the applicant had regained possession of the flat in question, she was attacked by three individuals, two women and a man, upon her arrival in front of the flat. During the incident of 6 June 2003 the police were called and arrived on the scene. They interviewed the applicant and drew up a report. The relevant part of the report reads as follows: “[The applicant] stated that at about 8 p.m. she had been verbally and physically attacked by three individuals when she had attempted to enter a flat ... The attackers had pulled her hair, hands and clothes and thrown her down the stairs from the first floor. They had also insulted her by shouting obscenities ... She further stated that they had threatened to kill her if she came back. ... There were visible bruises and contusions on Sandra ’ s right hand and her shirt was torn at the back. She asked for medical assistance after the interview. ... ” 14. On 10 June 2003 the police lodged a complaint with the Split Minor-Offences Court against three individuals, including J.M., for disturbance of public peace and order, alleging that they had physically attacked the applicant, kicked her entire body, pulled her by the hair and pushed her down the stairs, all the while shouting obscenities at her. The first hearing in the proceedings was held on 4 February 2005. 15. In a decision of 11 May 2005 the Split Minor-Offences Court found all three defendants guilty of insulting the applicant with defamatory expressions and sentenced them to a fine in the amount of HRK 375. As to allegations of the physical assault on the applicant they found that there were insufficient evidence in that respect. 16. However, this decision did not become final since the applicant lodged an appeal, complaining that the Minor-Offences Court had not addressed her allegations of physical assault. On 8 June 2005 the same Minor-Offences Court terminated the proceedings on the ground that the prosecution in respect of the offences with which the defendants were charged had meanwhile become time-barred. The applicant lodged an appeal. Both appeals lodged by the applicant were dismissed on 12 February 2007 by the High Minor-Offences Court. D. Criminal proceedings instituted by the applicant 17. In a detailed criminal complaint of 2 October 2003 filed against seven individuals with the Split Municipality State Attorney ’ s Office ( Općinsko državno odvjetništvo Split ) the applicant alleged, inter alia, that on 6 June 2003 at about 8 p.m., when she had arrived in front of the flat in question, three individuals, J.M., N.M and J.M.L., had come out of the flat, shouting at her and preventing her from entering the flat. They had attacked her physically, insulted her and threatened her, telling her not to come back or she would disappear and “be disposed of”. The applicant also submitted medical evidence showing that she had sustained blows to her elbow and tailbone. 18. In a decision of 11 November 2003 the State Attorney ’ s Office decided not to open an official investigation on the ground that the act in question qualified as a criminal offence of inflicting bodily injuries of a lesser nature and that a prosecution for that offence had to be brought privately by the victim. The decision, inter alia, stated: “In her criminal complaints [the applicant] stated that on 6 June 2003 about 8 p.m. in front of a flat in Split ..., the suspects had verbally attacked her and insulted her, kicked her with their hands and legs all over her body, pulled her hair and pushed her down the stairs while J.M. had also threatened her not to come back to the flat or otherwise she would disappear. ... ” The applicant was also instructed to proceed accordingly and to lodge within eight days a request for an investigation with a Split County Court investigation judge. 19. The applicant complied with the said instruction on 3 December 2003 and submitted a request to a Split County Court investigation judge seeking to have an investigation opened in connection with the above event. She sought an investigation in respect of seven individuals, including J.M., N.M. and J.M.L., listing their names and addresses. She proceeded to describe the event in question in detail, specifying the acts carried out by her three attackers. She made a list of evidence in support of her allegations, including medical documentation about the injuries she had sustained and the police report issued on 6 June 2003. She further alleged that these acts constituted, inter alia, the criminal offence of making threats under Article 129 of the Criminal Code and the criminal offence of violent behaviour under Article 331 of the same Code. She specified her allegations in respect of each of the individuals concerned. 20. On 5 January 2005 the Municipal Court invited the applicant to amend her request within eight days so as to include a description of the offence, the legal classification of the offence and circumstances showing that there was a well-founded suspicion that the individuals in question had committed criminal offences, as well as evidence supporting her allegations. On 26 January 2005 the applicant submitted an amended request, repeating in essence the same allegations as in her initial request. In her further submissions of 30 May 2005 the applicant submitted some documents from the minor-offences proceedings. 21. On 19 September 2005 the Split County Court investigation judge declared the applicant ’ s request for an investigation ( istažni zahtjev oštećene kao tužiteljice ) inadmissible. The relevant part of this decision reads: “The injured party, acting as subsidiary prosecutor ( oštećena kao tužitelj ), has lodged with this court a request for an investigation in respect of J.M. and others ... Pursuant to Article 71, paragraph 3, of the Code of Criminal Procedure, this court invited the injured party acting as subsidiary prosecutor on 5 January 2005 and once again orally, to amend her request and warned her that it would be declared inadmissible if she did not comply with the instruction within the set time-limit. The injured party acting as subsidiary prosecutor answered both calls but has failed to amend her request for an investigation in accordance with the court ’ s instruction. The court considers the injured party ’ s submission incomprehensible and incomplete. Therefore, it has to be declared inadmissible pursuant to Article 71, paragraph 3, of the Code of Criminal Procedure.” 22. On 16 January 2006 the applicant lodged an appeal against the above decision with the Split County Court. She claimed that she had fully complied with the instructions given in the court ’ s letter of 5 January 2005 amending her initial request for an investigation so that it contained all the necessary information. She further contended that she had never received an oral invitation. On 9 February 2006 the Split County Court dismissed the applicant ’ s appeal, finding that “the submissions lodged by the subsidiary prosecutor are incomprehensible and incomplete”. The applicant lodged a further appeal against that decision. 23. On 23 April 2007 the applicant also complained to the Supreme Court ( Vrhovni sud Republike Hrvatske ) about the length of the criminal proceedings. On 20 September 2007 the applicant ’ s complaint was dismissed and she was instructed to lodge such a complaint with the Constitutional Court. On 21 November 2007 the applicant lodged a complaint about the length of proceedings with the Constitutional Court, before which it is still pending. 24. The applicant ’ s appeal was declared inadmissible by the Split County Court on 17 June 2008. On 23 June 2008 the applicant lodged a fresh appeal, which is still pending. | The applicant complained in particular that, despite her attempts to have her allegations of being attacked and threatened by her flatmates investigated, the authorities had failed to ensure her adequate protection. |
745 | Waste collection, management, treatment and disposal | I. THE CIRCUMSTANCES OF THE CASE 6. Thirteen of the applicants live in the municipality of Somma Vesuviana, in Campania (Italy). The other five work there. 7. From 11 February 1994 to 31 December 2009 a state of emergency ( stato di emergenza ) was in place in the Campania region, by decision of the then Prime Minister, because of serious problems of solid urban waste disposal. 8. From 11 February 1994 to 23 May 2008 the management of the state of emergency was entrusted to “deputy commissioners” appointed by the Prime Minister and assisted by assistant commissioners. Nine high officials – including four presidents of the region of Campania and the head of the civil emergency planning department of the Prime Minister’s Office – were appointed deputy commissioners. 9. From 23 May 2008 to 31 December 2009 the management of the state of emergency was entrusted to an under-secretariat in the Prime Minister’s Office under the head of the civil emergency planning department. A. Waste management in Campania and in the municipality of Somma Vesuviana until 2004 10. Regional Law no. 10 of 10 February 1993 (“Law no. 10/93”) laid down guidelines for the adoption of a waste disposal plan in Campania which was to treat urban solid waste and recyclable materials and halve the number and capacity of landfill sites – with the help of compacting and sorting techniques – between 1993 and 1995. 11. On 9 June 1997 the President of the Region, having been appointed deputy commissioner, drew up a regional waste disposal plan. Among other things, it provided for the construction of five incinerators – four of which would be built on land in the municipalities of Marcianise, Battipaglia, Giugliano and Nola-Marigliano (the last two of these were to serve the municipalities where the applicants lived), and the fifth on a site to be determined at a later date – and also five main landfill sites and six secondary sites. 12. On 12 June 1998 the President of the Region, acting as deputy commissioner, issued a call for tenders for a ten-year concession to operate the waste collection and disposal service in the province of Naples. According to the specifications, the successful bidder would be required to ensure the proper reception of the collected waste, its sorting, conversion into refuse-derived fuel ( combustibile derivato da rifiuti – “RDF”) and incineration. To that end, it was to construct and manage three waste sorting and RDF production facilities and set up an electric power plant fuelled by RDF, by 31 December 2000. 13. When the tendering process ended on 20 March 2000, the concession was awarded to a consortium of five companies: Fisia Impianti S.p.A. (main contractor), Impregilo S.p.A., Babcock Kommunal GmbH, Deutsche Babcock Anlagen GmbH and Evo Oberhausen AG (subcontractors). 14. Under the terms of a service concession agreement signed on 7 June 2000, the five successful companies undertook to build two RDF production centres in Caivano and Tufino in 300 days, starting on 10 and 14 April 2000 respectively, and another in Giugliano in 270 days, starting from 30 March 2000. The RDF-fuelled power plant to be built in Acerra was to be built in 24 months, starting from a date to be determined later. 15. In the meantime, on 22 April 1999 the deputy commissioner had issued a call for tenders for the waste disposal service concession in Campania. The concession was awarded to FIBE S.p.A. a consortium of companies formed specially for the purpose. On an unspecified date they formed a company called FIBE Campania S.p.A. 16. Under the concession agreement signed on 5 September 2001, FIBE S.p.A. was to build and manage seven RDF production centres and two electric power plants fuelled by RDF. It was also required to ensure the proper reception, sorting and treatment of the waste collected in the region and transform 32% of it into RDF and 33% into compost, and produce 14% of non-recyclable waste and 3% of ferrous waste. 17. In January 2001 the closure of the Tufino landfill site resulted in the temporary suspension of waste disposal services in the province of Naples. To help control the situation the mayors of the other municipalities in the province authorised the storage of the waste in their respective landfill sites on a temporary basis, under section 13 of Legislative Decree no. 22 of 5 February 1997 ... 18. From the end of 2001 to May 2003 seven RDF production centres were built, in Caivano, Pianodardine, Santa Maria Capua Vetere, Giugliano, Casalduni, Tufino and Battipaglia. 19. On 22 May 2001 the urban waste collection and transport service of the municipality of Somma Vesuviana was entrusted to a consortium of two companies: C.I.C.-Clin Industrie Città S.p.A. and Ecologia Bruscino S.r.l. On 26 October 2004 the management of the service was handed over to M.I.T.A. S.p.A., a publicly-owned company. B. The criminal investigation into the situation of the waste disposal service following the signature of the concession contracts of 7 June 2000 and 5 September 2001 20. In 2003 the Naples Public Prosecutor’s Office opened a criminal investigation (RGNR no. 15940/03) into the management of the waste disposal service in Campania since the signature of the concession contracts on 7 June 2000 and 5 September 2001. 21. On 31 July 2007 the public prosecutor’s office requested the committal for trial of the administrators and certain employees of Fisia Italimpianti S.p.A., FIBE S.p.A., FIBE Campania S.p.A., Impregilo S.p.A. and Gestione Napoli S.p.A. (“the companies”), as well as the deputy commissioner in post from 2000 to 2004 and several officials from his office, on charges of fraud, failure to perform public contracts, deception, interruption of a public service or utility, abuse of office, misrepresentation of the facts in the performance of public duties and conducting unauthorised waste management operations, committed between 2001 and 2005. 22. The members of the companies concerned were accused, inter alia, of having, with the complicity of the deputy commissioner and of officials from his office, failed in their contractual duty to receive and process the region’s waste. The companies themselves were accused of having delayed and in some cases interrupted the regular reception of the waste collected in the RDF production centres, causing refuse to pile up in the streets and the temporary storage sites provided by the mayors or the deputy commissioner. 23. The public prosecutor’s office also accused the companies of having (1) produced RDF and compost by means not provided for in their contracts; (2) failed to carry out the requisite RDF energy recovery operations pending the construction of the RDF power station; (3) sub ‑ contracted the transportation of the processed waste produced by the RDF production centres, in breach of the terms of the concession contract; and (4) stocked pollutants from the production of RDF on illegal sites with no effort to protect the environment. 24. The public officials concerned by the committal request were accused of having falsely attested that the companies in question had complied with the laws and contractual provisions governing waste disposal, authorised the opening of non-regulation waste disposal sites, the temporary storage of the RDF pending the opening of the power stations, and the dumping of pollutants produced by RDF production plants, and authorised derogations from the contractual specifications governing RDF production. 25. On 29 February 2008 the preliminary investigation judge ordered the accused to be committed for trial and scheduled the hearing before the Naples Court to be held on 14 May 2008. C. Waste disposal management in Campania and the municipality of Somma Vesuviana from 2005 to 2007 26. Legislative Decree no. 245 of 30 November 2005, which subsequently became Law no. 21 of 27 January 2006, provided for the termination of the contracts governing waste disposal in Campania signed by the deputy commissioner in 2000 and 2001, and for the urgent organisation of a new call for tenders. In order to guarantee continuity of service, the companies already under contract were required to continue their activities until the new call for tenders was over, but only until 31 December 2007. 27. An initial call for tenders, issued on 27 March 2006 by the deputy commissioner then in post, failed for lack of sufficient valid tenders. 28. On 2 August 2006 the deputy commissioner issued a new call for tenders for a twenty-year concession. 29. Legislative Decree no. 263 of 9 October 2006, which subsequently became Law no. 290 of 6 December 2006, appointed the head of the civil emergency planning department to the post of deputy commissioner in charge of the waste disposal crisis in Campania. When the second call for tenders was annulled the deputy commissioner was instructed to sign new contractors to handle waste disposal. 30. On 28 March 2007 the regional authorities passed Law no. 4, providing for the creation of a regional division of the waste disposal scheme, a regional waste disposal observatory, a fully comprehensive regional waste management plan, a regional plan for special waste management, including dangerous waste, and a regional plan to clean up polluted sites. 31. On 6 July 2007 the Prefect of Naples was appointed deputy commissioner in charge of the waste disposal crisis. 32. Legislative Decree no. 61 of 11 May 2007, which subsequently became Law no. 87 of 5 July 2007, authorised the creation, in the municipalities of Serre (Salerno), Savignano Irpino (Avellino), Terzigno (Naples) and Sant’Arcangelo Trimonte (Benevento), of landfill sites with a special derogation from the statutory environmental protection and health and safety standards, and prohibited the creation of new waste disposal sites, in particular in the municipalities of Giugliano in Campania, Villaricca, Qualiano and Quarto (Naples), at least until the region had been cleaned up. The law made the deputy commissioner responsible for rapidly identifying new companies to collect and dispose of waste. 33. On 21 November 2007 a third call for tenders was issued. It failed because not enough tenders were received. 34. On 28 December 2007 the deputy commissioner drew up a regional plan for urban waste in Campania, in keeping with section 9 of Legislative Decree no. 61/07. It comprised a crisis resolution strategy based inter alia on the development of selective waste collection, transparency in the life cycle of waste, the rationalisation and upgrading of the existing structures – in particular at least one of the RDF production centres –, the creation of structures for producing compost, and the use of new technologies and methods for the biological treatment of waste. 35. On 19 April 2008 the publicly-owned company Pomigliano Ambiente S.p.A. was put in charge of collecting and transporting organic waste in the municipality of Somma Vesuviana. D. Waste management in Campania and the municipality of Somma Vesuviana from 2008 to 2010 36. A new crisis situation developed at the end of 2007. Tons of waste were left to pile up for weeks in the streets of Naples and other towns in the province, including those where the applicants lived (see list appended). 37. On 11 January 2008, by order no. 3639/08, the Prime Minister appointed a senior police officer deputy commissioner. His task was to open the landfill sites provided for in Legislative Decree no. 61/07 and to locate new waste storage and disposal sites, with the assistance of the police and the army. The order also invited the municipalities in the region to prepare plans for the selective collection of waste. 38. Legislative Decree no. 90 of 23 May 2008, which subsequently became Law no. 123 of 14 July 2008 (on “Extraordinary measures in response to the waste disposal crisis in Campania and subsequent civil protection measures”) – appointed the head of the civil emergency planning department to the post of undersecretary of State to the Prime Minister’s Office and made him responsible for managing the crisis until 31 December 2009, in place of the deputy commissioner. The undersecretary was authorised to open ten new landfill sites in the region, including two in Terzigno and Chiaiano, with a special derogation from the statutory environmental protection and health and safety standards. 39. Legislative Decree no. 90/08 also authorised the treatment of certain categories of waste at the RDF-fuelled power plant in Acerra – against the opinion submitted on 9 February 2005 by the environmental impact assessment committee – and the construction of RDF-fuelled power plants in Santa Maria La Fossa (Caserta) and in Naples and Salerno. 40. The Legislative Decree handed over ownership of the waste sorting and treatment sites to the provinces of Campania but provisionally left it to the army to manage the sites. 41. Paragraphs 4 and 7 of section 2 of the decree classified the sites, the zones, the plants and the headquarters of the waste management services “strategic national interest zones” placed under the supervision of the police and the army. The armed forces were asked to help organise the implantation of the sites and the collection and transport of waste. 42. Section 2, paragraph 9, classified preventing, obstructing or hindering waste disposal as the punishable offence of interruption of a public service. 43. Lastly, the Legislative Decree instructed the undersecretary of State to ensure that the municipalities complied with the objectives for the selective collection of urban waste laid down in the 28 December 2007 regional plan for urban waste in Campania. 44. Legislative Decree no. 172 of 6 November 2008, which subsequently became Law no. 210 of 30 December 2008 (on “Extraordinary measures in response to the waste disposal crisis in Campania and urgent environmental protection provisions”) provided for the possibility, in the territories affected by the state of emergency regarding waste disposal, of mayors, provincial presidents, municipal or provincial councillors and municipal or provincial commission members being dismissed by decree of the Minister of the Interior in the event of serious neglect, inter alia, in their duty to plan and organise the collection, transport, processing, elimination and selective sorting of waste. It also provided, in the same territories, for special criminal sanctions to punish, inter alia, (1) the illegal dumping or burning of waste; (2) the unauthorised collection, transport, processing, elimination and sale of waste; (3) the creation and management of illegal landfill sites and the mixing of dangerous and non-dangerous waste. 45. According to the information submitted by the Government, which the applicants did not dispute, two landfill sites had already been opened in Savignano Irpino and Sant’Arcangelo Trimonte at the end of October 2009, others were on the point of opening in Chiaiano, Terzigno and San Tammaro, and preliminary work was under way with a view to opening a site at Andretta (Avellino). The finishing touches were being put to the RDF-fuelled power plant in Acerra, a call for tenders for the construction of an RDF-fuelled power plant in Salerno had been issued and a site for an RDF-fuelled power plant in the province of Naples had been chosen. From 14 January to 1 March 2008 269,000 tonnes of waste were removed from the streets of the region’s towns and 79,000 tonnes of RDF were stored. Five hundred and thirty municipalities introduced the selective collection of waste in compliance with order no. 3639/08. 46. On 3 June 2008, pursuant to order no. 3804/09 issued by the Prime Minister and following the approval of a selective waste collection programme, a call for tenders for the waste collection service in the municipality of Somma Vesuviana was won by L’Igiene Urbana S.r.l. 47. On 15 March 2009, by order no. 3746, the Prime Minister urged the provinces of the region to set up semi-public companies to run the waste storage sites, landfills and waste disposal, processing and recycling plants. E. The criminal investigation into the management of the waste disposal service after December 2005 48. In 2006, on an unspecified date, the Naples Public Prosecutor’s Office opened a criminal investigation (RGNR no. 40246/06) into the waste disposal operations organised on a temporary basis by FIBE S.p.A. and FIBE Campania S.p.A. during the transition period following the termination of the concession contracts. 49. On 22 May 2008, at the request of the prosecutor’s office, the preliminary investigation judge at the Naples Court placed compulsory residence orders on the managing directors of FIBE S.p.A. and FIBE Campania S.p.A., several of the companies’ executives and employees, the people in charge of the waste sorting centres run by Fisia Italimpianti S.p.A., the manager of the Villaricca landfill, representatives of the FS Cargo S.p.A. transport company and several officials from the deputy commissioner’s office. 50. The accused were charged, inter alia, with conspiring in the illegal trafficking of waste, forgery of official documents, deception, misrepresentation of the facts in the performance of public duties, and organised trafficking of waste. 51. On an unspecified date in 2008 the Naples Public Prosecutor’s Office opened a criminal investigation (RGNR no. 32722/08, nicknamed “ Rompiballe ”) into the waste disposal operations carried out after December 2005. According to the information supplied by the Government, which the applicants did not dispute, the investigation, which was still pending on 26 October 2009, concerned a number of offences against the environment and the public authorities and targeted several employees of FIBE S.p.A. and other companies in the consortium, as well as officials from the deputy commissioner’s office. F. The judgments of the Court of Justice of the European Union 52. On 22 March 2005 the Commission of the European Communities (“the Commission”) brought an action for non-compliance against Italy before the Court of Justice under Article 226 of the Treaty establishing the European Community (“TEC”) (case no. C-135/05). Criticising the existence of a large number of illegal and unsupervised landfill sites in Italy, the Commission alleged that the Italian authorities had failed to honour their obligations under Articles 4, 8 and 9 of Directive 75/442/EEC on waste, Article 2 § 1 of Directive 91/689/EEC on hazardous waste and Article 14, letters (a) to (c), of Directive 1999/31/EC on the landfill of waste. 53. In its judgment of 26 April 2007 the Court of Justice noted “the general non-compliance of the tips [with the] provisions”, observing, inter alia, that the Italian Government “does not dispute the existence ... in Italy of at least 700 illegal tips containing hazardous waste, which are therefore not subject to any control measures”. 54. It concluded that the Italian Republic had failed to fulfil its obligations under the provisions cited by the Commission, because it had failed to adopt all the necessary measures to ensure that waste was recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and to prohibit the abandonment, dumping or uncontrolled disposal of waste. 55. On 3 July 2008 the Commission brought a new action for non ‑ compliance against Italy under Article 226 TEC (case no. C-297/08). 56. In a judgment of 4 March 2010 the Court of Justice, while noting the measures taken by Italy in 2008 to tackle the “waste crisis”, referred to the existence of a “structural deficit in terms of the installations necessary for the disposal of the urban waste produced in Campania, as evidenced by the considerable quantities of waste which [had] accumulated along the public roads in the region”. It held that Italy had “failed to meet its obligation to establish an integrated and adequate network of disposal installations enabling it ... to [ensure the] disposal of its own waste and, in consequence, [had] failed to fulfil its obligations under Article 5 of Directive 2006/12”. According to the Court of Justice, that failure could not be justified by such circumstances as the opposition of the local population to waste disposal sites, the presence of criminal activity in the region or the non-performance of contractual obligations by the undertakings entrusted with the construction of certain waste disposal infrastructures. It explained that this last factor could not be considered force majeure, because “the notion of force majeure require[d] the non-performance of the act in question to be attributable to circumstances, beyond the control of the party claiming force majeure, which [were] abnormal and unforeseeable and the consequences of which could not have been avoided despite the exercise of all due diligence”, and that a diligent authority should have taken the necessary precautions either to guard against the contractual non-performance in question or to ensure that, despite those shortcomings, actual construction of the infrastructures necessary for waste disposal would be completed on time. The Court of Justice also noted that “the Italian Republic [did] not dispute that the waste littering the public roads totalled 55,000 tonnes, adding to the 110,000 tonnes to 120,000 tonnes of waste awaiting treatment at municipal storage sites”. Concerning the environmental hazard, the Court of Justice reiterated that the accumulation of waste, regard being had in particular to the limited capacity of each region or locality for waste reception, constituted a danger to the environment. It concluded that the accumulation of such large quantities of waste along public roads and in temporary storage areas had given rise to a “risk to water, air or soil, and to plants or animals” within the meaning of Article 4(1)(a) of Directive 2006/12, had caused “a nuisance through noise or odours” within the meaning of Article 4(1)(b), and was likely to affect “adversely ... the countryside or places of special interest” within the meaning of Article 4(1)(c) of that Directive. As to the danger to human health, the Court of Justice noted that “that the worrying situation of accumulation of waste along the public roads [had] exposed the health of the local inhabitants to certain danger, in breach of Article 4(1) of Directive 2006/12”. ... B. Relevant domestic law and practice regarding compensation for poor management of waste disposal services 68. Section 4 of Legislative Decree no. 90 of 24 May 2008 empowers the administrative courts to determine disputes concerning waste disposal activities in general, including when they are carried out by public authorities or the like. The powers of the administrative courts extend to disputes over rights protected by the Constitution. 69. In a claim for damages brought by a group of residents on 5 May 2008 – prior to the entry into force of section 4 of Legislative Decree no. 90/08 – against the city of Naples and the company responsible for waste disposal there, the Naples Civil Court noted that only the administrative court could examine the case and adopt any urgent interim measure within the meaning of section 21 of Law no. 1034 of 6 December 1971 (instituting the regional administrative courts). 70. By two judgments delivered on 21 May and 23 November 2009, the Court of Cassation, sitting as a full court, held that the administrative court had jurisdiction to examine claims for compensation brought by the residents of a municipality against the authorities responsible for the collection, treatment and elimination of waste. C. European Union law 71. Article 4 of Directive 75/442/EEC of the Council of the European Union, of 15 July 1975, on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, reads as follows: “Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular: — without risk to water, air, soil and plants and animals, — without causing a nuisance through noise or odours, — without adversely affecting the countryside or places of special interest. Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.” 72. The relevant provision of Article 2 of Council Directive 91/689/EEC on hazardous waste, of 12 December 1991, reads as follows: “1. Member States shall take the necessary measures to require that on every site where tipping (discharge) of hazardous waste takes place the waste is recorded and identified. ...” 73. Council Directive 1999/31/EC on the landfill of waste, of 26 April 1999, contains the following provisions: Article 14 – Existing landfill sites Member States shall take measures in order that landfills which have been granted a permit, or which are already in operation at the time of transposition of this Directive, may not continue to operate unless ... : (a) with a period of one year after the date laid down in Article 18(1) [that is, at the latest, by 16 July 2002], the operator of a landfill shall prepare and present to the competent authorities, for their approval, a conditioning plan for the site including the particulars listed in Article 8 and any corrective measures which the operator considers will be needed in order to comply with the requirements of this Directive ...; (b) following the presentation of the conditioning plan, the competent authorities shall take a definite decision on whether operations may continue on the basis of the said conditioning plan and this Directive. Member States shall take the necessary measures to close down as soon as possible ... sites which have not been granted ... a permit to continue to operate; (c) on the basis of the approved site-conditioning plan, the competent authority shall authorise the necessary work and shall lay down a transitional period for the completion of the plan. ...” Article 18 – Transposition “1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than two years after its entry into force [that is, by 16 July 2001]. They shall forthwith inform the Commission thereof. ...” 74. The relevant provisions of Directive 2006/12/CE of the European Parliament and of the Council of 5 April 2006 on waste read as follows: Article 4 “1. Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular: (a) without risk to water, air or soil, or to plants or animals; (b) without causing a nuisance through noise or odours; (c) without adversely affecting the countryside or places of special interest. 2. Member States shall take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste. Article 5 1. Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of disposal installations, taking account of the best available technology not involving excessive costs. The network must enable the Community as a whole to become self-sufficient in waste disposal and the Member States to move towards that aim individually, taking into account geographical circumstances or the need for specialised installations for certain types of waste. 2. The network referred to in paragraph 1 must enable waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health.” 75. By virtue of the precautionary principle enshrined in Article 174 of the Treaty establishing the European Community, the lack of certainty regarding the available scientific and technical data cannot justify States delaying the adoption of effective and proportionate measures to prevent a risk of serious and irreversible damage to the environment. The Community’s case-law has applied this principle mainly in cases concerning health, whereas the Treaty refers to the principle only in connection with the Community’s environmental policy. According to the case-law of the Court of Justice of the European Communities (“ECJ”), “where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent” (ECJ, 5 May 1998, United Kingdom/Commission, case C-180/96, ECR I-2265, and ECJ, 5 May 1998, National Farmers’ Union, C-157/96, ECR I-2211). ... | This case concerned the state of emergency (from 11 February 1994 to 31 December 2009) in relation to waste collection, treatment and disposal in the Campania region of Italy where the applicants lived and/or worked, including a period of five months in which rubbish piled up in the streets. The applicants complained in particular that, by omitting to take the necessary measures to ensure the proper functioning of the public waste collection service and by implementing inappropriate legislative and administrative policies, the State had caused serious damage to the environment in their region and placed their lives and health in jeopardy. They also criticised the authorities for not informing those concerned of the risks entailed in living in a polluted area. |
532 | Death in police custody or in detention | I. THE CIRCUMSTANCES OF THE CASE 8. At approximately 2 a.m. on 6 June 1993 Mr Stefanov died after having fallen the previous day from the window of room 36 on the third floor of the police station in the town of Kazanluk. Numerous injuries were found on his body. The ensuing investigation concluded that he had voluntarily jumped out of the window of the room where he had been brought for questioning, and that all his injuries had been the result of his fall. The applicants contested these conclusions. A. The events of 4 and 5 June 1993 9. At an unknown time on 4 June 1993 Mr Stefanov, then aged twenty ‑ three, was arrested by the police in the town of Muglizh. Another person, Mr D.O., also of Roma ethnic origin, was likewise taken into custody. According to a subsequent statement of Mr D.O., he had turned himself in, whereas according to a statement of lieutenant I.C., a police officer involved in these events (see paragraph 10 below), he had been arrested. Apparently Mr Stefanov and Mr D.O. were suspected of numerous thefts and burglaries committed in complicity. The two were brought to the Kazanluk police station either later that evening or the next morning. The applicants submitted that Mr Stefanov had been in good health at the time of his arrest. The Government did not contest this assertion. 10. The events of the next morning, as described hereafter, are only known from the statements of lieutenant I.C. and chief sergeant H.B., the two police officers who participated in the events, of Mr D.O., and partly from the statement of chief sergeant B.B., an officer guarding the cell block of the police station. Apparently the only eyewitnesses to what happened in room 36, from whose window Mr Stefanov fell to the ground, were lieutenant I.C., chief sergeant H.B. and Mr D.O. 11. Lieutenant I.C. arrived at the Kazanluk police station at approximately 10 a.m. on 5 June 1993 and first proceeded to question Mr D.O. about the thefts and burglaries allegedly committed by him and Mr Stefanov. 12. The questioning took place in lieutenant I.C. ’ s office – room 36 on the third floor of the police station – an east ‑ facing room measuring 5 by 2.8 m.. It had two two ‑ wing windows, overlooking the backyard, with sills 96 cm above the floor. It seems that the south window was opened. In the middle of the room there were two desks, adjacent to each other. 13. In the back yard, beneath the room ’ s windows, 70 cm south of the one which was open, there was a shed for motorcycles, with a 1.95 meter high ceiling, covered with an iron sheet roof. Beside the shed there was an inspection tunnel for automobiles, leading to an underground garage. The inspection tunnel had a concrete edge. The room ’ s windows stood at 9.6 m above the ground, the distance between the windows and the concrete edge was 7.9 m, and that between the windows and the iron sheet roof – 5.9 m. 14. After questioning Mr D.O., lieutenant I.C. sent him back to the cell block on the first floor, and brought Mr Stefanov up for questioning. During the questioning Mr Stefanov was seated in a chair behind the south desk in room 36. Lieutenant I.C. was sitting opposite him, behind the north desk. Throughout the questioning Mr Stefanov was handcuffed. It is not clear whether his hands were secured behind his back or in front of him. 15. According to the statements made later by lieutenant I.C., sergeant H.B. and Mr D.O., during the questioning the lieutenant established discrepancies between the versions of Mr Stefanov and Mr D.O about their participation in the alleged thefts. At that point, at approximately 11 a.m., the lieutenant called sergeant H.B. and ordered him to bring Mr D.O. up from the cell block in order to be able to confront the two. Sergeant H.B. took Mr D.O. and brought him in front of room 36. Sergeant H.B. and Mr D.O. stood a little south of the room ’ s door, so that Mr D.O. and Mr Stefanov could not establish eye contact. Lieutenant I.C. started questioning Mr Stefanov and Mr D.O., to compare their answers. Apparently their versions differed and an argument erupted between the two, as they were accusing each other of being the mastermind of the alleged thefts. 16. Then Mr D.O. indicated with his head to lieutenant I.C. that he wanted to tell him something without Mr Stefanov hearing it. The lieutenant stood up from his chair, approached the half ‑ open door and stood at the doorsill. At that moment Mr Stefanov, still handcuffed, bolted from his chair, made towards the open window and climbed on the window sill by stepping on a chair placed under the window. Chief sergeant H.B. shouted : “This one is going to run”. Lieutenant I.C. turned around and saw Mr Stefanov in the window frame, one leg out in the air and the other leg inside the room. The lieutenant shouted : “Don ’ t jump!”, but Mr Stefanov threw his other leg out of the window and jumped. The lieutenant rushed towards the window. 17. There are inconsistencies in the lieutenant ’ s statements as to whether he saw Mr Stefanov falling, or only saw him after he had already hit the ground. In his report dated 11 June 1993 the lieutenant stated that he had only seen Mr Stefanov ’ s body supine on the ground. However, when questioned about the incident on 20 June 1994, the lieutenant maintained that when he had rushed to the window, he had been able to see Mr Stefanov ’ s fall, and had seen his body hit the iron sheet roof of the shed beneath the window before rolling off and onto the ground. When questioned for a second time on 21 July 1997, the lieutenant stated that he could not recall exactly the phases of Mr Stefanov ’ s fall and could not tell whether Mr Stefanov had first hit the roof of the motorcycle shed, as he did not remember whether he had gone to the window immediately. He explained that his memories had faded because the events had taken place a long time before and had unfolded very quickly (see paragraphs 34, 36 and 56 below). 18. There are also inconsistencies in Mr D.O. ’ s statements as to whether he saw Mr Stefanov ’ s fall at all. When first questioned about the incident on 8 June 1993, he stated that he had not directly seen Mr Stefanov jump. During his second questioning on 13 December 1993 Mr D.O. maintained that he had seen Mr Stefanov standing up with his handcuffs on, moving towards the window and jumping. However, he did not state that he had seen Mr Stefanov ’ s fall, but had only seen him supine on the ground. 19. Chief sergeant H.B. rushed down the stairs to the back yard, where he found Mr Stefanov lying unconscious, half on his back, half on his right side, on an iron grill in front of the garage. His handcuffs had broken, he was bleeding and breathing heavily. Chief sergeant H.B. poured water on him to try to revive him. An ambulance was called shortly afterwards and Mr Stefanov was taken to the regional hospital in Kazanluk, where he died at approximately 2 a.m. the following morning (see paragraph 26 below). B. The investigation into the events of 4 and 5 June 1993 20. Having been notified about the incident at 12.10 p.m., investigator G. S. of the District Investigation Service in Kazanluk inspected the scene of the incident. Starting at 1.15 p.m., he first inspected the back yard of the police station, where Mr Stefanov had fallen to the ground, and then room 36. The minutes of the inspection state that the site of the incident had “not been preserved – the injured person having been removed ”. The minutes describe the ground beneath the windows of room 36 as covered partly with an iron grill, the remainder being a concrete surface. Two bloodstains are noted : one on the iron grill, and one under it. The bloodstain under the grill measured 5 to 6 cm. During the inspection of room 36 a chair was found just beside the window and a piece of plaster 5 cm long was found under the window frame. 21. The same day, while Mr Stefanov was still alive but in a coma, colonel P. , prosecutor at the Plovdiv Military Regional Prosecutor ’ s Office, ordered that he be examined by Dr E. B., medical doctor at the forensic medicine ward of the Stara Zagora regional hospital. 22. At 7 p.m. on 5 June 1993 Dr E. B. examined Mr Stefanov in the presence of Dr K. , a neurosurgeon from the Kazanluk regional hospital. He found that Mr Stefanov was in a coma and could not communicate. He recorded that the “ on ‑ duty police officer ” had told him that Mr Stefanov had jumped from the window of a room on the third floor of the police station, that he had fallen on an iron sheet roof, and then on the ground in front of the underground garage of the station, on an iron grill. 23. He noted the following injuries on Mr Stefanov ’ s body: “The lids of the right eye are suffused and are bluish-violet in colour. An abrasion with underlying surface, measuring 6 by 6 cm, was found in the area of the right cheekbone. An arch-shaped wound with uneven and suffused edges 2 cm long, was found on the outer edge of the right eye. Two slit-shaped parallel violet suffusions, 1 cm wide and 8 cm long, are visible on the back of the right shoulder. The distance between them is 3.5 cm. At the middle of the thorax one can observe a slanted elongated violet suffusion, measuring 4 by 1 cm. A similar suffusion, measuring 3 to 2 cm, was found on the left buttock. The right upper limb is immobilised with a plaster dressing. Three oval abrasions with underlying surface, the biggest measuring 1 by 1 cm, were found on the lateral side of the right knee. The skin on the lateral side of the right sole is suffused and bluish-violet in colour. A spotted suffusion, measuring 8 by 3 cm, was found on the inner side of the left sole. An underlying abrasion, measuring 6 to 4 cm, is visible on the lateral side of the right calf. A superficial slit-shaped wound with uneven edges and length 3 cm was found on the left parietal-temporal area.” 24. Dr E. B. concluded that the injuries described could have been sustained in a two ‑ stage fall. 25. The laboratory tests detected no traces of alcohol in Mr Stefanov ’ s blood or urine. 26. Mr Stefanov died at approximately 2 a.m. the following morning. 27. On the following day, 6 June 1993, Dr E. B. performed an autopsy on Mr Stefanov ’ s dead body. The doctor described his findings in detail in his report. He noted the following: “EXTERNAL INSPECTION[:] ... The eyelids are closed. The lids of the right eye are suffused and bluish-violet in colour. An arch-shaped wound with uneven and suffused edges, 2 cm long, is visible in the outer eye angle of the right eye, on the orbital edge. An abraded spot at the level of the skin, covered with reddish scab, 6 by 6 cm, is visible in the area of the right cheekbone. ... A slit-shaped wound with uneven and suffused edges, 3 cm long, is visible in the parietal-occipital-temporal area. Small tissue bridges are visible at the bottom of the wound. ... An oblique bluish suffusion, measuring 4 by 2 cm, is visible on the frontal part [of the thorax], in the middle part, in the projection of the sternum. Two strip-shaped bluish-violet blood suffusions, parallel to one another, measuring 8 by 2 cm, at a distance of 3.5 cm between them, are visible on the back surface of the right shoulder. ... A bluish-violet suffusion, measuring 4 by 3 cm, was found on the left buttock. ... The right armpit bone is broken in the middle third with suffusions in the musculature. A wound with an irregular shape and even edges, measuring 3 by 2 cm, is visible in this area, on the lateral surface. The bone fragments are at its bottom. Two strip-shaped grazed areas covered with whitish scab at the level of the skin, each measuring 40 by 3 mm, and a distance between them of 5 mm, were found in the area of the right wrist. Three abraded areas covered with reddish scab at the level of the skin, the biggest one measuring 1 cm in diameter, were found on the lateral side of the right knee. A similar grazed area, measuring 4 by 6 cm, was found on the lateral surface of the right calf. The skin on the lateral part of the right sole is suffused and bluish. A similar suffusion, measuring 8 by 3 cm, was found on the internal surface of the left sole. Deep skin incisions were made on the back of the corpse, and thereupon suffusions of the soft tissues and the musculature of the right part of the back, in the area of the right shoulder-blade, measuring 18 by 8 cm, vertically oriented, were found. ... A suffusion of the tissues was found in the musculature and the sub ‑ cutaneous layer of the left buttock, in the projection of the above-described suffusion. INTERNAL INSPECTION[:] Head. The soft cranial membranes have suffusions on the right frontal-temporal area, on the left parietal-occipital-temporal area, below the above described lacerated-contusion wound. ... A linear fracture was found at the base of the skull, beginning from the right frontal-temporal area, passing on the roof of the right orbit, and ending in the area of the sella turcica. ... The soft meninges are suffused in the temporal parts. ... Rounded violet suffusions, with diameter of not more than 2 mm, were found at the base of the brain, in the area of the right frontal parts. ... The first, seventh, and eighth ribs on the right side are broken on the posterior sub-arm line with a suffusion in the intercostal musculature. The fractures are wide open inward.” 28. In the concluding part of the report Dr E. B. summarised the injuries on Mr Stefanov ’ s body as follows: “Combined cranial-cerebral and thoracic trauma following a fall from a substantial height. Fracture of the base of the skull. Cerebral contusion, cerebral oedema, with wedging of the cerebellar tonsils. Suffusion of the meninges. Fracture of ribs on the right side. Lacerated-contusion wounds on the head and the face. Suffusions of the cranial membranes, the face, the thorax, and the limbs. Abrasions on the face and the limbs. Open fracture of the right armpit bone. Suffusion of the buttocks. Lack of alcohol in the blood and the urine.” 29. Dr E. B. concluded that the death had been caused by a cranial ‑ cerebral trauma, consisting of a fracture of the skull, a contusion and a brain oedema. 30. Addressing the question of the manner in which the injuries had been caused, Dr E. B. stated: “The described traumatic injuries were caused by the impact of the body against solid blunt objects and could be sustained in a two-stage fall from a substantial height. The inspection and the autopsy revealed head and body traumatic injuries: head – on the right frontal-temporal area [and] on the left parietal-occipital-temporal area; body – front and back, more pronounced on the right side; limbs – right upper limb, lateral surface of the right leg and internal surface of the left sole. The fall on the roof of the shed produced the injuries on the right side of the forehead and the face and the front of the body. The second stage of the fall – from the roof of the shed to the ground in front of the underground garage – resulted in the injuries on the back of the body, the left parietal-occipital-temporal area of the head and lower limbs. The two chafings of the right wrist suggest sustained contact with handcuffs. The right armpit bone was broken during the first stage of the fall if the hands were handcuffed in front, and during the second stage if the hands were handcuffed on the back .” 31. Dr E. B. finished his autopsy report with the following findings: “All traumatic injuries were sustained while [Mr Stefanov was alive], is indicated by from the suffusions in the areas of the broken bones. These injuries were sustained at the same time and it is possible that they occurred at the time stated in the preliminary data. The inspection of the body and the autopsy did not reveal traumatic injuries which cannot be explained by a fall from a substantial height. At the time of his death [Mr] Stefanov was not under the influence of alcohol, but the expertise cannot confirm the same for the moment of the fall, because the alcohol test sample was taken more than twelve hours after the incident.” 32. On 8 June 1993 Mr D.O. was questioned about the incident. He stated, inter alia, that he had not directly seen Mr Stefanov jump. 33. An investigation was opened on 17 June 1993 by the Plovdiv Military Regional Prosecutor ’ s Office. 34. The military investigator in charge of the case, Mr S. S., collected the written reports of lieutenant I.C., chief sergeant H.B. and sergeant B .B., but did not question the officers. He started working on the case on 13 December 1993, when he questioned Mr D.O. The latter stated, inter alia, that he had not been mistreated and that Mr Stefanov body did not indicate any bodily assault at the time of his questioning in the morning of 5 June 1993. He also maintained that he had seen Mr Stefanov standing up with his handcuffs on, moving towards the window and jumping. However, he did not state that he had seen Mr Stefanov ’ s fall, but had only seen him lying on the ground. 35. On 8 February 1994 the Plovdiv Military Regional Prosecutor ’ s Office transferred the case to the competent district prosecutor ’ s office, in view of the amendments to the Code of Criminal Procedure (“the CCP ”) of December 1993 whereby offences allegedly committed by police officers came under the jurisdiction of the general courts (see paragraph 71 below). However, on 5 April 1994 the case was sent back to the Plovdiv Military Regional Prosecutor ’ s Office pursuant to special instructions by the Chief Prosecutor ’ s Office of 16 February 1994. On 20 April 1994 the Plovdiv Military Regional Prosecutor ’ s Office remitted the case file to captain I. N., a military investigator in Stara Zagora, for further action. 36. Lieutenant I.C. was questioned on 20 June 1994 by the military investigator, captain I. N. He stated, inter alia, that when he had rushed to the window, he had been able to see Mr Stefanov ’ s fall and had seen his body hit the iron sheet roof of the shed situated beneath the window before hitting the ground (see paragraph 17 above). 37. On 30 June 1994 investigator I.N. recommended that the investigation be discontinued, citing the lack of evidence for a criminal offence. He found that the medical expert report had established that all of Mr Stefanov ’ s injuries had been sustained during his two ‑ stage fall from the window. This finding coincided with lieutenant I.C. ’ s statement that he had seen Mr Stefanov ’ s body first hit the roof of the shed beneath the window and then fall on the ground in front of the underground garage. The investigator concluded that Mr Stefanov had jumped out of the window of his own will, and that this had not been provoked by the conduct of lieutenant I.C. or another police officer. 38. On 2 9 July 1994 colonel Y.T., prosecutor at the Plovdiv Military Regional Prosecutor ’ s Office, discontinued the proceedings and sent the case file to the Kazanluk District Prosecutor ’ s Office for further action. He reasoned that Mr Stefanov had suddenly jumped from the window of room 36 during questioning, in the presence of lieutenant I.C. and Mr D.O. He had fallen on the ground and had immediately been taken to a hospital, where he had died despite the efforts to revive him. As could been seen from the medical expert report, the Mr Stefanov ’ s death had been caused by a combined cranial-cerebral and thoracic trauma, a fracture of the base of the skull, a cerebral contusion, a suffusion of the meninges, lacerated-contusion wounds on the head and the face, and suffusions of the limbs. There was no indication that lieutenant I.C. had contributed in any way to Mr Stefanov ’ s death. 39. On 4 August 1994 the Kazanluk District Prosecutor ’ s Office sent the case back to the Plovdiv Military Regional Prosecutor ’ s Office, stating that there was nothing for them to do since the proceedings were discontinued. 40. During the following year the case file was shuttled between various prosecutor ’ s offices. On 4 October 1994 the first applicant, who was apparently unaware of the latest developments, complained to the Chief Prosecutor ’ s Office about the delay in the investigation and stated that she had not been informed of the investigation findings. 41. In view of the amendments to the CCP of June 1995 whereby the military courts, investigators and prosecutors were restored jurisdiction over offences allegedly committed by police officers (see paragraph 71 below), on 3 August 1995 the Military Prosecutor ’ s Office in Sofia sent the case for review by the Plovdiv Military Regional Prosecutor ’ s Office with instructions to communicate its ruling to Mr Stefanov ’ s heirs. 42. In a decision of 27 December 1995 colonel Y. T. , prosecutor at the Plovdiv Military Regional Prosecutor ’ s Office, once again discontinued the investigation for lack of evidence of a criminal offence. He reasoned, without much detail, that Mr Stefanov had jumped from the open window. He had been immediately transported to a hospital, where he had died because of a cranial ‑ cerebral trauma. It had not been established that lieutenant I.C. or another police officer had abused his office, had brought about Mr Stefanov ’ s suicide, or had failed to discharge his or her duties. It appears that a copy of the decision was sent to Mr Stefanov ’ s father. 43. Apparently the applicants were not informed about these developments, although they had requested to be kept abreast of the progress of the investigation on several occasions. 44. A copy of the prosecutor ’ s decision was obtained by the applicants ’ lawyer on 12 November 1996. On 9 December 1996 he filed an appeal against it with the Military Prosecutor ’ s Office in Sofia, arguing that the investigation was not comprehensive, that a number of investigative steps had not been undertaken and that various facts had not been clarified. 45. In a decision of 9 January 1997 prosecutor V. P. of the investigative department of the Military Prosecutor ’ s Office in Sofia found that the investigation had not been full and comprehensive. It had not been established at what time on 4 June 1993 Mr Stefanov had been arrested, who had ordered that he remain in detention after the end of the workday, or whether there had been an order for his police detention for a period of twenty ‑ four hours. If such an order existed, it was not clear who had issued it and on what legal grounds. The legality of the police officers ’ actions had to be assessed also from the point of view of Article 127 of the Criminal Code (“the CC”) (see paragraph 66 below). Another fact which had not been clarified were the circumstances of Mr Stefanov ’ s detention leading up to the incident on 5 June 1993. Also, it was unclear how many objects Mr Stefanov ’ s body had hit during the fall and what was the number of impacts. No inspection had been carried out of the roof of the motorcycle shed. It was apparent from the photographs that it was not deformed although the doctor ’ s report had stated that on his way down Mr Stefanov had first hit the roof and only then the iron grill on the ground. The doctor ’ s report had also stated that the body had sustained two blows during the fall and that all injuries could have been caused by two consecutive blows. Finally, not all persons who could have clarified the facts had been questioned, including chief sergeant H.B., chief sergeant B.B., and others who had been in the back yard and the garage of the police station and might have witnessed the fall. 46. Accordingly, the prosecutor quashed the decision to discontinue the investigation and ordered to : (i) gather all documents in the Kazanluk police station relating to Mr Stefanov ’ s arrest and detention on 4 June 1993; (ii) inspect the site of the incident with a view to establishing the exact material of which the metal sheet roof was made and whether there were any deformations on it; also, establish what the distance between the window and the ground was and whether the bloodstain found on the iron grill was situated directly beneath the window; (iii) perform a dummy test to determine the exact spot where Mr Stefanov ’ s body had hit the ground; (iv) question other possible witnesses; also, take new statements from Mr D.O. about the circumstances of his and Mr Stefanov ’ s detention and stay in the police station, the possible use of physical violence against them, as well as all other circumstances possibly relevant to the case; (v) prepare a three-expert forensic report to establish the cause of death and whether there were injuries on Mr Stefanov ’ s body which had not been caused by the fall form the window. 47. Following the remittal of the case, on 8 March 1997 an investigator inspected the iron sheet roof of the motorcycle penthouse situated beneath room 36, and performed a dummy test. 48. During the inspection it was found that the iron sheet roof had no marks of bending or deformation. 49. A human ‑ size leather dummy was thrown twice out of the window of room 36. The first time the dummy was dropped perpendicularly and fell directly on the ground in front of the garage, without touching the iron sheet roof of the penthouse. The second time it was thrown at an angle south of the window and hit the iron sheet roof, then the concrete edge beneath the roof, and then fell on the ground. When the dummy hit the iron sheet roof during the second throwing, the roof gave. 50. On 25 March 1997 investigator S.S. questioned chief sergeant H.B. who stated, inter alia, that he had not seen Mr Stefanov ’ s fall in its entirety, and had no recollection of how many hits he had heard during the fall. 51. On 26 March 1997 investigator S.S. questioned chief sergeant B.B. 52. Following the dummy test, three medical experts were appointed to re ‑ examine the conclusions about the circumstances in which Mr Stefanov ’ s injuries had been sustained. More specifically, they were requested to establish what was the cause of Mr Stefanov ’ s death and whether some of the injuries found on his body could have been the result of factors other than the fall from the window of room 36. Dr E. B. , the medical doctor who had examined Mr Stefanov on 5 June 1993 and had performed an autopsy on his dead body, was one of the experts. The others were Dr H. E. and Dr T. T. , medical doctors from the forensic medicine and ethics faculty of the university of Stara Zagora. 53. On 18 April 1997 the three experts delivered their report based solely on documents contained in the investigation case file. 54. The experts confirmed the previous findings about the cause of death, namely that it was the result of a cranial and brain trauma, consisting of a fracture of the base of the skull, contusion and oedema of the brain, with a wedging of the cerebellum and paralysis of the vital brain centres. Although insubstantial, the amount of blood that had entered the respiratory system, also contributed to the fatal outcome, the experts opined. 55. As to the cause of the injuries, the experts concluded that: “such injuries may be sustained in a fall that involves multiple blunt impacts. Such a fall [occurs] the body hits several hard surfaces at different heights, as indicated by the dummy test. Such information was gathered during the dummy test. When thrown at a right angle, the dummy hit the iron sheet roof situated under the window adjacent to the one from which [Mr] Stefanov fell. ...It is possible that [Mr] Stefanov ran tangentially against the edge of the iron sheet roof and that his body rolled off leaving no indentations on the roof. It [was] also possible that [Mr] Stefanov, regardless of whether his body came in contact with the iron sheet roof, hit the concrete edge on which the roof was built. This edge is visible on the photographs and is situated at approximately 23 cm from the wall of the shed. The final stage of the fall was hitting the ground in front of the garage, where the grill is located. It [was] possible that the suffusions on the back surface of the right shoulder could have resulted from an impact against the grill. The lacerated-contusion wound on the head, in case it was turned left, as well as the fracture of the right armpit and the suffusion on the buttocks, occurred during this final stage of the fall. The other injuries were caused earlier during the fall. The two abrasions on the right wrist are consistent with handcuff marks. The hit which caused the cranial fracture and the brain contusion [was] sustained in the right frontal part of the head, where the lacerated ‑ contusion wound, the abrasion and the suffusion [were] detected. This was a heavy impact that occurred during an earlier stage of the fall, most probably against the above ‑ mentioned concrete edge. All injuries were sustained at the same time. No injuries were found which cannot be explained with a fall from a substantial height and one that involved multiple hard impacts. [There were no injuries] from sharp weapons, firearms, or electricity. No defensive injuries were found on the body or the limbs. 56. On 21 June 1997 lieutenant I.C. was questioned by captain S. S. , the military investigator who was initially in charge of the investigation. The applicants ’ lawyer was also present. The lieutenant stated that he could not recall exactly the mechanism of Mr Stefanov ’ s fall and could not tell whether Mr Stefanov had first hit the roof of the motorcycle shed, as he did not remember whether he had gone to the window immediately. He explained that his memory of the events had faded because they had taken place a long time before and had unfolded very quickly. 57. Mr D.O. was not re ‑ questioned. The Kazanluk police tried to locate him but found that his whereabouts after 1993 – when he was released and apparently not prosecuted any further for the alleged thefts – were unknown. There were some indications that he was living on the territory of the Troyan municipality, in one of the mountain villages there, but his exact address was unknown, as he had not communicated it to the address register of his previous domicile, the municipality of Muglizh. His mother ’ s whereabouts were also unknown, his grandfather and uncle had died, and there were no other relatives in Muglizh who could provide information about him. The applicants ’ lawyer requested that the investigation remain pending until Mr D.O. was located and questioned. 58. Also, no documents were gathered about Mr Stefanov ’ s arrest and detention on 4 and 5 June 1993. In a letter of 20 July 1997 the head of the Kazanluk police station informed the investigation authorities that up until August 1993 the persons detained for less than twenty ‑ four hours had simply been registered and no orders for their arrest had been issued, and that the registers for 1993 had not been preserved. 59. On 29 July 1997 investigator S.S. recommended that the investigation be discontinued. He stated that the instructions of the Military Prosecutor ’ s Office had been complied with in the course of the additional investigation. The register of the detained persons in the Kazanluk police station was no longer available, nor were the police fill-in forms for detention. It was therefore impossible to establish who had brought Mr Stefanov to the police station. Also, an additional inspection of the death scene had been carried out, revealing that Mr Stefanov ’ s body had not hit the iron sheet roof, which was not deformed, but the edge beneath it, and then the ground. This was apparent from the medical expert report. Certain witnesses had been re-questioned. The re-questioning of Mr D.O. had been impossible, as he could not be tracked down. As indicated by the medical expert report, Mr Stefanov ’ s death had been caused by a cranial ‑ cerebral trauma, consisting of a fracture of the skull base, contusion and oedema of the brain with a wedging of the cerebellum and a paralysis of the vital brain centres. Such injuries could be the result of a two ‑ stage fall, when the body had encountered obstacles at various heights before hitting the ground. No injuries which could not be explained with such a fall had been found, nor injuries resulting from sharp weapons, firearms, or electricity. There was thus no evidence of a criminal offence by a member of the Kazanluk police. 60. In a decision of 13 August 1997 captain I. N. , prosecutor at the Plovdiv Military Regional Prosecutor ’ s Office, discontinued the investigation. He reasoned that all instructions contained in the decision of 9 January 1997 of the Military Prosecutor ’ s Office in Sofia had been complied with. The dummy test, the additional medical expert report and the newly questioned witnesses had all confirmed the circumstances underlying the first discontinuation of the investigation. There were no injuries on Mr Stefanov ’ s body which could not be explained by a two ‑ stage fall from a substantial height. The dummy test had determined that Mr Stefanov had first hit the concrete edge under the iron sheet roof and had then fallen on the ground. A copy of the decision was sent to the first applicant with instructions that she could appeal against it. 61. On 3 and 12 February 1998 the applicants ’ lawyer requested information about the progress of the investigation. He was informed that it had been discontinued, but was not given a copy of the decision of 13 August 1997. He managed to obtain a copy only on 4 March 1998, and immediately appealed it before the Military Prosecutor ’ s Office in Sofia. He argued that Mr D.O. had not been questioned and that the conclusions about the details of Mr Stefanov ’ s fall from the window were inconsistent. 62. On 31 March 1998 colonel T. Y. , prosecutor at the Military Prosecutor ’ s Office in Sofia, dismissed the appeal, reasoning, inter alia, that Mr Stefanov had jumped in an attempt to leave the premises of the police, that no officers were responsible for this act, and that the investigation had been objective and comprehensive. 63. The applicants ’ lawyer then filed an appeal with the Chief Prosecutor. 64. On 18 May 1998 prosecutor V. P., head of the investigative department of the Military Prosecutor ’ s Office in Sofia, to whom the appeal was apparently referred, upheld the decision to discontinue the investigation. He reasoned that there were no indications that Mr Stefanov ’ s “attempt to flee” had been prompted by maltreatment by the police officers who had questioned him. According to the medical expert report, all his injuries had been caused by the fall. There was no indication that any offence had been committed by a police officer, that could be connected with Mr Stefanov ’ s death. A copy of his decision was sent to the applicants ’ lawyer on 9 June 1998. | The first applicant’s de facto husband and second applicant’s son – a Bulgarian national of Roma ethnic origin – was arrested on suspicion of having taken part in numerous thefts and burglaries and taken into custody. The next day, while he was being interviewed, he fell from a third floor window of the police station where he was being detained. He was taken to hospital and died the next day. The applicants alleged in particular that their relative had died as a result of his ill-treatment by the police while in custody and that the authorities had failed to conduct an effective investigation into the circumstances surrounding his death. They also complained that the impugned events had been the result of discriminatory attitudes towards people of Roma ethnic origin. |
205 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1973 and lives in the Tyumen region. 6. On 2 May 1997 the applicant was arrested on suspicion of murder. He was given a written note explaining that he could not be obliged to give evidence against himself, his spouse or close relative and that he was entitled to legal assistance from the moment that the arrest record or the detention order was read out to him. He signed the explanatory note and asked for legal assistance. 7. At 6.30 p.m. on the same day the applicant was questioned. He was not assisted by a lawyer. According to the applicant, he was threatened that if he did not confess the investigator would order his cellmates to rape him. The applicant confessed to the murder. 8. At 8.20 p.m. on the same day the arrest record was read out to him. 9. On 3 May 1997 the applicant was brought to the scene of the crime where he repeated his confession and gave details of the murder. He was not assisted by a lawyer. 10. On 8 May 1997 the applicant was provided with a lawyer. 11. At the trial the applicant retracted his confession. He admitted that he had been at the victim ’ s house on the evening of the murder. However, he denied killing her. 12. On 15 January 2001 the Kondinskiy District Court of the Khanty-Mansiyskiy Region convicted the applicant of murder and sentenced him to ten years ’ imprisonment. It relied on the applicant ’ s confession statement of 2 May 1997, testimony by several police officers that the confession had been made by the applicant without any pressure and statements by witness Kh. that he had seen the applicant in the victim ’ s house several hours before the murder. The court also relied on the autopsy of the victim describing the injuries and establishing the cause of death. 13. On 18 October 2006 the Khanty-Mansiskiy Regional Court upheld the conviction on appeal. It found, in particular, that the District Court ’ s reliance on the applicant ’ s confession statement had been lawful. The applicant had been questioned and had confessed before the arrest record had been read out to him. He had not therefore been entitled to legal assistance during that questioning. | Convicted of murder and sentenced to ten years’ imprisonment in January 2001 – the conviction being eventually upheld in October 2006 – the applicant complained that he had been denied access to a lawyer during his questioning and first few days of police custody in May 1997. He submitted that during the questioning he had been threatened by the investigator that if he did not confess he would be raped by his cellmates. The applicant then confessed to the murder but retracted his confession during the trial when represented by a lawyer. Before the Court, he complained that he had not had any legal assistance during the initial stage of the criminal proceedings and that the confession he had made was then used to convict him. |
505 | Unavailability of widows’ allowances to widowers | I. THE CIRCUMSTANCES OF THE CASES 7. The facts of each case, as submitted by the parties, may be summarised as follows. A. Mr Hobbs, no. 63684/00 8. Mr Thomas William Hobbs is a United Kingdom national, born in 1921 and living in Southampton. 9. The applicant ’ s wife died on 25 February 1998. On 11 October 2000 he contacted the Inland Revenue (“IR”) and applied for widow ’ s bereavement allowance (“WBA”: see paragraph 21 below) for the years 1998/9 and 1999/2000. He was informed that he did not qualify for the tax allowance, since he was a man and the law provided only for payments to widows. B. Mr Richard, no. 63475/00 10. Mr Richard was born on 21 May 1957 and lives in Dunfermline. He was widowed on 14 October 1995. There were two children of the marriage, born in 1987 and 1993. 11. In around November 1995 the applicant telephoned the IR requesting an allowance equivalent to that received by a widow. The IR told him that he was ineligible for WBA. The applicant applied again by letter dated 19 July 2000, but by a letter dated 3 August 2000 he was informed the WBA was not available for widowers. 12. In around June 1997 the applicant applied to the Benefits Agency (“BA”) for social security benefits equivalent to those to which a widow would have been entitled (see paragraphs 29-37 below). His claim was refused by the BA on 18 June 1997. The applicant wrote on 22 June 1997 requesting an appeal against this decision and requesting that the appeal be heard after the Court had decided the lead case on widowers ’ benefits. On 8 May 2000 the applicant requested that his appeal be proceeded with. It was rejected on 15 May 2000. 13. The applicant began living with another woman in October 1999. In August 2000 he reapplied for widows ’ benefits and was refused again on 16 August 2000. C. Mr Walsh, no. 63484/00 14. Mr Walsh was born on 19 July 1955 and lives in London. He was widowed on 1 March 1997. There were two children of the marriage, born on 22 February 1991 and 29 December 1992. 15. On 30 May 2000, the applicant applied to the BA for social security benefits equivalent to those which a widow in his circumstances would receive. He was refused by a letter dated 6 June 2000. 16. On 3 July 2000 the applicant applied to the IR for a WBA or equivalent. He was refused by a letter dated 11 July 2000. D. Mr Geen, no. 63468/00 17. The applicant was born on 20 October 1958 and lives in Maidenhead. His wife died on 17 October 1995. There were three children of the marriage, born 18 November 1987, 22 August 1989 and 22 April 1992. 18. In his application form, which was lodged with the Court by facsimile under cover of an introductory letter dated 29 September 2000, there was a general complaint about the discriminatory nature of the widow ’ s social security and taxation systems, in standard paragraphs included in all the widowers ’ applications submitted by the applicant ’ s solicitors. In the section dealing with the particular facts of the applicant ’ s case, there was no mention of any contact with the IR concerning WBA. An amended application form was sent to the Court under cover of a letter dated 15 March 2001. A paragraph had been added, stating that in or around December 1995 or January 1996 the applicant had made enquiries at his local tax office about entitlement to tax rebates or allowances following bereavement, and had been told that he had no entitlement. Reference was made in the amended application form also to “the decision of the Inland Revenue made in July 1996 which is ongoing”, and on 26 March 2001 the applicant sent the Court a copy of a letter of refusal from the IR dated 9 July 1996. 19. On 30 May 2000 the applicant applied to the BA for survivor ’ s benefits. He was refused by a letter dated 5 June 2000. This information was included in the application form lodged on 29 September 2000. 20. In their observations on admissibility dated 4 October 2002, the Government informed the Court that the applicant had also made a formal claim to the IR for WBA on 29 September 2000, which had been refused on 3 October 2000. This was confirmed by the applicant in his observations dated 28 November 2002. | All four applicants were widowed in the mid to late nineties. They complained in particular about the United Kingdom authorities’ refusal to grant them widow’s bereavement allowance or equivalent on the grounds of their sex. The second, third and fourth applicants complained in addition about the non-payment to them of Widow’s Pension and, initially, about the non-payment of Widow’s Payment and Widowed Mothers’ Allowance. |
85 | Parental authority, child custody and access rights | 1. The applicant was born in 1980 and lives in Moscow. She was represented by Mr M. Golichenko, a lawyer practising in Balashikha. 2. The Government were represented by Mr G. Matyushkin, Representative of the Russian Government before the European Court of Human Rights, and then by Mr M. Galperin, his successor in that office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is the biological mother of I., born in 1999, A., born in 2011, and Al., born in 2012. At the material time, she was living with her three children and her mother, Ms P., in a two-room flat. She appears to have been taking opiate drugs from 2004 onwards, and suffered from an opiate addiction. The applicant ’ s arrest and CONVICTION AND the removal of her children 5. At 5.45 a.m. on 8 October 2013 the police arrested the applicant and Mr K., her partner and the biological father of A. and Al., at her home address, on suspicion of being involved in drug trafficking. The applicant ’ s three children were at home at the time. The police took the applicant to a police station, where she remained for at least four hours. She was then released, having given an undertaking not to leave a specified location. During that period the applicant ’ s children had been at home on their own, as the applicant ’ s mother had been visiting her relatives in another region. 6. On 8 October 2013 a police officer interviewed the applicant. She stated, in particular, that she had started taking drugs in 2004. Initially, she had taken two types of psychotropic medicine, which she had mixed together for injections. She had stopped taking drugs in 2010 before giving birth to her two youngest children. She had then relapsed and, for about the past month, had been taking heroin. She also stated that she had regularly let her acquaintances take drugs in her kitchen. 7. At 10 a.m. on the same date, when the applicant was at home, a police officer for juvenile affairs ( инспектор по делам несовершеннолетних ) arrived. He drew up a report stating that the applicant had committed an administrative offence as she had failed duly to fulfil her parental obligations in respect of her three minor children and had been taking drugs. He also drew up three more reports stating that the children had been left unattended. Later that day, I. was taken to a children ’ s home, and A. and Al. were taken to a children ’ s hospital. 8. On the same date the applicant underwent a medical examination, which confirmed that she was in a state of intoxication caused by morphine and codeine. 9. On the same date the police for juvenile affairs sent the above ‑ mentioned reports to the Khovrino district authority ( Администрация муниципального округа Ховрино ) with a request that proceedings to deprive the applicant of her parental authority in respect of I., A. and Al. be initiated. 10. On 18 October 2013 I. was taken to stay with Mr Is., his father. 11. By decisions of 23 October 2013 the Khovrino district authority ordered that A. and Al. be placed in public care, as children left without parental care. On 25 October 2013 A. and Al. were placed in a children ’ s home. 12. On 17 January 2014, as upheld on appeal on 14 April 2014, the domestic courts deprived the applicant of her parental authority in respect of her three children (see paragraphs 34 - 48 below). 13. On 28 April 2014 the Golovinskiy District Court of Moscow found the applicant guilty of drug trafficking and sentenced her to six years ’ imprisonment. She was arrested in the court room after the judgment had been pronounced. 14. According to the Government, on 10 June 2014 A. and Al. were transferred to a foster family, where they have remained since that date. The applicant ’ s contact with her children following their removal 15. In the applicant ’ s submission, prior to her conviction, she had regularly visited A. and Al. in the children ’ s home at least once a week. 16. According to the reports drawn up by staff at the children ’ s hospital and children ’ s home, A. and Al. missed their mother. In particular, Al. would wake up during the night, weeping and calling for her “mum”. A. would often ask where his mother was and when she would take him home. 17. It is unclear whether the applicant ever saw her eldest son I. following his removal. Inspection of the applicant ’ s living conditions 18. On 11 October and 18 November 2013 the Khovrino district authorities inspected the living conditions at the applicant ’ s home address. 19. The report of 11 October 2013 stated that the flat had the necessary furniture and domestic appliances. It had two rooms: one measuring 10.4 sq. m, which was occupied by Ms P., the applicant ’ s mother, who had been visiting relatives in another region of Russia at that point in time, and another measuring 18.7 sq. m, which was shared by the applicant and her three children. Each of the children had a separate sleeping place. The room was stuffy, as it was not properly ventilated. It was equipped with chests of drawers, a dining table with a desktop computer on it, an office chair and a linen chest. There were empty plastic bottles, ashtrays with cigarette butts and a washing up bowl on the floor. Sufficient food supplies were found in the kitchen and in the refrigerator. The report mentioned that the applicant had been present during the inspection. She had remained lying on a sofa, crying and smoking, and blamed herself for the recent events, including the removal of her children. According to the report, the applicant stated that she had taken drugs between 2003 and 2011, and then from September until 8 October 2013; in the latter period she had taken heroin, which she had received from Mr K. (see paragraph 5 above). The applicant also stated that she had intended to contact the Khovrino district authorities to find out where her children had been taken, but had been unable to do so, as she had had to stay in bed because of withdrawal symptoms. She realised that she had a drug addiction and was ready to undergo medical treatment. 20. The report of 18 November 2013 stated that the flat had the necessary furniture and domestic appliances, and was tidy, cosy and well ventilated. Repair work had been carried out in the kitchen in the past month, and the furniture in the applicant ’ s room had been rearranged. The inspection was carried out in the presence of Ms P., who stated that the applicant had been admitted to hospital on 31 October 2013 and was currently undergoing inpatient medical treatment in connection with her addiction. Ms P. said that the applicant loved her children and cared about them. She also mentioned that she herself was currently taking the necessary administrative steps to gain custody of her grandchildren. The applicant ’ s medical treatment 21. On 29 October 2013 the applicant sought assistance in connection with her drug addiction in a drug rehabilitation outpatient clinic ( наркологический диспансер ). 22. An extract from the applicant ’ s medical history file reveals that on 30 October 2013 she was admitted to a specialist clinic, where she was diagnosed with stage-two opiate addiction and withdrawal symptoms. She received treatment for her addiction until 21 November 2013, when she was discharged from the clinic. The file also states that she applied to the clinic for treatment on her own initiative, and that she had a positive attitude towards the treatment and intended to abstain from taking drugs and to lead a healthy life. 23. According to a certificate dated 5 December 2013, from December 2013 onwards, following a diagnosis of stage-two opiate addiction, the applicant was registered as an outpatient with a drug rehabilitation clinic for monitoring. 24. In the context of that monitoring, the applicant visited the drug rehabilitation clinic on 28 November 2013 and 9 January, 13 and 14 March and 10 April 2014. 25. According to the Government, the applicant received in-patient treatment for her addiction in a specialist clinic between 17 and 31 January 2014; she was discharged on the latter date as she had refused treatment. She was then readmitted to the clinic from 7 to 21 February 2014. In the applicant ’ s submission, she had left the specialist clinic on 31 January 2014 as she had had health issues which could not be addressed there. As soon as she had received treatment for those issues, she had returned to the drug rehabilitation clinic. Proceedings FOR WITHDRAWAL OF the applicant ’ S parental authority 26. On 1 November 2013 the Khovrino district authority brought an action against the applicant, seeking the withdrawal of her parental authority in respect of her three children. In particular, they pointed out that since October 2013 the applicant had been monitored by the district commission for children ’ s affairs and the protection of minors ’ rights as a mother who had been neglecting her parental duties by not providing her children with adequate care and financial support, and who had been taking drugs for a prolonged period of time. The authority also pointed out that the applicant was unemployed and that criminal proceedings against her were currently ongoing in relation to her suspected involvement in drug trafficking. The authority therefore insisted that leaving her children with her would put their lives and health at risk. First-instance courtProceedings before the first-instance court Proceedings before the first-instance court Proceedings before the first-instance court 27. A transcript of two court hearings that took place on 5 and 24 December 2013 respectively reveals that the applicant and her representative attended those hearings and made oral submissions. The applicant stated, in particular, that she loved her children and was willing to take care of them. She also stated that she had never taken drugs in front of her children; she would go to the bathroom or toilet for that purpose. She also said that she was willing to undergo rehabilitation treatment for her addiction. 28. The applicant ’ s mother, Ms P., who participated in the proceedings as a third party, objected to the withdrawal of her daughter ’ s parental authority. She stated that the applicant loved her children and had taken care of them to the extent that the state of her health had allowed. She also stated that she knew that, previously, her daughter had taken psychotropic drugs, but had stopped taking them during her pregnancy. Ms P. further stated that, although she shared the flat with her daughter, she had not noticed that the latter had relapsed; nor did she know that she had started taking heroin. 29. A representative of the children ’ s home in which A. and Al. had been placed stated, in particular, that the children ’ s grandmother had started visiting them as soon as they had been placed in that institution, whereas their mother had come for the first time on 6 December 2013, as prior to that date she had been following inpatient treatment for her addiction. Both the children ’ s mother and grandmother had regularly visited the children and had brought them presents; the children were particularly attached to their grandmother. 30. A police officer for juvenile affairs, Ms I.P., stated that the children ’ s mother had been taking drugs since 2004. According to Ms I.P., in 2010 she had stopped taking drugs because of her pregnancy, but had relapsed after the birth and had started taking heroin on a regular basis. The officer further stated that the children ’ s mother had tried to stop taking drugs, but had been unable to stop for longer than a fortnight. In the context of the criminal proceedings relating to drug trafficking, a search of her flat had been carried out and packets of heroin had been found. She would allow her acquaintances to take drugs in her kitchen, in her children ’ s presence. According to Ms I.P., the elder son, I., had been monitored by the police; two criminal cases against him had been discontinued owing to his young age. 31. The court also heard I., the applicant ’ s elder son, who stated, in particular, that until the events of 8 October 2013, he had been living with his mother, her partner, his brother and sister and his grandmother. Their life had been “normal”, there had been no “inadequacy” in his mother ’ s behaviour; she had been taking care of the children. I. also stated that he liked living with his father and that he had good relations with his father ’ s new family. In fact, I. would like to live with both of his parents, he could not make a choice. He stressed that he did not want his mother to be deprived of her parental authority. 32. I. ’ s father, Mr Is., and his wife stated that they would like I. to live with their family. 33. A transcript of the court hearing of 17 January 2014 reveals that the applicant ’ s representative informed the court that as the applicant had been admitted to a specialist clinic for treatment for her drug addiction, she was unable to attend the hearing. She had applied to the first-instance court for an adjournment of the hearing, but her application had been rejected. Judgment of 17 January 2014 34. By a default judgment of 17 January 2014 the Golovinskiy District Court of Moscow (“the District Court”) examined and allowed the action against the applicant. It referred to Article 69 of the Russian Family Code (see paragraph 52 below). 35. The District Court examined the report on the applicant ’ s arrest on 8 October 2013 (see paragraphs 5 - 6 above), an administrative offence report of the same date (see paragraph 7 above), and a report on her medical examination on that date (see paragraph 8 above). The court also cited the report of 11 October 2013 on the inspection of the applicant ’ s living conditions (see paragraph 19 above), the certificate of 5 December 2013 (see paragraph 23 above), and the administrative decisions of 23 October 2013 to place A. and Al. in public care (see paragraph 11 above). 36. The court also relied on a letter from a teacher at I. ’ s school. The letter stated that I. had been going to that school since 1 September 2008, and that during the period when he had been going to that school he had demonstrated a lack of ability and motivation, and had missed classes for no valid reason. The letter also stated that although I. ’ s mother took care of I. and enquired about his behaviour and progress, she had not had any influence on him. 37. The court admitted Ms I.P. ’ s statements (see paragraph 30 above) as evidence, stating that they were consistent, coherent and corroborated by the written material in the case. 38. The court examined a report on the inspection of the living conditions in Mr Is. ’ s flat, which confirmed that they were good, and another letter from a teacher at I. ’ s school, which stated that since 18 October 2013 (the date on which I. had started living with his father) his behaviour had improved, he had stopped missing classes, and he had made progress in his studies. 39. With reference to the above-mentioned pieces of evidence and witness statements, the court noted that the applicant had been taking drugs for a prolonged period of time, was unemployed, and had failed to provide her children with adequate care or financial support. It concluded that leaving the children in her care would put their health and lives at risk, and that she should therefore be deprived of her parental authority in respect of I., A. and Al. 40. The court considered that the arguments put forward by the applicant ’ s representative and her mother that the applicant was currently undergoing medical treatment for her addiction and had positive references from her neighbours were irrelevant in the circumstances of the case, and should thus not be taken into account. 41. The court thus deprived the applicant of her parental authority in respect of her three children, and ordered that I. be placed in the care of Mr Is., his father, that A. and Al. be placed in public care, and that the applicant pay maintenance on a monthly basis to support her children financially. Appellate proceedings 42. The applicant disagreed with the first-instance judgment and lodged an appeal before the Moscow City Court. She complained that the District Court had taken an overly formalistic approach and had not assessed the particular circumstances of her case, but had merely applied Article 69 of the Russian Family Code (see paragraph 52 below). It had thus withdrawn her parental authority on the sole grounds that she was a drug addict. In the applicant ’ s view, that fact alone did not prove that she posed any danger to her children, and therefore was insufficient for the purposes of depriving her of her parental authority. The first-instance court had ignored the fact that she was undergoing rehabilitation, even though that fact was directly relevant to her case. Lastly, she complained that she had not been given an opportunity to participate in the proceedings before the District Court, as it had rejected her application to adjourn the hearing. 43. A transcript of 14 April 2014 reveals that the applicant and her representative attended the hearing before the appellate court and submitted their arguments. They requested that the appellate court include in the case file a number of pieces of evidence proving that the applicant had changed her attitude, had found a job and had a sufficient income, and had followed rehabilitation treatment. They also requested the appellate court to call and examine the doctor who had treated the applicant at the specialist clinic where she had undergone inpatient treatment for her addiction. The appellate court dismissed that request, stating that the evidence in question had been received after the first-instance court had rendered its judgment, and that the applicant could have sought, but had not, the examination of the witness in question before the first-instance court. 44. By a decision of 14 April 2014 the Moscow City Court upheld the judgment of 17 January 2014 on appeal. It considered that the first-instance judgment was well reasoned and based on an adequate assessment of all the relevant circumstances. 45. The appellate court disagreed with the applicant ’ s argument that her addiction to drugs had been the sole ground for depriving her of her parental authority. Her children had been taken away because she had neglected her parental duties in respect of A. and Al. and, for a prolonged period of time, had remained unemployed and had taken drugs. The appellate court referred to the applicant ’ s words in the report of 11 October 2013 to the effect that, because of her withdrawal symptoms, she had been unable to discover her children ’ s whereabouts (see paragraph 19 above), and to her interview of 8 October 2013 (see paragraph 6 above) which revealed that she had regularly let other people take drugs in her flat. It also referred to “other pieces of evidence which showed that [she] had taken and had dealt in drugs at her flat”, without indicating what those pieces of evidence were. 46. In the appellate court ’ s view, the foregoing considerations had been sufficient to enable the first-instance court to reach a well-founded conclusion that leaving the children in the applicant ’ s care would put their lives and health at risk. 47. The Moscow City Court further held that the fact that the applicant had undergone rehabilitation treatment could not, on its own, be the basis for rejecting the authorities ’ action, as the first-instance court ’ s judgment had been based on an assessment of the available evidence and circumstances at the time the case was decided. Moreover, the applicant would have the opportunity to seek reinstatement of her parental authority once the reasons underlying the decision to deprive her of it were no longer valid. 48. Lastly, in so far as the applicant complained about the first-instance court ’ s refusal to adjourn the hearing to ensure her personal participation in the proceedings, the Moscow City Court noted that that did not constitute grounds for quashing the judgment, as the applicant had been represented before the first-instance court, and her representative had set out her position. Cassation proceedings 49. The applicant then lodged a cassation appeal before the Presidium of the Moscow City Court. The latter received the appeal on 10 October 2014. She argued that the lower courts had applied Article 69 of the Russian Family Code in a formalistic manner, and had based their decisions solely on the fact that she had been a drug addict, whilst failing to take into consideration the fact that she had been undergoing rehabilitation treatment. Moreover, the first-instance and appellate courts had disregarded her children ’ s right to live and be raised in their family, as guaranteed by Article 54 of the Russian Family Code (see paragraph 51 below). In particular, they had failed to demonstrate convincingly that the children ’ s forced separation from their mother and their placement in the care of the State had been in their best interests. The applicant further argued that the courts had failed to set out any facts showing that she had neglected her parental duties at any point, and that the courts ’ conclusion to that end had been groundless. According to the applicant, the case material showed that, although she suffered from an opiate addiction, she was making efforts to overcome it; moreover, she had never lost interest in her children ’ s lives, their development and upbringing. She also argued that the impugned decisions had breached her right to respect for her private and family life, as guaranteed by Article 8 of the Convention. 50. By a decision of 29 October 2014 the Presidium of the Moscow City Court upheld the judgment of 17 January 2014 and the decision of 14 April 2014, endorsing the reasoning of the lower courts. | This case concerned the applicant’s complaint about being deprived of her parental authority in respect of her three children because she was a drug addict. Drug addiction is a ground for removing parental authority under the Russian Family Code, and entailed her losing all contact rights. |
731 | Industrial pollution | I. THE CIRCUMSTANCES OF THE CASE 10. The applicant was born in 1935 and lives in Brescia. 11. She has lived since 1950 in a house on the outskirts of Brescia, 3 0 metres away from a plant for the storage and treatment of “special waste” classified as either hazardous or non-hazardous. A joint-stock company, Ecoservizi, began operating the plant in 1982. A. Ecoservizi ’ s activities and the subsequent contentious proceedings 1. The licence for the “detoxification” of industrial waste 12. In a decision ( delibera ) of 4 April 1989, the Lombardy Regional Council granted Ecoservizi a licence to operate the plant for a five-year period. The different forms of waste treatment covered by Ecoservizi ’ s licence included, for the first time, the “ detoxification ” ( inertizzazione ) of hazardous waste, a process involving the treatment of special industrial waste using chemicals. 13. On 30 October 1991 the Regional Council authorised Ecoservizi to increase the annual quantity of waste treated at the plant to a total volume of 192, 000 cubic metres. In particular, the quantity of toxic waste authorised for detoxification was raised from 30, 000 to 75, 000 cubic metres. 14. On 5 August 1993 the Regional Council approved a number of alterations entailing technological improvements to the facility without any increase in the quantity of waste being treated. 15. In a decision of 11 April 1994, the Lombardy Regional Council renewed the operating licence for a five-year period, on condition that Ecoservizi signed a memorandum of understanding with the local authorities in order to limit the plant ’ s environmental impact; that condition was satisfied on 18 November 1994. 16. On 13 December 1994 the Regional Council took note of the signing of the memorandum of understanding and confirmed 30 April 1999 as the expiry date for the operating licence. 2. The first set of contentious proceedings 17. The applicant lodged three applications with the Lombardy Regional Administrative Court in 1994 and 1995 for judicial review of the Regional Council ’ s decisions of 5 August 1993 and 11 April and 13 December 1994. She challenged the renewal of the operating licence granted to Ecoservizi and, alleging a breach of Law no. 441 / 1987, argued that the alterations approved by the Regional Council entailed an increase in activity such as to necessitate a fresh licensing procedure, including an assessment of the plant ’ s environmental impact. Ecoservizi applied to intervene in the proceedings. 18. The applicant also sought a stay of execution of the decision to renew the licence. The court allowed her request in an order of 18 November 1994, chiefly because the memorandum of understanding had not yet been signed, and suspended the implementation of the decision. Ecoservizi appealed. 19. On 7 April 1995 the Consiglio di Stato set aside the Regional Administrative Court ’ s order, holding that the signing of the memorandum of understanding (see paragraph 15 above) had removed the risk of irreparable damage on the basis of which the stay of execution had been ordered. 20. In a judgment of 13 April 1996, the Lombardy Regional Administrative Court, having joined all the applicant ’ s applications, dismissed them. It noted that all her complaints were based on the alleged need for the Regional Council to conduct a fresh licensing procedure. It considered, however, that the size of the facility and its volume of activity had been determined in the Regional Council ’ s decisions of 1989 and 1991, which had never been challenged by the applicant. However, the alterations approved in the impugned decisions of 5 August 1993 and 11 April and 13 December 1994 did not entail an increase in the plant ’ s volume of activity or a change in the types of waste being treated. Accordingly, it was not necessary for the Regional Council to conduct a fresh licensing procedure. 21. The applicant appealed. In a judgment of 6 November 1998, the Consiglio di Stato upheld the Regional Administrative Court ’ s conclusions and dismissed the appeal. It also pointed out that a facility should be deemed to be “new” and thus to require a fresh operating licence where there was a change in one of the various stages of waste treatment or in the types of waste being treated. 3. The second set of contentious proceedings 22. In a decision of 29 April 1999, the Lombardy Regional Council renewed Ecoservizi ’ s operating licence for a five-year period. The decision was subject to revocation in the light of the findings of the environmental-impact assessment procedure ( procedura di valutazione di impatto ambientale – “EIA procedure” ) which Ecoservizi had initiated in the meantime (see paragraphs 37-52 below ). 23. On 12 July 1999 the applicant applied to the Lombardy Regional Administrative Court for judicial review of the Regional Council ’ s decision of 29 April 1999. The company and the Lombardy Regional Council both applied to intervene in the proceedings. 24. On 20 September 1999 the applicant applied to the Regional Administrative Court for judicial review of a decision of 12 April 1999 in which the Regional Council had authorised Ecoservizi to make an alteration to the facility for processing waste oils. 25. Furthermore, in a decision of 15 October 1999, the Regional Council noted that Ecoservizi had decided not to act on the authorisation granted on 12 April 1999, and confirmed the renewal of the operating licence. The applicant applied for judicial review of that decision. 26. In an order of 18 February 2000, the Regional Administrative Court allowed an application by the applicant for a stay of execution, on the ground that the EIA procedure was still pending. Subsequently, on 11 April 2000, the Consiglio di Stato allowed an appeal by Ecoservizi, which had argued that the latest inspections of the plant demonstrated its “observance of the limits set by the existing regulations”, and set aside the stay of execution ordered by the Regional Administrative Court. 27. In a judgment of 29 April 2003, which was deposited with the registry on 9 June 2003, the Lombardy Regional Administrative Court allowed the applicant ’ s applications on the merits and set aside the three impugned decisions (see paragraphs 23-25 above). The court held, firstly, that the site alterations authorised by the Regional Council on 12 April 1999 in order to allow the processing of waste oils should have been classified as substantial. Consequently, in accordance with Articles 27 and 28 of Decree no. 22/1997 (see paragraphs 62 and 63 below), the Regional Council should have suspended Ecoservizi ’ s operations and ordered the necessary checks to be carried out before renewing the company ’ s operating licence. The court therefore found that the Lombardy Regional Council ’ s decision of 29 April 1999 had been unlawful. As to the fact that the company had subsequently decided not to carry out the alterations in question, the court held that the Regional Council should in any event have carried out a thorough examination of the plant ’ s operations and condition, as there had been a number of complaints from private individuals and public authorities about Ecoservizi ’ s activities, giving rise to serious doubts as to their compatibility with environmental standards. The court referred to the two environmental-impact assessment decrees (“ EIA decrees”) issued by the Ministry of the Environment and, holding that the Regional Council had failed to carry out its investigative duties, ordered the suspension of Ecoservizi ’ s operations pending the final outcome of the EIA procedure. 28. Ecoservizi lodged an appeal with the Consiglio di Stato. On 1 July 2003 the Consiglio di Stato stayed the execution of the judgment of 2 9 April 2003 further to a request to that effect by the company. 29. In a judgment of 25 May 2004, which was deposited with the registry on 31 August 2004, the Consiglio di Stato dismissed Ecoservizi ’ s appeal. Upholding the Regional Administrative Court ’ s judgment, it held that the Regional Council ’ s decision of 29 April 1999 to renew the operating licence without having carried out any environmental-impact assessment was unlawful and should be set aside. 4. The third set of contentious proceedings 30. In the meantime, in a decision of 23 April 2004, the Lombardy Regional Council had renewed the operating licence for the plant for a five-year period. The renewal concerned the treatment of special waste, both hazardous and non-hazardous. Industrial waste intended for detoxification remained outside the scope of the licence pending the conclusion of the EIA procedure being conducted by the Ministry of the Environment. 31. A consultation meeting between the local authorities ( conferenza di servizi ) was held on 31 March 2004 prior to the granting of the licence. At the meeting the Regional Council and the provincial and district councils concerned expressed an opinion in favour of renewing the licence, referring at the same time to the report issued by the Regional Environmental Protection Agency (ARPA) on 28 February 2004. In the report the ARPA experts indicated what steps had to be taken to avoid any risk of an incident or operational fault at the plant; in addition to these, all the requirements laid down by the Regional Council in its decision of 7 November 2003 (see paragraph 49 below) had to be met. 32. The applicant applied to the Lombardy Regional Administrative Court for judicial review of that decision and sought a stay of its execution. 33. On 30 April 2004 the Regional Council, having taken note of the EIA decree of 28 April 2004 approving the treatment by Ecoservizi of all types of waste, incorporated its latest decision to renew the operating licence into a provisional licence for the detoxification of industrial waste, valid until 22 June 2004, pending completion of the full licensing procedure. 34. In a decision of 28 June 2004, the Regional Council extended the licence until 31 December 2004 to allow Ecoservizi to submit its plans for adapting the plant to meet the requirements set out in the EIA decree. 35. In an order of 23 July 2004, the Lombardy Regional Administrative Court dismissed an application by the applicant for a stay of execution, holding that the decision of 23 April 2004 had been given in accordance with the favourable opinion by the local authorities and had taken into account all factors constituting a potential risk to the properties in the vicinity of the plant. The court further noted that the decision in question had laid down a number of requirements aimed at eliminating the disturbance suffered by the applicant. 36. The proceedings on the merits are still pending before the Lombardy Regional Administrative Court. B. Environmental-impact assessment procedures conducted by the Ministry of the Environment 37. In a decision of 13 December 1996, the Lombardy Regional Council ordered Ecoservizi to initiate an EIA procedure in respect of the detoxification activities at the plant. On 11 May 1998 the company submitted its application to the Ministry of the Environment in accordance with section 6 of Law no. 349/1986. Brescia District Council and the applicant took part in the procedure, together with the local authorities of Borgosatollo and Castenedolo, two villages situated within several hundred metres of the plant. 38. On 24 May 2000 the Ministry of the Environment issued an EIA decree. The Ministry noted that the plant was built on agricultural land, near the River Garza and a sand quarry, the exploitation of which had gradually eroded the soil. Because of the permeability of the ground in particular, there was a significant risk that the toxic chemical residue generated by the detoxification operations at the plant might contaminate the groundwater, a source of drinking water for the inhabitants of the neighbouring villages. The Ministry considered that the operation of the plant was incompatible with environmental regulations. However, Ecoservizi was allowed to continue its activities until the expiry on 29 April 2004 of the most recent operating licence granted by the Regional Council, provided that it complied with certain requirements. 39. Ecoservizi applied to the Lazio Regional Administrative Court for judicial review of the decision and sought a stay of its execution. 40. In an order of 31 August 2000, the Regional Administrative Court suspended the implementation of the decision and ordered the Ministry to carry out a fresh environmental-impact assessment. The Ministry appealed. On 8 May 2001 the Consiglio di Stato declared the appeal inadmissible. 41. In the meantime, on 30 April 2001 the Ministry had issued a further EIA decree confirming that the operation of the plant was incompatible with environmental regulations. 42. Ecoservizi applied to the Lazio Regional Administrative Court for judicial review of the new decree issued by the Ministry. 43. On 11 July 2001 the court allowed the application by Ecoservizi and ordered the Ministry to carry out a fresh environmental-impact assessment. 44. In an order of 11 December 2001, the Consiglio di Stato dismissed an appeal by the Ministry of the Environment against the above -mentioned order of the Lazio Regional Administrative Court. 45. In a decision of 4 November 2002, the Lombardy Regional Council notified Ecoservizi of the conditions for operating the plant, as laid down in the decrees issued by the Ministry of the Environment. 46. In the meantime, on 4 October 2002, in the course of the fresh EIA procedure ordered by the Regional Administrative Court, Ecoservizi had submitted a plan for altering the facility. The plan envisaged, among other things, making the ground surface impermeable, building soundproofing devices, raising the site ’ s perimeter wall so as to avoid any risk of flooding, and improving the system for monitoring hazardous emissions. 47. On 17 October 2003 the local health authority ( azienda sanitaria locale – ASL) submitted its opinion to the Lombardy Regional Council on the compatibility of Ecoservizi ’ s activities with environmental regulations. It stated that, according to the results of technical analyses carried out between 2000 and 2003, which had noted, among other things, the presence of abnormal concentrations of carbon and other organic substances in the atmosphere, the continuation of the plant ’ s operation could cause health problems for those living nearby. The ASL added that it had not been shown that the precautions envisaged by Ecoservizi were sufficient to protect public health. 48. On 7 November 2003 the Lombardy Regional Council approved the continuation of the plant ’ s operation, provided that the company implemented a number of requirements. 49. In particular, the company was to: “ draw up a memorandum of understanding with the local authorities for monitoring the waste being treated, with a view to reducing the likelihood of an operational fault at the site ...; ensure the buffering of the detoxification facilities ...; close the open -top chambers used in the chemical and biological process and develop an exhaust ventilation and purification system ...; build a mobile, soundproof structure to cover the macerator ...; alter the internal sewerage system so as to separate atmospheric water from water produced by the facility; set up a system for monitoring the quality and quantity of water produced by the plant that flows into the Garza ... and into public sewers; devise and implement a plan for making the ground impermeable at the site ...; monitor the site in order to obtain a precise assessment of the presence of any pollutants in the subsoil, the hydrogeological structure of the land and the danger levels for the nearby groundwater supplies used as drinking water ...; ... raise the facility ’ s perimeter wall to a minimum height of 123 metres above sea level ...” The Regional Council further directed : “ ... the close proximity of residential dwellings means that the plant ’ s operations must be permanently monitored as regards the dust released into the atmosphere, VOCs ( volatile organic compounds ) and noise disturbance. Accordingly, a unit should be set up between the site and the dwellings to measure dust emissions and the noise generated by the facility. As regards VOC quantities, the monitoring device should be installed near the facility with the agreement of the relevant authorities; the company should also carry out periodic reviews of noise emissions.” The Regional Council decided that the plant ’ s implementation of the above requirements should be verified when the time came to renew its operating licence, due to expire on 3 0 April 2004. 50. On 28 April 2004 the EIA procedure ordered by the Regional Administrative Court was completed and the Ministry of the Environment issued a new EIA decree. The Ministry noted, firstly, that Ecoservizi processed 27 % of the waste generated in northern Italy and 23 % nationwide. It subsequently stated that the requirements laid down by the Regional Council should significantly improve the conditions for operating and monitoring the plant and expressed an opinion in favour of Ecoservizi ’ s continued operation of the plant, provided that it complied with those requirements. 51. The applicant applied to the Lazio Regional Administrative Court for judicial review of the EIA decree, at the same time seeking a stay of its execution. 52. In an order of 2 4 July 2004, the Regional Administrative Court refused the request for a stay of execution on the ground that the applicant had not notified the Ministry of the Environment of her application. C. Complaints regarding Ecoservizi ’ s activities, and inspections by the relevant authorities 53. Following numerous complaints by the applicant and other inhabitants of the area surrounding the plant, the Brescia ASL ’ s Public and Environmental Health Office and the ARPA produced a number of reports on Ecoservizi ’ s activities. 54. In particular, on 21 September 1993 experts from the ASL conducted analyses of the emissions produced at the plant and found that the statutory limits had been exceeded for certain substances, such as nickel, lead, nitrogen and sulphates. The report drawn up by the ASL indicates that the judicial authorities were informed of the findings of the analyses. 55. On 8 March 1995 experts from the ASL inspected the plant. They noted that a deposit of white dust had formed inside and outside the facility following an accident while a silo was being filled with slaked lime. During the same inspection the experts observed that a number of containers intended for toxic waste were present on the site without having been neutralised after use. In a note dated 27 April 1995, the ASL instructed the company to move the containers in order to avoid any risk of contaminating the ground, particularly as the surface had not been made impermeable. It appears from the report that the ASL lodged a complaint with the appropriate judicial authorities. 56. In a report issued on 31 July 1997, the NAS ( special branch of the carabinieri dealing with health issues ) informed Brescia Provincial Council that a complaint had been lodged against Ecoservizi ’ s legal representative for failure to comply with the conditions laid down in the licences for operating the plant. 57. On several occasions between 1999 and 2003 Brescia District Council asked the Lombardy Regional Council to intervene with a view to moving the facility to a safer site better suited to the plant ’ s growing production needs. 58. On 28 December 2002 Brescia District Council temporarily rehoused the Giacomelli family free of charge pending the outcome of the judicial dispute with Ecoservizi in order to alleviate the disturbance caused to the applicant by the plant. 59. On 15 May 2002 the ARPA issued a technical report on Ecoservizi further to a request by the applicant and her neighbours for an emergency inspection of the site. The experts found a high level of ammonia in the atmosphere, indicating a fault in the detoxification process. They concluded that the company had omitted to activate the necessary devices for ensuring that the waste to be detoxified was compatible with the facility ’ s specifications. There were also structural deficiencies at the site that could potentially lead to operational faults generating emissions of fumes and gases. | Since 1950 the applicant had lived in a house located 30 metres away from a plant for the storage and treatment of “special waste” classified as either hazardous or non-hazardous, which had begun operating in 1982. The company which operated the plant had subsequently obtained permission to increase the quantity of waste that is processed and to carry out “detoxification” of dangerous waste, a process which entails the use of chemical products to treat special industrial waste. The applicant complained that the persistent noise and harmful emissions coming from the plant represented a serious threat to her environment and a permanent risk to her health and home. |
522 | Criminalisation of homosexual relations in general | I. THE PARTICULAR CIRCUMSTANCES OF THE CASE 8. Mr David Norris was born in 1944. He is an Irish citizen. He is now, and has been since 1967, a lecturer in English at Trinity College, Dublin. At present he sits in the second chamber ( Seanad Eireann ) of the Irish Parliament, being one of the three Senators elected by the graduates of Dublin University. 9. Mr Norris is an active homosexual and has been a campaigner for homosexual rights in Ireland since 1971; in 1974 he became a founder member and chairman of the Irish Gay Rights Movement. His complaints are directed against the existence in Ireland of laws which make certain homosexual practices between consenting adult men criminal offences. 10. In November 1977 the applicant instituted proceedings in the High Court (see paragraphs 21-24 below) claiming that the impugned laws were no longer in force by reason of the effect of Article 50 of the Constitution of Ireland, which declared that laws passed before the Constitution but which were inconsistent with it did not continue to be in force. Evidence was given of the extent to which the applicant had been affected by that legislation and had suffered interference with his right to respect for private life. Salient points in this evidence were summarised as follows: ( i ) The applicant gave evidence of having suffered deep depression and loneliness on realising that he was irreversibly homosexual and that any overt expression of his sexuality would expose him to criminal prosecution. (ii) The applicant claimed that his health had been affected when in 1969 he fainted at a Dublin restaurant and was sent to Baggot Street Hospital for tests which resulted in his being referred to a psychiatrist. He was under the psychiatric care of Dr. McCracken for a period in excess of six months. Dr. McCracken ’ s advice to the applicant was that, if he wished to avoid anxiety attacks of this kind, he should leave Ireland and live in a country where the laws relating to homosexual behaviour had been reformed. Dr. McCracken stated in evidence that the applicant was in a normal condition at the time of the first consultation. He did not recall being made aware of a history of collapse. (iii) No attempt had been made to institute a prosecution against the applicant or the organisation of which the applicant was then the chairman (see paragraph 9 above). The applicant informed the police authorities of his organisation ’ s activities but met with a sympathetic response and was never subjected to police questioning. (iv) The applicant had participated in a television programme on RTE, the State broadcasting company, in or about July 1975. The programme consisted of an interview with him in the course of which he admitted to being a homosexual but denied that this was an illness or that it would prevent him from functioning as a normal member of society. A complaint was lodged against that programme. The Broadcasting Complaints Advisory Committee ’ s report referred to the existing law criminalising homosexual activity and upheld the complaint on the ground that the programme was in breach of the Current/Public Affairs Broadcasting Code in that it could be interpreted as advocacy of homosexual practices. (v) The applicant gave evidence of suffering verbal abuse and threats of violence subsequent to the interview with him on RTE, which he attributed in some degree to the criminalising of homosexual activity. He also alleged in evidence that in the past his mail was opened by the postal authorities. (vi) The applicant admitted to having a physical relationship with another man and that he feared that he or the person with whom he had the relationship, who normally lived outside Ireland, could face prosecution. (vii) The applicant also claimed to have suffered what Mr Justice Henchy in a dissenting judgment in the Supreme Court (see paragraph 22 below) alluded to as follows: "... fear of prosecution or of social obloquy has restricted him in his social and other relations with male colleagues and friends: and in a number of subtle but insidiously intrusive and wounding ways he has been restricted in or thwarted from engaging in activities which heterosexuals take for granted as aspects of the necessary expression of their human personality and as ordinary incidents of their citizenship." 11. It is common ground that at no time before or since the court proceedings brought by the applicant has he been charged with any offence in relation to his admitted homosexual activities. However, he remains legally at risk of being so prosecuted, either by the Director of Public Prosecutions or by way of a private prosecution initiated by a common informer up to the stage of return for trial (see paragraphs 15-19 below). III. THE PROCEEDINGS BEFORE THE NATIONAL COURTS 21. In November 1977 the applicant brought proceedings in the Irish High Court seeking a declaration that sections 61 and 62 of the 1861 Act and section 11 of the 1885 Act were not continued in force since the enactment of the Constitution of Ireland (see paragraph 10 above) and therefore did not form part of Irish law. Mr Justice McWilliam, in his judgment of 10 October 1980, found, among other facts, that "One of the effects of criminal sanctions against homosexual acts is to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading, on occasions, to depression and the serious consequences which can follow from that unfortunate disease". However, he dismissed Mr Norris ’ s action on legal grounds. 22. On appeal, the Supreme Court, by a three-to-two majority decision of 22 April 1983, upheld the judgment of the High Court. The Supreme Court was satisfied that the applicant had locus standi to bring an action for a declaration even though he had not been prosecuted for any of the offences in question. The majority held that "as long as the legislation stands and continues to proclaim as criminal the conduct which the plaintiff asserts he has a right to engage in, such right, if it exists, is threatened, and the plaintiff has standing to seek the protection of the court". 23. In the course of these proceedings it was contended on behalf of the applicant that the judgment of 22 October 1981 of the European Court of Human Rights in the Dudgeon case (Series A no. 45) should be followed. In support of this plea, it was argued that, since Ireland had ratified the European Convention on Human Rights, there arose a presumption that the Constitution was compatible with the Convention and that, in considering a question as to inconsistency under Article 50 of the Constitution, regard should be had to whether the laws being considered are consistent with the Convention itself. In rejecting these submissions, Chief Justice O ’ Higgins, in the majority judgment, stated that "the Convention is an international agreement" which "does not and cannot form part of [ Ireland ’ s] domestic law nor affect in any way questions which arise thereunder". The Chief Justice said: "This is made quite clear by Article 29, section 6, of the Constitution which declares: - ‘ No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas. ’" In fact, the European Court of Human Rights already noted in its judgment of 1 July 1961 in the Lawless case (Series A no. 3, pp. 40-41, para. 25) that the Oireachtas had not introduced legislation to make the Convention on Human Rights part of the municipal law of Ireland. 24. The Supreme Court considered the laws making homosexual conduct criminal to be consistent with the Constitution and that no right of privacy encompassing consensual homosexual activity could be derived from "the Christian and democratic nature of the Irish State" so as to prevail against the operation of such sanctions. In its majority decision, the Supreme Court based itself, inter alia, on the following considerations: "(1) Homosexuality has always been condemned in Christian teaching as being morally wrong. It has equally been regarded by society for many centuries as an offence against nature and a very serious crime. (2) Exclusive homosexuality, whether the condition be congenital or acquired, can result in great distress and unhappiness for the individual and can lead to depression, despair and suicide. (3) The homosexually oriented can be importuned into a homosexual lifestyle which can become habitual. (4) Male homosexual conduct has resulted, in other countries, in the spread of all forms of venereal disease and this has now become a significant public health problem in England. (5) Homosexual conduct can be inimical to marriage and is per se harmful to it as an institution." The Supreme Court, however, awarded the applicant his costs, both of the proceedings before the High Court and of the appeal to the Supreme Court. | The legislation then in force in Ireland classified male homosexual relations as a criminal offence. The applicant, who was a homosexual, complained about this legislation, which in his view entailed an excessive interference with his right to respect for his private life – including his sexual relationships. |
703 | Dissolution or prohibition of political parties or associations | I. the CIRCUMSTANCES OF THE CASE 7. The Socialist Party (“the SP”), the first applicant, was a political party that was dissolved by the Constitutional Court (see paragraph 15 below). Mr İlhan Kırıt and Mr Doğu Perinçek, the second and third applicants, were respectively Chairman and former Chairman of the SP. They live in Istanbul. 8. The SP was formed on 1 February 1988. On the same day, its constitution and programme were submitted to the office of Principal State Counsel at the Court of Cassation for assessment of their compatibility with the Constitution and Law no. 2820 on the regulation of political parties (“Law no. 2820” – see paragraphs 16 and 17 below). First application to have the Socialist Party dissolved and the prosecution of its leaders 9. On 15 February 1988, when the SP was preparing to take part in a general election, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Constitutional Court for an order dissolving the SP. Relying in particular on passages from its programme, he accused the party of having sought to establish the domination of the working class with a view to establishing a dictatorship of the proletariat (Articles 6, 10 and 14 and former Article 68 of the Constitution and sections 78 and 101(a) of Law no. 2820). 10. In a judgment of 8 December 1988, published in the Official Gazette of 16 May 1989, the Constitutional Court dismissed the application as unfounded, as it considered that the political objectives stated in the SP's programme did not infringe the Constitution. 11. Criminal proceedings were then brought in the National Security Courts against some of the leaders of the SP, including Mr Perinçek. They were accused of spreading harmful propaganda in favour of the domination of one social class over the others, contrary to Article 142 of the Turkish Criminal Code, as then worded (see paragraph 18 below). The allegation against Mr Perinçek was based in particular on speeches he had made at two public meetings on 10 February 1990 at Diyabakır and 21 March 1990 at Van and on an article that had appeared in a political journal on 4 March 1990, that is to say before his election as Chairman of the SP on 6 July 1991. Following the repeal of Article 142 of the Criminal Code by Law no. 3713 of 12 April 1991 (the Prevention of Terrorism Act), the accused were all acquitted. The SP later published the speeches in question under the titles: “ Serhildan çağrıları-1, Kawa ateşi yaktı ” and “ Serhildan çağrıları-2, Karpuz değil cesaret ekin ” (see paragraph 13 below). 12. On 26 August 1991 the High Electoral Committee – which had responsibility under the Constitution for ensuring the fairness of elections – decided that the SP satisfied all the conditions necessary to take part in the general election of 20 October 1991. The party consequently ran an election campaign. B. Second application to have the Socialist Party dissolved 13. On 14 November 1991 Principal State Counsel applied to the Constitutional Court for a second time for an order dissolving the SP. He accused the party of having carried on activities likely to undermine the territorial integrity of the State and the unity of the nation contrary to Articles 3, 4, 14 and 66 and former Article 68 of the Constitution, and sections 78, 81 and 101(b) of Law no. 2820. In support of his application, Principal State Counsel relied in particular on the following extracts from the SP's election publications and from oral statements made by its Chairman, Mr Perinçek, at public meetings and on television. Extracts from Socialist Party publications (a) “ Serhildan çağrıları-1, Kawa ateşi yaktı ” (“Calls to stand up – no. 1, Kawa [5] has lit the fire”) “... Dear friends, ... the second dynamic is the Kurdish dynamic. It is the call for equality and freedom, [it is] the Kurds' claim to rights as a nation. It is a request that the rights which the Turks enjoy ... be granted to the Kurds also. At the beginning of the century, a war of independence was waged ... in circumstances in which imperialists occupied the country and Turks and Kurds depended on one another and had to unite and fight, side by side. The Amasya Protocol provided: 'The homeland is composed of the lands where the Turks and the Kurds live.' At the Erzurum and Sivas Congresses, oral and written declarations were made recognising the ethnic social and geographical rights of Kurds ... once the war was over and the men had hung up their weapons, an official ideology developed ... as though there was no longer any need for people from Urfa, Diyarbakır or Malatya to fight... Under that official ideology, there was no longer any room for Kurds. There were no more Kurds. Henceforth, only Turks existed...” (pages 7–8) (b) “ Serhildan çağrıları-2, Karpuz değil cesaret ekin ” (“Calls to stand up – no. 2, sow courage, not watermelons”) “... they can make this country ... a homeland of cultures, brotherhood, workers, [a homeland] where there is voluntary unity, where nations freely decide on their future and freely unite if they so wish... Long live brotherhood between Turks and Kurds! Long live the Turkish and Kurdish peoples!” (page 31) (c) “ Çözüm-4, Kürt sorunu ” (“Solution no. 4, the Kurdish problem”) “... The collapse started where the regime was most tyrannical and most vulnerable. The [political] parties of the status quo failed to the east of the Euphrates ... [They] are no longer to be seen in the lands where the Kurdish people live... (page 3) Why have the parties of the status quo disappeared from the Kurdish provinces? Because they are nationalists... Turkish nationalism has become bankrupt in the lands where the Kurdish problem will be resolved. Turkish nationalism has drawn its borders. It has divided Anatolia into two parts, situated to the east and west of the Euphrates. Turkish nationalism and its regime are in the process of drowning in the Euphrates. That is what is known as a bankrupt regime. (page 4) ... After the mountains, the State also lost the villages and towns. That is why it counts directly on deterring the masses. State terror seeks to establish a new regime in Turkey, starting from the east... (page 10) The State pays village guards and special forces ... which it feeds to kill Kurds through the taxes it collects from the people. The cost of the bullets fired at Kurds, of petrol used in cross-border operations ..., in short, the cost of [this] special war is borne by the people... To bring inflation and ... poverty to an end, a peaceful solution must be found to the Kurdish problem. The Kurdish problem is at the same time a Turkish problem... Living freely, in brotherhood, heart to heart, in peace and harmony with the Kurdish people is a need ... for the Turkish people... Turks and Kurds are but one people. No Turk will be entitled to enter paradise if a single Kurd [still] remains in hell. The Socialist Party is determined to fight until the last Kurd is saved from hell. (pages 11–13) The Socialist Party is present on both sides of the Euphrates. It is the party of brotherhood between Kurds and Turks. The Socialist Party's determination in the face of the Kurdish problem has been demonstrated by its fight to combat State pressure on the Kurdish nation ..., its shared destiny in the poor Kurdish peasants' fight for survival ..., the fact that it has overcome the barrier of fear by holding meetings with thousands of people in the Kurdish villages and towns and has explained the Kurdish problem to working people throughout Turkey... Our party imparts this awareness. It sees a solution in the common destiny of peoples and their combat. To remedy the Kurdish problem, the Socialist Party has courage, ... a cause and a programme. (pages 15–16) The Kurdish nation has a full and unconditional right to self-determination. It may, if it wishes, create a separate State. The interest of the proletariat lies in the establishment, through democratic popular revolution, of a voluntary union founded on absolute equality of rights and freedoms. The right to secede is, at all times, an essential condition of that voluntary union. Whether or not people live together depends on the free will of nations. So that that will can be expressed, a referendum must be organised in the Kurdish provinces. During the referendum, those who are in favour of secession must also be allowed freely to express their views. Under current historical conditions, a solution favourable to the workers of both nations lies in a democratic federal republic, to which the two federated States adhere on an equal footing. In the federation, power will be exercised through popular assemblies elected democratically by districts, towns, federated States and the federal State, beginning with the neighbourhoods and villages. The prefectures and sub-prefectures, State governments and the federal government will be the executive bodies of those assemblies and accountable to them. The popular federal assembly will be composed of two assemblies: the assembly of the members of parliament and the assembly of the nations. The assembly of the members of parliament will be elected in a general election with one member of parliament elected by a given number of citizens. The assembly of nations will be constituted by an equal number of members elected from each of the two federated States. Legislation will be enacted on a majority vote in the two assemblies. Legislation which is rejected by one of the assemblies will not come into force. The Employment Code, and the Criminal, Civil and Procedural Codes will apply throughout the country and be adopted by the federal bodies. In those districts and provinces of each State where minority groups are in the majority, regional self-determination will be permitted if the people so desire. The federal Constitution will be the common Constitution of the two nations. It will come into force as soon it has been accepted, by referendum, by a majority in each of the two nations. Each State will also have its own Constitution. The federal Constitution will cover an increasing number of matters, to the extent that the federated republics consent thereto. The flag and national anthem of the federal republic will be the same for Turks and Kurds. Each federated State will have its own flag and anthem. The federation shall not have a name that refers to only one of the nations. Defence of the country, issues of war and peace, and entry into representative treaties in international relations will be the responsibility of the federal bodies. Each federated State will [however] be entitled to establish direct commercial and cultural relations with foreign countries and to open consulates. At each level of government, power will lie solely with the popular assemblies and the local authorities accountable to them. The prefecture, sub-prefectures, security forces and gendarmerie established under the current [central] government outside the scope of the proposed administrative system will be abolished. This democratic administrative system will also guarantee national equality and freedom. Local security forces will receive their orders from local government authorities and be accountable to local assemblies. In the villages, security forces will be composed of local young people, who will receive instructions from village committees. Seigniory, dependence on the head of a clan or any form of medieval relation that is incompatible with brotherhood or social development shall be abolished by an agrarian reform to be undertaken by the mobilisation of farmers under the direction of the village committees. In order that regional inequalities that have been aggravated by the market economy may be removed, the federal republic will increase its share of investment in regions that are economically underdeveloped. It will therefore guarantee and develop the economic basis of the union. With respect to the economy, a federal system of uniform statistics will be used. The freedom and right of each nation and each national or religious minority to develop its language and culture and to pursue political and associative activities will be guaranteed. The official languages will be Turkish and Kurdish. Each federated republic will have its own language as its official language. Decisions of the federal bodies will be drafted in both languages. From primary school to university and in all cultural institutions, means of education, research and communication, such as journalism, publishing, radio and television, etc., will be provided in both languages. The democratic culture of the Kurdish nation will be able to develop through the removal of the pressures that have been exerted on it up till now. Those in power will strive for free democratic cultural exchange with Turks and Kurds in other countries and an international culture common to all nations of the world to flourish in a pluralist and active environment. All bodies in power will endeavour [on the one hand] to eradicate, with all its foundations, the former culture idolising violence and advocating the use of force to solve problems between nations and in society and [on the other hand] to spread among the people an internationalist proletarian culture that respects mankind and despises violence. Against the fundamentalist nationalist culture according to which the history of the lands in which we live began with the war of Malazgirt and against all other forms of nationalism will be developed an internationalist, universal, humanitarian and democratic culture that will seek new cultural sources, enriched by the contribution of different peoples stemming from the historic depths of our country, and will draw on those resources. Original names will no longer be changed as they reflect the wealth of our country's universal culture; every place will be called by its known, established name.” (pages 16–20) 2. Oral statements by the Chairman of the Socialist Party (a) At the opening ceremony of the Socialist Party Congress (24–25 August 1991) “The Socialist Party is the last bridge between the Kurdish and Turkish people... The current status quo has failed with respect to the Kurdish problem and its deafening collapse can be heard from here... What is the only possible solution? ... This issue can only be resolved by respecting the wish of the Kurdish people ... the real remedy lies with the Kurdish people. We will ask the Kurds: 'What do you want?' ... if, conversely, they seek secession, we will respect their wish. We will organise a referendum. We will ask the Kurdish people ..., everyone, from Hakkari to Antep: 'Do you want to create a separate State in our land or not?' The Socialist Party prefers unification... Who is inciting secession? Oppression [is]. The oppression of the Kurdish people by the Turkish State. We will defend unification by putting an end to that oppression and that will be proof of [our] acceptance of the Kurdish people's will... The Socialist Party will defend the union of the two peoples within the federation and the joint [exercise] of power... The Socialist Party is the last bridge between the Kurdish and Turkish people... No party other than the Socialist Party has shared the Kurds' destiny, taken up a position against the Turkish State or is able to maintain that position.” (b) During a television programme on 11 October 1991 “... Let us now define [what they call] internal security. That is the Kurdish problem. If you put it in terms of internal security ..., you will have recourse to the gendarmes. If the problem is seen as a Kurdish one, you will resolve it by democracy and freedom. In fact, it is the present regime that has transformed the Euphrates into a border... It was an economic border... Then, they made the Euphrates a political border ... and, lastly, an ideological one... Turkish nationalism has drowned in the Euphrates; it cannot cross it ... because nationalism has no place in these lands... There is a Turkish problem but also a Kurdish problem ... a fraternal solution will come from the Socialist Party. The [other] five parties have become separatist ... because they were nationalist. We offer a fraternal solution, a federation. The Kurdish nation should be given the right to self-determination. That is how the right conditions for unification will come about... Union cannot be achieved through force. Your solutions have failed. You will see, the Socialist Party solution will prevail.” (c) At a public meeting in Ankara on 13 October 1991 “... we will put a stop to the special war being [waged] in the east ... we will end it by replacing it with a programme of brotherhood between Kurds and Turks ... and, lastly, on a structural level, a federation in which both nations are on an equal footing... They say that they are troubled by the fact that the Euphrates is a border. Who made the Euphrates a border? They did! ... Free, voluntary union on an equal footing of the Kurdish and Turkish nations within a federation, provided that the Kurdish nation consents and so decides as master of its destiny and accepts it: that is the solution proposed by the Socialist Party. The two peoples, two nations are obliged [to accept]...” (d) During a television programme on 13 October 1991 “... Because the Kurds of the village of Botan are standing up they are in the process of becoming their own masters... Is it you, the status quo, that has forbidden the use of the name 'Kurd'? The Kurdish people are standing up; they are becoming the centre of the debate; through their acts, they are imposing their identity and celebrating the Newroz [6] ... The oppressed Kurds are establishing their Constitution, making laws.” (e) At a public meeting at Şırnak on 16 October 1991 “... The Socialist Party says that the Kurdish problem cannot be resolved by soldiers or bullets. The solution lies in independence ... in equality. The Kurdish and Turkish nations should have the same rights. The Kurdish and Turkish nations will form a popular republic ... and then one of them will survive and the other be oppressed; that is indefensible... It is the Socialist Party that is with the oppressed Kurdish people... By standing up, the Kurdish people have begun to demonstrate the combat they have been waging for years... The Kurdish people will bring about a new revolution... The oppressed Kurdish people ... are coming to join the Socialist Party... Long live the awakening! Long live our people!” (f) At a public meeting at Van on 17 October 1991 “... Turkish nationalism has drowned in the Euphrates ... The State has oppressed the Kurdish people to the point of erasing their name, even of prohibiting its use; but bans come to nothing... The Kurdish reality is there and is asserting itself... Turks and Kurds remain brothers; there can be no brotherhood where there is slavery; there can be no brotherhood if one is master and the other slave; everyone should be equal and have the same rights... There can be no hope if Turks and Kurds do not unite... This equation should be noted down somewhere: the Turkish people plus the oppressed Kurdish people equals democracy, independence and freedom... Long live Kurdistan! ...” Relying on an audiovisual recording of the latter meeting, Mr Perinçek nevertheless denied, at a hearing before the Constitutional Court on 12 May 1992, that he had uttered the last sentence. C. Dissolution of the Socialist Party 14. On 28 November 1991 the Constitutional Court sent Principal State Counsel's application to the SP, whose counsel filed preliminary written observations on 29 January 1992 and full observations on 30 March 1992, in which they first requested a hearing or, at the very least, leave to make further submissions orally. The Constitutional Court acceded to the latter request only and heard the party Chairman, Mr Perinçek, on 12 May, who had ceased to be Chairman of the party a short time before. Before the Constitutional Court the SP's representatives firstly contested the constitutionality of certain provisions of Law no. 2820 on which Principal State Counsel relied. They also argued that the court should not admit the SP's publications (see paragraph 13 above) in evidence against that party. They said that two of the publications were copies of a speech made by Mr Perinçek before his election as party Chairman on 6 July 1991; furthermore, they had been examined by the National Security Courts and found not to contravene the law (see paragraph 11 above). The party representatives went on to point out that on 8 December 1988 the Constitutional Court had dismissed the first application to have the SP dissolved on the basis of its programme (see paragraph 10 above). They maintained that the court would be contradicting itself if it now decided to dissolve the SP purely because of Mr Perinçek's oral statements, which, in the case before the court, were merely reiterations of paragraph 31 of the programme, which had already been reviewed by the Constitutional Court. They noted, lastly, that since the enactment of Law no. 3713 (the Prevention of Terrorism Act) which had, in particular, repealed Article 142 of the Criminal Code (see paragraph 18 below), it was no longer illegal to carry on Marxist-Leninist activities; in their submission, if one political party was treated differently from the others, the aim pursued by the Turkish legislature would be defeated. 15. Pursuant to section 101 of Law no. 2820, the Constitutional Court made an order on 10 July 1992 dissolving the SP, which entailed ipso jure the liquidation of the party and the transfer of its assets to the Treasury, in accordance with section 107 of that Law. The order was published in the Official Gazette on 25 October 1992. As a consequence, the founders and managers of the party were banned from holding similar office in any other political body (former Article 69 of the Constitution – see paragraph 16 below). In its judgment the Constitutional Court noted at the outset that the impugned publications of the SP bore the name and signature of its Chairman, Mr Perinçek, who was also the person who had made the oral statements on television. Those publications and statements accordingly also bound the SP and consequently were admissible as relevant evidence under section 101 of Law no. 2820. The Constitutional Court did not consider that either its or the National Security Courts' earlier judgments (see paragraphs 10–11 above) in any way affected its examination of the case before it, which concerned the political activities of the party, not of its leaders. Moreover, it could not accept that the fact that a provision of the Criminal Code making it an offence to behave in a certain way had been repealed meant that similar conduct no longer constituted a valid ground for dissolution under Law no. 2820. The Constitutional Court observed that unlike the issue that had been decided in its judgment of 8 December 1988, the one now before it was based on new facts and evidence and thus gave rise to a different question in law. It no longer had to be determined whether the programme and constitution of the SP were in conformity with the law, but solely whether its political activities were caught by the relevant prohibitions. In reaching its decision on the merits, the Constitutional Court noted, inter alia, that the SP referred in its political message to two nations: the Kurdish nation and the Turkish nation. But it could not be accepted that there were two nations within the Republic of Turkey, whose citizens, whatever their ethnic origin, had Turkish nationality. In reality, the statements made by the SP concerning Kurdish national and cultural rights were intended to create minorities and, ultimately, the establishment of a Kurdish-Turkish federation, to the detriment of the unity of the Turkish nation and the territorial integrity of the Turkish State. Like all nationals of foreign descent, nationals of Kurdish origin could freely express their identity, but the Constitution and the law precluded them from forming a separate nation and State. The SP was ideologically opposed to the nationalism of Atatürk, which was the most fundamental principle underpinning the Republic of Turkey. The SP's political activity was also incompatible in aim with Articles 11 and 17 of the European Convention on Human Rights, since it was similar to that of terrorist organisations, notwithstanding a difference in the means employed. In short, objectives which, like those of the SP, encouraged separatism and incited a socially integrated community to fight for the creation of an independent federated State were unacceptable and justified dissolution of the party concerned. | The Socialist Party (“the SP”) had been formed in February 1988. It was dissolved by an order of the Constitutional Court in July 1992. The Turkish court noted in particular that in its political message the SP referred to two nations: the Kurdish nation and the Turkish nation. It concluded that the SP encouraged separatism and incited a socially integrated community to fight for the creation of an independent federal State, which was unacceptable and justified the party’s dissolution. |
329 | Demonstrators | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1970 and lives in Istanbul. 5. On 22 April 2000 the applicant, a lawyer and member of the administrative board of the Istanbul Human Rights Association, organised a demonstration in Sultanahmet Square in Istanbul, in the form of a march followed by a statement to the press, to protest against plans for “F-type” prisons. 6. At about 12 noon a group of forty to fifty persons brandishing placards and signs gathered in the square, under the leadership of the applicant and Eren Keskin, a lawyer and President of the Istanbul Human Rights Association. The police asked the group to disperse and to end the gathering, and informed them via a loudspeaker that the demonstration, for which advance notice had not been submitted, was unlawful and was likely to cause public-order problems at a busy time of day. 7. The demonstrators refused to obey and attempted to continue marching towards the police, who dispersed the group using a kind of tear gas known as “pepper spray”. The police arrested thirty-nine demonstrators, including the applicant, and took them to a police station. 8. After an identity check, and in view of her profession, the applicant was released at 12. 45 p. m. 9. On 26 April 2000 the applicant lodged a criminal complaint with the Beyoğlu prosecutor ’ s office against the head of the Istanbul security police and the police officers concerned, alleging that she had been ill-treated through the use of pepper spray, unlawfully arrested and prevented from making the public statement scheduled for the end of the demonstration. 10. On 29 June 2000 the public prosecutor ’ s office discontinued the proceedings on the ground that no offence had been committed. 11. On 25 July 2000 the applicant applied to the Beyoğlu Assize Court seeking to have that decision set aside. 12. On 25 September 2000 the Assize Court upheld the decision that there was no case to answer. | In April 2000 the applicant, a lawyer and a member of the supervisory board of the Human Rights Association, organised a demonstration in Istanbul to protest against plans for “F-type” prisons (designed to provide living spaces for two to three persons instead of dormitories). The demonstration took the form of a march followed by a statement to the press. The applicant complained in particular of the use of pepper spray, a kind of tear gas, to disperse the group of demonstrators. |
970 | Internet | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1977 and lives in Luton. A. The background facts 7. The applicant was summoned to attend jury service at the Crown Court on 4 July 2011. 8. On the morning of the 4 July the jurors were shown a video in relation to their service and were given verbal instruction from the court ’ s jury officer that they were not permitted to research their cases on the Internet or to research the defendants or any of the individuals involved in the trial. Notices in the jury waiting room contained the following warning: “You may also be in contempt of court if you use the internet to research details about any cases you hear along with any cases listed for trial at the Court ...” 9. The notices made it clear that contempt of court was punishable by a fine or by imprisonment. 10. The applicant was selected to serve on a jury in a trial of a defendant charged with grievous bodily harm with intent. The trial commenced that afternoon. When the jury were sworn, the applicant took an oath or affirmation that she would faithfully try the defendant and give a true verdict according to the evidence. 11. Before the case was opened by the prosecution, the judge gave a number of directions to the jury. These underlined the importance of deciding the case only on the basis of what the jury saw and heard in the courtroom. Two consequences were identified by the judge. The first was that they should not speak about the case to anybody. He continued: “The second consequence is a newer one: that you do not go on the internet. You have probably read in the last few weeks about a juror who did go on the internet; went on Facebook and severe problems followed for that juror. I am sure you will not want any of those. So, the rule is – and it is told to every jury – that not only do you not discuss it, but you do not go on the internet; you do not try and do any research of your own; you do not discuss it on Facebook; you do not tweet about it; or anything of that nature. So, simply, once you leave this room you do not talk about it or deal with it in any way with anybody. We ask you to observe what goes on in this room. The evidence has been carefully considered. It is put before you in a carefully considered way. That is why you are not to discuss it with anybody else or do your own research, or discuss it on Facebook – because it is carefully controlled ...” 12. The trial continued on 5 and 6 July 2011. On 5 July the trial judge allowed a prosecution application to adduce evidence of the defendant ’ s bad character. The disclosure gave details of a previous sentence for assault occasioning actual bodily harm. It was not disclosed that the defendant had also been charged with rape in respect of the same offence but had been acquitted. 13. On 6 July 2011 the jury retired to consider their verdict. At the end of the court day the judge sent the jury home to return on 8 July 2011. 14. After the court had risen, one of the jurors in the case informed the court usher that a juror, whom she identified as the applicant, had been on the Internet and had found out about the previous conviction and that it involved rape. The trial judge was informed. 15. On 8 July 2011, after hearing from the juror in court, the judge summoned the jury foreman, who confirmed that there had been some reference to the matter to which the juror had referred. The judge then called the applicant into court. He informed her of what had been said and that she should not say anything at that stage. He gave her the opportunity, which she accepted, of speaking to a barrister in order to take advice on the question of contempt of court. After discussion with the applicant, the barrister informed the court that the applicant ’ s position was that her behaviour regarding the Internet was not deliberate. She therefore claimed to have a defence to the allegation of contempt of court. The judge explained to her that the matter would be referred to the Attorney General and that there would be a police investigation. 16. The judge subsequently discharged the jury and the trial was aborted. 17. The police obtained statements from the eleven other jurors at trial. The statements showed that during the jury deliberations the applicant stated that she had conducted Internet research and that her research had showed that the previous conviction also included an allegation of rape. Most of the other jurors had reacted to this by making it clear that the applicant had introduced extraneous and impermissible facts into their discussion, contrary to the instructions and directions that they had been given. 18. On 26 July 2011 the police interviewed the applicant under caution. During the interview, the applicant explained what had happened at the commencement of the trial and set out her recollection of what the trial judge had said as follows: “The judge said ... that we should not look, we should not publish anything on Facebook, on Twitter, we should not tell anybody outside the court about the case ...” 19. She said that did not recall that the judge had instructed jurors not to do Internet research. 20. She explained that she had seen a newspaper article concerning the defendant on the Internet on the evening of 5 July 2011. When asked what she was doing on the Internet, she replied that, as she was Greek, she had wished to know the exact translation of the charge facing the defendant. She had therefore searched for “grievous bodily harm”. She had then wished to see how frequent such incidents were in Luton so added “Luton” to the search terms. The article concerning the defendant ’ s previous conviction had appeared in the list of results. She explained that her recollection was hazy but that she did not remember searching for the defendant by name. She admitted that she had informed the other members of the jury of the information she had found. She said that she was not aware that she had missed any element of the judge ’ s instructions and that she had had “absolutely no intention” of going against the instructions or directions of the judge. B. The domestic proceedings 21. The Attorney General subsequently applied to the Divisional Court for permission to make an application for an order of committal under Order 52 of the Rules of the Supreme Court (“SCR” – see paragraphs 45 - 46 below). The applicant was informed of the application by letter dated 3 November 2011. 22. On 29 November 2011 the Divisional Court granted permission to make a committal application. 23. On 2 December 2011 a claim form was issued by the Attorney General seeking an order of committal against the applicant for : “ contempt of court in conducting Internet research on the case she was trying as a juror in the Crown Court and thereafter in disclosing the extraneous information she had obtained to other members of the jury. ” 24. The grounds on which the applicant ’ s committal was sought were that “ her acts created a substantial risk of seriously prejudicing and/or impeding the course of justice in the proceedings with which she was concerned. ” 25. Reference was made to further details set out in a sworn affidavit by a legal adviser at the Attorney General ’ s office. In the affidavit, it was submitted that the evidence in the case demonstrated that the applicant: “deliberately and in breach of instructions given by the jury officer, a warning contained in a written notice, her jury oath or affirmation and directions given by the trial judge, (a) conducted internet research on the case she was trying, and thereby obtained extraneous information about the case, and (b) imparted that extraneous information to other members of the jury whilst the jury were in deliberation. ” 26. In her position statement dated 5 December 2011, the applicant accepted that she had searched on the Internet for the words “grievous” and “Luton” while the trial was underway and that she had discussed with other jurors a newspaper report concerning the defendant. She did not accept a specific intent to impede or to cause a real risk of prejudice to the due administration of justice. 27. In a note on behalf of the Attorney General dated 9 January 2012, the test for contempt was set out as follows: “At common law, a contempt of court is an act or omission which creates a real risk of prejudice to the administration of justice, done with the intent of creating such a risk.” 28. The note went on to claim that the applicant ’ s Internet research and subsequent conduct in relation to it had created a real risk of prejudice to the administration of justice and had been done with the intent of creating such a risk. 29. In written submissions on behalf of the applicant dated 10 January 2012, it was submitted that the offence of contempt of court could be stated as follows: “Where a person knowingly does an act which he specifically intends to impede, or create a real risk of prejudicing, the due administration of justice ...” 30. On 19 January 2012 the application for committal was heard. Counsel for the applicant submitted that the key element that the prosecution had to prove was “specific intent”, that is intent to impede or create a real risk of prejudicing the due administration of justice. He referred to the Attorney General ’ s position that intent could be inferred from foresight of the consequences and indicated that, while that might be appropriate in some cases, it did not sit so easily with the kind of intent required in the applicant ’ s case. An exchange then took place between the court and counsel for the applicant, as follows : “[Court]: Can we get this down to the reality of the case. The Crown ’ s case is that your client deliberately disobeyed the order of the judge. Is that not the same as what you are saying? You disagree with it and you are going to submit to us why the Crown ’ s case is wrong, but if a juror deliberately disobeys the order if a judge, is that not contempt of court? [Counsel]: Certainly, yes. [Court]: The ‘ deliberate ’ is the point that matters. [Counsel]: Yes. Yes.” 31. The Attorney General was subsequently asked whether he accepted that in the context of the case he had to satisfy the court, to the criminal standard, that the applicant had deliberately disobeyed the order of the judge. He confirmed that he did. 32. At the conclusion of the evidence and submissions, and after the court had already adjourned, the judges returned to seek further clarification of the correct test for contempt of court. The following test was put to counsel by the bench: “It is a contempt in the context of jury misconduct within the jury room, for a juror deliberately to disobey the direction of the judge and create a risk of prejudice to the due administration of justice.” 33. The judge added: “What that removes is a specific intent in relation to the creation of the risk. The intent is directed at the deliberate disobedience.” 34. The Attorney General expressed himself to be content with the test proposed. Counsel for the applicant requested that the word “thereby” be added following “disobey the direction of the judge and ... ”, in order to create a link between the two elements. The Attorney General fully accepted the proposed modification. Counsel for the applicant was pressed on whether he was content with a definition whereby the intent was the deliberate act of disobeying the order, which then had a causative link in creating the risk. It was noted by the judge that this was a slightly different test from the one counsel had earlier proposed. He replied that he was content with the proposed test, and added: “I am reacting as I stand. I hope I can venture to submit that actually, if this is the test, it is perhaps redefining an old law but it is new.” 35. On 23 January 2012 an order for committal was made. The Divisional Court summarised the applicant ’ s version of events as follow: “36. On her account, effectively, she came across the newspaper reference to [the defendant ’ s] previous conviction in the local newspaper in Luton by following a route from the word ‘ grievous ’ through to ‘ Luton ’ and ‘ crime ’ and in effect, somehow she stumbled across the newspaper entry.” 36. However, the court rejected her account, explaining: “37. We do not believe that the defendant did not seek information about [the defendant] on the internet. Her inability to remember this particular feature of the case, when she has a detailed recollection of so much else, was not credible. We do not believe that she could have just stumbled across the link to [the defendant ’ s] previous conviction in the way she described.” 37. The court concluded: “38. We have no doubt that the defendant knew perfectly well, first, that the judge had directed her, and the other members of the jury, in unequivocal terms, that they should not seek information about the case from the internet; second, that the defendant appreciated that this was an order; and, third, that the defendant deliberately disobeyed the order. By doing so, before she made any disclosure to her fellow jurors, she did not merely risk prejudice to the due administration of justice, but she caused prejudice to it. This was because she had sought to arm and had armed herself with information of possible relevance to the trial which, although not adduced in evidence, might have played its part in her verdict. The moment when she disclosed any of that information to her fellow jurors she further prejudiced the administration of justice. In the result, the jury was rightly discharged from returning a verdict and a new trial was ordered. The unfortunate complainant had to give evidence of his ordeal on a second occasion. The time of the other members of the jury was wasted, and the public was put to additional unnecessary expense. The damage to the administration of justice is obvious.” 38. It found that the contempt had been proved to the criminal standard. On sentence, the court explained that misuse of the Internet by a juror was always “a most serious irregularity” and that an effective custodial sentence was virtually inevitable to ensure that the integrity of the process of trial by jury was sustained. A sentence of imprisonment for six months was imposed. The judge noted that pursuant to rules on early release, the applicant would serve three months in prison. 39. Following the handing down of the judgment, an exchange took place between the applicant ’ s counsel and the bench. The applicant ’ s counsel sought clarity on the test for contempt of court, explaining: “I am concerned that the test that I was addressing – that we were addressing in preparation of this case – was a different test. We conducted the defence to a different test, and the reasons why it was a different test, I suggest, are threefold. First, the intention is different. Secondly, the risk has been diluted from ‘ real risk ’ – and, after all, ‘ risk ’ on the authorities simply means ‘ a possibility of occurrence ’ to ‘ risk ’. Thirdly, may I make this submission? This is the first occasion – I do this with some hesitation for I can find no authority – where there has been a contempt of court flowing from a judicial direction. ... It has always historically been the order which has attracted contempt, not the direction, and the idea that a judge gives directions to a jury in the summing-up which could attract contempt and imprisonment is, in my submission, a novel one. I therefore submit this question rhetorically: whether this reformulation that this court has applied in this case is consistent with the common law of contempt.” 40. The court retired to consider the matter before confirming that the appropriate test was applied in paragraph 38 of its judgment (see paragraph 37 above), and that it had been understood that applicant ’ s counsel had agreed to that test. Leave to appeal was refused. 41. The applicant applied for permission to appeal to the Supreme Court. She argued, inter alia, that the test of contempt of court reformulated by the Divisional Court was not consistent with the common law of contempt of court; and that the reformulation of the offence, after evidence had been led and final submissions concluded, was not compatible with human rights principles and in particular with Articles 6 and 7 of the Convention. 42. On 26 January 2012 the applicant ’ s petition to appeal to the Supreme Court was refused because the application did not raise an arguable point of law. In particular, the Supreme Court concluded that a suggested distinction between a “direction” and an “ order” was not tenable since the meaning of each depended on the context and both could mean the same; and that the deliberate disobedience of a specific order of the judge not to use the Internet in connection with the case unquestionably amounted to contempt of court at common law. 43. From 23 January 2012 to 20 April 2012 the applicant was detained at HMP Holloway. | This case concerned the applicant’s conviction for contempt of court as a result of her conducting Internet research in relation to the criminal case she was trying as a juror. The applicant complained that the common law offence of contempt of court had not been sufficiently clear. |
250 | (Suspected) terrorists | I. Circumstances of the case A. The applicant 7. The applicant, Mr Zeki Aksoy, was a Turkish citizen who, at the time of the events in question, lived in Mardin, Kiziltepe, in South-East Turkey, where he was a metal worker. He was born in 1963 and was shot and killed on 16 April 1994. Since then, his father has indicated that he wishes to pursue the case (see paragraph 3 above). B. The situation in the South-East of Turkey 8. Since approximately 1985, serious disturbances have raged in the South-East of Turkey between the security forces and the members of the PKK (Workers ’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces. 9. At the time of the Court ’ s consideration of the case, ten of the eleven provinces of south-eastern Turkey had since 1987 been subjected to emergency rule. C. The detention of the applicant 10. The facts in the case are in dispute. 11. According to the applicant, he was taken into custody on 24 November 1992, between 11 p.m. and midnight. Approximately twenty policemen had come to his home, accompanied by a detainee called Metin who, allegedly, had identified the applicant as a member of the PKK, although Mr Aksoy told the police that he did not know Metin. 12. The Government submitted that the applicant was arrested and taken into custody on 26 November 1992 at around 8.30 a.m., together with thirteen others, on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts. 13. The applicant stated that he was taken to Kiziltepe Security Headquarters. After one night, he was transferred to Mardin Antiterrorist Headquarters. He was allegedly detained, with two others, in a cell measuring approximately 1.5 x 3 metres, with one bed and a blanket, but no pillow. He was provided with two meals a day. 14. He was interrogated about whether he knew Metin (the man who had identified him). He claimed to have been told: "If you don ’ t know him now, you will know him under torture." According to the applicant, on the second day of his detention he was stripped naked, his hands were tied behind his back and he was strung up by his arms in the form of torture known as "Palestinian hanging". While he was hanging, the police connected electrodes to his genitals and threw water over him while they electrocuted him. He was kept blindfolded during this torture, which continued for approximately thirty-five minutes. During the next two days, he was allegedly beaten repeatedly at intervals of two hours or half an hour, without being suspended. The torture continued for four days, the first two being very intensive. 15. He claimed that, as a result of the torture, he lost the movement of his arms and hands. His interrogators ordered him to make movements to restore the control of his hands. He asked to see a doctor, but was refused permission. 16. On 8 December 1992 the applicant was seen by a doctor in the medical service of the sub-prefecture. A medical report was prepared, stating in a single sentence that the applicant bore no traces of blows or violence. According to Mr Aksoy, the doctor asked how his arms had been injured and was told by a police officer that he had had an accident. The doctor then commented, mockingly, that everyone who came there seemed to have an accident. 17. The Government submitted that there were fundamental doubts as to whether the applicant had been ill-treated while in police custody. 18. On 10 December 1992, immediately before his release, Mr Aksoy was brought before the Mardin public prosecutor. According to the Government, he was able to sign a statement denying any involvement with the PKK and made no complaint about having been tortured. The applicant, however, submitted that he was shown a statement for signature, but said that its contents were untrue. The prosecutor insisted he sign it but Mr Aksoy told him that he could not because he could not move his hands. D. Events on the applicant ’ s release 19. Mr Aksoy was released on 10 December 1992. He was admitted to Dicle University Medical Faculty Hospital on 15 December 1992, where he was diagnosed as suffering from bilateral radial paralysis (that is, paralysis of both arms caused by nerve damage in the upper arms). He told the doctor who treated him that he had been in custody and strung up with his arms tied behind his back. He remained at the hospital until 31 December 1992 when, according to the Government, he left without having been properly discharged, taking his medical file with him. 20. On 21 December 1992, the public prosecutor decided that there were no grounds to institute criminal proceedings against the applicant, although eleven of the others detained with him were charged. 21. No criminal or civil proceedings have been brought in the Turkish courts in relation to the alleged ill-treatment of the applicant. E. The death of the applicant 22. Mr Aksoy was shot dead on 16 April 1994. According to his representatives, he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994, and his murder was a direct result of his persisting with the application. The Government, however, submitted that his killing was a settling of scores between quarrelling PKK factions. A suspect, allegedly a member of the PKK, has been charged with the murder. F. The Commission ’ s findings of fact 23. Delegates of the Commission heard evidence from witnesses in the case in Diyarbakir between 13 and 14 March 1995 and in Ankara between 12 and 14 April 1995, in the presence of representatives from both sides who were able to cross-examine the witnesses. In addition, the Commission heard oral submissions on admissibility and the merits at hearings in Strasbourg on 18 October 1994 and 3 July 1995. After evaluating the oral and documentary evidence, the Commission came to the following conclusions with regard to the facts: a) It was not possible to make a definite finding as to the date on which Mr Aksoy was arrested, although this clearly took place no later than 26 November 1992. He was released on 10 December 1992, therefore he was detained for at least fourteen days. b) On 15 December 1992 he was admitted to hospital and was diagnosed with bilateral radial paralysis. He left hospital on 31 December 1992 on his own initiative, without having been properly discharged. c) There was no evidence that he had suffered any disability prior to his arrest, nor any evidence of any untoward incident during the five days between his release from police custody and his admission to hospital. d) The Commission noted that the medical evidence indicated that the applicant ’ s injuries could have had various causes, but one of these could have been the trauma suffered by a person who had been strung up by his arms. Moreover, radial paralysis affecting both arms was apparently not a common condition, although it was consistent with the form of ill-treatment known as "Palestinian hanging". e) The delegates heard evidence from one of the policemen who had interrogated Mr Aksoy and from the public prosecutor who saw him prior to his release; both claimed that it was inconceivable that he could have been ill-treated in any way. The Commission found this evidence unconvincing, since it gave the impression that the two public officers were not prepared even to consider the possibility of ill-treatment occurring at the hands of the police. f) The Government offered no alternative explanation for Mr Aksoy ’ s injuries. g) There was insufficient evidence to enable any conclusions to be drawn with regard to the applicant ’ s other allegations of ill-treatment by electric shocks and beatings. However, it did seem clear that he had been detained in a small cell with two other people, all of whom had had to share a single bed and blanket, and that he had been kept blindfolded during interrogation. | The applicant complained in particular that his detention in 1992 on suspicion of aiding and abetting PKK (Workers’ Party of Kurdistan) terrorists was unlawful and that he had been tortured (“Palestinian hanging" i.e. stripped naked, with arms tied together behind back, and suspended by arms). |
886 | Public or political figures | I THE CIRCUMSTANCES OF THE CASE 5. The applicant is the publisher of a national daily newspaper in the United Kingdom known as The Daily Mirror (formerly known as the Mirror ). It is represented before the Court by Mr K. Bays of Davenport Lyons, a solicitor practising in London. A. The relevant publications 6. On 1 February 2001 the “ Mirror ” newspaper carried on the front page an article headed “ Naomi: I am a drug addict ”, placed between two colour photographs of Ms Naomi Campbell, a well-known model. The first photograph, slightly indistinct, showed her dressed in a baseball cap and had a caption : “ Therapy: Naomi outside meeting ”. The second showed her glamorously partially covered by a string of beads. 7. The article read as follows: “Supermodel Naomi Campbell is attending Narcotics Anonymous meetings in a courageous bid to beat her addiction to drink and drugs. The 30-year old has been a regular at counselling sessions for three months, often attending twice a day. Dressed in jeans and baseball cap, she arrived at one of NA's lunchtime meetings this week. Hours later at a different venue she made a low-key entrance to a women-only gathering of recovered addicts. Despite her £14million fortune Naomi is treated as just another addict trying to put her life back together. A source close to her said last night:'She wants to clean up her life for good. She went into modelling when she was very young and it is easy to be led astray. Drink and drugs are unfortunately widely available in the fashion world. But Naomi has realised she has a problem and has bravely vowed to do something about it. Everyone wishes her well.' Her spokeswoman at Elite Models declined to comment.” 8. The story continued inside the newspaper with a longer article across two pages. This article was headed “ Naomi's finally trying to beat the demons that have been haunting her ” and the opening paragraphs read: “She's just another face in the crowd, but the gleaming smile is unmistakeably Naomi Campbell's. In our picture, the catwalk queen emerges from a gruelling two-hour session at Narcotics Anonymous and gives a friend a loving hug. This is one of the world's most beautiful women facing up to her drink and drugs addiction - and clearly winning. The London-born supermodel has been going to NA meetings for the past three months as she tries to change her wild lifestyle. Such is her commitment to conquering her problem that she regularly goes twice a day to group counselling ... To the rest of the group she is simply Naomi, the addict. Not the supermodel. Not the style icon.” 9. The article made mention of Ms Campbell's efforts to rehabilitate herself and that one of her friends had said that she was still fragile but “getting healthy”. The article gave a general description of Narcotics Anonymous (“NA”) therapy and referred to some of Ms Campbell's recently publicised activities including an occasion when she had been rushed to hospital and had her stomach pumped: while she had claimed it was an allergic reaction to antibiotics and that she had never had a drug problem, the article noted that “those closest to her knew the truth”. 10. In the middle of the double page spread, between several innocuous pictures of Ms Campbell, was a dominating picture with a caption “ Hugs: Naomi, dressed in jeans and baseball hat, arrives for a lunchtime group meeting this week ”. The picture showed her in the street on the doorstep of a building as the central figure in a small group. She was being embraced by two people whose faces had been masked on the photograph. Standing on the pavement was a board advertising a certain café. The photograph had been taken by a free-lance photographer contracted by the newspaper for that job. He took the photographs covertly while concealed some distance away in a parked car. 11. On 1 February 2001 Ms Campbell's solicitor wrote to the applicant stating that the article was a breach of confidentiality and an invasion of privacy and requesting an undertaking that it would not publish further confidential and/or private information. 12. The newspaper responded with further articles. On 5 February 2001 the newspaper published an article headed, in large letters, “ Pathetic ”. Below was a photograph of Ms Campbell over the caption “ Help: Naomi leaves Narcotics Anonymous meeting last week after receiving therapy in her battle against illegal drugs ”. This photograph was similar to the street scene picture published on 1 February. The text of the article was headed “ After years of self-publicity and illegal drug abuse, Naomi Campbell whinges about privacy ”. The article mentioned that “the Mirror revealed last week how she is attending daily meetings of Narcotics Anonymous”. Elsewhere in the same edition, an editorial, with the heading “ No hiding Naomi ”, concluded with the words: “If Naomi Campbell wants to live like a nun, let her join a nunnery. If she wants the excitement of a show business life, she must accept what comes with it”. On 7 February 2001, the Mirror published, under the heading “ Fame on you, Ms Campbell ”, a further article mocking Ms Campbell's threatened proceedings, referring to the years during which she thrust “her failed projects like the nauseating book Swan and equally appalling record Love and Tears down our throats”, stating that Ms Campbell was not an artist and that she was “about as effective as a chocolate soldier”, implying that her prior campaign against racism in the fashion industry was self-serving publicity and that “ the problem is that Naomi doesn't actually “stand” for anything. She can't sing, can't act, can't dance, and can't write.” B. The substantive proceedings 1. High Court ([2002] EWHC 499 (QB)) 13. Ms Campbell claimed damages for breach of confidence and compensation under the Data Protection Act 1998. A claim for aggravated damages was made mainly as regards the article of 7 February 2001. On 27 March 2002 the High Court (Morland J.) upheld Ms Campbell's claim, following a hearing of 5 days. 14. He described Ms Campbell as an “ internationally renowned fashion model and celebrity ”. The first issue was whether there had been a breach of confidence and, in that respect, Ms Campbell was required to prove three elements. The first was that the details divulged by the article about her attendance at NA meetings had the necessary quality of confidence about them. Information to the effect that her treatment was regular attendance at NA meetings was clearly confidential: the details were obtained surreptitiously, assisted by covert photography when she was engaged (deliberately “low key and drably dressed”) in the private activity of therapy to advance her recovery from drug addiction. Giving details of her therapy, including her regular attendance at NA, was easily identifiable as private and disclosure of that information would be highly offensive to a reasonable person of ordinary sensibilities. There existed a private interest worthy of protection. Secondly, it was found that those details were imparted in circumstances importing an obligation of confidence given the sources of the information (either a fellow sufferer of drug addiction or one of her staff). Thirdly, and having heard evidence on the subject, she had demonstrated that the publication was to her detriment and, notably, the publication of her treatment with NA specifically had caused her significant distress and was likely adversely to affect her attendance/participation in therapy meetings. 15. The High Court considered these findings to be in conformity with the judgment of the Court of Appeal in Douglas v Hello! Ltd ([2001] QB 967 §164-168) which had held that there was no watertight division between the concepts of privacy and confidentiality and that the approach to the tort had to be informed by the jurisprudence of Article 8 of the Convention. Citing Dudgeon v. the United Kingdom ( 22 October 1981, Series A no. 45) it noted that Convention jurisprudence acknowledged different degrees of privacy : the more intimate the aspect of private life which was being interfered with, the more serious the justification required. 16. The High Court adopted the approach of Lord Woolf CJ in A v B plc ( [2003] QB 195, see paragraph 88 below) as regards, inter alia, the qualification of the right to freedom of expression by the right to respect for private life guaranteed by Article 8 of the Convention. 17. The High Court considered at some length the extent to which Ms Campbell had exposed herself and her private life to the media and, in light of this, how to reconcile the demands of Articles 8 and 10. The High Court considered that the applicant had been fully entitled to publish in the public interest the facts of her drug addiction and treatment as Ms Campbell had previously misled the public by denying drug use. “ She might have been thought of and indeed she herself seemed to be a self-appointed role model to young black women ”. However, the High Court had to protect a celebrity from publication of information about her private life which had “ the mark and badge of confidentiality ” and which she had chosen not to put in the public domain unless, despite that breach of confidentiality and the private nature of the information, publication was justifiable. The balance of Article 8 and 10 rights involved in the present case clearly called for a remedy for Ms Campbell as regards the publication of the private material. 18. The High Court heard evidence from, inter alia, Ms Campbell as to the impact on her of the publication. It concluded: “Although I am satisfied that Miss Naomi Campbell has established that she has suffered a significant amount of distress and injury to feelings caused specifically by the unjustified revelation of the details of her therapy with Narcotics Anonymous, apart from that distress and injury to feelings she also suffered a significant degree of distress and injury to feelings caused by the entirely legitimate publication by the defendants of her drug addiction and the fact of therapy about which she cannot complain. In determining the extent of distress and injury to feelings for which she is entitled to compensation, I must consider her evidence with caution. She has shown herself to be over the years lacking in frankness and veracity with the media and manipulative and selective in what she has chosen to reveal about herself. I am satisfied that she lied on oath [about certain facts]. Nevertheless I am satisfied that she genuinely suffered distress and injury to feelings caused by the unjustified publication and disclosure of details of her therapy in the two articles of the 1st and 5th February 2002 complained of. I assess damages or compensation in the sum of £2500.” 19. As to her claim for aggravated damages ( mainly the article of 7 February 2001 ), the High Court found that a newspaper faced with litigation was entitled to argue that a claim against it should never have been made and that any complaint should have been made to the Press Complaints Commission. Such assertions could even be written in strong and colourful language and it was not for the courts to censor bad taste. However, since the article also “trashed her as a person” in a highly offensive and hurtful manner, this entitled her to aggravated damages in the sum of GBP 1000. 2. Court of Appeal ([2002] EWCA Civ 1373 20. On 14 October 2002 the Court of Appeal (Lord Phillips of Worth Matravers MR, Chadwick and Keene LJJ) unanimously allowed the newspaper's appeal. The hearing had lasted two and a half days. 21. The Court of Appeal noted that Ms Campbell was an “ internationally famous fashion model ” who had courted, rather than shunned, publicity in part to promote other ventures in which she was involved. In interviews with the media she had volunteered information about some aspects of her private life and behaviour including limited details about her relationships. She had gone out of her way to aver that, in contrast to many models, she did not take drugs, stimulants or tranquillisers, but this was untrue. 22. As to the impact of the Human Rights Act 1998 (“HRA”) on the law of confidentiality, the court observed that it had to balance the rights guaranteed by Articles 8 and 10 of the Convention, noting that freedom of the media was a bastion of any democratic society. 23. As to whether the information disclosed was confidential, the Court of Appeal did not consider that the information that Ms Campbell was receiving therapy from NA was to be equated with disclosure of clinical details of medical treatment. Since it was legitimate to publish the fact that she was a drug addict receiving treatment, it was not particularly significant to add that the treatment consisted of NA meetings which disclosure would not be offensive to a reasonable reader of ordinary sensibilities. While a reader might have found it offensive that obviously covert photographs had been taken of her, that, of itself, had not been relied upon as a ground of complaint. In addition, it was not easy to separate the distress Ms Campbell must have felt at being identified as a drug addict in treatment accompanied by covert photographs from any additional distress resulting from disclosure of her attendance at NA meetings. In short, it was not obvious that the peripheral disclosure of Ms Campbell's attendance at NA meetings was of sufficient significance as to justify the intervention of the court. 24. Relying on Fressoz and Roire v. France ([GC], no. 29183/95, § 54, ECHR 1999 ‑ I), the Court of Appeal considered that the photographs were a legitimate, if not an essential, part of the journalistic package designed to demonstrate that Ms Campbell had been deceiving the public when she said that she did not take drugs and, provided that publication of particular confidential information was justifiable in the public interest, the journalist had to be given reasonable latitude as to the manner in which that information was conveyed to the public or his Article 10 right to freedom of expression would be unnecessarily inhibited. The publication of the photographs added little to Ms Campbell's case: they illustrated and drew attention to the information that she was receiving therapy from NA. 3. House of Lords ([2004] UKHL 22) 25. Following a hearing of 2 days, on 6 May 2004 the House of Lords allowed Ms Campbell's appeal ( Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell formed the majority, Lords Nicholls of Birkenhead and Hoffman dissenting ) and restored the orders made by the High Court. They delivered separate and extensive judgments. (a) Lord Hope of Craighead 26. Lord Hope began by noting the powerful international reputation of Ms Campbell in the business of fashion modelling, which business was conducted under the constant gaze of the media. He also noted her “ status as a celebrity ”. He considered that the issues were essentially questions of “ fact and degree ” which did not raise any “ new issues of principle”. In the present case, where the publication concerned a drug addict requiring treatment and, given the fact that disclosure of details concerning that treatment together with publication of a covertly taken photograph could endanger that treatment, the disclosure was of private information. 27. The case gave rise to a competition between the rights of free speech and privacy which were of equal value in a democratic society. In balancing these rights, Lord Hope noted that the right to privacy, which lay at the heart of an action for breach of confidence, had to be balanced against the right of the media to impart information to the public and that the latter right had, in turn, to be balanced against the respect that must be given to private life. There was nothing new about this in domestic law. 28. He examined in detail the latitude to be accorded to journalists in deciding whether or not to publish information to ensure credibility. He noted the principles set out in this respect in this Court's case law ( Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216; Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298 and Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I ). 29. Having examined the balancing exercise in the Jersild and Fressoz cases, Lord Hope reiterated there was no doubt that the choices made about the presentation of material that was legitimate to convey to the public was pre-eminently an editorial matter with which the court would not interfere. However, choices to publish private material raised issues that were not simply about presentation and editing. Accordingly, the public interest in disclosure had to be balanced against the right of the individual to respect for their private life : those decisions were open to review by the court. The tests to be applied were familiar and were set down in Convention jurisprudence. The rights guaranteed by Articles 8 and 10 had to be balanced against each other, any restriction of those rights had to be subjected to very close scrutiny and neither Article 8 nor Article 10 had any pre-eminence over each other (as confirmed by Resolution 1165 of the Parliamentary Assembly of the Council of Europe (“PACE”), 1998). 30. As to the Article 10 rights involved, the essential question was whether the means chosen to limit Article 10 rights were “ rational, fair and not arbitrary and impair the right as minimally as is reasonably possible ”. In this respect, the relevant factors were, on the one hand, the duty on the press to impart information and ideas of public interest which the public has a right to receive ( Jersild v. Denmark, cited above) and the need to leave it to journalists to decide what material had to be reproduced to ensure credibility ( Fressoz and Roire v. France cited above) and, on the other hand, the degree of privacy to which Ms Campbell was entitled as regards the details of her therapy under the law of confidence. However, the right of the public to receive information about the details of her treatment was of a much lower order than its undoubted right to know that she was misleading the public when she said that she did not take drugs since the former concerned an intimate aspect of her private life ( Dudgeon v. the United Kingdom, 22 October 1981, § 52, Series A no. 45 ). While he acknowledged the great importance of political expression and, indeed, of freedom of expression ( constituting one of the essential foundations of a democratic society and one of the basic conditions for its progress and the self-fulfilment of each individual, Tammer v. Estonia, no. 41205/98, § 59, ECHR 2001 ‑ I ), he considered that no political or democratic values were at stake and no pressing social had been identified ( a contrario, Goodwin v. the United Kingdom, 27 March 1996, § 40, Reports 1996 II). 31. As to the competing Article 8 rights, the potential for harm by the disclosure was an important factor in the assessment of the extent of the restriction that was needed to protect Ms Campbell's right to privacy. From the point of Article 8, publication of details of her treatment ( that she was attending NA, for how long, how frequently and at what times of day, the nature of her therapy, the extent of her commitment to the process and the publication of covertly taken photographs ) had the potential to cause harm to her and Lord Hope attached a good deal of weight to this factor. The fact that she was a “celebrity” was not enough to deprive her of her right to privacy. A margin of appreciation had be accorded to a journalist but viewing details of treatment for drug addiction merely “ as background was to undervalue the importance that was to be attached to the need, if Ms Campbell was to be protected, to keep these details private ”. It was hard to see any compelling need for the public to know the name of the organisation that she was attending for therapy or the details of that therapy. The decision to publish these details suggested that greater weight was given to the wish to publish a story that would attract interest rather than any wish to maintain its credibility. 32. Lord Hope then considered the covert photographs. It was true that, had he to consider the text of the articles only, he would have been “ inclined to regard the balance between these rights as about even ”, such was the effect of the margin of appreciation that had to be, in a doubtful case, given to a journalist. However, the text could not be separated from the photographs as the captions clearly linked what might otherwise have been anonymous and uninformative pictures to the main text. In addition, the reasonable person of ordinary sensibilities would regard publication of the covertly taken photographs, linked in that way to the text, as adding greatly to the overall intrusion into Ms Campbell's private life. While photographs taken in a public place had to be considered, in normal circumstances, one of the “ ordinary incidents of living in a free community ”, the real issue was whether publicising the photographs was offensive in the present circumstances. He reviewed the case-law of the Court (including P.G. and J.H. v. the United Kingdom, no. 44787/98, § 57, ECHR 2001 IX and Peck v United Kingdom, no. 44647/98, § 62, ECHR 2003 I ) and applied the reasoning in the Peck case. Ms Campbell could not have complained if the photographs had been taken to show a scene in a street by a passer-by and later published simply as street scenes. However, the photographs invaded Ms Campbell's privacy because they were taken deliberately, in secret, with a view to their publication in conjunction with the article and they focussed on the doorway of the building of her NA meeting and they revealed clearly her face. The argument that the publication of the photograph added credibility to the story had little weight, since the reader only had the editor's word as to the truth of Ms Campbell's attendance at a NA meeting. He continued: “ 124. Any person in Miss Campbell's position, assuming her to be of ordinary sensibilities but assuming also that she had been photographed surreptitiously outside the place where she been receiving therapy for drug addiction, would have known what they were and would have been distressed on seeing the photographs. She would have seen their publication, in conjunction with the article which revealed what she had been doing when she was photographed and other details about her engagement in the therapy, as a gross interference with her right to respect for her private life. In my opinion this additional element in the publication is more than enough to outweigh the right to freedom of expression which the defendants are asserting in this case. ” 33. Lord Hope therefore concluded that, despite the weight that had to be given to the right to freedom of expression that the press needs if it is to play its role effectively, there was an infringement of Ms Campbell's privacy which could not be justified. (b) Baroness Hale of Richmond 34. Baroness Hale observed that the examination of an action for breach of confidence began from the “reasonable expectation of privacy” test inquiring whether the person publishing the information knew or ought to have known that there was a reasonable expectation that the relevant information would be kept confidential. This was a threshold test which brought the balancing exercise between the rights guaranteed by Articles 8 and 10 of the Convention into play. Relying also on the PACE Resolution 1165 (1998), she noted that neither right took precedence over the other. The application of the proportionality test, included in the structure of Articles 8 and 10, was much less straightforward when two Convention rights were in play and, in this respect, she relied on the above-cited cases of Jersild v Denmark, Fressoz and Roire v France and Tammer v Estonia. 35. In striking the balance in this case, she noted : “143. ... Put crudely, it is a prima donna celebrity against a celebrity-exploiting tabloid newspaper. Each in their time has profited from the other. Both are assumed to be grown-ups who know the score. On the one hand is the interest of a woman who wants to give up her dependence on illegal and harmful drugs and wants the peace and space in which to pursue the help which she finds useful. On the other hand is a newspaper which wants to keep its readers informed of the activities of celebrity figures, and to expose their weaknesses, lies, evasions and hypocrisies. This sort of story, especially if it has photographs attached, is just the sort of thing that fills, sells and enhances the reputation of the newspaper which gets it first. One reason why press freedom is so important is that we need newspapers to sell in order to ensure that we still have newspapers at all. It may be said that newspapers should be allowed considerable latitude in their intrusions into private grief so that they can maintain circulation and the rest of us can then continue to enjoy the variety of newspapers and other mass media which are available in this country. It may also be said that newspaper editors often have to make their decisions at great speed and in difficult circumstances, so that to expect too minute an analysis of the position is in itself a restriction on their freedom of expression. ” 36. However, Baroness Hale considered it not to be a trivial case and defined the particularly private nature of the information the publication of which Ms Campbell contested. It concerned the important issue of drug abuse and, consequently, her physical and mental health. She underlined the importance of, as well as the sensitivities and difficulties surrounding, treatment for addiction and, notably, of the vital therapy to address an underlying dependence on drugs. Moreover, the Court's jurisprudence had always accepted that information about a person's health and treatment for ill-health was both private and confidential ( Z v. Finland, 25 February 1997, § 95, Reports 1997 ‑ I ). While the disclosed information may not have been in the same category as clinical medical records, it amounted to the same information which would be recorded by a doctor in such records namely, the presenting problem of addiction to illegal drugs, the diagnosis and the prescription of therapy. Baroness Hale therefore began her analysis from the fact - which was common ground - that all information about Ms Campbell's addiction and attendance at NA disclosed in the article was both private and confidential because it related to an important aspect of her physical and mental health and the treatment she was receiving for it. It had also been received from an insider in breach of confidence. 37. As to the nature of the freedom of expression being asserted on the other side, Baroness Hale recalled the main forms of expression which she recorded in descending order of importance: political speech (which included revealing information about public figures, especially those in elective office, which would otherwise be private but was relevant to their participation in public life ), intellectual and educational expression as well as artistic expression. However, Baroness Hale found it difficult to see the contribution made by “ pouring over the intimate details of a fashion model's private life ”. It was true that the editor had chosen to run a sympathetic piece, listing Ms Campbell's faults and follies and setting them in the context of her addiction and her even more important efforts to overcome addiction and such publications might well have a beneficial educational effect. However, such pieces were normally run with the co-operation of those involved and Ms Campbell had refused to be involved with the story. The editor, nevertheless, considered that he was entitled to reveal this private information without her consent because Ms Campbell had presented herself to the public as someone who was not involved in drugs. Baroness Hale questioned why, if a role model presented a stance on drugs beneficial to society, it was so necessary to reveal that she had “ feet of clay ”. However, she accepted that the possession and use of illegal drugs was a criminal offence and was a matter of serious public concern so that the press had to be free to expose the truth and put the record straight. 38. However, while Ms Campbell's previous public denial of drug use might have justified publication of the fact of her drug use and of her treatment for drug addiction, it was not necessary to publish any further information, especially if it might jeopardise her continued treatment. That further information amounted to the disclosure of details of her treatment with NA and Baroness Hale considered that the articles thereby “ contributed to the sense of betrayal by someone close to her of which she spoke and which destroyed the value of [NA] as a safe haven for her ”. 39. Moreover, publishing the photographs contributed both to the revelation and to the harm that it might do. By themselves, the photographs were not objectionable. If the case concerned a photograph of Ms Campbell going about her business in a public street, there could have been no complaint. However, the accompanying text made it plain that these photographs were different in that they showed Ms Campbell outside a NA meeting in the company of some persons undoubtedly part of the NA group and they showed the place where the meeting took place, which would have been entirely recognisable to anyone who knew the locality. Photographs by their very nature added to the impact of the words in the articles as well as to the information disclosed. The photographs also added to the potential harm “ by making her think that she was being followed or betrayed, and deterring her from going back to the same place again ”. 40. Moreover, there was no need for the photographs to be included in the articles for the editor to achieve his objective. The editor had accepted that, even without the photographs, it would have been a front page story. He had his basic information and he had his quotes. He could have used other photographs of Ms Campbell to illustrate the articles. While the photographs would have been useful in proving the truth of the story had this been challenged, there was no need to publish them for this purpose as the credibility of the story with the public would stand or fall with the credibility of stories of the Daily Mirror generally. Baroness Hale added, in this context, that whether the articles were sympathetic or not was not relevant since the way an editor “ chose to present the information he was entitled to reveal was entirely a matter for him ”. 41. Finally, it was true that the weight to attach to these various considerations was “ a matter of fact and degree ”. Not every statement about a person's health would carry the badge of confidentiality : that a public figure had a cold would not cause any harm and private health information could be relevant to the capacity of a public figure to do the job. However, in the present case the health information was not harmless and, indeed, as the trial judge had found, there was a risk that publication would do harm : “ ... People trying to recover from drug addiction need considerable dedication and commitment, along with constant reinforcement from those around them. That is why organisations like [NA] were set up and why they can do so much good. Blundering in when matters are acknowledged to be at a'fragile'stage may do great harm. 158. The trial judge was well placed to assess these matters. ... he was best placed to judge whether the additional information and the photographs had added significantly both to the distress and the potential harm. He accepted her evidence that it had done so. He could also tell how serious an interference with press freedom it would have been to publish the essential parts of the story without the additional material and how difficult a decision this would have been for an editor who had been told that it was a medical matter and that it would be morally wrong to publish it. ” (c) Lord Carswell 42. Lord Carswell agreed with Lord Hope and Baroness Hale. It was not in dispute that the information was of a private nature and imparted in confidence to the applicant and that the applicant was justified in publishing the facts of Ms Campbell's drug addiction and that she was receiving treatment given her prior public lies about her drug use. He also agreed with Lord Hope as to the balancing of Articles 8 and 10 rights and, further, that in order to justify limiting the Article 10 right to freedom of expression, the restrictions imposed had to be rational, fair and not arbitrary, and they must impair the right no more than necessary. 43. Having examined the weight to be attributed to different relevant factors, he concluded that the publication of the details of Ms Campbell's attendance at therapy by NA, highlighted by the photographs printed which revealed where the treatment had taken place, constituted a considerable intrusion into her private affairs which was capable of causing and, on her evidence, did in fact cause her, substantial distress. In her evidence, she said that she had not gone back to the particular NA centre and that she had only attended a few other NA meetings in the UK. It was thus clear, that the publication created a risk of causing a significant setback to her recovery. 44. He did not minimise the “the importance of allowing a proper degree of journalistic margin to the press to deal with a legitimate story in its own way, without imposing unnecessary shackles on its freedom to publish detail and photographs which add colour and conviction ”, which factors were “ part of the legitimate function of a free press ” and had to be given proper weight. However, the balance came down in favour of Ms Campbell. (d) Lord Nicholls of Birkenhead 45. Lord Nicholls began by noting that Ms Campbell was “ a celebrated fashion model ”, that she was a “ household name, nationally and internationally ” and that her face was “ instantly recognisable ”. He noted that the development of the common law (tort of breach of confidence) had been in harmony with Articles 8 and 10 of the Convention so that the time had come to recognise that the values enshrined in Articles 8 and 10 were now part of the cause of action for breach of confidence ( Lord Woolf CJ, A v B plc [2003] QB 195, 202, § 4 ). 46. He found that the reference to treatment at NA meetings was not private information as it did no more than spell out and apply to Ms Campbell common knowledge of how NA meetings were conducted. 47. However, even if Ms Campbell's attendance at meetings was considered private, her appeal was still ill-founded since: “ On the one hand, publication of this information in the unusual circumstances of this case represents, at most, an intrusion into Miss Campbell's private life to a comparatively minor degree. On the other hand, non-publication of this information would have robbed a legitimate and sympathetic newspaper story of attendant detail which added colour and conviction. This information was published in order to demonstrate Miss Campbell's commitment to tackling her drug problem. The balance ought not to be held at a point which would preclude, in this case, a degree of journalistic latitude in respect of information published for this purpose. It is at this point I respectfully consider [that the High Court] fell into error. Having held that the details of Miss Campbell's attendance at [NA] had the necessary quality of confidentiality, the judge seems to have put nothing into the scales under article 10 when striking the balance between articles 8 and 10. This was a misdirection. The need to be free to disseminate information regarding Miss Campbell's drug addiction is of a lower order than the need for freedom to disseminate information on some other subjects such as political information. The degree of latitude reasonably to be accorded to journalists is correspondingly reduced, but it is not excluded altogether.” 48. He observed that Ms Campbell's repeated public assertions denying her drug addiction rendered legitimate the publication of the facts that she was a drug addict and in treatment had been legitimate. The additional impugned element that she was attending NA meetings as a form of therapy was of such an unremarkable and consequential nature that its disclosure had also been legitimate. The same applied to information concerning how long Ms Campbell was receiving such treatment given that the frequency and nature of NA meetings was common knowledge. Hence, the intrusion into Ms Campbell's private life was comparatively minor. 49. Lastly, and as to the photographs, Lord Nicholls observed that she did not complain about the taking of the photographs nor assert that the taking of the photographs was itself an invasion of privacy, rather that the information conveyed by the photographs was private. However, the particular photographs added nothing of an essentially private nature : they conveyed no private information beyond that discussed in the article and there was nothing undignified about her appearance in them. (e) Lord Hoffmann 50. Lord Hoffmann began his judgment by describing Ms Campbell as “a public figure” and, further, a famous fashion model who had lived by publicity. He noted that the judges of the House of Lords were “ divided as to the outcome of this appeal ” but the difference of opinion related to “ a very narrow point ” concerning the unusual facts of the case. While it was accepted that the publication of the facts of her addiction and of her treatment was justified as there was sufficient public interest given her previous public denials of drug use, the division of opinion concerned “ whether in doing so the newspaper went too far in publishing associated facts about her private life ”. He continued: “ But the importance of this case lies in the statements of general principle on the way in which the law should strike a balance between the right to privacy and the right to freedom of expression, on which the House is unanimous. The principles are expressed in varying language but speaking for myself I can see no significant differences. ” 51. There being no automatic priority between Articles 8 and 10, the question to be addressed was the extent to which it was necessary to qualify one right in order to protect the underlying value protected by the other and the extent of the qualification should be proportionate to the need. The only point of principle arising was, where the essential part of the publication was justified, should the newspaper be held liable whenever the judge considered that it was not necessary to have published some of the personal information or should the newspaper be allowed some margin of choice in the way it chose to present the story (referring to Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999 ‑ I). 52. In this respect, Lord Hoffman considered that it would be: “inconsistent with the approach which has been taken by the courts in a number of recent landmark cases for a newspaper to be held strictly liable for exceeding what a judge considers to have been necessary. The practical exigencies of journalism demand that some latitude must be given. Editorial decisions have to be made quickly and with less information than is available to a court which afterwards reviews the matter at leisure. And if any margin is to be allowed, it seems to me strange to hold the Mirror liable in damages for a decision which three experienced judges in the Court of Appeal have held to be perfectly justified.” 53. Given the relatively anodyne nature of the additional details, the Mirror was entitled to a degree of latitude in respect of the way it chose to present its legitimate story. 54. As to the publication of photographs in particular, Lord Hoffman observed that the fact that the pictures were taken without Ms Campbell's consent did not amount to a wrongful invasion of privacy. Moreover, the pictures did not reveal a situation of humiliation or severe embarrassment ( as in Peck v. the United Kingdom, no. 44647/98, ECHR 2003 ‑ I) and had not been taken by intrusion into a private place. There was nothing demeaning or embarrassing about the photographs. They added nothing to what was said in the text and carried the message that the Mirror's story was true. Accordingly, the decision to publish the pictures was within the margin of editorial judgment to which the Mirror was entitled. Although the trial judge found that the publication was likely to affect her therapy, this had neither been pleaded before nor fully explored by the trial judge. 55. The appeal was allowed, the High Court award was restored. Ms Campbell's costs (of the appeals to the Court of Appeal and to the House of Lords ) were awarded against the applicant, the amount to “be certified by the Clerk of Parliaments, if not agreed between the parties ... ”. C. The proceedings concerning legal costs 56. Ms Campbell's solicitors served three bills of costs on the applicant in the total sum of GBP 1,086, 295.47: GBP 377,070.07 for the High Court; GBP 114,755.40 for the Court of Appeal; and GBP 594,470.00 for the House of Lords. The latter figure comprised “ base costs ” of GBP 288,468, success fees of GBP 279,981.35 as well as GBP 26,020.65 disbursements. In the High Court and Court of Appeal, Ms Campbell's solicitors and counsel had acted under an ordinary retainer. But the appeal to the House of Lords was conducted pursuant to a Conditional Fee Agreement (“CFA”) which provided that, if the appeal succeeded, solicitors and counsel should be entitled to base costs as well as success fees amounting to 95% and 100% of their base costs, respectively. 1. Campbell v. MGN Limited [2005] UKHL 61 57. On 21 February 2005 the applicant appealed to the House of Lords seeking a ruling that it should not be liable to pay the success fees as, in the circumstances, such a liability was so disproportionate as to infringe their right to freedom of expression under Article 10 of the Convention. The applicant did not seek thereby a declaration of incompatibility but argued that domestic law regulating the recoverability of success fees should be read so as to safeguard its rights under Article 10. On 26 May 2005 this appeal was heard by the House of Lords. 58. On 2 August 2005 Ms Campbell's solicitors accepted the applicant's offers to pay GBP 290,000 (High Court costs) and GBP 95,000 (Court of Appeal costs), both amounts being exclusive of interest. 59. On 20 October 2005 the appeal was unanimously dismissed. The House of Lords found that the existing CFA regime with recoverable success fees was compatible with the Convention, but they expressed some reservations about the impact of disproportionate costs. (a) Lord Hoffman 60. Lord Hoffmann observed that the deliberate policy of the Access to Justice Act 1999 (“the 1999 Act”) was to impose the cost of all CFA litigation upon unsuccessful defendants as a class. Losing defendants were to be required to contribute to the funds which would enable lawyers to take on other cases, which might not be successful, but which would provide access to justice for people who could not otherwise have afforded to sue. Therefore, the policy shifted the burden of funding from the State to unsuccessful defendants, which was a rational social and economic policy. 61. While he was concerned about the indirect effect of the threat of a heavy costs liability on the newspapers'decisions to publish information which ought to be published but which carried a risk of legal action, he considered that a newspaper's right could be restricted to protect the right of litigants under Article 6 to access to a court. 62. The applicant maintained that recoverable success fees were disproportionate on the basis of two flawed arguments. The first was that the success fee was necessarily disproportionate as it was more than (and up to twice as much as) the amount which, under the ordinary assessment rules, would be considered reasonable and proportionate. This was a flawed point as it confused two different concepts of proportionality. The CPR on costs were concerned with whether expenditure on litigation was proportionate to the amount at stake, the interests of the parties, complexity of the issues and so forth. However, Article 10 was concerned with whether a rule, which required unsuccessful defendants, not only to pay the reasonable and proportionate costs of their adversary in the litigation, but also to contribute to the funding of other litigation through the payment of success fees, was a proportionate measure, having regard to the effect on Article 10 rights. The applicant did not “ really deny that in principle it is open to the legislature to choose to fund access to justice in this way.” 63. The second argument of the applicant was to the effect that it was unnecessary to give Ms Campbell access to a court because she could have afforded to fund her own costs. However, it was desirable to have a general rule to enable the scheme to work in a practical and effective way and that concentration on the individual case and the particularities of Ms Campbell's circumstances would undermine that scheme. It was for this reason that the Court in James and Others v the United Kingdom (21 February 1986, Series A no. 98) considered that Parliament was entitled to pursue a social policy of allowing long leaseholders of low-rated houses to acquire their freeholds at concessionary rates, notwithstanding that the scheme also applied to some rich tenants who needed no such assistance. The success fee should not be disallowed simply on the ground that the applicant's liability would be inconsistent with its rights under Article 10. Thus, notwithstanding the need to examine the balance on the facts of the individual case, Lord Hoffman considered that the impracticality of requiring a means test and the small number of individuals who could be said to have sufficient resources to provide them with access to legal services entitled Parliament to lay down a general rule that CFAs were open to everyone. Success fees, as such, could not be disallowed simply on the ground that the present applicant's liability would be inconsistent with its rights under Article 10: the scheme was a choice open to the legislature and there was no need for any exclusion of cases such as the present one from the scope of CFAs or to disallow success fees because the existing scheme was compatible. 64. However, Lord Hoffman did not wish to leave the case without commenting on other problems which defamation litigation under CFAs was currently causing and which had given rise to concern that freedom of expression might be seriously inhibited. The judgment of Eady J in Turcu v News Group Newspapers Ltd ( [2005] EWHC 799) highlighted the significant temptation for media defendants to settle cases early for purely commercial reasons, and without regard to the true merits of any pleaded defence. This'chilling effect'or'ransom factor'inherent in the CFA system was a situation which could not have arisen in the past and was very much a modern development. 65. Lord Hoffman considered that the “blackmailing effect ” of such litigation arose from two factors: (a) the use of CFAs by impecunious claimants who did not take out insurance to protect themselves from having to pay the winning party's costs if they lost; and (b) the conduct of the case by the claimant's solicitors in a way which not only ran up substantial costs but required the defendants to do so as well. Referring to a recent case where this was particularly evident ( King v Telegraph Group Ltd [Practice Note] [2005] 1 WLR 2282), he continued: “ Faced with a free-spending claimant's solicitor and being at risk not only as to liability but also as to twice the claimant's costs, the defendant is faced with an arms race which makes it particularly unfair for the claimant afterwards to justify his conduct of the litigation on the ground that the defendant's own costs were equally high” 66. Lord Hoffman endorsed the solution offered by the Court of Appeal in the King case ( a “cost-capping” order at an early stage of the action). However, that was only a palliative as it did not deal with the problem of a newspaper risking substantial and irrecoverable costs. Smaller publishers might not be able to afford to take a stand and neither capping costs at an early stage nor assessing them later dealt with the threat of having to pay the claimant's costs at a level which was, by definition, up to twice the amount which would be reasonable and proportionate. While the DCA Consultation Paper (paragraph 101 below) discussed the problem, no legislative intervention had been proposed. 67. Lord Hoffman distinguished between personal injury litigation and defamation proceedings. Personal injury litigation comprised a large number of small claims and the liability insurers were able to pass these costs on to their road user customers with their own solvency not being threatened and the liability insurers had considerable negotiating strength to dispute assessments of costs and to hold up the cash flow of the claimants'solicitors so that both sides therefore had good reasons for seeking a compromise. On the other hand, in defamation cases the reasons for seeking a compromise were much weaker: there was a small number of claims and payment of relatively large sums of costs; some publishers might be strong enough to absorb or insure against this but it had a serious effect upon their financial position; and publishers did not have the same negotiating strength as the liability insurers because there were few assessments to be contested and disputing them involved considerable additional costs. 68. While the objective of enabling people of modest means to protect their reputations and privacy from powerful publishers was a good one, Lord Hoffman considered that it might be that a legislative solution would be needed for the scheme to comply with Article 10 of the Convention. (b) Lord Hope of Craighead 69. Lord Hope agreed with Lord Hoffmann. 70. He underlined the protection to the losing party contained in the CPR and the Costs Practice Directions. Reasonableness and proportionality tests were applied separately to base costs and to the percentage uplift for success fees. However, the most relevant question for a court in assessing the reasonableness of the percentage uplift was “ the risk that the client might or might not be successful ” (paragraph 11.8(l)(a) of the Costs Practice Directions ) and that “in evenly balanced cases a success fee of 100 per cent might well be thought not to be unreasonable ”. 71. There remained the question of proportionality. Other than providing that the proportionality of base costs and success fees were to be separately assessed, the Costs Practice Directions did not identify any factors that might be relevant. However, it would be wrong to conclude that this was an empty exercise as it was the “ ultimate controlling factor ” to ensure access to the court by a claimant to argue that her right to privacy under Article 8 was properly balanced against the losing party's rights to freedom of speech under Article 10. While the losing party would pay the success fee, any reduction in the percentage increase would have to borne by the successful party under the CFA : the interests of both sides had to be weighed up in deciding whether the amount was proportionate. (c) Lord Carswell 72. Lord Carswell agreed with the opinions of Lord Hoffmann and Lord Hope. While “there are many who regard the imbalance in the system adopted in England and Wales as most unjust”, the regimen of CFAs and recoverable success fees was “legislative policy which the courts must accept”. As to whether recoverable success fees, which undoubtedly constituted a “chill factor”, were compatible with Article 10 and a proportionate way of dealing with the issue of the funding of such litigation, it was not really in dispute that the legislature could in principle adopt this method of funding access to justice. 73. The present case turned on whether it was still proportionate when the claimant was wealthy and not in need of the support of a CFA. While it was rough justice, the requirement on solicitors to means test clients before concluding a CFA was unworkable. With some regret, the conclusion was clear. While Lord Carswell was “ far from convinced about the wisdom or justice of the CFA system ” as it was then constituted, “ it had to be accepted as legislative policy”. It had not been shown to be incompatible with the Convention and the objections advanced by the applicant could not be sustained. (d) Lord Nicholls of Birkenhead and Baroness Hale of Richmond 74. Lord Nicholls agreed with the preceding opinions. Baroness Hale also agreed with Lord Hoffman. It was, for her, a separate question whether a legislative solution might be needed to comply with Article 10: this was a complex issue involving a delicate balance between competing rights upon which she preferred to express no opinion. 75. From the date of rejection of this second appeal, the applicant was liable to pay 8% interest on the costs payable. 76. On 28 November 2005 an order for the costs of the second appeal to the House of Lords was made against the applicant. Ms Campbell therefore served an additional bill of costs of GBP 255,535.60. The bill included a success fee of 95% (GBP 85,095.78) in respect of the solicitors'base costs, her counsel having not entered into a CFA for this appeal. 2. Review by the Judicial Taxing Officers of the costs of the second appeal to the House of Lords 77. The applicant then sought to challenge the proportionality of the costs and success fees claimed in respect of both appeals to the House of Lords. An assessment hearing was fixed for 8 March 2006 before the Judicial Taxing Officers of the House of Lords. 78. On 3 March 2006 the applicant agreed with Ms Campbell's solicitors to pay the sum of GBP 350,000 in respect of the costs claimed in relation to the first appeal, excluding interest and including the success fee applicable to the first appeal. The applicant considered it was unlikely to do better before the Taxing Officers, it wished to avoid accruing interest ( 8% per day ) and further litigation on costs would lead to further costs and success fees. 79. The hearing on 8 March 2006 (before two Judicial Taxing Officers) therefore concerned the costs of the second appeal only, the Taxing Officers noting that the applicant had settled the costs of the first appeal, it “no doubt recognising the inevitability of the position”. A number of preliminary issues were decided by the Taxing Officers including the validity of the CFA, the applicable success fee rate and the proportionality of the base costs billed by Ms Campbell's representatives (and on which that success fee would be calculated). 80. By judgment dated 8 March 2006 the Judicial Taxing Officers found that, in these hard fought proceedings ultimately decided by a split decision of the House of Lords, there was “no doubt” that the success fees (95% and 100%) claimed in respect of the first appeal to the House of Lords were appropriate having regard to the first and second instance proceedings. Since the second appeal to the House of Lords was part and parcel of the first and was clearly contemplated by the parties when they entered into the CFA, the second appeal was covered by the CFA and thus the same success fee. The effect of this was, of course, that the applicant faced a greatly increased bill of costs: however, the applicant lost this issue in the second appeal to the House of Lords. A success fee of 95% for the second appeal to the House of Lords was therefore approved. Relying on Rules 44.4 and 44.5 of the CPR as well as paragraph 15.1 of the Costs Practice Directions as well as a necessity test, the Taxing Officers reduced the hourly rates chargeable by Ms Campbell's solicitors and counsel, thereby reducing the base costs and, consequently, the success fee payable by the applicant. 81. On 5 May 2006 the applicant appealed to the House of Lords arguing that the Taxing Officers judgment was incorrect in so far as those Officers considered that the success fee for the second appeal could not be varied. On 28 June 2006 the House of Lords refused leave to appeal. 82. On 5 July 2007 the applicant agreed to pay GBP 150,000 ( inclusive of interest and assessment procedure costs) in settlement of Ms Campbell's costs of the second appeal. | The applicant was the publisher of a national daily newspaper which published an article giving details of the drug-addiction treatment of a very well-known model. The article was accompanied by photographs, one of them taken secretly near the Narcotics Anonymous centre she was attending at the time. When the model’s lawyer wrote to the applicant complaining of a breach of his client’s privacy, the same newspaper published a further two articles, accompanied by a similar picture, in which it criticised the model’s lifestyle and claim to privacy. The applicant company alleged an infringement of its right to freedom of expression on account of the judgment of the House of Lords finding that it had breached the model’s privacy by publishing the impugned articles and pictures. It further complained of the requirement for it to pay the “success fees” agreed between the model and her lawyers in the same proceedings. |
221 | Voluntary waiver of right to assistance of a lawyer | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1974 and was serving a sentence in İzmit Prison at the time of lodging of the application. 6. On 13 November 2003 the applicant was arrested in the vicinity of her house on suspicion of membership of an illegal organisation, namely the PKK/KADEK (the Workers ’ Party of Kurdistan). She was in possession of a fake identity card at the time of her arrest. 7. Subsequently, police officers carried out a search of the house in which the applicant and the other co-accused, İ.A., lived. According to the search and seizure report drafted by the police and signed by the applicant and İ.A., the police searched the applicant ’ s flat and found the following items; a book with the title Twenty-first Century Women Freedom Manifesto, five pieces of rubber band used for a tourniquet, fourteen pieces of elastic plaster, ten thermometers, five bandages, nine compression bandages, and a bag of cotton balls. İ.A., who was also at the house, was arrested by the police. A paper containing the number “0535 8 .. .. ..”, which was later found to have belonged to R.B. (who was the applicant in Ruşen Bayar v. Turkey, no. 25253/08, 19 February 2019), was found on the applicant along with other material. 8. Her first medical examination upon her arrest was carried out at 10.45 p.m. on the same day and the applicant told the doctor that she had been arrested at approximately 3.30 p.m. and that she had not been ill-treated other than having been yelled at by the police officers. According to the medical report issued in respect of the applicant, there were no signs of violence on the applicant ’ s body. 9. The applicant was then taken to the anti-terrorism division of the Istanbul Security Directorate. On 14 November 2003 she was questioned by police officers in the absence of a lawyer. The applicant ’ s statements to the police were transcribed on printed forms, the first page of which was filled in to indicate, inter alia, that the applicant was suspected of carrying out activities within the PKK/KADEK. The same page also included a printed statement that, inter alia, the person being questioned had the right to remain silent and the right to choose a lawyer. It appears from the form that the applicant refused legal assistance, since the first page of the record includes a printed phrase stating “No lawyer sought” and a box next to it marked with a printed “X”. Moreover, according to the record, the applicant also stated that she did not want a lawyer or to remain silent. She gave a statement of nine pages in length in which she admitted her membership of the PKK/KADEK and gave a detailed account of her involvement and training in the illegal organisation, as well as how she had met R.B. and N.A., two of the co-accused. Every page of the statement form was signed by the applicant. 10. On 16 November 2003 İ.A. was questioned by the police, but by different police officers from the ones who had questioned the applicant. According to his statement form, which was in the same format as that of the applicant, he wished to be represented by a lawyer. A lawyer was accordingly assigned to him and İ.A. availed himself of his right to remain silent. 11. On 17 November 2003 at approximately 10.30 p.m., at the end of her police custody, the applicant was once again examined by a doctor. According to the report drawn up in respect of the applicant, she told the doctor that the police had hit her head, threatened to kill and rape her and had driven their car into her as a result of which she had lost consciousness. The doctor noted no signs of lesions while adding that the applicant had subjective pain in her back and on her left leg. The doctor accordingly concluded that there were no signs of violence on the applicant ’ s body. 12. On the same day, the applicant was brought before the public prosecutor where she gave statements in the presence of her lawyer. Denying the content of her police statements, the applicant submitted that she had had to sign those statements as a result of violence and coercion by the police. The applicant further complained that she had been ill-treated by the police as described by her in the medical report. The applicant ’ s lawyer stated that she had no connection with the PKK/KADEK. 13. Again on the same day, the applicant was brought before the investigating judge where she gave statements in the presence of her lawyer. She once again denied her police statements, alleging that they had been taken under duress and pressure. She complained of the alleged torture she had been subjected to while in police custody. After the questioning was over, the investigating judge remanded the applicant in custody, having regard to the nature of the offence and the state of the evidence. 14. On 4 December 2003 the public prosecutor at the Istanbul State Security Court filed a bill of indictment, accusing the applicant of being a member of an illegal terrorist organisation under Article 168 of the now defunct Criminal Code, Law no. 765. 15. On an unknown date the applicant lodged a formal complaint with the Fatih public prosecutor ’ s office claiming that she had been ill-treated by the police while in custody between 13 and 17 November 2003. On 31 March 2004 Fatih public prosecutor ’ s office delivered a decision not to prosecute the police officers for lack of evidence. 16. On 17 March 2004, at the first hearing in the case, the applicant gave evidence in person, submitting that she had not been a member of the illegal organisation and denying once again her police statements, alleging that she had been forced to sign them. She further maintained that she had been forcibly taken by the police to a graveyard and threatened with death. The applicant also mentioned that the police had hit her head against a wall several times and that she had been stripped naked hourly in order to obtain a confession from her. She maintained that her signature under her police statement had been obtained in those circumstances and further alleged that she was illiterate. The applicant further stated that the reason why she had had the fake identity card found on her had been because she had been married to İ.A. and that her family had been against the marriage. 17. At a hearing held on 22 November 2004 the case against the applicant and her co-accused was joined to another case brought against a number of other people charged with being members of the same illegal organisation and the killing of a certain M.Y. in 1999 on behalf of the organisation. 18. At the hearing on 5 June 2006 the Istanbul public prosecutor read out his observations on the merits of the case ( esas hakkında mütalaa ) to the trial court in the absence of the applicant. In his opinion, the public prosecutor advised that the court should find the applicant guilty as charged. 19. On 19 December 2008, at the eleventh hearing, the applicant ’ s lawyer submitted that they reiterated their previous defence submissions. 20. On 13 February 2009, during the last hearing, the applicant ’ s lawyer reiterated the previous submissions, requesting the applicant ’ s acquittal and the application of provisions in favour of the applicant. 21. While the applicant ’ s trial was pending before the Istanbul State Security Court, those courts were abolished in accordance with Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004. Therefore, the Istanbul Assize Court acquired jurisdiction over the case. 22. On 13 February 2009 the Istanbul Assize Court found, inter alia, that on the basis of the applicant ’ s statements to the police, the applicant had been a member of the PKK/KADEK, and sentenced her to six years and three months ’ imprisonment. The trial court listed the following items in the following order in its judgment: a summary of the indictment, the public prosecutor ’ s observations on the merits of the case ( esas hakkında mütalaa ), the defence submissions of the defendants, the evidence, the evaluation of evidence and the sentences. The court did not rely on the case file as a whole and listed the evidence in its possession in respect of the accused in detail. It appears that the only relevant item of evidence in respect of the applicant listed in the “evidence” part of the judgment was “the statements of the accused throughout the proceedings”. The relevant parts of the trial court ’ s judgment in so far as it concerned the applicant read as follows: “... [The court finds] that the [applicant] and İ .A. were members of the terrorist organisation, that they received military and political training in the organisation ’ s camps abroad, that they came to Turkey with a view to carrying out organisational activities, that a fake identity card was found on [the applicant], that she had an organisational connection with R.B. and that she lived together with the organisation member İ .A. ...” 23. According to the reasoned judgment, seven out of fifteen of the accused who had admitted their guilt while giving police statements in the absence of a lawyer had denied those statements either before the public prosecutor or before the investigating judge. Moreover, fourteen of the accused had denied the accusations against them during the trial. However, the reasoned judgment did not contain any examination of the admissibility of those statements. 24. On 13 February 2009 the applicant ’ s lawyer lodged an appeal against the decision. In that one-page-long document, it was argued that the applicant ’ s conviction had been unlawful and “contrary to procedure”. The lawyer further maintained in that appeal statement that the applicant would submit her detailed arguments following the service of the trial court ’ s reasoned judgment. 25. On 27 April 2010 the Court of Cassation upheld the conviction. This decision was deposited with the registry of the first-instance court on 25 May 2010. | The applicant alleged that she had confessed to being a member of an illegal organisation after being threatened and ill-treated by the police, without access to a lawyer in police custody. |
801 | Right to liberty and security (Article 5 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1963 and currently lives in the Kėdainiai Social Care Home (hereinafter “the Kėdainiai Home”) for individuals with general learning disabilities. A. The circumstances of the case 7. The facts of the case, as submitted by the parties, may be summarised as follows. 1. The applicant’s psychiatric treatment, guardianship and care 8. The applicant has had a history of mental disorder since 1979, when she experienced shock having discovered that she was an adopted child. She is classed as Category 2 disabled. 9. In 1980, the applicant was diagnosed with schizophrenia simplex. In 1984 she was diagnosed with circular schizophrenia. In 1999, the applicant was diagnosed with paranoid schizophrenia with a predictable course. She has been treated in psychiatric hospitals more than twenty times. During her most recent hospitalisation at Kaunas Psychiatric Hospital in 2004, she was diagnosed with continuous paranoid schizophrenia ( paranoidinė šizofrenija, nepertraukiama eiga ). The diagnosis of the applicant remains unchanged. 10. In 2000 the applicant’s adoptive father applied to the Kaunas City District Court to have the applicant declared legally incapacitated. The court ordered a forensic examination of the applicant’s mental status. 11. In their report (no. 185/2000 of 19 July 2000), the forensic experts concluded that the applicant was suffering from “episodic paranoid schizophrenia with a predictable course” ( šizofrenija/paranoidinė forma, epizodinė liga su prognozuojančiu defektu ) and that she was not able “to understand the nature of her actions or to control them”. The experts noted that the applicant knew of her adoptive father’s application to the court for her incapacitation and wrote that she “did not oppose it”. The experts also wrote that the applicant’s participation in the court hearing for incapacitation was “unnecessary”. 12. On 15 September 2000 the Kaunas City District Court granted the request by the applicant’s adoptive father and declared the applicant legally incapacitated. In a one-page ruling, the court relied on medical expert report no. 185/2000. Neither the applicant nor her adoptive father was present at the hearing. The Social Services Department of the Kaunas City Council was represented before the court. 13. On 17 May 2001 the applicant’s adoptive father requested her admission to the Kėdainiai Home for individuals with general learning disabilities. The applicant’s name was put on a waiting list. 14. On 13 August 2002 the Kaunas City District Court appointed D.G., the applicant’s psychiatrist at the Kaunas out-patient health centre ( Kauno Centro Poliklinika ), as her legal guardian. The applicant was present at the hearing. Her adoptive father submitted that “he himself did not agree with being appointed her guardian because he was in disagreement with his daughter ( jis pats nepageidauja būti globėju, nes su dukra nesutaria )”. Nonetheless, he promised to take care of her in future and to help her financially. 15. By a decision of 24 March 2003, the director of the health care centre dismissed D.G. from her work for a serious violation of her working duties. The decision was based on numerous reports submitted by D.G.’s colleagues and superiors. 16. On 16 July 2003 D.G. wrote to the Kaunas City District Court asking that she be relieved of her duties as the applicant’s guardian. She mentioned that she had only agreed to become the applicant’s guardian because she had observed a strained relationship between the applicant and her adoptive father. However, D.G. claimed that the applicant’s adoptive father had asked her to hand over the applicant’s pension to him, even though the applicant had been receiving her pension and had been using the money perfectly well on her own for many years. D.G. also contended that the applicant’s adoptive father had attempted to unlawfully appropriate the applicant’s property. 17. On 1 October 2003 the Kaunas City District Court relieved D.G. of her duties as the applicant’s guardian at her own request. In court D.G. had argued that as she was litigating for unlawful dismissal she could not take proper care of the applicant. 18. By letter of 9 December 2003, the Kaunas City Social Services Department suggested to the district court that the applicant’s adoptive father be appointed her guardian, although the Department noted that relations between the two of them were tense. 19. On 21 January 2004 the Kaunas City District Court appointed the applicant’s adoptive father as her legal guardian. The court relied on the request by the Kaunas City Council Department of Health, which was represented at the hearing. The applicant’s adoptive father did not object to the appointment. The applicant was not present at the hearing. 20. Upon the initiative and consent of the applicant’s adoptive father, on 30 June 2004 the applicant was taken to the Kaunas Psychiatric Hospital for treatment. The applicant complained that she had been treated against her will. A letter by the hospital indicates that the applicant’s adoptive father had asked the hospital staff to ensure that her contacts with D.G. were limited on the ground that the latter had had a negative influence on the applicant. However, on 3 September 2004 the prosecutor for the Kaunas City District dismissed the applicant’s allegations, finding that she had been hospitalised due to deterioration in her mental state upon the order of her psychiatrist. The applicant had also expressed her consent to being treated. 21. On 8 July 2004 a panel designated by Kaunas City Council to examine cases of admission to residential psychiatric care ( Kauno miesto savivaldybės asmenų su proto negalia siuntimo į stacionarias globos įstaigas komisija ) adopted a unanimous decision to admit the applicant to the Kėdainiai Home. 22. On 20 July 2004 a medical panel of the Kaunas Psychiatric Hospital concluded that the applicant was suffering from “continuous paranoid schizophrenia” ( paranoidinė šizofrenija nepertraukiama eiga ). The commission also stated that it would be appropriate for the applicant to “live in a social care institution for the mentally handicapped”. 23. On 28 July 2004 a social worker examined the conditions in which the applicant lived in her apartment in Kaunas city. The report reads that “the applicant is not able to take care of herself, does not understand the value of money, does not clean her apartment, is not able to cook on her own and wanders in the city hungry. Sometimes the applicant gets angry at people and shouts at them without a reason; her behaviour is unpredictable. The applicant does not have bad habits and likes to be in other persons’ company”. The social worker recommended that the applicant be placed in a social care institution because her adoptive father could not “manage” her. 24. On 2 August 2004 an agreement was concluded between the Kėdainiai Home, the Guardianship Department of Kaunas City Council and the Social Services Department of the Kaunas Regional Administration. On the basis of that agreement, the applicant was transferred from the Kaunas Psychiatric Hospital to the Kėdainiai Home, where she continued her treatment. 25. On 6 October 2004 the applicant signed a document stating that she agreed to be examined by the doctors in the Kėdainiai Home and to be treated there. 26. On 10 August 2004 the applicant’s adoptive father wrote to the director of the Kėdainiai Home with a request that during the applicant’s settling into the Kėdainiai Home she should be temporarily restricted from receiving visits by other people. The director granted the request. Subsequently, the Kaunas District Administration upheld the director’s decision on the ground that the latter was responsible for the safety of patients in the Kėdainiai Home and thus was in a better position to determine what steps were necessary. 27. On 18 August 2004, upon the decision of the Kėdainiai Home director, D.G. was not allowed to visit the applicant. The applicant’s medical record, which a treating psychiatrist signed the following day, states that “[the applicant] is acclimatising at the institution with difficulties, as her former guardian and former doctor [D.G.] keeps calling constantly and telling painful matters from the past (...) [the applicant] is crying and blaming herself for being not good, for not preserving her mother, for having lived improperly. Verbal correction is not effective”. 28. According to a document signed by Margarita Buržinskienė on 23 February 2005, she had called the Kėdainiai Home to speak to the applicant but the employees had told her that, on the director’s orders, the applicant was not allowed to answer the phone ( vykdant direktorės nurodymą Daivos prie telefono nekviečia ). 29. On 15 June 2006 the applicant’s adoptive father removed her from institutional care and taken her to his flat. On 15 July 2006 the applicant left his home on her own. A police investigation was started following a report by the applicant’s adoptive father of the allegedly unlawful deprivation of the applicant’s liberty. She was eventually found and apprehended by the police on 31 October 2006, and was taken back to the Kėdainiai Home. 30. On 6 September 2007 the applicant left the Kėdainiai Home without informing its management. She was found by the police and taken back to the institution on 9 October 2007. 31. As can be seen from a copy of the record of the Kėdainiai Home’s visitors submitted by the Government, between 2 August 2004 and 25 December 2006 the applicant received one or more visitors on forty-two separate occasions. In particular, her adoptive father saw her thirteen times, her friends and other relatives visited her twenty-six times and she was visited by D.G. on twelve occasions. 2. Proceedings regarding the change of the applicant’s guardianship 32. On 15 July 2004 the applicant asked the Kaunas Psychiatric Hospital to initiate a change of guardianship from her adoptive father to D.G. The applicant wrote that her adoptive father had had her admitted to the psychiatric hospital by force and deception, thus depriving her of her liberty. The hospital refused her request as it did not have competence in guardianship matters. 33. The applicant states that a similar request was rejected by the Kėdainiai Home. 34. On 2 September 2005, assisted by her former guardian and then friend, D.G., the applicant brought an application before the courts, requesting that the guardianship proceedings be reopened and a new guardian appointed. She submitted that she had been unable to state her opinion as to her guardianship, because she had not been informed of and summoned to the court hearing during which her adoptive father had been appointed her guardian. The applicant relied on Article 507 § 3 of the Code of Civil Procedure and stated that her state of health in the previous year could not have been an obstacle to her expressing her opinion as to the appropriateness of the guardian proposed at the court hearing. She claimed that in 2004 she had used to visit her friend in a village for a couple of weeks at a time. The applicant also noted that when she returned to Kaunas, her adoptive father had often threatened to have her committed to a mental asylum. 35. The applicant also argued that by appointing her adoptive father to be her guardian without informing her and without her being able to state her opinion as to his prospective appointment, in contravention of Article 3.242 of the Civil Code and Article 507 § 4 of the Code of Civil Procedure, the court had disregarded the strained relationship between the two of them. The applicant drew the court’s attention to the ruling of the Kaunas City District Court of 13 August 2002, in which the applicant’s adoptive father had himself stated that their relationship had been tense. The applicant drew the court’s attention to Article 491 § 2 of the Code of Civil Procedure, stipulating that the court had to take all necessary measures to avoid a possible conflict between the incapacitated person and her potential guardian. Lastly, she stated that she had only learned of her adoptive father’s appointment in April 2004. 36. By a ruling of 29 September 2005 the Kaunas City District Court decided to accept the applicant’s request for examination. 37. On 27 October 2005 the applicant wrote to the Chairman of the Kaunas City District Court. She complained of her incapacitation on her adoptive father’s devious initiative without having being informed of the incapacitation proceedings. The applicant also pleaded that she had been unlawfully deprived of her liberty and involuntarily admitted to the Kėdainiai Home for an indefinite time and where she had been unable to obtain legal aid. 38. On 7 November 2005 judge R.A. of the Kaunas City District Court held a closed hearing in which the applicant, her guardian (her adoptive father) and his lawyer, and D.G. took part. The relevant State institutions were also represented at the hearing: the Kėdainiai Home, the Kaunas Psychiatric Hospital, the prosecutor and the Social Services Department of Kaunas City Council. The applicant’s doctor did not take part in the hearing. The court noted that the doctor had been informed of it and had asked the court to proceed without him. 39. In her application form to the Court, the applicant alleged that at the beginning of the hearing the judge had ordered her to leave her place next to D.G. and to sit next to the judge. The judge had also ordered D.G. “to keep her eyes off the applicant”. Given that this was not reflected in the transcript of the hearing, on 19 November 2005 D.G. had written to the court asking that the transcript be rectified accordingly. 40. According to the transcript of the hearing, at the beginning thereof D.G. requested that an audio recording be made. The judge refused the request. The applicant asked to be assisted by a lawyer. The judge refused her request, deeming that her guardian was assisted by a lawyer before the court. Without the agreement of her guardian, a separate lawyer could not be appointed. The lawyer hired by the applicant’s guardian was held to represent both the interests of the applicant and her guardian. 41. As the transcript of the hearing shows, the applicant went on to unequivocally state that she stood by her request that the guardianship proceedings be reopened. She argued that she had neither been informed of the proceedings as to her incapacitation, nor those pursuant to which her guardian had been appointed. The decisions had been taken while she had been in hospital. During the hearing, the applicant expressed her willingness to leave the Kėdainiai Home and stated that she was being kept and treated there by force. She submitted that she would prefer to live at her adoptive father’s home and to attend a day centre ( lankys dienos užimtumo centrą ). The applicant also argued that D.G. had been forced to surrender her duties as her guardian and to allow the applicant’s adoptive father to become her guardian because of pressure from him with the aim of transferring the applicant’s flat to him. The applicant also noted that in the Kėdainiai Home she was cut off from society and had been deprived of the opportunity to make telephone calls. Her friends could not visit her and she was not allowed to go to the cinema. In the Kėdainiai Home “she was isolated and saw only a fence”. The other parties to the proceedings opposed the applicant’s wish that the guardianship proceedings be reopened. 42. In her application to the Court, the applicant alleged that during a break in the hearing she had been ordered to follow the judge to her private office. When the applicant had refused, she had been threatened with restraint by psychiatric personnel. In private, the judge had instructed her not to say anything negative about her adoptive father and that, should she not comply, her friend D.G. would also be declared legally incapacitated. As stated in D.G.’s letter seeking rectification of the transcript (paragraph 39 above), after the break was announced the applicant had wished to stay in the hearing room. However, she had been taken away and had returned very depressed ( prislėgta ). Responding to a question by the judge as to her guardianship, the applicant replied: “I agree that [my adoptive father] should be my guardian, because God asks that people be forgiving. I just wish that he [would] take me [away] from [the Kėdainiai Home] to Kaunas, to his place... and let me see D.G. and my friends”. 43. It appears from the transcript of the hearing that after the break, when giving her submissions to the court, the applicant agreed to keep her adoptive father as guardian, but insisted on being released from institutional care in order to live with her adoptive father. The relevant State institutions – the Kėdainiai Home, the Kaunas Psychiatric Hospital, the prosecutor, the Social Services Department of Kaunas City Council – and the applicant’s guardian’s lawyer each argued that the applicant’s request for reopening was clearly unfounded and should be dismissed. 44. On 17 November 2005 the Kaunas City District Court refused to reopen the guardianship proceedings on the basis of Article 366 § 1 (6) of the Code of Civil Procedure, ruling that there were no grounds to change the guardian (see Relevant domestic law part below). The court noted that before appointing the applicant’s adoptive father as her guardian, the Kaunas City Council Department of Health had prepared a report on the proposed appointment of the applicant’s guardian and had questioned the applicant, who had not been able to provide an objective opinion about that appointment. The court confirmed that the applicant had not been summoned to the hearing of 21 January 2004, when her guardian was appointed, as the court had taken into consideration the applicant’s mental state and, on the basis of the findings of the relevant health care officials, had not considered her involvement in the hearing necessary. The court further noted that the findings had disclosed tense relations between the applicant and her adoptive father. Even so, the applicant’s adoptive father had been duly performing his duties. The court also referred to statements of the representatives of the Kaunas Psychiatric Hospital and the director of the Kėdainiai Home to the effect that the applicant’s contact with D.G. had had a negative influence on her mental health. 45. The Kaunas City District Court proceeded to fine D.G. 1,000 Lithuanian litai (LTL) (approximately 290 euros (EUR)) for abuse of process. It noted that D.G. had filed numerous complaints before various State institutions and the courts of alleged violations of the applicant’s rights. Those complaints had prompted several inquiries which had revealed a lack of substantiation. The court noted: “... by such an abuse of rights, [D.G.] caused damage to the State, namely the waste of time and money of the court and the participants in the proceedings. The court concludes that [D.G.] has abused her rights ... and the vulnerability of the incapacitated person”. 46. D.G. appealed against the above decision. She noted, inter alia, that the 21 January 2004 ruling to appoint the applicant’s adoptive father as her guardian had been adopted by judge R.A. The same judge had dismissed the applicant’s request that the court proceedings be reopened, although this was explicitly prohibited by Article 370 § 5 of the Code of Civil Procedure. The applicant also submitted a brief in support of D.G.’s appeal, arguing that persons admitted to psychiatric institutions should have a right to know the reasons for their admission. Moreover, they should be able to contact a lawyer who is independent from the institution to which they have been admitted. 47. The appeal by D.G. was dismissed by the Kaunas Regional Court on 7 February 2006 in written proceedings. The court did not rule on the plea that the district court judge R.A. had been partial. 48. On 11 May 2006 the Supreme Court declared D.G.’s subsequent appeal on points of law inadmissible, as it had not been submitted by a lawyer and raised no important legal issues. 49. By a ruling of 7 February 2007 the Kaunas City District Court, following a public hearing attended by social services representatives and the applicant’s legal guardian, granted the guardian’s request to be relieved from the duties of guardian and property administrator. The applicant’s adoptive father had argued that he was no longer fit to be her guardian because of his old age (seventy-seven years at that time) and state of health. The Kėdainiai Home was appointed temporary guardian and property administrator. The applicant was not present at the hearing. 50. On 25 April 2007, the Kaunas City District Court held a public hearing and appointed the Kėdainiai Home as the applicant’s permanent guardian and administrator of her property rights. The applicant was not present at that hearing; the court did not give reasons for her absence. 3. Criminal inquiry 51. On 1 February 2006 a criminal inquiry was opened on the initiative of some of the applicant’s acquaintances, who alleged that the applicant had been the victim of Soviet-style classification of illnesses which was designed to repress those who fall foul of the regime. The complainants submitted that, as a result of the persistent diagnoses of schizophrenia, the applicant had been unlawfully deprived of her liberty, had been ill-treated and had been overmedicated in the Kėdainiai Home, and that her property rights had been violated by her guardian. 52. On 31 July 2006 the investigation was discontinued, no evidence having been found of an abuse of the applicant’s interests, either pecuniary or personal. It was established that the immovable property belonging to the applicant had been let to a third person, with the proceeds used to satisfy the applicant’s needs. The applicant had had a bank account opened in her name on 6 October 2005, and the deposit made on that date had since been left untouched. Moreover, the applicant’s guardian had transferred to her account the sum received from the sale of their common property. There was thus no indication that the applicant’s adoptive father had abused his position as guardian. 53. As regards the deprivation of the applicant’s liberty, the prosecutor noted that the applicant had been admitted to an institutional care facility in accordance with the applicable legislation. The prosecutor acknowledged that the freedom of the applicant “to choose her place of residence [was] restricted ( laisvė pasirinkti buvimo vietą yra ribojama )”, but further noted that she was: “... constrained to an extent no greater than necessary in order to take due care of her as a legally incapacitated person. The guardian of [the applicant] can change her place of residence without first obtaining a separate official decision; she is not unlawfully hospitalised. Therefore, her placement in the Kėdainiai Home cannot be classified as an unlawful deprivation of liberty, punishable under Article 146 § 2 (3) of the Criminal Code”. 54. The prosecutor had also conducted an inquiry into an incident which had occurred at the Kėdainiai Home on 25 January 2005. After questioning the personnel of the Home, it was established that on that day the applicant had been placed in the intensive supervision ward ( intensyvaus stebėjimo kambarys ), had been given an additional dose of tranquilisers (2 mg of Haloperidol) and had been tied down ( fiksuota ) for fifteen to thirty minutes by social care staff. 55. The prosecutor noted the explanation of the psychiatrist at the Home, who admitted that the applicant’s restraint had been carried out in breach of the applicable rules, without the approval of medical personnel. However, after having read written reports on the incident produced by the social care personnel, he considered the tying down to have been undertaken in order to save the applicant’s life and not in breach of her rights. 56. Questioned by the prosecution as witnesses, social workers at the Kėdainiai Home testified that 25 January 2005 had been the only occasion on which the applicant had been physically restrained and placed in isolation. The measures had only been taken because at that particular time the applicant had shown suicidal tendencies. 57. The prosecutor concluded that the submissions made by the complainants were insufficient to find that the applicant’s right to liberty had been violated by unnecessary restraint or that she had suffered degrading treatment. 58. On 30 August 2006 the higher prosecutor upheld that decision. 4. Complaints to other authorities 59. With the assistance of D.G., the applicant addressed a number of complaints to various State authorities. 60. On 30 July 2004, in reply to a police inquiry into the applicant’s complaint of unlawful detention in the Kėdainiai Home, the Kaunas City Council Social Services department wrote that “[in] the last couple of years, relations between the applicant and her adoptive father have been tense. Therefore, on the wish of both of them, until 21 January 2004 [the applicant’s] legal guardian was D.G. and not her adoptive father”. 61. The Ministry of Social Affairs also commissioned an inquiry, including conducting an examination of the applicant’s living conditions at the Kėdainiai Home and interviews with the applicant and the management of the Home. The commission established that the applicant’s living conditions were not exemplary ( nėra labai geros ), but it was promised that the inhabitants would soon move to new premises with better conditions. However, it was noted that the applicant received adequate care. The commission opined that it was advisable not to disturb the applicant, given her vulnerability and instability. It was also emphasised that the State authorities were under an obligation to be diligent as regards supervision of how the guardians use their rights. 62. On 6 January 2005 D.G. filed a complaint with the police, alleging that the applicant had been unlawfully deprived of her liberty and of contact with people from outside the Kėdainiai Home. By letter of 28 February 2005, the police replied that no violation of the applicant’s rights had been found. They explained that, in accordance with the internal rules of the Kėdainiai Home, residents could be visited by their relatives and guardians, but other people required the approval of the management. At the request of the applicant’s guardian, the management had prohibited other people from visiting her. 63. On 17 May 2005 upon the inspection performed by food safety authorities out-of-date frozen meat (best before 12 May 2005) was found in the Kėdainiai Home. However, there was no indication that that meat would have been used for cooking. On 20 February 2006 the Kaunas City Governor’s office inspected the applicant’s living conditions in Kėdainiai and found no evidence that she could have been receiving food of bad quality. 64. On 28 April 2006 the applicant complained to the Ministry of Health about her admission to long-term care. By letter of 12 May 2006, the Ministry noted that no court decision to hospitalise the applicant had been issued, and that she had been admitted to the Kėdainiai Home after her adoptive father had entrusted that institution with her care. 65. On 6 October 2006, the Ministry of Health and Social Services, in response to the applicant’s complaints of alleged violations of her rights, wrote to the applicant stating that it was not possible to investigate her complaints because she had left the Kėdainiai Home and her place of living was unknown. Prosecutors were in the middle of a pre-trial investigation into the circumstances of the applicant’s disappearance from where she had previously been living. 66. By a decision of 18 December 2006, the Kaunas City District prosecutor discontinued a pre-trial investigation into alleged unlawful deprivation of the applicant’s liberty. | Suffering from schizophrenia, the applicant was legally incapacitated in 2000. Her adoptive father was subsequently appointed her legal guardian and, at his request, she was interned in June 2004. She was then placed in a care home where she remains to date. The applicant complained in particular about being admitted to this care home without her consent and without possibility of judicial review. |
345 | Rape and sexual abuse | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1977 and lives in Sofia. 6. On 19 September 1999 the applicant, then a 22 -year-old student, left Sofia for Blagoevgrad in a vehicle with two young men, B.Z. and S.P., and another young woman whom she frequented at the time and whose acquaintance she had made through one of her close friends, H.I. During the journey the two men told her that they intended to “sell” her as a prostitute to people with whom they were in contact in Blagoevgrad, and then to “take her back” after receiving the money. The applicant refused, but was threatened by B.Z. On their arrival at Blagoevgrad the group met a number of people in various cafés in the town; those people were apparently involved in prostitution rings abroad and discussed with B.Z. and S.P. sending the applicant to Greece, Italy or Macedonia to work as a prostitute and her alleged experience in the trade. The applicant was told that three of the men they had met were police officers. The applicant was then taken to a flat where she was held against her will and repeatedly beaten and raped by several men for about 48 hours, following which she managed to escape and found refuge in a neighbouring apartment block where occupants called the police. 7. During her first police interview the applicant attempted to throw herself out of the window and was then admitted to a psychiatric hospital. She subsequently received psychological counselling. 8. A criminal investigation was instituted by the Blagoevgrad District Public Prosecutor ’ s Office for abduction and false imprisonment; abduction for the purposes of coercing into prostitution; and rape. The applicant identified some of her assailants and two police officers whom the group had met prior to holding her against her will. She stated that the men were part of a criminal gang involved in human trafficking who wanted to force her into prostitution in western Europe. 9. In an order of 19 October 1999 the Blagoevgrad military prosecutor considered that there was insufficient evidence to prosecute the two police officers, Z.B. and Y.G., who had been charged with abduction, and discontinued the proceedings against them. The prosecutor observed, in particular, that after initially identifying the police officers, the applicant had not subsequently claimed that they had taken part in her abduction and false imprisonment. The prosecutor ’ s order was amenable to appeal, but the applicant does not appear to have lodged one. 10. During 1999 and 2000 several people involved were questioned, and an expert medical report was drawn up. The investigation was closed and the case sent to the prosecutor for a decision regarding committal for trial. However, on 12 April 2001 the prosecutor decided to send the case back for further investigation on the grounds that irregularities had been committed and further evidence was required regarding the involvement of H.I. and another individual, G.M. Subsequently the case was returned three more times for further investigation. In an order of 2 November 2001, the prosecutor found that the investigator had failed to carry out any investigative measures since the case had been sent back. He also noted a number of irregularities in the charges against the various defendants, such as wrong dates, inaccurate legal classifications or inconsistencies between the facts set out and the legal classification retained. The prosecutor also noted that the investigation had been carried out in the absence of one of the defendants without a duty lawyer being appointed and that some of the charges had to be amended, to take account, inter alia, of the fact that the applicant had attempted to commit suicide, which was an aggravating circumstance. In an order of 16 October 2002, the prosecutor noted that no measures had been carried out in accordance with his previous decision. In a further order of 12 March 2004, he observed that the instructions given had not been followed in their entirety, and in particular that the charges had not been amended. 11. The investigation was closed again and sent to the prosecutor on l3 November 2005. On 23 December 2005 the prosecutor decided to discontinue the proceedings against H.I. and G.M., who had been prosecuted for abduction for the purposes of coercing into prostitution and incitement to prostitution respectively, on the grounds that the offences had not been made out. On appeal by the applicant, that decision was set aside by the court on 29 March 2006. 12. The investigation was closed in May 2007 and the applicant was served with the investigation file. She then requested that one of the men she had identified from a photo, Y.Y.G., also be charged with rape. Her request was rejected on 7 June 2007 by the district prosecutor, who considered that there was insufficient evidence against him, the applicant ’ s statement being the only basis for implicating him in the attack. On 26 June 2007 part of the investigation, which concerned the offences of which the applicant accused Y.Y.G. and K.M., was severed from the main proceedings and fresh proceedings brought against persons unknown. On 12 September 2007 the Blagoevgrad appellate prosecutor ’ s office upheld the decision not to charge Y.Y.G., noting that if new evidence were to emerge, the investigators could bring further charges in the proceedings against persons unknown. On 15 February 2008 those proceedings were stayed, on the ground that the perpetrators had not been identified. 13. On an unspecified date in 2007 seven defendants were committed for trial in the Blagoevgrad District Court on charges of false imprisonment, rape, incitement to prostitution or abduction for the purposes of coercing into prostitution. 14. On 5 December 2007 the applicant sought leave to join the proceedings as a private prosecutor and civil party seeking damages. The court granted the application at a hearing held on 9 May 2008. 15. The Blagoevgrad District Court held 22 hearings. About ten of these were adjourned, mainly because the defendants or witnesses had not been properly summoned. The trial took place in the absence of one of the defendants, S.P., whom the authorities had been unable to find. 16. In a judgment of 27 March 2012, the court convicted L.D. and M.K. of gang rape, aggravated by the fact that the victim had attempted to commit suicide, and false imprisonment with aggravated circumstances. They were sentenced to six years ’ imprisonment. B.Z. and S.P. were convicted of abducting the applicant for the purposes of coercing her into prostitution and sentenced to six and four years ’ imprisonment respectively. S.D. was convicted of false imprisonment and sentenced to a fine of 3, 000 levs (BGN). The court found that the offence of incitement to prostitution for which G.M. was being prosecuted was time-barred in accordance with the absolute limitation period and discontinued the proceedings against him. Lastly, it found H.I. not guilty of abduction for the purposes of coercing into prostitution on the grounds that the offence had not been made out as H.I. had not been present at the material time. The five defendants who had been convicted were ordered to pay the applicant damages, and the claim against the other two defendants was rejected. 17. The five defendants who had been convicted appealed. The applicant appealed only against the part of the judgment concerning S.D., requesting the imposition of a heavier sentence and an increase in the amount awarded in damages. 18. Seven hearings before the Blagoevgrad Regional Court were adjourned on account of the absence of one of the accused or their lawyers. The first hearing on the merits took place on 8 November 2013. As two of the defendants, S.P. and G.M. had not appeared, the court decided to examine the case in their absence. 19. In a final judgment of 11 February 2 014, the court set aside S.D. ’ s conviction and terminated the proceedings against him on the grounds that they had become irrevocably time-barred. It amended the judgment concerning the other defendants : the classification of the offence of which L.D. and M.K. had been convicted was slightly amended and their sentence reduced to five years ’ imprisonment. The sentence imposed on B.Z. was reduced to three years ’ imprisonment and S.P. ’ s four-year prison sentence was upheld. 20. The court also reduced the amounts awarded to the applicant in non-pecuniary damages. It awarded the applicant a total amount of BGN 39, 000, which was the equivalent of approximately 20, 000 euros (EUR), ordering L.D. and M.K. to pay the applicant BGN 15, 000 each, and B.Z, S.P. and S.D. to pay her BGN 4, 000, BGN 3 ,000 and BGN 2, 000 respectively. 21. During the judicial proceedings the applicant, who was living in Sofia, had to travel to Blagoevgrad on numerous occasions to attend hearings. She was called to the witness stand seven times. According to a medical opinion produced by the applicant, each summons to appear before the court had adversely affected her psychological condition. ... | The applicant complained in particular of the ineffectiveness of the criminal proceedings for the false imprisonment, assault, rape and trafficking in human beings perpetrated against her. She complained in particular of the lack of an investigation into the possible involvement of two police officers and the failure to prosecute two of her assailants, and of the excessive length of time taken to investigate and try the case. She also submitted that the excessive length of the criminal proceedings, in as far as they concerned her claim for damages, had infringed the requirements the right to a fair hearing within a reasonable time. She submitted, lastly, that her case was illustrative of a certain number of recurring problems regarding the ineffectiveness of criminal proceedings in Bulgaria. |
489 | Calculation of a disability allowance | I. THE CIRCUMSTANCES OF THE CASE 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. The applicant was born in 1977 in Uznach and lives in Rapperswil ‑ Jona, in the Canton of St Gallen. 9. After originally training to be a hairdresser the applicant took up full ‑ time work as a shop assistant. In June 2002 she was forced to stop work owing to back trouble. 10. On 24 October 2003 the applicant applied to the Disability Insurance Office of the Canton of St Gallen (“the Office”) for a disability benefit on account of her lower back and spinal pain. 11. On 6 February 2004 she gave birth to twins. Her back pain had worsened further during the pregnancy. 12. On 15 March 2005 the Office carried out a household assessment ( Abklärung im Haushalt ) at the applicant ’ s home, during which the applicant stated (i) that she suffered from constant back pain which often extended down to her left foot; that she had particular difficulty standing in the same place for any length of time and could not remain seated for more than ten minutes; that she could walk for half an hour, but not on a daily basis; and that the pain became worse when she was carrying the children; (ii) that she would have to work half - time for financial reasons since her husband ’ s net salary was just 3,700 Swiss francs (CHF) (approximately 3,602 euros (EUR) ). The report on the assessment concluded that the applicant ’ s capacity to perform household tasks was reduced by 44.6%. In its report dated 2 May 2005 the Office found that the applicant should be classified (i) as a person in full-time paid employment ( Vollerwerbstätige ) up to the end of 2003; (ii) as a housewife ( Hausfrau ) between January and May 2004; (iii) as a person theoretically capable of working 50% ( zu 50 % hypothetisch Erwerbstätige ) as of June 2004. 13. On 16 June 2005 Dr Ch.A.S. informed the Office that the applicant was unable to work more than half - time in a suitable occupation and that any increase in her working hours appeared to be ruled out. 14. In a decision of 26 May 2006 the Office found that the applicant should be granted a benefit for the period from 1 June 2003 to 31 August 2004, but did not qualify for any benefit from 1 September 2004 onwards. The Office arrived at this result by the following means. With regard to the period from 20 June 2002 until the end of May 2004, it assessed the applicant ’ s degree of disability at 50% on the basis of a calculation of her income. As to the subsequent period, the Office considered that the so ‑ called combined method should be applied, taking the view that even if she had not had a disability the applicant would have reduced her working hours following the birth of her children. It based that finding, in particular, on the applicant ’ s assertion that she felt able to work only half - time and wished to devote the remainder of her time to her household tasks and her children. Furthermore, on the basis of the household assessment referred to above, the Office estimated the applicant ’ s capacity to perform household tasks at 56% (that is to say, her degree of disability at 44%). When the formula set out below was applied, the degree of disability obtained on the basis of these various factors was only 22%, meaning that the applicant did not reach the minimum 40% degree of disability needed to trigger entitlement to a benefit : 50 % ( paid employment ) : no loss of earnings 0. 5 x 0 % = 0 % 50 % ( household tasks and childcare) : 0. 5 x 44 % = 22 % Total [1] = 22 % 15. The applicant lodged a complaint with the Office, which was dismissed on 14 July 2006. Following a fresh calculation the Office recognised the applicant as having a 27% disability, still below the minimum required in order to qualify for a benefit. This figure was obtained by applying the combined method, using the following parameters: 50 % ( paid employment ) : 0. 5 x 10 % = 5 % 50 % ( household tasks and childcare): 0. 5 x 44 % = 22 % Total [2] = 27 % In completing the first line of the formula, the Office took as a basis a hypothetical income (for full-time work) of CHF 48,585 (approximately EUR 47,308), calculated on the basis of the statistical data for the socio ‑ professional category to which the applicant, as an auxiliary worker ( Hilfsarbeiterin ), belonged. Working at a rate of 50%, the applicant would therefore have had a salary of CHF 24,293 if she had been able to continue working without any difficulty ( Valideneinkommen ). The Office estimated that, given her disability, the salary which the applicant would actually be able to earn in a suitable occupation would be CHF 21,863 ( Invalideneinkommen ). It therefore assessed the applicant ’ s degree of disability in respect of the “ paid employment ” component at 10%. 16. On 14 September 2006 the applicant appealed against that decision. Relying on Article 14 of the Convention, read in conjunction with Article 8, the applicant argued that (i) the method applied discriminated against the less well-off, as those persons who could afford not to do paid work were classified simply as housewives and could therefore be recognised as having a higher degree of disability and thus qualify more easily for a benefit; (ii) the way in which the degree of disability was calculated did not take sufficient account of the interplay ( Wechselwirkungen ) between the “household” and “ paid employment ” components; (iii) in reality, even if she only worked half-time, her degree of disability for the purposes of performing household tasks would increase well beyond 44% as a result. 17. In support of her appeal the applicant submitted a medical report issued by Dr Ch.A.S. on 28 September 2006, in which the latter stated in substance that, in view of her state of health, the applicant could not engage in paid work on a half-time basis in the same way as someone without a disability, and that if she had to take up paid employment, her capacity to take care of the household and of her children would drop to around 10%. 18. In a judgment of 30 November 2007 the Insurance Court of the Canton of St Gallen allowed the applicant ’ s appeal in part. In a departure from the case-law of the Federal Court ..., it considered that the usual application of the combined method should be disregarded in favour of an “improved” version. In the court ’ s view, the basis for calculation should be the level of activity which the applicant might reasonably have resumed after the birth of her twins if she had not had health problems. The Insurance Court found that the “household” component of the combined method, as that method was applied in the Federal Court ’ s case ‑ law, did not take sufficient account of the person ’ s disability. According to the court, the Office had not taken into consideration the fact that the applicant could only take care of the household on a half-time basis, and had incorrectly calculated her incapacity for work on the basis of a twelve-hour working day. Instead of taking as a basis the household assessment – which, in the Insurance Court ’ s view, should be applicable only to individuals who were engaged full-time in caring for the household – the Office should have examined the applicant ’ s actual capacity to perform household tasks, which had been established by a doctor. The court also criticised the Office for not examining whether, if she had been in good health, the applicant would have been able to engage in paid work after the birth of her children. In particular, it noted that the report drawn up following the household assessment gave scant information as to the work entailed for the applicant in caring for her children ( Betreuungsaufwand ) and whether or not any possibilities existed for entrusting part of their care to other persons. As these factors had not been taken into consideration by the Office, the applicant ’ s degree of disability had been established on the basis of an incomplete set of facts. The court also considered it unlikely that the applicant would have worked only half ‑ time if she had been in good health, given her husband ’ s modest salary and what she could reasonably expect to earn as a hairdresser or auxiliary worker. The household assessment therefore appeared to be deficient in that respect also. Consequently, the Insurance Court remitted the case to the Office for further investigation. 19. The Office lodged an appeal against the Insurance Court judgment. 20. In a judgment of 28 July 2008 (9C_49/2008) the Federal Court allowed the Office ’ s appeal, finding that the applicant was not eligible for a benefit. In its reasoning the Federal Court began by describing the context in which it viewed the case, stating that (i) the aim of disability insurance was to provide cover for insured persons against the risk of becoming unable, for medical reasons, to carry on a paid occupation or perform household tasks which they had actually been able to carry out before becoming disabled and would still be able to perform if the event triggering the disability had not occurred; (ii) the aim was not to provide compensation in respect of activities which the insured persons would never have carried out even if they had remained in good health; (iii) this approach was designed to prevent situations in which, for instance, individuals who were well-off and had never previously worked could be recognised as having a disability if they developed health problems, even though they would probably never have worked had they remained in good health. 21. Accordingly, the Federal Court considered that the combined method was not discriminatory. It found as follows: “ 3.4 ... It is true that the combined method, as applied by the [Federal] Court in its settled case-law, may result in a loss of benefit where the insured person is more than likely – generally on account of the birth of a child – to cease paid employment, at least on a full-time basis. However, it is not the disability that [then] causes the loss of income; many people in good health also suffer a loss of income when they reduce their hours or stop working. The criticism of the combined method is directed at the fact that individuals (mostly women) suffer a drop in earnings when they reduce their working hours after having children. Nevertheless, this sociological reality is not the result of factors linked to the person ’ s health and should not therefore be covered by the disability insurance scheme. It does not give rise to any discrimination or other breach of the European Convention on Human Rights.” Nevertheless, the Federal Court conceded that the interplay between the “household” and “ paid employment ” aspects was not taken sufficiently into account in the combined method. With regard to the applicant, however, it found (i) that the aggravation of her health problems as a result of her paid work should not be regarded as reducing her capacity to perform household tasks by more than 15%; (ii) that, accordingly, even taking the interplay in question into account, the applicant ’ s degree of disability did not reach the 40% minimum required in order to qualify for a benefit : 50 % ( paid employment ) : 0. 5 x 10 % = 5 % 50 % ( household tasks ) : 0. 5 x (44 + 15 %) = 29. 5 % Total [3] = 34. 5 % The argument that her husband was unemployed, which was raised by the applicant for the first time before the Federal Court, was rejected on the grounds that it had not been relied upon in the court below and was not substantiated. However, the Federal Court granted the applicant legal aid in view of her lack of means. ... | The applicant originally worked full time but had to give up work in June 2002 because of back problems. She was granted a 50% disability allowance for the period from June 2002 until the birth of her twins. The allowance was later stopped owing to the application of the “combined method”, which presupposed that even if she had not had a disability the applicant would not have worked full time after the birth of her children. She complained that she had been discriminated against on account of her sex. |
238 | Persons arrested or under criminal prosecution | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1960 and lives in Murmansk. At the material time the applicant was an elected member of the Murmansk regional legislature ( the “ Murmansk Duma”). A. The applicant ’ s apprehension and subsequent events 5. At about 1.30 p.m. on 27 April 2003, some police officers stopped the applicant on suspicion of drunk driving and took him to the Severomorsk police station. At the station the applicant became agitated, verbally abusing police officers, grabbing them by the clothing and hitting them. He was then handcuffed. 6. As the applicant initially refused to give his name, police officers searched his clothing and found an identity card showing him to be a member of the Murmansk Duma. The applicant confirmed that he was a member of the regional legislature. His handcuffs were removed. The chief of the police station, who was away from the station at the time, phoned the duty officer and instructed him to invite the applicant to take an alcohol test and, should he refuse, to prepare a report on his refusal and arrange for his release. The applicant refused to make any statements and continued to behave in an unruly manner, pulling at the officers ’ clothing and throwing his shoes at them. The police officers repeatedly asked the applicant to leave the station but he refused to go unless the mayor and the chairman of the Murmansk Duma came to see him. 7. At 2.30 p.m. the police chief arrived and invited everyone into his office. The applicant verbally abused him and the other police officers, claiming that his arrest had been politically motivated. He again refused to take an alcohol test. 8. In connection with the applicant ’ s “inadequate behaviour”, the police chief decided to record the applicant ’ s actions on video. To that end, he got in touch with a cameraman from the Murman State television and radio broadcasting company ( ГТРК « Мурман » ) and asked him to come to the station with his camera. A few minutes later the cameraman arrived and started filming in the police chief ’ s office. The applicant repeated on camera the same allegations he had made earlier against the police and refused to take an alcohol test. The police chief again told him that he was free to leave but the applicant instead sat at the duty officer ’ s desk, taking out a drawer and throwing its contents onto the floor. Some of the events were captured on camera by the cameraman, who remained at the police station until 4.30 p.m. 9. At 5.30 p.m. a presenter and a cameraman from Northern Fleet television ( телевидение Северного Флота ) arrived at the station. Upon receiving an official authorisation from the police chief, they started filming the applicant, who was still sitting at the desk dishevelled, without shoes on and with his feet on the table, making calls on his mobile phone. The television crew interviewed the police chief and asked the applicant to make a statement but he declined. They stayed at the station for approximately forty minutes. 10. The applicant ’ s assistant then arrived and called an ambulance for him. However, when it turned up, the applicant refused to get in it with the doctor to go to the town hospital. The Murmansk regional prosecutor, who arrived at about 7.30 p.m., formally informed the applicant that he was free to go and that he could leave immediately. After the applicant refused to leave and ignored further warnings against him if he did not do so, he was escorted out by two police officers. 11. The following day, Murman included in its news programme extracts from the footage filmed at the police station. The same extracts were broadcast by the Blits, TV-21 and North-West Broadcasting television companies. 12. Following a medical examination on 30 April 2003, the applicant was diagnosed as having sustained minor bodily injuries, including bruises and scratches on his face and body. He requested the Murmansk regional prosecutor to institute criminal proceedings against the police officers for ill-treatment and abuse of power. Having investigated the above events, on 7 May 2003 the prosecutor rejected the applicant ’ s request. The decision was upheld on 24 May 2004 by the Severomorsk Town Court as well-founded. The applicant did not challenge that judgment before the Regional Court. 13. On 20 May 2003 the regional prosecutor appeared before the Murmansk Duma to deliver the results of the investigation into the applicant ’ s allegations of ill-treatment. He offered to show the footage filmed at the police station on 27 April 2003. Some members refused to watch the videotape but others agreed to it being shown. They watched the videotape in the private office of one member of parliament. B. Civil proceedings concerning the broadcasting of the footage 14. On an unspecified date the applicant lodged a civil claim against the Severomorsk police chief, the Murmansk regional prosecutor, the State-owned television company Murman and the Blitz, TV-21 and North-West Broadcasting companies, seeking to have the videotaping and subsequent broadcasts declared unlawful and claiming compensation in respect of non-pecuniary damage as a result of the interference with his private life. 15. On 11 November 2003 the Pervomayskiy District Court of Murmansk rejected the claim. The court found that the broadcasting of the footage could not be attributed to the police chief. The latter confirmed that he had invited the cameraman to the station after the applicant had introduced himself; however, he had not ordered the footage to be broadcast. He also confirmed that the applicant had not realised that he was being filmed as he had been under the influence of alcohol. The court decided that the filming was justified under section 11(15) of the Police Act, as the applicant had refused to produce his identity documents. The court also stated that the footage had not concerned the applicant ’ s private life but the offences he had committed. 16. The court further found that Murman had acted in compliance with section 38 of the Mass Media Act, which provided for the right of citizens to receive information about the activity of public officials. The court also referred to section 50 of the same Act in so far as it allowed the dissemination of that type of material under special circumstances; however, it found that the film had not been disseminated. During the proceedings the applicant withdrew his claim against North-West Broadcasting, and the court found that Blitz and TV-21 could not be held liable by virtue of section 57(6) of the Mass Media Act as they had simply reproduced the footage broadcast by Murman. 17. The court also found that the regional prosecutor had lawfully reported to the Murmansk Duma members, on 20 May 2003, about the findings of the inquiry into the applicant ’ s allegations of ill-treatment. In so doing, he did not breach any legal provision, so the plaintiff had no cause of action against him. 18. The applicant appealed against that judgment. He challenged, in particular, the court ’ s finding that the videotaping had been justified under section 11(15) of the Police Act. The defendants confirmed during the trial that they had obtained the applicant ’ s identity documents immediately after his arrest and that it would not have been necessary to film him for identification purposes. The applicant also stated that his right to respect for his private life had been violated as the footage had been broadcast without his consent. 19. On 24 March 2004 the Murmansk Regional Court upheld the judgment summarily. C. Administrative proceedings against the applicant 20. On 27 April 2003 police officers filed with Severomorsk Town Court the administrative offence reports, according to which the applicant had committed offences under Articles 12.26 (“Driver ’ s refusal to take an alcohol test”), 19.3 (“Persistent refusal to obey lawful police orders”) and 20.1 (“ Minor disorderly acts ”) of the Code of Administrative Offences. 21. On 14 May 2003 the Town Court found the applicant guilty of the above-mentioned offences and fined him 1,500 Russian roubles (RUB). With respect to the latter charge of minor disorderly acts, the Town Court gave the following description of the offence: “On 27 April 2003, at about 2 p.m. Mr Khmel, being in a public place – the premises of the Severomorsk police station – in the presence of police officers and other members of the public, uttered obscenities and disregarded repeated demands by the police officers to stop his unlawful behaviour, thereby committing minor disorderly acts ... His behaviour demonstrated an obvious disrespect for people in positions of authority in the performance of their duties, which has been confirmed by the police officers K., S., U., P., G. and M. ” The Town Court made findings of fact on the basis of the written statements by the police officers and other witnesses and the administrative offences reports of 27 April 2003. Its judgment did not mention any video footage. 22. On 27 May 2003 the Murmansk Regional Court upheld the judgment, rejecting an appeal by the applicant on procedural grounds. D. Criminal proceedings against the applicant 23. As the applicant was a member of the Murmansk Duma, in accordance with a special procedure set out in the Code of Criminal Procedure, on 16 July 2003 the Murmansk regional prosecutor requested the Murmansk Regional Court to determine whether there was any indication that the applicant had committed offences punishable under Article 318 § 1 (threatening violence against a public official) and Article 319 (insulting a public official) of the Criminal Code. 24. On 19 November 2003 the Regional Court concluded that the applicant ’ s behaviour had contained elements of the above -mentioned offences and allowed criminal proceedings against him to be instituted. 25. In the course of the proceedings the applicant was represented by a lawyer of his own choosing, S. During the five days of the trial S. was ill and the court replaced him with lawyers A. and L. without having obtained the applicant ’ s consent. 26. On 8 August 2005 the Severomorsk Town Court convicted the applicant of threatening violence against a public official ( Article 318 § 1) and insulting a public official (Article 319). The evidence before the court included the statements by the victims and the witnesses, the footage recorded at the police station on 27 April 2003 and administrative offences reports. 27. The Town Court fined the applicant RUB 7,500 under Article 319 but exempted him from criminal liability under that provision as the charges had become time-barred. Under Article 318 § 1 the applicant was fined RUB 30,000. The relevant parts of the judgment read as follows: “ On 27 April 2003 ... while at the police station, Mr Khmel ... uttered many obscenities to [the police officers] P. and S. ... repeatedly asked to leave the police station, Mr Khmel responded with obscene insults to the duty officer M. ... Mr Khmel kicked the officer T. twice in the stomach, causing him visible pain, then pulled at his epaulette and tore it off. This action was accompanied by obscene insults towards T., undermining his honour and dignity as a person in a position of authority ... Talking to the police chief, K., in his office in the presence of his subordinate officers, Mr Khmel, ... insulted and humiliated him, uttering obscenities which caused damage to his dignity and honour and undermined his authority ... When the road traffic officer G. again requested Mr Khmel to take an alcohol test, Mr Khmel uttered obscenities to him ... ” 28. On 29 September 2005 the Murmansk Regional Court upheld the judgment on appeal. | At the time of the facts, the applicant was a member of the Murmansk regional legislature. He was taken to a police station on suspicion of drunk driving. He refused to give his name, behaved in an unruly manner and would not leave the building when asked to do so. The police chief invited television crews to the station, and that afternoon the applicant was filmed whilst in a dishevelled state and acting inappropriately. Some of the footage was broadcast on public television the next day. Administrative and criminal proceedings were later brought against him for his actions on the day he was filmed. The applicant complained in particular of the filming of him at the police station and the broadcasting of the footage, which he claimed to be unlawful. |
945 | Freedom of expression | 2. The applicant was born in 1965 and lives in Skriaudžiai, in the Prienai Region. She was represented by Ms A. Ručienė, a lawyer practising in Kaunas. 3. The Government were represented by their Agent, Ms K. Bubnytė ‑ Širmenė. 4. The domestic proceedings giving rise to the present application stemmed from the same facts as those described in Stankūnaitė v. Lithuania (no. 67068/11, §§ 7-9, 18-29 and 109, 29 October 2019). Pre-trial investigation into allegations of sexual abuse of a minor 5. In November 2008 D.K. submitted a complaint to the Kaunas police, alleging that his daughter, who was a minor, had been sexually abused by several individuals in the presence of her mother, L.S. On 30 November 2008 the police opened a pre-trial investigation. 6. In December 2008 and January 2009 the investigation was carried out by the police and supervised by G.R., a prosecutor of the Kaunas City District Prosecutor ’ s Office (hereinafter “the KCDPO”). 7. On 29 December 2008 A.Ū., the girl ’ s godfather and a former adviser to the Speaker of the Seimas (the Lithuanian Parliament), was served with an official notice that he was suspected of sexual abuse of a minor. 8. In January 2009 the Kaunas Regional Prosecutor ’ s Office carried out a review of the conduct of the investigation by the police. It identified certain shortcomings and held that, in view of the complexity of the case, the investigation should be taken over by the KCDPO and entrusted to a qualified prosecutor. 9. The Chief Prosecutor of the KCDPO instructed the applicant, who was the Deputy Chief Prosecutor, to entrust ( pavesti ) the investigation to the prosecutor G.R. The applicant did so. From 30 January until 11 June 2009 the investigation was carried out by G.R. and supervised by the applicant. 10. In January and February 2009 the suspect, A.Ū., submitted several requests to the prosecutor, including a request to grant him access to the investigation file. G.R. dismissed his requests. A.Ū. complained about that decision to the senior prosecutor – the applicant. On 9 February 2009 the applicant allowed A.Ū. ’ s complaint in part and granted him access to the material of the investigation file which had been collected until that date, with the exception of documents and video recordings containing interviews with the minor. 11. In June 2009, after carrying out a review of the conduct of the investigation by the KCDPO and identifying certain shortcomings, the Kaunas Regional Prosecutor ’ s Office decided to take over the investigation. 12. In August 2009 the Prosecutor General ’ s Office decided that the investigation should be taken over by the Vilnius Regional Prosecutor ’ s Office, in view of the fact that D.K. had family ties to some law enforcement officers working in Kaunas. 13. Throughout the investigation D.K. lodged numerous requests with the authorities to question various individuals whom he suspected of having sexually abused his daughter, and on several occasions he provided new details of the alleged abuse which he claimed that his daughter had remembered. On an unspecified date D.K. sent to the media and other individuals filmed recordings of his daughter recounting the sexual acts allegedly performed against her. 14. In October 2009 two individuals who had been accused by D.K. of having sexually abused his daughter were fatally shot in Kaunas. One of them was L.S. ’ s sister and the other was a judge of the Kaunas Regional Court. D.K. was suspected of murdering them; he fled from the authorities, and a search warrant was issued against him. In April 2010 D.K. was found dead (ibid., § 16). 15. In June 2010 A.Ū. was found dead and the criminal proceedings against him were discontinued. They were subsequently reopened at the request of A.Ū. ’ s relatives, who sought to clear his name, and he was acquitted posthumously (ibid., §§ 26-28). Inquiry by the Prosecutor General ’ s Office 16. On 6 October 2009 the Prosecutor General ’ s Office began an inquiry into how the pre-trial investigation concerning D.K. ’ s complaints had been conducted by all the authorities involved (see paragraphs 6, 8, 11 and 12 above). The inquiry was entrusted to a commission composed of prosecutors. It was instructed to assess, inter alia, the quality, intensity and thoroughness of the investigation; whether all relevant investigative methods had been used; whether the investigation had been supervised in a qualified and responsible manner; whether the complaints received during the investigation had been dealt with properly; and whether decisions related to children ’ s rights and the protection of minors had been appropriate and justified. 17. On 12 October 2009 the commission concluded the inquiry and issued its findings, identifying multiple shortcomings at all stages of the pre-trial investigation. 18. The inquiry found that, after opening the investigation, the police had failed to act promptly and thoroughly, and the prosecutor G.R. had failed to properly supervise it. In particular, the interviews with D.K. and his daughter had been superficial and had not clarified the essential circumstances of the alleged criminal activity; the alleged location of the crime had been examined too late and the examination had not been thorough; the minor ’ s clothes had not been seized; the suspect ’ s home had not been searched; and the secret surveillance of electronic communications had been ordered too late. That had led to the loss of potentially essential evidence, and establishing the truth had become especially difficult. 19. In the view of the commission of inquiry, G.R. ’ s failure to properly supervise the work of the police and to address its multiple shortcomings gave reason to question her competence as a prosecutor. However, after the investigation had been taken over by the KCDPO, the Deputy Chief Prosecutor (the applicant) had entrusted it to G.R. (see paragraph 9 above), despite the order of the Kaunas Regional Prosecutor ’ s Office to entrust the investigation to a qualified prosecutor (see paragraph 8 above). There was no information to suggest that either the applicant or the Chief Prosecutor of the KCDPO had supervised the conduct of the investigation by G.R. or had given her any instructions. 20. It was also found that, after G.R. had dismissed A.Ū. ’ s request to be granted access to the investigation file (see paragraph 10 above), an appeal against that decision should have been lodged with the pre-trial investigation judge but not with the senior prosecutor (see paragraph 80 below). Therefore, by examining that complaint, the applicant had not acted in compliance with the law (see paragraph 10 above). In addition, by granting the suspect access to part of the investigation file, the applicant had not followed the relevant recommendations of the Prosecutor General which established the grounds for refusal of such access (see paragraph 81 below). The inquiry considered that the applicant had not properly assessed the situation. 21. Lastly, the inquiry found that various prosecutors of the Kaunas Regional Prosecutor ’ s Office and the Vilnius Regional Prosecutor ’ s Office had failed to prepare a strategy for conducting the investigation, to coordinate their actions with other institutions, and to promptly address the complaints and requests lodged by the parties to the proceedings. 22. Following the findings of the inquiry, the Prosecutor General ’ s Office opened disciplinary proceedings against several prosecutors, including the applicant. Disciplinary proceedings by the Prosecutor General ’ s Office 23. On 13 October 2009 the Prosecutor General ’ s Office informed the applicant that disciplinary proceedings had been opened against her because there were grounds to believe that she had committed disciplinary offences. In particular, she had put G.R., who had previously failed to properly supervise the pre-trial investigation, in charge of conducting that investigation; she had not supervised G.R. ’ s work and had not given her any instructions in writing; she had not taken adequate measures to ensure that the investigation was thorough and prompt; and she had unlawfully and unfoundedly granted the suspect access to the investigation file (see paragraphs 19 and 20 above). 24. On 22 October 2009 the Prosecutor General ’ s Office concluded the disciplinary proceedings against the applicant and several other prosecutors. It found that the applicant had put G.R. in charge of carrying out the investigation despite the grounds for calling her competence into question (see paragraph 19 above), and by doing so had disregarded the order of the Kaunas Regional Prosecutor ’ s Office to entrust the investigation to a qualified prosecutor (see paragraph 8 above). Furthermore, the applicant had not fulfilled her duties as a senior prosecutor: she had failed to properly supervise G.R. ’ s actions when conducting the investigation, to take note of the mistakes made by G.R. and to give her instructions in order to rectify them (see paragraphs 78 and 79 below). As a result, many of the shortcomings which had occurred at the hands of the police had not been eliminated after the transfer of the investigation to the KCDPO. Moreover, by examining the suspect ’ s complaint against G.R. ’ s decision to refuse him access to the investigation file, the applicant had overstepped her remit (see paragraph 20 above). It was concluded that the applicant had committed disciplinary offences and had thereby caused harm to the reputation of the prosecutor ’ s office and breached public trust in prosecutors. It was recommended to issue her with the disciplinary penalty of demotion. 25. It was also recommended to dismiss G.R. and to give other prosecutors various disciplinary penalties ranging from a warning to demotion. 26. On 30 October 2009 the Prosecutor General ordered the applicant ’ s demotion. On 3 November 2009 she was transferred to the post of prosecutor in the KCDPO. Parliamentary inquiry 27. In October 2009 the Parliamentary Committee on Legal Affairs (“the Committee”) asked the Prosecutor General ’ s Office to inform it what investigative measures had been taken during the pre-trial investigation into D.K. ’ s complaints, and what had been done to address the shortcomings of that investigation which had been identified. 28. On 22 October 2009 the Seimas ordered the Committee to carry out a parliamentary inquiry (see paragraphs 87 and 88 below) and to examine the following: “1. Whether the investigation into D.K. ’ s complaints was carried out in accordance with the requirements established by law; 2. Whether the aforementioned investigation was unjustifiably protracted; 3. What actions should be taken by State institutions to ensure that pre-trial investigations are conducted more expeditiously and efficiently, [and] what are the related legislative gaps.” 29. The Committee held several interviews with the Prosecutor General and examined the following documents: the findings of the disciplinary proceedings held by the Prosecutor General ’ s Office (see paragraphs 24 and 25 above); a report of another parliamentary committee on the functioning of child protection authorities; comparative reports on the conduct of pre-trial investigations and the legal status of prosecutors in other European countries; and the 2008 annual report on prosecutors ’ activities in Lithuania. 30. As submitted by the Government, the Committee ’ s meetings were not public because the inquiry was related to the ongoing pre-trial investigation. 31. On 21 January 2010 the Committee issued its report. It first examined the investigative measures which had been taken by the Kaunas police, and found them to be inadequate. The Committee stated: “The findings of the disciplinary proceedings carried out by the Prosecutor General ’ s Office ... likewise established major shortcomings in the pre-trial investigation and its insufficient prosecutorial supervision. The commission which had conducted the disciplinary inquiry found that the persons responsible for the said inaction were the prosecutor of the KCDPO who had initially supervised the pre-trial investigation and had later taken over its conduct, and the Deputy Chief Prosecutor of the KCDPO.” 32. The Committee also examined the conduct of the investigation by the KCDPO and held, inter alia, that the KCDPO “had obviously procrastinated in the investigation, because it had carried out almost no new investigative measures but had only repeated those which had been carried out previously and which had provided practically no new information of evidential value”. The Committee concluded that the KCDPO had carried out the investigation incompetently and not in accordance with the relevant legal requirements. It also found that the relevant department of the Prosecutor General ’ s Office had failed to properly supervise the KCDPO. The Committee noted that the Prosecutor General ’ s Office had also identified multiple shortcomings in the KCDPO ’ s actions and that the latter “had found that the persons responsible for the said inaction [had been] the prosecutor of the KCDPO who had initially supervised the pre-trial investigation and had later taken over its conduct, and the Deputy Chief Prosecutor of the KCDPO”. 33. The Committee similarly held that the Kaunas Regional Prosecutor ’ s Office had failed to fulfil its duties properly and that the Prosecutor General ’ s Office had failed to properly supervise it. 34. The Committee furthermore examined the legal status of the prosecutors and the legal instruments regulating pre-trial investigations. It identified some structural problems, presented an overview of comparative law material, and concluded that certain legislative amendments might be necessary. 35. The concluding part of the Committee ’ s report, in so far as relevant, read as follows: Conclusions “1. The pre-trial investigation concerning D.K. ’ s complaint and subsequent requests was conducted by the [Kaunas police] dismissively, not expeditiously, and incompetently. 2. The KCDPO, which supervised the investigation, did not take measures to speed it up, and did not carry out all available procedural and operative actions to find and establish evidence or to influence the [Kaunas police] in order to eliminate the obstacles to a proper investigation. 3. At the KCDPO the investigation was also carried out incompetently and not in compliance with the requirement of the Code of Criminal Procedure ... to complete a pre-trial investigation within the shortest possible time, and the Kaunas Regional Prosecutor ’ s Office failed to properly supervise ... compliance with that requirement. After taking over the investigation, the KCDPO obviously procrastinated because it practically did not undertake any new procedural measures which were essential at that time ... 4. Neither the Kaunas Regional Prosecutor ’ s Office ... nor the Prosecutor General ’ s Office examined who had been responsible for the shortcomings of the investigation carried out by the KCDPO; they did not determine the appropriate disciplinary penalties for the officers responsible or the structural measures necessary to ensure that pre-trial investigations at the KCDPO were carried out and supervised expeditiously and professionally. ...” Recommendations “... 2. The Prosecutor General should assess, in a principled manner, the actions of all the officers who carried out the pre-trial investigation and who supervised the prosecutors. ...” The Committee ’ s report also contained a number of conclusions and recommendations relating to general measures to be taken in order to improve the functioning of prosecutors ’ offices and child protection authorities. 36. On the same day the Seimas adopted a resolution: (1) to endorse the conclusions of the Committee (see paragraphs 31 - 35 above); (2) to find that the Prosecutor General had failed to properly organise the work of the institutions under his command and to properly fulfil his duties established by law; and (3) to find that the prosecutors of the Prosecutor General ’ s Office, the KCDPO and the Kaunas Regional Prosecutor ’ s Office who had conducted and supervised the pre-trial investigation had failed to properly carry out their functions established by law. 37. In February 2010 the Prosecutor General resigned from office. Media coverage and statements of high-level politicians 38. The case concerning the allegations of sexual abuse brought by D.K., as well as the subsequent murders and the deaths of D.K. and A.Ū. (see paragraphs 14 and 15 above) attracted considerable attention from the public, politicians and the media (ibid., § 109). 39. On 7 October 2009 the newspaper Respublika published an article quoting a Member of Parliament who stated that “the deliberate inaction of the authorities may have driven [D.K.] to such a tragedy”. The publication also quoted the Chair of the Parliamentary Committee on Legal Affairs, who stated that the pre-trial investigation concerning D.K. ’ s complaints had been carried out “rather dismissively and slowly” ( skundo tyrimas buvo atliekamas gana atmestinai ir lėtai ). 40. In an article published on 8 October 2009 one of the largest national newspapers, Lietuvos rytas, stated that the Parliamentary Committee on Legal Affairs had asked the Prosecutor General to provide answers to a list of questions concerning the investigation of the “paedophilia scandal” (see paragraph 27 above). It quoted the Chair of that Committee, who had said that he had seen “displays of procrastination and negligence” in the actions of investigating officers ( teigė pareigūnų veiksmuose matąs vilkinimo ir aplaidumo apraiškų ). 41. On 12 October 2009 the following statement was published on the President ’ s official website: The President demands personal accountability of the officers who possibly protracted the investigation concerning the alleged sexual abuse of a minor “The President of the Republic of Lithuania, Dalia Grybauskaitė, received the Prosecutor General ... [who] presented to the President a summary of the investigation concerning the tragic events in Kaunas. According to the President, it is evident that the investigation concerning the alleged sexual abuse of a minor was protracted. Therefore, the officials who acted negligently must be immediately identified and they must be personally held to account. As stated by the President, not a single officer or institution found responsible for the unjustified protraction of the investigation can avoid accountability. The Prosecutor General has been instructed to promptly identify the individuals who protracted the investigation, and the reasons for this, and to ensure an efficient further investigation of the events in Kaunas, in order to determine the truth as soon as possible.” 42. On 19 October 2009 a statement on the President ’ s official website gave an account of another meeting between the President and the Prosecutor General, in which the latter had informed the President about the progress of the ongoing disciplinary inquiry (see paragraph 22 above). The President stated that it was essential to promptly identify the officers who had failed to perform their duties diligently, and to demand that they be personally held to account. 43. On 23 October 2009 one of the largest national news websites, Delfi.lt, reported on the conclusions of the disciplinary proceedings conducted by the Prosecutor General ’ s Office (see paragraphs 24 and 25 above). 44. On 26 October 2009 Delfi.lt published an article that included the following statement from the President: D. Grybauskaitė : I expect harsher decisions concerning prosecutors “President Dalia Grybauskaitė admits that she was expecting harsher decisions concerning the prosecutors implicated in relation to the professional misconduct identified in the course of the investigation into the paedophilia case involving D.K. ’ s daughter. When asked how she viewed the proposal to dismiss one prosecutor and to demote others, the Head of State said that she had expected a different decision. ‘ Tomorrow, I think, perhaps the decisions will be different ... As for the Kaunas prosecutors, I expect slightly different – harsher – decisions ’, D. Grybauskaitė told journalists ... On Friday, in connection with the professional misconduct identified in the course of the investigation into the paedophilia case involving D.K. ’ s daughter, it was proposed that the Prosecutor General should dismiss prosecutor [G.R.] of the KCDPO and impose more lenient penalties on the other four Kaunas prosecutors ... It is proposed that [the applicant], the Deputy Chief Prosecutor of the KCDPO, be demoted ...” 45. On 12 November 2009 Lietuvos rytas published an article entitled “Sluggish investigators are partly responsible for the murders”. It reported on a meeting of the Parliamentary Committee on Legal Affairs, which had concluded that the pre-trial investigation concerning D.K. ’ s complaints had not been carried out diligently. The publication quoted the Chair of the Committee, who reiterated that the Prosecutor General should “assess, in a principled manner, the actions of the officers at all levels – investigators and supervisors alike”. 46. On 2 March 2010 Delfi.lt, the website of Lietuvos rytas and the news website Balsas.lt all published similar articles relating to the applicant. They quoted the Head of the Human Resources Division of the Prosecutor General ’ s Office, who stated that the applicant ’ s decision to grant A.Ū. access to the investigation file (see paragraph 10 above) had been one of the reasons for her demotion. It was also stated that the applicant had entrusted the pre-trial investigation to an unqualified prosecutor, G.R., and had failed to properly supervise her. According to the Head of the Human Resources Division, the applicant had claimed that she had put G.R. in charge of the investigation because the latter had the most work experience, but in fact G.R. had not had any experience in similar cases. The publications indicated that the applicant had appealed against her demotion before a court. Court proceedings concerning the applicant ’ s demotionProceedings before the Vilnius Regional Administrative Court Proceedings before the Vilnius Regional Administrative Court Proceedings before the Vilnius Regional Administrative Court 47. On 20 November 2009 the applicant lodged a complaint with the Vilnius Regional Administrative Court against the decision of the Prosecutor General ’ s Office to give her a disciplinary penalty (see paragraph 26 above). She argued that she had acted in accordance with all the legal instruments regulating the duties of a prosecutor, but that even if she had committed any offences, the penalty (demotion) was disproportionately harsh. 48. The applicant ’ s complaint was examined by a panel of three judges. The Government submitted that, according to the procedural rules valid at the material time, disputes related to disciplinary penalties could be examined at first instance by a single judge, but the applicant ’ s case had been assigned to a three-judge panel as an additional guarantee of fairness. 49. One of the judges assigned to the applicant ’ s case withdrew from it, on the grounds that the judge ’ s husband worked at an institution which had examined some of the circumstances of the criminal case brought by D.K. 50. The court held hearings in March 2010. At the request of both the applicant and the Prosecutor General ’ s Office, the hearings were closed to the public. 51. The applicant complained to the court that the record of one of the hearings had been inaccurate, and submitted her corrections. The court refused to include them in the case file, finding that the record had accurately described the parties ’ submissions at the hearing and that the applicant had not indicated any significant mistakes. 52. On 15 May 2010 the applicant submitted a revised complaint in which she additionally argued that the decision to demote her had not been based on her performance but that it had been influenced by public statements made by politicians, who had insisted on strict punishments for investigating officers, as well as by the media coverage of the case – she referred to the publications quoted in paragraphs 39, 40 and 45 above. 53. Subsequently the applicant asked the court to include in the case file video recordings of certain television broadcasts which had discussed the proceedings in her case. It appears that the request was refused. 54. On an unspecified date the applicant asked for one of the judges to be removed from the case, on the grounds that that judge had refused her requests and that his questions during the hearing had demonstrated his bias against her. The court refused her request, finding that there were no statutory grounds to remove the judge. 55. On 7 June 2010 the Vilnius Regional Administrative Court dismissed the applicant ’ s complaint. 56. It annulled some of the findings of the inquiry conducted by the Prosecutor General ’ s Office. First, the court held that the applicant had not been responsible for entrusting the pre-trial investigation to G.R. because that decision had been taken by the Chief Prosecutor of the KCDPO and that the applicant had merely complied with his order (see paragraph 9 above). Secondly, the fact that the applicant had not given G.R. instructions in writing did not constitute a disciplinary offence because instructions could also be given orally (see paragraph 79 below). 57. However, the court upheld the conclusion that the applicant had failed to properly supervise the investigation carried out by G.R. and to ensure that essential investigative measures were taken promptly. It found that when the investigation was transferred to the KCDPO (see paragraph 8 above), the Kaunas Regional Prosecutor ’ s Office had indicated concrete investigative actions which had to be taken and had formulated specific questions which had to be addressed during the investigation. However, the majority of those instructions had not been carried out by the KCDPO, and the applicant had been unable to provide an explanation. The court therefore concluded that she had failed to fulfil the statutory duties of a supervising prosecutor (see paragraphs 78 and 79 below). 58. The court also held that the applicant had overstepped her remit by allowing the suspect to access the investigation file (see paragraph 24 above). Although the applicant argued that, being the senior prosecutor, she had had the right to examine appeals against decisions taken by G.R., the court found that this argument had no basis in law, and that the applicant ’ s position demonstrated that she had acted intentionally. 59. Furthermore, the court considered that the disciplinary penalty given to the applicant had not been too harsh. It observed that the applicant had held the position of senior prosecutor and that she had been responsible for supervising other prosecutors and ensuring that they complied with the law. However, she had breached the law herself and had failed to properly carry out her supervisory duties. It was therefore justified to demote her to a post which did not require her to supervise other prosecutors. 60. The court did not comment on the applicant ’ s complaint concerning the public statements made by politicians and the media coverage (see paragraph 52 above). Proceedings before the Supreme Administrative Court 61. The applicant appealed against the above decision to the Supreme Administrative Court. Among other things, she submitted that the lower court had not addressed her complaint concerning the political and media interference in the case (see paragraphs 52 and 60 above). She also submitted that that court had been biased and that it had formed a preconceived opinion of the case because of various statements made in the media. 62. The Prosecutor General ’ s Office, in its reply to the applicant ’ s appeal, argued that courts did not have the authority to examine whether politicians had interfered with the Prosecutor General ’ s decisions. 63. The case was assigned to a panel of three judges. In March 2011 the applicant submitted a request for those three judges to be removed from the case, on the grounds that they had previously decided on her request for interim measures. The court allowed the applicant ’ s request and changed the composition of the panel. 64. In June 2011 two judges of the new panel withdrew from the case, on the grounds that they both had close family relationships with persons working in prosecutors ’ offices and that this could cast doubt on their impartiality. 65. On 10 October 2011 the Supreme Administrative Court dismissed the applicant ’ s appeal and upheld the lower court ’ s decision in its entirety. 66. In particular, it observed that the Chief Prosecutor of the KCDPO had ordered the applicant to assist ( padėti ) G.R. in conducting the pre-trial investigation (see paragraph 9 above). In the light of that order and the specific instructions given to the KCDPO by the Kaunas Regional Prosecutor ’ s Office (see paragraph 57 above), the court considered that it had been the applicant ’ s duty to take all available measures in order to fulfil those instructions. However, as found by the lower court, she had failed to properly supervise G.R. and to ensure that the essential investigative measures were taken promptly. 67. The Supreme Administrative Court also stated that, in accordance with the law, the choice of an individual disciplinary penalty fell within the discretion of the prosecutor making that decision. This meant that the prosecutor ’ s decision could be annulled by a court only when the chosen penalty was manifestly disproportionate and did not correspond to the offence committed. In the court ’ s view, it was important to take into account the fact that the applicant had been one of the heads of the KCDPO and that this had increased her responsibility. The court considered that the penalty – demotion – was proportionate to the disciplinary offences committed by the applicant. 68. The court did not comment on the applicant ’ s complaints concerning the public statements made by politicians, the media coverage and the alleged bias of the first-instance court (see paragraph 61 above). Subsequent proceedings 69. In January 2012 the applicant lodged an application for the reopening of the proceedings, arguing that the Supreme Administrative Court had incorrectly interpreted her duties as senior prosecutor. In particular, she submitted that the order given to her by the Chief Prosecutor of the KCDPO had been “to entrust” the investigation to G.R., but not “to assist” G.R. in carrying out the investigation (see paragraphs 9 and 65 above). 70. In July 2012 the Supreme Administrative Court refused to reopen the proceedings, finding that the applicant had not demonstrated that the courts had committed a material breach of the law. 71. In December 2012, after taking part in a selection procedure, the applicant took up office as a prosecutor at the Kaunas Regional Prosecutor ’ s Office. 72. After being dismissed from office (see paragraph 25 above), G.R. complained to the courts, and in December 2014 the Supreme Administrative Court allowed her complaint. It acknowledged that G.R. had committed disciplinary offences, but considered dismissal to be a disproportionate penalty. In the court ’ s view, that penalty had been determined essentially on the basis of the sole fact that the offences had been committed in a high-profile criminal case. However, G.R. had not acted intentionally, and the offences had been committed partly because of her insufficient qualification, high workload, and refusal of some of the parties to the proceedings to cooperate with the authorities. The court also considered it necessary to take into account G.R. ’ s positive character references, long work experience, and lack of previous disciplinary penalties. It changed the penalty from dismissal to a reprimand and ordered the reinstatement of G.R. to her previous post. 73. In March 2015 the applicant lodged a new application for the reopening of the proceedings concerning her demotion. She submitted that the courts in the proceedings instituted by G.R. had changed the case-law relating to the assessment of disciplinary offences committed by prosecutors and the determination of the appropriate penalties (see paragraph 72 above). The applicant argued that this constituted grounds to reopen her case, which had concerned the same legal provisions and closely related factual circumstances. She also submitted that the reopening of the proceedings would provide the courts with an opportunity to address the possible influence on the proceedings of public statements made by politicians and public officials, in accordance with the case-law of the European Court of Human Rights. 74. In May 2015 the Supreme Administrative Court refused to reopen the proceedings. It noted, inter alia, that the applicant and G.R. had held different posts and carried out different functions, concluding that this justified assessing their responsibility differently. | This case concerned disciplinary proceedings against the applicant, a senior prosecutor, for failing to carry out her duties properly in a high-profile investigation into the alleged sexual abuse of a child. The proceedings led to her demotion. She submitted in particular that the disciplinary proceedings against her and the administrative court decisions had not been fair because of the political and media interference in her case. |
1,075 | Freedom of religion (Article 9 of the Convention) | I. THE CIRCUMSTANCES OF THE CASES 7. The applicants were born in 1964, 1935, 1963, 1965 and 1963 respectively. A. Background to the cases 8. The status of Churches and religious societies is governed mainly by Articles 137 to 141 (known as the “Church Articles” – Kirchenartikel ) of the Weimar Constitution of 11 August 1919 ( Weimarer Reichsverfassung), as incorporated into the Basic Law by Article 140 of that Law. A couple of Churches and religious societies, including the Catholic Church (about 23.7 million members) and the Protestant Church of Germany (about 22.2 million members), commonly known as the two “big Churches” ( Grosskirchen ), have the status of public ‑ law entities. Other religious denominations have legal capacity under civil law. 9. As regards their financing, churches and religious societies with the status of public-law entities are entitled to levy a church tax, which accounts for a significant portion of their total budget. The churches decide independently whether to levy a tax and what its rate should be. The rate of church tax has been over many years either 8 % or 9% of the tax on an individual ’ s income and, in most German Länder, is collected by the State tax authorities on behalf of churches and religious societies, which in return pay 3 % to 5% of their tax revenue to the State. 10. The church tax is guaranteed by Article 140 of the Basic Law read in conjunction with Article 137 § 6 of the Weimar Constitution ( see paragraph 49 below). Only members of a particular religious denomination authorised to levy the tax are obliged to pay it. Any church member who does not want to pay church tax can leave that church by declaration towards the authorities. 11. If spouses are members of different churches entitled to levy taxes ( konfessionsverschiedene Ehe ) and if they have opted for a joint income tax assessment ( gemeinsame steuerliche Veranlagung ), both churches levy the tax on the spouses in the form of an additional levy on the income tax of both spouses. The amount of each spouse ’ s church tax is calculated on the basis of half of the declared income tax. 12. In marriages where only one spouse belongs to a church entitled to levy taxes ( glaubensverschiedene Ehe ), the church entitled to the tax levies it in accordance with that person ’ s tax assessment. Churches calculate the tax on the basis of the income tax attributable to the spouse liable to pay tax rather than on the basis of that spouse ’ s share of the total income. According to the Federal Constitutional Court ’ s settled case-law, if the spouse belonging to a church has no income in terms of the regulations of the Income Tax Code, the church tax cannot be levied (see 5 6 paragraph below ). In that case, in some German Länder ( inter alia, Baden ‑ Württemberg, Bavaria and Thuringia ), the church entitled to levy taxes charges its members a special “ church fee” ( besonderes Kirchgeld ). Although called a fee, the levy is, however, treated legally as a tax. The church fee amounts to about one-third of the relevant church tax. 13. Churches only levy the special church fee if spouses decide on a joint income tax assessment. The special church fee is not levied if spouses make separate tax declarations ( getrennte Veranlagung ). It is important to note that in case of a joint income tax assessment the spouses benefit from a special calculation method for the income tax (the so-called “income ‑ splitting”, “ Splitting-Verfahren ”) and furthermore from the progressive effect ( Steuerprogression ) of the German tax system, which generally leads to a lower tax burden. 14. If spouses decide on a joint income tax assessment, they submit a tax declaration ( Steuererklärung ). In most of the German Länder (except of the Land of Bavaria), in their tax calculation procedure ( Steuererhebungverfahren ) the tax authorities set the special church fee according to the calculation regulations of each church. The basis for calculating the special church fee is the church member ’ s living expenses ( Lebensführungsaufwand ), which are calculated on the basis of the spouses ’ joint income. The special church fee is only levied on the spouse who is a church member. The remaining tax liability is applied to both spouses. 15. If a tax authority ’ s calculation on income tax leads to a tax reimbursement for the spouse not being a member of a church and who is liable to pay income tax, only that spouse will be credited with it. At the same time, the special church fee levied on one spouse can be offset against any tax reimbursement due to the other spouse. If the calculation of the income tax leads to a demand to pay more tax, offsetting cannot take place. 16. Either spouse can file an objection ( Einspruch ) against that part of the tax bill which applies to them. If the special church fee has been offset against a tax reimbursement due to the spouse who is not a member of a church that spouse can apply for a settlement notice ( Abrechnungsbescheid ) in accordance with Article 218 of the Fiscal Code ( Abgabenordnung, see paragraph 51 below ) and thus have the possibility to be repaid the offset amount. B. The specific circumstances of each case 17. The facts of the cases, as submitted by the parties, may be summarised as follows. 1. Application no. 10138/11 ( the first applicant ) 18. The first applicant lives in Heidelberg, in the Land of Baden ‑ Württemberg. He is married. His wife is member of the Protestant Church, which is authorised to levy church taxes. In 2005 the first applicant left his church and was no longer obliged to pay church taxes. 19. For the tax assessment period of 2008 the spouses opted for a joint tax assessment. 20. Their 2008 tax bill, dated 22 April 2010, included a special church fee for the first applicant ’ s wife of 2,220 euros (EUR). As the spouses were jointly liable for income tax and the applicant ’ s wife ’ s income was below the minimum taxable amount, the wife ’ s special church fee was calculated as a proportion of her living expenses, which in turn were calculated on the basis of the spouses ’ joint income (see paragraphs 1 2 - 14 above ). 21. The tax bill applied to both the first applicant and his wife. Page one showed the authority ’ s tax calculation ( Ergebnis des Steuererhebungsverfahrens ) in a table, with one column for income tax ( Einkommensteuer ), one for solidarity tax ( Solidaritätszuschlag ) and one headed “ Protestant Church tax, wife” ( Kirchensteuer evangelisch Ehefrau ). The third column showed the amount of EUR 2,220. The table further showed that the first applicant had a tax reimbursement claim of EUR 3,423 .00, which had been offset against the church fee of EUR 2,220 of his wife. It finished with a credit for the first applicant of EUR 1,203.00. 22. Pages two to four of the tax bill contained a detailed assessment of the taxable annual income of the first applicant and his wife. The document then had explanations of the items. Line 40, out of 114 lines of explanations altogether, stated as follows: “ Only the wife is liable for church tax. ” Following the explanations, the tax bill provided information on possible legal remedies. As regards the special church fee, it stated as follows: “ An objection can be raised to the setting of the church tax and to the fixing of advance payment of church tax. ... An objection can be filed by the person on whom the church tax has been levied ” (“ Gegen die Kirchensteuerfestsetzung und die Festsetzung der Kirchensteuervorauszahlung ist der Einspruch gegeben. ... Zur Einlegung des Einspruches ist derjenige befugt, gegen den sich die Kirchensteuerfestsetzung richtet. ” ). 23. The first applicant filed an objection against the tax bill. On 17 December 2010 the tax office dismissed the objection, referring to the Federal Constitutional Court ’ s decision of 28 October 2010, fully endorsing its reasoning (see paragraph 3 2 below). 2. Application no. 16687/11 ( the second applicant ) 24. The second applicant lives in Sulzbach-Rosenberg in the German Land of Bavaria. 25. The second applicant is a member of the Protestant Church. In 2005 he had an annual income of EUR 10,14 4. His wife, who was not member of a church, had income of EUR 162,522. In 2005, the second applicant and his wife were jointly liable for annual income tax. 26. On 7 February 2007 the competent tax office charged the second applicant a special church fee of EUR 1,500. The fee was calculated on the basis of his living expenses, which in turn were calculated on the basis of his and his wife ’ s income (see paragraphs 1 2 -14 above ). 27. The second applicant filed an objection to the decision. On 12 December 2007 the tax office dismissed the objection, relying on the Federal Constitutional Court ’ s case - law that has been settled since 1965 (see paragraphs 5 6 - 5 8 below). 28. The second applicant lodged an action with the Nuremberg Tax Court, asserting a violation of his basic rights. 29. On 18 June 2009 the Tax Court dismissed the action. It argued that the special church fee had not violated the second applicant ’ s right to equality or his right to freedom of religion or freedom of action and relied on the Federal Constitutional Court ’ s settled case-law. It refused leave to appeal. 30. On 29 January 2010 the Federal Tax Court dismissed an appeal by the second applicant against the decision refusing him leave to appeal and endorsed the Nuremberg Tax Court ’ s reasoning. 31. On 14 April 2010 the second applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that he had no income and therefore could not pay the special church fee on his own because it had been calculated on the basis of both spouses ’ income. As a consequence, the freedom of religion of both spouses had been violated and spouses in their kind of marriage had been discriminated against when compared with other kinds of marriage. The second applicant argued that he could only remain a member of his religious community if his spouse was willing to pay his special church fee, otherwise he would have to sue her for maintenance. 32. On 28 October 2010, the Federal Constitutional Court declined to consider the second applicant ’ s constitutional complaint (file no. 2 BvR 816/10) after joining it, inter alia, with those of the third, fourth and fifth applicants. It considered that the constitutional complaint had not touched on any constitutional questions which needed to be decided as the relevant questions had been settled in a judgment delivered on 14 December 1965 (file no. 1 BvR 606/60, see paragraph 5 7 below). That judgment was still applicable and there was no doubt that the calculation of a person ’ s living expenses on the basis of the spouses ’ income was in conformity with constitutional law. 3. Application no. 25359/11 ( the third and fourth applicants ) 33. The third and fourth applicants are a married couple who live in Gera in the German Land of Thuringia. The third applicant is a member of the Protestant Church and had the higher income of the two. The fourth applicant is not a member of a church. In 2004 the third applicant ’ s income amounted to EUR 53,511 while the fourth applicant ’ s income was EUR 11,720. In 2005 the sums were EUR 55,033 and EUR 4,928 respectively, while in 2006 they were EUR 54,996 and EUR 12,640. 34. On 29 August 2005, 5 February 2006 and 26 June 2008 the competent tax office levied church tax on the third applicant for the years 2004 to 2006. As the applicants had opted for a joint tax assessment, the third applicant ’ s church tax was calculated with his income tax as a proportion of the income tax attributable to him, rather than in proportion to his share of the spouses ’ total income ( see paragraph 1 2 above). 35. On 23 June 2008 the competent tax office dismissed an objection by the third and fourth applicants against the church tax calculation. 36. The two applicants lodged an action with the Gera Tax Court, asserting a violation of their basic rights. 37. On 31 March 2009 the Tax Court dismissed the action, arguing that the calculation had not violated their right to equality or freedom of religion. The court stressed that the German tax authorities had a wide margin of appreciation regarding tax regulations. The fact therefore that the third applicant ’ s church calculated its church tax on the base of a percentage of his income tax rather than on a percentage of income raised no doubts as to its legitimacy. The tax court refused leave to appeal. 38. On 8 May 2009 the third and fourth applicants appealed against the decision refusing them leave to appeal, alleging, inter alia, a violation of their freedom of religion. They argued that in spite of the fourth applicant ’ s decision not to be member of a religious community, the tax authorities had taken her income into account when calculating her husband ’ s church tax. 39. On 16 November 2009 the Federal Tax Court declared the applicants ’ appeal inadmissible for lack of sufficient reasoning. 40. On 21 January 2010 the applicants lodged a constitutional complaint with the Federal Constitutional Court, alleging a violation of their right to equality and freedom of religion. 41. On 28 October 2010, the Federal Constitutional Court declined to consider the third and fourth applicants ’ constitutional complaint after joining it, inter alia, with those of the second and fifth applicants (file no. 2 BvR 2715/09, see paragraph 3 2 above ). 4. Application no. 28919/11 ( the fifth applicant ) 42. The fifth applicant lives in Nuremberg, situated in the German Land of Bavaria. In 2004 and 2005 the fifth applicant, who had no income, was a member of the Protestant Church of the German Land of Bavaria. Her husband was not member of a church. The spouses opted for a joint income tax assessment for 2004 and 2005. 43. The competent tax authority levied no church tax on the fifth applicant as she had no income, but on 2 February 2007 applied a special church fee of EUR 3,600 for 2005 and on 27 June 2007 it charged her EUR 1,860 for 2004. The amounts were calculated on the basis of the fifth applicant ’ s living expenses, which were calculated on the basis of her and her husband ’ s joint income. 44. The fifth applicant raised an objection against those decisions and applied for a suspension of enforcement. On 23 October 2008 the tax office dismissed her objection, arguing that there had been no violation of the right to equality because there had been an objective and reasonable justification for the difference in treatment. 45. The fifth applicant lodged an action with the Nuremberg Tax Court, again applying to have enforcement suspended and asserting a violation of her right to equality. 46. On 15 June 2009 the Tax Court dismissed the request for suspension of enforcement, arguing that the special church fee did not violate the fifth applicant ’ s right to equality in view of the Federal Constitutional Court ’ s settled case - law. 47. On 22 July 2009 the fifth applicant lodged a constitutional complaint with the Federal Constitutional Court, alleging, inter alia, a violation of her right to freedom of religion. She argued that she could not remain in her religious community if her husband, who was not a church member, did not agree to pay her special church fee. 48. On 28 October 2010, the Federal Constitutional Court declined to consider the fifth applicant ’ s constitutional complaint after joining it, inter alia, with those of the second, third and fourth applicants (file no. 2 BvR 1689/09, see paragraph 3 2 above ). | Under German law, some churches and religious societies are entitled to levy a church tax and/or fee on their members. The five applicants complained that, when such taxes or fees were calculated and levied on the basis of the joint income of both the applicant and their spouse, it violated their right to freedom of religion. In particular, they complained variously of being obliged to pay for their spouse’s special church fee when they themselves were not a member of the church; of requiring the financial assistance of their spouse to pay their own special church fee, making them dependant on their spouse for their freedom of religion; or of being obliged to pay an unfairly high church tax, as it had been calculated taking their spouse’s income into account. |
887 | Public or political figures | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1940 and lives in Monaco. 9. On 30 March 2008, the News of the World, a Sunday newspaper owned by News Group Newspapers Limited, published on its front page an article headed “F1 boss has sick Nazi orgy with 5 hookers”. The article opened with the sentence, “Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert”. Several pages inside the newspaper were also devoted to the story, which included still photographs taken from video footage secretly recorded by one of the participants in the sexual activities, who was paid in advance to do so. An edited extract of the video as well as still images were also published on the newspaper ’ s website and reproduced elsewhere on the internet. The print version of the newspaper invited readers to view the video, providing the website address of the newspaper. 10. Later that same day, the applicant ’ s solicitors made a complaint to the News of the World regarding the video footage available on the website. The next day, 31 March 2008, the edited footage was voluntarily removed from the website and an undertaking was given that it would not be shown again without 24 hours ’ notice. Such notice was given by letter dated 3 April 2008 and faxed at 1.19 p. m. that day. 11. The edited video footage was viewed over 1.4 million times over 30 and 31 March 2008. The online version of the article was visited over 400,000 times during the same period. The print version of the News of the World has an average circulation of over three million copies. 12. On 4 April 2008 the applicant commenced legal proceedings against News Group Newspapers Limited claiming damages for breach of confidence and invasion of privacy. Although he did not dispute that the sexual activities had taken place, he contested the characterisation of his activities as being Nazi role-play. He also sought an injunction to restrain the News of the World from making available on its website the edited video footage. 13. On 6 April 2008 a second series of articles on the applicant ’ s sexual activities was published in the News of the World. 14. On 9 April 2008 Mr Justice Eady, in the High Court, refused to grant an injunction because the material was no longer private by reason of its extensive publication in print and on the internet. 15. In assessing the approach to be taken by the court to the granting of an interim injunction, he noted that the following principles should be borne in mind in any case where it was sought to restrain publication on the basis of an alleged infringement of rights guaranteed by Article 8, and where those rights came into conflict with the rights of other persons, and in particular the rights of the media to freedom of expression: “ 28 ... i ) No Convention right has, as such, precedence over another; ii) Where conflict arises between the values safeguarded under Articles 8 and 10, an ‘ intense focus ’ is necessary upon the comparative importance of the specific rights being claimed in the individual case; iii) The Court must take into account the justification for interfering with or restricting each right; iv) So too, the proportionality test must be applied to each. ” 16. He continued: “ 29. Here there is no doubt that the rights of Mr Mosley under Article 8 come into conflict with those of the Respondent company under Article 10. One question which has to be answered is whether, in respect of the information contained in the edited footage, Mr Mosley any longer has a reasonable expectation of privacy, having regard to everything which has happened since the original publication. ” 17. Eady J considered that there was no public interest in publication of the images powerful enough to override the applicant ’ s prima facie right to be protected in respect of the intrusive and demeaning nature of the photographs, observing : “ 30. ... The only reason why these pictures are of interest is because they are mildly salacious and provide an opportunity to have a snigger at the expense of the participants. Insofar as the public was ever entitled to know about Mr Mosley ’ s sexual tastes at all, the matter has already been done to death since the original coverage in the News of the World. There is no legitimate element of public interest which would be served by the additional disclosure of the edited footage, at this stage, on the Respondent ’ s website. ” 18. However, as to the extent of the applicant ’ s reasonable expectation of privacy, Eady J noted that the material had been seen by thousands of people around the world and that it continued to be available. He went on : “ 33. ... The Court must always be conscious of the practical realities and limitations as to what can be achieved ... Nevertheless, a point may be reached where the information sought to be restricted, by an order of the Court, is so widely and generally accessible ‘ in the public domain ’ that such an injunction would make no practical difference. 34. As Mr Millar [for News Group Newspapers Limited ] has pointed out, if someone wishes to search on the Internet for the content of the edited footage, there are various ways to access it notwithstanding any order the Court may choose to make imposing limits on the content of the News of the World website. The Court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen. It is inappropriate for the Court to make vain gestures .” 19. He concluded that the material was so widely accessible that an order in the terms sought would make very little practical difference, noting: “ 36. ... The dam has effectively burst. I have, with some reluctance, come to the conclusion that although this material is intrusive and demeaning, and despite the fact that there is no legitimate public interest in its further publication, the granting of an order against this Respondent at the present juncture would merely be a futile gesture. Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available. ” 20. The edited video footage was restored to the News of the World website shortly afterwards. 21. In the course of the subsequent privacy proceedings before the High Court, the court heard evidence from the editor of the News of the World. As to the reasons for providing no advance warning to the applicant of the imminent publication of the story, the following exchange took place: “Q: Your third reason was the risk of an interim injunction, and that was the real reason, was it not? A: That was a major concern, yes. Q: You were worried that the court might grant an injunction. A: It was a consideration, yes. ... Q: So you did recognise that there was a real risk that a court would take the view, on an interim basis, that this intrusion on privacy was not justified? A: It is a risk all newspapers are faced with these days. Q: What is the matter with letting the court make the decision? Is that not the way democratic societies work; that one person says it is not an intrusion of privacy and the other says it is? ... There is nothing wrong with an impartial judge looking at it is there? A: No. It happens a lot. Q: But you were not prepared to risk that on this occasion? A: On this occasion.” 22. On 24 July 2008 judgment was handed down in the privacy proceedings. 23. Regarding the allegations in the articles that there was a Nazi theme, Eady J noted that once the material had been obtained, it was not properly checked for Nazi content and that the German was not even translated. Instead, those concerned were simply content to rely on general impressions, which Eady J considered to be “ hardly satisfactory ” having regard to the devastating impact the publication would have on all those involved and to the gravity of the allegations, especially that of mocking the treatment given to concentration camp inmates. He was prepared to accept that the journalist responsible for the story and the editor thought there was a Nazi element, not least because that was what they wanted to believe. He concluded: “ 170. The belief was not arrived at, however, by rational analysis of the material before them. Rather, it was a precipitate conclusion that was reached ‘ in the round ’, as Mr Thurlbeck [the journalist] put it. The countervailing factors, in particular the absence of any specifically Nazi indicia, were not considered. When Mr Myler [the editor] was taken at length through dozens of photographs, some of which he had seen prior to publication, he had to admit in the witness box that there were no Nazi indicia and he could, of course, point to nothing which would justify the suggestion of ‘ mocking ’ concentration camp victims. That conclusion could, and should, have been reached before publication. I consider that this willingness to believe in the Nazi element and the mocking of Holocaust victims was not based on enquiries or analysis consistent with ‘ responsible journalism ’ ... [T] he judgment was made in a manner that could be characterised, at least, as ‘ casual ’ and ‘ cavalier ’ .” 24. Eady J went on to consider the newspaper ’ s assessment, prior to publication, of the lawfulness of publishing the articles. He observed that, in the context of privacy, there was a good deal of scope for differing assessments to be made on issues such as whether there was a reasonable expectation of privacy or a genuine public interest to justify intrusion. He considered that he was not in a position to accept the applicant ’ s submission that any of the relevant individuals must have known at the time that the publication would be unlawful in the sense that no public interest defence could succeed, nor could he conclude that they were genuinely indifferent to whether there was a public interest defence. While, he said, they may not have given it close analysis and one could no doubt criticise the quality of the journalism which led to the coverage actually given, that was not the same as genuine indifference to the lawfulness of this conduct. He noted: “ 209. It is also clear that one of the main reasons for keeping the story ‘ under wraps ’ until the last possible moment was to avoid the possibility of an interlocutory injunction. That would avoid delaying publication and, in a privacy context, would generally mean that a potential claimant would not trouble to institute any legal proceedings at all. Once the cat is out of the bag, and the intrusive publication has occurred, most people would think there was little to gain. Even so, it would not be right to equate such tactics with deliberately or recklessly committing a wrong.” 25. Eady J concluded that the newspaper articles and images constituted a breach of the applicant ’ s right to privacy. He found that there were no Nazi connotations in the applicant ’ s sexual activities and that there was therefore no public interest or justification in the publication of the article about his personal life and the accompanying images. 26. On the question of damages, Eady J declined to award exemplary damages and limited the damages available to a compensatory award. He considered it questionable whether deterrence should have a distinct, as opposed to a merely incidental, role to play in the award of compensatory damages, noting that it was a notion more naturally associated with punishment. He further observed that if damages were paid to an individual for the purpose of deterring the defendant it would naturally be seen as an undeserved windfall. He added that if damages for deterrence were to have any prospect of success it would be necessary to take into account the means of the relevant defendant. Any award against the News of the World would have to be so large that it would fail the test of proportionality when seen as fulfilling a compensatory function and would risk having a “chilling effect” on freedom of expression. 27. Eady J recognised that the sum awarded would not constitute adequate redress, noting: “ 230. ... I have already emphasised that injury to reputation is not a directly relevant factor, but it is also to be remembered that libel damages can achieve one objective that is impossible in privacy cases. Whereas reputation can be vindicated by an award of damages, in the sense that the claimant can be restored to the esteem in which he was previously held, that is not possible where embarrassing personal information has been released for general publication. As the media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action. Claimants with the degree of resolve (and financial resources) of Mr Max Mosley are likely to be few and far between. Thus, if journalists successfully avoid the grant of an interlocutory injunction, they can usually relax in the knowledge that intrusive coverage of someone ’ s sex life will carry no adverse consequences for them and (as Mr Thurlbeck put it in his 2 April email) that the news agenda will move on. 231. Notwithstanding all this, it has to be accepted that an infringement of privacy cannot ever be effectively compensated by a monetary award. Judges cannot achieve what is, in the nature of things, impossible. That unpalatable fact cannot be mitigated by simply adding a few noughts to the number first thought of. Accordingly, it seems to me that the only realistic course is to select a figure which marks the fact that an unlawful intrusion has taken place while affording some degree of solatium to the injured party. That is all that can be done in circumstances where the traditional object of restitutio is not available. At the same time, the figure selected should not be such that it could be interpreted as minimising the scale of the wrong done or the damage it has caused.” 28. The applicant was awarded GBP 60,000 in damages and recovered approximately GBP 420,000 in costs. The judge noted that the applicant was hardly exaggerating when he said that his life was ruined. A final injunction was granted against the newspaper. ii. editors and journalists should be rendered liable for invasions of privacy by their publications, as they are for libel; ... iv. economic penalties should be envisaged for publishing groups which systematically invade people ’ s privacy; ... vii. provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings, such as summary applications for an interim order or an injunction postponing the dissemination of the information, subject to an assessment by the court as to the merits of the claim of an invasion of privacy; viii. the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published. ” 59. On 3 October 2008 Resolution 1636 (2008) on indicators for media in a democracy was adopted by the Parliamentary Assembly. It recalled the importance of freedom of expression of the press in a democracy and called on member States to assess their national media legislation bearing in mind the basic principle that there should be a system of media self-regulation including a right of reply and correction or voluntary apologies by journalists and that journalists should set up their own professional codes of conduct and that they should be applied. 2. The Committee of Ministers 60. At the Sixth European Ministerial Conference on Mass Media Policy in Cracow, 15-16 June 2000, the participating Ministers adopted a declaration on “A media policy for tomorrow”. In the declaration, the representatives of the Contracting States agreed on a programme of action at pan-European level, to be implemented by the Steering Committee on Mass Media (“CDMM”). The programme of action included the following provisions: “ I. Activities relating to the balance between freedom of expression and information and other rights and legitimate interests The CDMM should: - step up its work on the balance between freedom of expression and information and the right to privacy; - complete the work on the disclosure of information and the expression of opinions about political figures and public officials, the disclosure of information in the public interest, as well as media reporting on legal proceedings, so as to define common orientations for the whole of Europe as speedily as possible; - examine the problems caused by the dissemination of material casting doubt on individuals ’ dignity and integrity, even in the traditional media; - examine the implications of the on-line dissemination of information by individuals or other sources which may not be bound by professional journalistic ethics or codes of conduct .” 61. Following the adoption of the programme of action, the CDMM established a Group of Specialists on freedom of expression and other fundamental rights (“MM-S-FR”). The MM-S-FR prepared a draft declaration of the Committee of Ministers on freedom of expression and the right to respect for private life which was reviewed by the CDMM at its meetings of 10 July 2003 and 21 January 2004. However, the CCDM did not invite the Committee of Ministers to adopt the declaration. B. Law and practice in Council of Europe member States 62. According to the information provided by the parties or otherwise available to the Court, there is no pre-notification requirement as such in any of the legal systems of the Contracting Parties. However, some member States require the subject ’ s consent to publication of material relating to private life, in many cases subject to some form of “public interest” exception. Thus the failure to obtain consent may have legal consequences in any subsequent civil proceedings commenced by the subject of the publication. 63. A number of member States have adopted codes of practice, generally not binding, which also contain some form of consent requirement. C. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“the EC Directive ” ) 64. The EC Directive was adopted in order to ensure adequate protection for personal data. It applies to the 27 Member States of the European Union. It was transposed in the United Kingdom through the Data Protection Act 1998 (see paragraphs 42 - 45 above). There is no reference in the EC Directive to the need to provide for a pre-notification requirement in privacy cases. | A national weekly newspaper published a front-page article, including intimate photographs taken from secretly recorded video footage, about the alleged “Nazi” sexual activities of the applicant, a well-known figure in the International Automobile Federation and Formula One. An extract of the video and some still images were published on the newspaper’s website and reproduced elsewhere on the Internet. The applicant sued the publisher for breach of confidence and invasion of privacy and claimed damages. In addition, he sought an injunction to restrain the newspaper from making the edited video footage available on its website. The applicant complained of the absence of any legal requirement for a newspaper to give individuals advance notice of the publication of material concerning their private life in order to give them an opportunity to prevent publication by seeking an interim court injunction. |
550 | Inspection of home | 2. The applicant was born in 1956 and lived in Gyöngyöspata. He was represented by Ms S. Kapronczay, a lawyer practising in Budapest. 3. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice. 4. On 8 April 2015 the applicant died. On 1 September 2016 his son, Mr L.F. junior, expressed his wish to pursue the application in his stead. On 12 October 2016 the applicant’s wife, Mrs L.F., and his two other children, Ms I.F. and Mr M.F. also expressed their wish to pursue the application in the applicant’s stead. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. Following anti-Roma demonstrations and paramilitary marches in Gyöngyöspata (see, for example, R.B. v. Hungary, no. 64602/12, 12 April 2016) the mayor of the municipality resigned and a politician of the Movement for a Better Hungary ( Jobbik Magyarországért Mozgalom ), J.J.O., was elected in his place as of July 2011. During his tenure, tensions between Roma and non-Roma inhabitants increased. One of the measures he adopted was the so-called “Érpatak model”, which referred to a social scheme established by the mayor of Érpatak based on the idea that social benefits should only be paid to residents who contribute to the development of the community and respect law and order, rather than to those who are “destructive”. 7. It appears that in their preparation to introduce a similar scheme in Gyöngyöspata, on 13 October 2011 the mayor, the chief councillor of the mayor’s office and the chief of cabinet, a person privately contracted by the mayor’s office turned up at the applicant’s house, accompanied by police officers. The police stayed outside, while the others went inside and inspected and measured every room in the applicant’s flat. It is also alleged that video recordings were made of the interior, although this was later contested by the authorities. The applicant was not informed of the purpose of the visit. His wife and children were also present at the time. 8. According to a report by the Parliamentary Commissioner for the Rights of National and Ethnic Minorities, other Roma families were also subjected to similar inspections in Gyöngyöspata in October 2011. The Commissioner was of the view that the practice in question appeared to have no legal basis and invited the Heves County Governmental Office ( Heves Megyei Kormányhivatal ) to conduct a thorough investigation into the home inspections and take the necessary steps in order to restore legality and prevent similar breaches of the law in the future (see paragraph 29 below). 9. On 19 October 2011 the applicant filed a criminal complaint concerning the inspection of his home, alleging unlawful entry into private property. 10. Responding to the police inquiry, the mayor’s office submitted that the aim of the inspection, carried out by the mayor, the chief counsellor and officer responsible for social and guardianship affairs, and the chief of cabinet of law enforcement, had been to verify whether the applicant’s home complied with the requirements of Government Decree no. 253/1997 (XII.20) on National Urban Planning and Construction ( OTÉK ). Section 85(4)(a) of that Decree stipulates that each room should have at least 15 cubic meters of air per person. The mayor’s office also added that the applicant’s wife was in receipt of a monthly housing benefit from the local municipality, and the secondary aim of the inspection had been to verify the family’s living conditions. It was further submitted that the representatives of the municipality had been accompanied by two police officers, who had not entered the applicant’s house. 11. On 23 November 2011 the Gyöngyös police department dismissed the complaint for the absence of evidence that an offence had been committed, given that the applicant had not asked the mayor and his colleagues to leave his home, which would have been the precondition for establishing illegality. In any event, the police department accepted that the measure was based on section 85(4)(a) OTÉK and, in addition, had been necessary since the applicant’s wife had been in receipt of housing benefit from the municipality. 12. On 12 December 2011 the applicant objected to the dismissal of his criminal complaint, arguing that the offence within the meaning of Article 176 of the Criminal Code (unlawful entry into private property) could also be committed by someone pretending to conduct an official procedure, in which case it was unreasonable to require the victim to object to the intrusion. Therefore, the applicant took the view that the investigation should verify whether there had been a genuine official procedure behind the visit, or whether it had been spurious. 13. On 21 December 2011 the Gyöngyös public prosecutor’s office dismissed the objection, finding the impugned decision lawful and duly reasoned. It reiterated that the officials had entered the applicant’s home pursuant to section 85(4)(a) OTÉK. 14. On 16 January 2012 the applicant requested the Heves County Governmental Office to examine the procedure and verify, in particular, whether the persons who had entered and inspected his home had been legally entitled to do so. 15. On 17 May 2012 the Heves County Governmental Office found that on 13 October 2011 there had been no pending procedures in the framework of which the delegation of the mayor’s office could have lawfully entered the applicant’s home. The Governmental Office also informed the applicant that the fulfilment of the OTÉK requirement concerning the cubic content of air in rooms could only be verified in the framework of specific building control procedures which did not fall within the competence of local government. It further noted that, although it had obtained all relevant documents from the Gyöngyöspata local government concerning the housing benefit paid to the family, there did not appear to have been any decision adopted after July 2011 to assess the applicant’s family’s eligibility for that benefit. 16. On 29 May 2012 the Heves County Governmental Office issued a reply to the Parliamentary Commissioner’s report concerning its findings concerning the municipality’s conduct (see paragraph 30 below). It held, inter alia, that OTÉK could not be relied on for the inspection in question and that there had been no ongoing procedures on 13 October 2011 in respect of the applicant or his wife concerning the allocation of social benefits, since the last decision on the matter had been issued in July 2011. 17. On the basis of that information, on 25 June 2012, the applicant filed another criminal complaint, alleging unlawful entry onto his private property on the basis of a spurious procedure, as well as abuse of authority. He drew the authorities’ attention to the perceptible racist motive behind the inspection, relying on the findings of the report by the Parliamentary Commissioner for the Rights of National and Ethnic Minorities (see paragraph 29 below). 18. By decision of 23 July 2012, amended on 3 August 2012, the Gyöngyös police department dismissed the applicant’s complaint, noting that according to the inquiry carried out by the Governmental Office there had been no official procedures pending concerning the applicant which would have allowed the authorities to enter his home. Furthermore, the public notary could not specify the legal basis for carrying out a home inspection in order to verify its conformity with OTÉK. The police department nonetheless held that the offence of unlawful entry onto private property could only be committed intentionally – if the alleged perpetrator was (mistakenly) persuaded to have the necessary entitlement or consent of the victim, there could be no criminal liability. As regards the alleged abuse of authority, the Gyöngyös police department transferred the case to the county police department. 19. On 6 August 2012 the applicant challenged the decision of the Gyöngyös police department, maintaining that the conduct in question had constituted unlawful entry into his private property on the pretence of conducting an official procedure. He relied on the findings of the Parliamentary Commissioner’s report. 20. On 22 August 2012 the Gyöngyös public prosecutor’s office ordered an investigation into the applicant’s criminal complaint. The decision stated that the main question to be answered during the investigation was whether the persons concerned had been aware of the lack of a legal basis for entering the applicant’s flat, since “unlawful entry into private property” could only be committed intentionally. The Gyöngyös police department requested its exclusion from the case in the light of the regular contact between the police officers in Gyöngyös and the mayor and his colleagues. The investigation was thus conducted by the Hatvan police department. 21. On 28 May 2013 the Hatvan police department discontinued the investigation. It found that the inspection of the applicant’s home had related to a request for housing benefit submitted by the applicant’s wife on 5 July 2011 and granted on 31 July 2011. The police department noted that according to section 7 of decree no. 3/2009 (II. 2.) on Social Benefits, of the Assembly of the Local Government of Gyöngyöspata the provision of housing benefit required an on-site inquiry. Furthermore, section 8 of the decree authorised the mayor to reassess the allocation of social benefits. The police department thus concluded that the inspection had been carried out for the further provision of housing benefit. 22. On 11 June 2013 the applicant objected to the discontinuation of the investigation. He alleged, in particular, that his wife’s request for housing benefit had already been granted on 31 July 2011. Therefore, there had not been any procedures pending in that case on 13 October 2011 – which information was also confirmed by the Heves County Government Office on 17 May 2012. He submitted that the persons present in his house had been acting in an official capacity and had thus entered his private property unlawfully on the pretence of conducting official proceedings. 23. On 19 July 2013 the Gyöngyös public prosecutor’s office dismissed the applicant’s objection concerning the discontinuation of the investigation. It held, in essence, that the provisions of Decree no. 3/2009 (II. 2.) of the Assembly of the Local Government of Gyöngyöspata on Social Benefits concerning the method of calculating housing benefit had been amended on 28 September 2011, and section 8 of the decree empowered the mayor to review annually or as necessary the social benefits. The prosecutor’s office found it established, based on witness testimonies, that the on-site inquiry had been carried out not in connection with the provision of social benefits but to assess the conditions for the further payment of established social benefits, and it was the amendment to the calculation method which had made the home inspection necessary. Therefore, in the opinion of the prosecutor’s office, the impugned inspection did not constitute a criminal offence, even if it had not been conducted in full compliance with the provisions of Act no. CXL of 2004 on the General Rules of Administrative Proceedings and Services. | This case concerned an inspection of the applicant’s home – retrospectively justified as necessary to verify compliance with construction regulations and for the allocation and/or review of housing benefits – in 2011 by a delegation of the local mayor’s office. The inspection took place as part of a new social scheme and amid heightened tensions between Roma and non-Roma inhabitants. The applicant alleged that there had been no legal basis for the mayor and his colleagues to enter his home and that the authorities’ investigation into his complaints had been ineffective. He also alleged that the aim of the inspection had been to harass him because of his Roma ethnicity and that the investigating authorities had failed to take the necessary steps to examine the possible racist motive behind the incident. |
408 | Deprivation of liberty / Restriction on the freedom of movement | I. THE CIRCUMSTANCES OF THE CASE 10. The applicants were born in 1983, 1987 and 1988 respectively. Mr Khlaifia (“the first applicant”) lives in Om Laarass (Tunisia); Mr Tabal and Mr Sfar (“the second and third applicants”) live in El Mahdia (Tunisia). A. The applicants’ arrival on the Italian coast and their removal to Tunisia 11. On 16 September 2011 in the case of the first applicant, then the next day, 17 September, in the case of the second and third applicants, the applicants left Tunisia with others on board rudimentary vessels heading for the Italian coast. After several hours at sea, their vessels were intercepted by the Italian coastguard, which escorted them to a port on the island of Lampedusa. The applicants arrived on the island on 17 and 18 September 2011 respectively. 12. The applicants were transferred to an Early Reception and Aid Centre ( Centro di Soccorso e Prima Accoglienza – “CSPA”) on the island of Lampedusa at Contrada Imbriacola where, after giving them first aid, the authorities proceeded with their identification. According to the Government, on this occasion individual “information sheets” were filled in for each of the migrants concerned (see paragraph 224 below); this is disputed by the applicants (see paragraph 222 below). 13. They were accommodated in a part of the centre reserved for adult Tunisians. According to the applicants, they were held in an overcrowded and dirty area and were obliged to sleep on the floor because of the shortage of available beds and the poor quality of the mattresses. They had to eat their meals outside, sitting on the ground. The centre was kept permanently under police surveillance, making any contact with the outside world impossible. 14. The applicants remained in the CSPA until 20 September, when a violent revolt broke out among the migrants. The premises were gutted by fire and the applicants were taken to a sports complex on Lampedusa for the night. At dawn on 21 September they managed, together with other migrants, to evade the police surveillance and walk to the village of Lampedusa. From there, with about 1,800 other migrants, they started a demonstration through the streets of the island. After being stopped by the police, the applicants were taken first back to the reception centre and then to Lampedusa airport. 15. On the morning of 22 September 2011 the applicants were flown to Palermo. After disembarking they were transferred to ships that were moored in the harbour there. The first applicant was placed on the Vincent, with some 190 other people, while the second and third applicants were put on board the Audace, with about 150 others. 16. The applicants described the conditions as follows. All the migrants on each vessel were confined to the restaurant areas, access to the cabins being prohibited. They slept on the floor and had to wait several hours to use the toilets. They could go outside onto the decks twice a day for only a few minutes at a time. They were allegedly insulted and ill-treated by the police, who kept them under permanent surveillance, and they claimed not to have received any information from the authorities. 17. The applicants remained on the ships for a few days. On 27 September 2011 the second and third applicants were taken to Palermo airport pending their removal to Tunisia; the first applicant followed suit on 29 September. 18. Before boarding the planes, the migrants were received by the Tunisian Consul. In their submission, the Consul merely recorded their identities in accordance with the agreement between Italy and Tunisia of April 2011 (see paragraphs 36-40 below). 19. In their application the applicants asserted that at no time during their stay in Italy had they been issued with any document. Annexed to their observations, the Government, however, produced three refusal-of-entry orders dated 27 and 29 September 2011 that had been issued in respect of the applicants. Those orders, which were virtually identical and drafted in Italian with a translation into Arabic, read as follows: “The Chief of Police ( questore ) for the Province of Agrigento Having regard to the documents in the file, showing that (1) on ‘17 [18] September 2011’ members of the police force found in the province of ‘Agrigento’, near the border of: ‘island of Lampedusa’, Mr [surname and forename] born ... on [date] ... ‘Tunisian’ national ... not fully identified, ‘undocumented’ ( sedicente ); (2) the alien entered the territory of the country by evading the border controls; (3) the identification ( rintraccio ) of the alien took place on/immediately after his arrival on national territory, and precisely at: ‘island of Lampedusa’; WHEREAS none of the situations [provided for in] Article 10 § 4 of Legislative Decree no. 286 of 1998 is present; CONSIDERING that it is appropriate to proceed in accordance with Article 10 § 2 of Legislative Decree no. 286 of 1998; ORDERS that the above-mentioned person be REFUSED LEAVE TO ENTER AND RETURNED – An appeal may be lodged against the present order within a period of sixty days from the date of its service, with the Justice of the Peace of Agrigento. – The lodging of an appeal will not, in any event, suspend the enforcement ( efficacia ) of the present order. – The director of the Migration Office will proceed, for the enforcement of the present order, with its notification, together with a summary translation into a language spoken by the alien or into English, French or Spanish; and with its transmission to the diplomatic or consular delegation of the State of origin, as provided for by Article 2 § 7 of Legislative Decree no. 286 of 1998; and with its registration under Article 10 § 6 of the said Legislative Decree. To be escorted to the border at: ‘Rome Fiumicino’ [Issued at] Agrigento [on] 27[29]/09/2011 on behalf of the Chief of Police [Signature]” 20. These orders were each accompanied by a record of notification bearing the same date, also drafted in Italian with an Arabic translation. In the space reserved for the applicants’ signatures, both records contain the handwritten indication “[the person] refused to sign or to receive a copy” ( si rifiuta di firmare e ricevere copia ). 21. On their arrival at Tunis airport, the applicants were released. B. Decision of the Palermo preliminary investigations judge 22. A number of anti-racism associations filed a complaint about the treatment to which the migrants had been subjected, after 20 September 2011, on board the ships Audace, Vincent and Fantasy. 23. Criminal proceedings for abuse of power and unlawful arrest (Articles 323 and 606 of the Criminal Code) were opened against a person or persons unknown. On 3 April 2012 the public prosecutor sought to have the charges dropped. 24. In a decision of 1 June 2012 the Palermo preliminary investigations judge ( giudice per le indagini preliminari ) granted the public prosecutor’s request. 25. In his reasoning the judge emphasised that the purpose of placing the migrants in the CSPA was to accommodate them, to assist them and to cater for their hygiene-related needs for as long as was strictly necessary, before sending them to an Identification and Removal Centre ( Centro di Identificazione ed Espulsione – “CIE”) or taking any measures in their favour. At the CSPA the migrants could, according to him, obtain legal assistance and information about asylum application procedures. The judge shared the public prosecutor’s view that the interpretation of the conditions concerning the grounds for and duration of the confinement of migrants in a CSPA was sometimes vague. He also agreed with the public prosecutor that a range of factors were to be taken into consideration, leading to the conclusion that the facts of the case could not be characterised as a criminal offence. The judge noted that the Agrigento police authority ( questura ) had merely registered the presence of the migrants at the CSPA without taking any decisions ordering their confinement. 26. According to the judge, the unstable balance on the island of Lampedusa had been upset on 20 September 2011, when a group of Tunisians had carried out an arson attack, seriously damaging the CSPA at Contrada Imbriacola and rendering it incapable of fulfilling its purpose of accommodating and assisting migrants. The authorities had then organised transfer by air and sea to evacuate migrants from Lampedusa. The following day, clashes had taken place in the island’s port between the local population and a group of foreigners who had threatened to explode gas canisters. The judge explained that there had thus been a situation which was likely to degenerate, and which was covered by the notion of “state of necessity” ( stato di necessità ) as provided for in Article 54 of the Criminal Code (see paragraph 34 below). It was thus an imperative to arrange for the immediate transfer of some of the migrants by using, among other means, the ships. As to the fact that, in the emergency situation, no formal decision had been taken to place the migrants on board the ships, the judge found that this could not be regarded as an unlawful arrest and that the conditions for the migrants’ transfer to CIEs were not satisfied. Firstly, the CIEs were overcrowded, and secondly, the agreements with the Tunisian authorities suggested that their return was supposed to be prompt. The fact that a refusal-of-entry measure ( respingimento ) had been ordered in respect of the migrants, without judicial scrutiny, a few days after their arrival, was not unlawful in the judge’s view. The calculation of a “reasonable time” for the adoption of that measure and for the migrants’ stay in the CSPA had to take account of logistical difficulties (state of the sea, distance between Lampedusa and Sicily) and of the number of migrants concerned. In those circumstances, the judge concluded that there had been no infringement of the law. Moreover, the judge was of the view that no malicious intent could be attributed to the authorities, whose conduct had been prompted first and foremost by the public interest. The migrants had not sustained any unfair harm ( danno ingiusto ). 27. In so far as the complainants had alleged that the way in which the migrants had been treated had been detrimental to their health, the judge noted that the investigations had found that nobody on the ships had applied for asylum. Those who, at the Lampedusa CSPA, had expressed an intention to do so, together with any vulnerable individuals, had been transferred to the centres of Trapani, Caltanissetta and Foggia. Unaccompanied minors had been placed in temporary accommodation and no pregnant women had been transferred to the ships. The migrants on board had been able to receive medical assistance, hot water, electricity, meals and hot drinks. Moreover, as recorded in a press agency note of 25 September 2011, T.R., a member of parliament (MP) had boarded the ships in the port of Palermo, and had observed that the migrants were in good health, that they were receiving assistance and were sleeping in cabins containing bed linen or reclining seats ( poltrone reclinabili ). Some of the Tunisians had been taken to hospital, while others had been treated on board by medical staff. Accompanied by the deputy chief of police ( vice questore ) and by police officers, the MP in question had talked with some of the migrants. He had thus been able to observe that they had access to prayer rooms, that the food was satisfactory (pasta, chicken, vegetables, fruit and water) and that the Civil Protection Authority ( Protezione civile ) had provided them with clothing. Some of the migrants had complained of a lack of razors, but the MP had observed that this could be explained by a measure taken to prevent self-harm. 28. The judge noted that, even though the migrants had not been in custody or under arrest, a photograph published in a newspaper had shown one of them with his hands bound by black ribbons and in the company of a police officer. He had been part of a small group of individuals who, fearing immediate removal, had engaged in acts of self-harm and had caused damage to buses. In the judge’s view, the restraint in question had been necessary to guarantee the physical well-being of the persons concerned and to avoid aggressive acts against police officers who were neither armed nor equipped with any means of coercion. In any event, the conduct of the police officers had been justified by a “state of necessity”, within the meaning of Article 54 of the Criminal Code (see paragraph 34 below). 29. In the light of the foregoing, the preliminary investigations judge concluded that the case file contained no evidence of the physical and mental elements of the offences provided for in Articles 323 and 606 of the Criminal Code. C. Decisions of the Agrigento Justice of the Peace 30. Two other migrants in respect of whom a refusal-of-entry order had been issued challenged those orders before the Agrigento Justice of the Peace. 31. In two decisions ( decreti ) of 4 July and 30 October 2011, respectively, the Justice of the Peace annulled those orders. In his reasoning the judge observed that the complainants had been found on Italian territory on 6 May and 18 September 2011 respectively and that the orders at issue had been adopted only on 16 May and 24 September 2011. While acknowledging that Article 10 of Legislative Decree no. 286 of 1998 (see paragraph 33 below) did not indicate any time-frame for the adoption of such orders, the judge took the view that a measure which by its very nature restricted the freedom of the person concerned had to be taken within a reasonably short time after the identification ( fermo ) of the unlawful migrant. To find otherwise amounted to allowing de facto detention of the migrant in the absence of any reasoned decision of the authority, which would contravene the Constitution. III. BILATERAL AGREEMENTS WITH TUNISIA 36. On 5 April 2011 the Italian Government entered into an agreement with Tunisia on measures to control the flow of irregular migrants from that country. 37. The text of the agreement had not been made public. However, appended in an annex to their request for referral to the Grand Chamber, the Government produced extracts from the minutes of a meeting held in Tunis on 4 and 5 April 2011 between the Ministries of the Interior of Tunisia and Italy. According to a press release dated 6 April 2011 on the website of the Italian Ministry of the Interior [1], Tunisia undertook to strengthen its border controls with the aim of avoiding fresh departures of irregular migrants, using logistical resources made available to it by the Italian authorities. 38. In addition, Tunisia undertook to accept the immediate return of Tunisians who had unlawfully reached the Italian shore after the date of the agreement. Tunisian nationals could be returned by means of simplified procedures, involving the mere identification of the person concerned by the Tunisian consular authorities. 39. According to the indications given by the Government in their written observations of 25 April 2016 before the Grand Chamber, there had been an initial agreement with Tunisia in 1998; it had been announced on the Interior Ministry’s website, added to the treaty archive of the Ministry of Foreign Affairs and International Cooperation and published in Official Gazette no. 11 of 15 January 2000. 40. The Government produced a note verbale concerning the bilateral agreement that Italy concluded with Tunisia in 1998, appending it in an annex to their request for referral to the Grand Chamber. The document in question, emanating from the Italian Government and dated 6 August 1998, and which does not seem to be the text applied in the applicants’ case (see paragraph 103 below), contains provisions on bilateral cooperation for the prevention and repression of illegal immigration, the readmission of the two countries’ nationals, the return of nationals of third countries outside the Arab Maghreb Union to their countries of last departure, and the taking-back of migrants after readmission in error. The text of the note verbale shows that the Italian Government agreed to support Tunisia’s efforts to combat illegal immigration by providing technical and operational material assistance and by making a financial contribution. Each Party undertook, at the request of the other Party and without further formality, to readmit into its territory any person who did not meet the conditions of entry or residence applicable in the requesting State, in so far as it had been established that the person concerned was a national of the requested State. The text refers to the documents required for the identification of those concerned and provides (part II, point 5) that if the consular authority of the requested State considers it necessary to hear the person concerned, a representative of the authority of that State may go to the court office, or to the reception centre or medical facility where the migrant is legally residing, in order to interview him or her. The note verbale also describes the procedure for issuing a laissez ‑ passer and for the removal of migrants, while indicating the Italian Government’s undertaking “not to resort to mass or special removals” of the persons concerned. IV. THE RETURN DIRECTIVE 41. In the European Union (EU) context, the return of irregular migrants is governed by Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 (the “Return Directive”) “on common standards and procedures in Member States for returning illegally staying third-country nationals”. The Directive contains the following provisions in particular: Article 1 Subject matter “This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.” Article 2 Scope “1. This Directive applies to third-country nationals staying illegally on the territory of a Member State. 2. Member States may decide not to apply this Directive to third-country nationals who: (a) are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State; (b) are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures. ...” Article 8 Removal “1. Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7. 2. If a Member State has granted a period for voluntary departure in accordance with Article 7, the return decision may be enforced only after the period has expired, unless a risk as referred to in Article 7(4) arises during that period. 3. Member States may adopt a separate administrative or judicial decision or act ordering the removal. 4. Where Member States use — as a last resort — coercive measures to carry out the removal of a third-country national who resists removal, such measures shall be proportionate and shall not exceed reasonable force. They shall be implemented as provided for in national legislation in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third-country national concerned. 5. In carrying out removals by air, Member States shall take into account the Common Guidelines on security provisions for joint removals by air annexed to Decision 2004/573/EC. 6. Member States shall provide for an effective forced-return monitoring system.” Article 12 Form “1. Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies. The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences. 2. Member States shall provide, upon request, a written or oral translation of the main elements of decisions related to return, as referred to in paragraph 1, including information on the available legal remedies in a language the third-country national understands or may reasonably be presumed to understand. 3. Member States may decide not to apply paragraph 2 to third country nationals who have illegally entered the territory of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State. In such cases decisions related to return, as referred to in paragraph 1, shall be given by means of a standard form as set out under national legislation. Member States shall make available generalised information sheets explaining the main elements of the standard form in at least five of those languages which are most frequently used or understood by illegal migrants entering the Member State concerned.” Article 13 Remedies “1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. 2. The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12(1), including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation. 3. The third-country national concerned shall have the possibility to obtain legal advice, representation and, where necessary, linguistic assistance. 4. Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with relevant national legislation or rules regarding legal aid, and may provide that such free legal assistance and/or representation is subject to conditions as set out in Article 15(3) to (6) of Directive 2005/85/EC.” Article 15 Detention “1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. 2. Detention shall be ordered by administrative or judicial authorities. Detention shall be ordered in writing with reasons being given in fact and in law. When detention has been ordered by administrative authorities, Member States shall: (a) either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention; (b) or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings. The third-country national concerned shall be released immediately if the detention is not lawful. 3. In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority. 4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately. 5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months. 6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a) a lack of cooperation by the third-country national concerned, or (b) delays in obtaining the necessary documentation from third countries.” Article 16 Conditions of detention “1. Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners. 2. Third-country nationals in detention shall be allowed — on request — to establish in due time contact with legal representatives, family members and competent consular authorities. 3. Particular attention shall be paid to the situation of vulnerable persons. Emergency health care and essential treatment of illness shall be provided. 4. Relevant and competent national, international and non-governmental organisations and bodies shall have the possibility to visit detention facilities, as referred to in paragraph 1, to the extent that they are being used for detaining third-country nationals in accordance with this Chapter. Such visits may be subject to authorisation. 5. Third-country nationals kept in detention shall be systematically provided with information which explains the rules applied in the facility and sets out their rights and obligations. Such information shall include information on their entitlement under national law to contact the organisations and bodies referred to in paragraph 4.” Article 18 Emergency situations “1. In situations where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff, such a Member State may, as long as the exceptional situation persists, decide to allow for periods for judicial review longer than those provided for under the third subparagraph of Article 15(2) and to take urgent measures in respect of the conditions of detention derogating from those set out in Articles 16(1) and 17(2). 2. When resorting to such exceptional measures, the Member State concerned shall inform the Commission. It shall also inform the Commission as soon as the reasons for applying these exceptional measures have ceased to exist. 3. Nothing in this Article shall be interpreted as allowing Member States to derogate from their general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under this Directive.” 42. When interpreting the Return Directive, the Court of Justice of the European Union (CJEU) held that an alien was entitled, before a decision to return him or her was adopted, to express his or her view on the legality of his or her stay (see, in particular, Khaled Boudjlida v. Préfet des Pyrénées ‑ Atlantiques, case C-249/13, judgment of 11 December 2014, §§ 28-35). 43. It can be seen from the CJEU’s case-law that, in spite of the lack of express provision for the right to be heard in the Return Directive, that right applies as a fundamental principle of EU law (see, in particular, Articles 41, 47 and 48 of the EU’s Charter of Fundamental Rights; also the judgments M.G. and N.R v. Staatssecretaris van Veiligheid en Justitie, C-383/13 PPU, 10 September 2013, § 32, and Sophie Mukarubega v. Préfet de police et Préfet de la Seine-Saint-Denis, C-166/13, judgment of 5 November 2014, §§ 42-45). The CJEU clarified that the right to be heard: (a) guaranteed to every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely ( Khaled Boudjlida, cited above, § 36, and Sophie Mukarubega, cited above, § 46); and (b) enabled the competent authority effectively to take into account all relevant information, to pay due attention to the observations submitted by the person concerned, and thus to give a detailed statement of reasons for its decision ( Khaled Boudjlida, cited above, §§ 37-38). In the Khaled Boudjlida judgment (cited above, §§ 55, 64-65 and 67), the CJEU added: (a) that the alien need not necessarily be heard in respect of all the information on which the authority intends to rely to justify its return decision, but must simply have an opportunity to present any arguments against his removal; (b) that the right to be heard in a return procedure does not entitle the person to free legal assistance; and (c) that the duration of the interview is not decisive in ascertaining whether the person concerned has actually been heard (in the case at issue it had lasted about thirty minutes). 44. In the CJEU’s view, a decision taken following an administrative procedure in which the right to be heard has been infringed will result in annulment only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see M.G. and N.R, cited above, §§ 38 and 44, concerning decisions to extend detention pending removal; in §§ 41-43 of that judgment it is stated that the Directive’s effectiveness would otherwise be undermined and the objective of removal called into question). 45. Lastly, the CJEU has held that the right to be heard can be subjected to restrictions, provided they correspond to objectives of general interest and do not involve, with regard to the objective pursued, a disproportionate and intolerable interference which infringes upon the very substance of the right guaranteed (see M.G. and N.R., cited above, § 33, and Sophie Mukarubega, cited above, §§ 53 and 82, where it is stated that the person concerned does not have to be heard by the national authorities twice, both on his or her application to stay and on a return decision, but only on one of those questions). V. The players on the ground and their responsibilities 26. The Prefecture of the province of Agrigento is responsible for all questions relating to the reception of persons arriving on the island until they are transferred elsewhere. The prefecture also oversees the Accoglienza private co-operative which manages the island’s two reception centres. The immigration police office of the province of Agrigento is responsible for identifying new arrivals, transferring them and repatriating them if necessary. Since 13 April 2011, the Italian civil protection department has been co-ordinating the management of migration flows from North Africa. 27. The international community is also active on the ground. The Office of the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration (IOM), the Red Cross, the Order of Malta and the NGO Save the Children have teams on the spot. 28. UNHCR, the IOM, the Red Cross and Save the Children are part of the ‘Praesidium Project’ and are helping to manage the arrivals of mixed migration flows by sea on Lampedusa. These organisations are authorised to maintain a permanent presence inside the Lampedusa reception centres and have interpreters and cultural mediators available. They dispatched teams to Lampedusa straight away in February 2011 (as noted earlier, their operation had been suspended when the arrivals decreased). The Praesidium Project, which has since been extended to other centres in Italy, stands as an example of good practice in Europe and the organisations involved have jointly published a handbook on management of mixed migration flows arriving by sea (for the time being in Italian only, but soon to be translated into English). 29. The members of the Ad Hoc Sub-Committee found that all these players are working on good terms and are endeavouring to co-ordinate their efforts, with the shared priority of saving lives in sea rescue operations, doing everything possible to receive new arrivals in decent conditions and then assisting in rapidly transferring them to centres elsewhere in Italy. VI. Lampedusa’s reception facilities 30. It is essential for transfers to centres elsewhere in Italy to be effected as quickly as possible because the island’s reception facilities are both insufficient to house the number of people arriving and unsuitable for stays of several days. 31. Lampedusa has two reception centres: the main centre at Contrada Imbriacola and the Loran base. 32. The main centre is an initial reception and accommodation centre (CSPA). The Ad Hoc Sub-Committee was informed by the director of the centre that its capacity varies from 400 to 1 000 places. At the time of the visit, 804 people were housed there. Reception conditions were decent although very basic. The rooms were full of mattresses placed side by side directly on the ground. The buildings, which are prefabricated units, are well ventilated because the rooms have windows and the sanitary facilities seem sufficient when the centre is operating at its normal capacity. 33. At the time of the Ad Hoc Sub-Committee’s visit, the centre was divided in two. One part was reserved for persons arriving from Libya and unaccompanied minors (including unaccompanied Tunisian minors). The other part, a closed centre within the centre (itself closed), was reserved for Tunisian adults. ... VIII. Health checks 41. The many health teams of the various organisations present (Red Cross, MSF, Order of Malta) and the numerous regional teams are co-ordinate[d] by the Head of the Palermo Health Unit. 42. As soon as coastguards become aware of a boat arriving, they advise the medical co-ordinator and inform him of the number of people on board. All the persons concerned are then immediately informed and put on alert whatever the time of day or night. 43. Initial checks on the state of health of persons arriving are carried out in the port, as soon as they have disembarked. Prior to that, Order of Malta members/doctors accompany the coastguard or customs services on interception and rescue operations at sea. They inform the medical teams on hand at the port of any cases possibly requiring specific and immediate medical treatment. 44. On reaching the port, the new arrivals are quickly classified according to their needs using a clear colour-coding system. People requiring hospital treatment are transferred by helicopter to Palermo or elsewhere. The hospitals are obliged to accept these patients, even if their capacity is exceeded. 45. Sometimes there is not enough time to carry out initial checks on all those arriving at the port, and checks therefore have to be continued at the reception centres. Emphasis has been placed on the need also to achieve maximum standardisation of the procedures used at the centres. 46. The most common problems are: sea sickness, disorders of the upper respiratory tract, burns (fuel, sea water, sun or a combination of the three), dehydration, generalised pain (due to posture in the boat), psychological disorders or acute stress (because of the high risk of losing one’s life during the crossing). Some people arriving from Libya were suffering from acute stress even before starting the crossing. New arrivals are extremely vulnerable people who may have suffered physical and/or psychological violence and their trauma is sometimes due to the way they have been treated in Libya. There are also many pregnant women who require closer examination. Some cases of tuberculosis have been detected. The persons concerned are immediately placed in quarantine in a hospital. 47. Only a general evaluation is made of the state of health of new arrivals in Lampedusa. An individual assessment is not possible on the island and is carried out elsewhere after transfer. Anyone wishing to be examined can be, and no request to this effect is refused. A regular inspection of the sanitary facilities and food at the centres is carried out by the Head of the Palermo Health Unit. 48. MSF and the Red Cross voiced concerns regarding health conditions in the centres when they are overcrowded. It was also pointed out that the Tunisians were separated from the other new arrivals by a closed barrier and did not have direct access to the reception centre’s medical teams. IX. Information about asylum procedures 49. The UNHCR team provides new arrivals with basic information about existing asylum procedures, but it was stressed that Lampedusa was not the place to provide potential refugees and asylum seekers with exhaustive information on this subject. Relevant information and help with asylum application procedures are provided once the new arrivals have been transferred to other, less provisional reception centres elsewhere in Italy. If people express the wish to seek asylum, UNHCR passes on the information to the Italian police. 50. However, when large numbers of people arrive at the same time (which is increasingly the case) and transfers are carried out very quickly, the new arrivals are sometimes not informed about their right to request asylum. They receive this information at the centre to which they are transferred. This shortcoming in the provision of information about access to international protection may present a problem insofar as people of some nationalities are liable to be sent straight back to their countries of origin. As a rule, however, new arrivals are not in a position to be provided immediately with detailed information about access to the asylum procedure. They have other priorities: they are exhausted and disoriented and want to wash, eat and sleep. X. Tunisians 51. In the recent spate of arrivals, they were the first to arrive in Lampedusa in February 2011. These arrivals were problematical for several reasons. As stated above, this was because arrivals by sea had decreased significantly in 2009 and 2010, and the island’s reception centres had been closed. Tunisian migrants therefore found themselves on the streets, in appalling conditions. When the centres re-opened, they were immediately saturated. The Tunisians were subsequently transferred to holding centres elsewhere in Italy, then, once these were saturated, to open reception centres designed for asylum-seekers. 52. The fact that the vast majority of Tunisians are economic migrants and the difficulty of organising immediate returns to Tunisia, prompted the Italian authorities to issue a decree on 5 April 2011 granting them temporary residence permits valid for 6 months. Although 25 000 Tunisians had already arrived in Italy on that date, only 12 000 took advantage of this measure (the other 13 000 having already disappeared from the centres). The consequences of this measure are well-known: tensions with France and a serious re-assessment of freedom of movement in the Schengen area. 53. On 5 April 2011, Italy signed an agreement with Tunisia providing for a certain number of daily returns of Tunisian migrants arriving in Italy after that date. The text of the agreement has never been made public, but quotas of between 30 and 60 returns per day have been mentioned. At the time of the Ad Hoc Sub-Committee’s visit, returns to Tunisia were suspended. 54. As a result of this suspension of returns, some 190 Tunisians were being held on the island at the time of the Ad Hoc Sub-Committee’s visit. Some of them had been there for more than 20 days, in a closed centre inside the closed Contrada Imbriacola centre. Despite the authorities’ claim that the Tunisians were not detainees because they were not in cells, the members of the Sub-Committee found that the conditions to which they were subjected were similar to detention and deprivation of freedom. 55. While the members of the Ad Hoc Sub-Committee appreciate the Italian authorities’ concern to contain this wave of irregular immigration from Tunisia, some rules have to be observed where detention is concerned. The Contrada Imbriacola centre is not a suitable holding facility for irregular migrants. In practice, they are imprisoned there without access to a judge. As already pointed out by the Parliamentary Assembly in its Resolution 1707 (2010), ‘ detention shall be carried out by a procedure prescribed by law, authorised by a judicial authority and subject to periodic judicial review ’. These criteria are not met in Lampedusa and the Italian authorities should transfer irregular migrants immediately to appropriate holding facilities, with the necessary legal safeguards, elsewhere in Italy. 56. Another key point made in this resolution is access to information. All detainees must be informed promptly, in a language that they can understand, ‘ of the essential legal and factual grounds for detention, their rights and the rules and complaints procedure in detention ’. While it is true that the Tunisians interviewed by the Ad Hoc Sub-Committee were perfectly aware that they had entered Italian territory illegally (in fact, it was not the first attempt for some of them and a number had already been sent back to Tunisia on previous occasions), the same is not true of information about their rights and procedures. The Italian authorities themselves were unable to tell the Ad Hoc Sub-Committee when returns to Tunisia would resume. As well as being a significant stress factor, this uncertainty highlights the inappropriateness of holding Tunisians on Lampedusa for long periods without access to a judge. 57. As mentioned earlier, on 20 September a fire severely damaged the main reception centre. It is reported that Tunisian migrants carried out the arson in protest to their detention conditions and their forthcoming forced return to Tunisia. It should be noted that on 20 September, more than 1 000 Tunisians were kept in detention on the island, 5 times more than at the time of the visit of the ad-hoc Sub-Committee. 58. With less than 200 Tunisians on the island, the ad hoc Sub-Committee was already not allowed to visit the closed part of the reception centre in which the Tunisians were kept. The authorities informed the members of the ad hoc Sub ‑ Committee that for security reasons such a visit was not possible. They reported tensions inside this part of the Centre, as well as attempt of self harm by some of the Tunisians. 59. Considering that the authorities were already worried by a tense situation with less than 200 Tunisians in the Centre, the question occurs as to why more than 1 000 were kept in this very Centre on 20 September. As a matter of fact, this centre is neither designed nor legally designated as a detention centre for irregular migrants. ... XIV. A disproportionate burden for the island of Lampedusa 77. The inadequate and belated management of the crisis early 2011 as well as the recent events will unquestionably have irreparable consequences for the inhabitants of Lampedusa. The 2011 tourist season will be a disaster. Whereas 2010 had seen a 25% increase in the number of visitors, from February 2011 onwards all advance bookings were cancelled. At the end of May 2011, none of the island’s hotels had a single booking. Tourism industry professionals conveyed their feeling of helplessness to the Ad Hoc Sub-Committee. They had incurred expenditure on renovating or improving tourist facilities using the money paid for advance bookings. They had had to repay these sums when the bookings were cancelled and now find themselves in a precarious position, in debt and with no prospect of little money coming in for the 2011 season. 78. The members of the Ad Hoc Sub-Committee also saw the work involved in cleaning and in removal of the boats (or what remains of them, which is clogging up the harbour) and the potential danger that these boats or wrecks pose to water quality around the island, which has to meet strict environmental standards. These operations are also very costly (half a million euros for the 42 boats still afloat at the time of the visit, not to mention the 270 wrecks littering the island). Steps have been taken by the civil protection department to ensure that the boats are dismantled and any liquid pollutants are pumped out. 79. The dilapidated state of these boats reflects the degree of despair felt by people who are prepared to risk their lives crossing the Mediterranean on such vessels. The coastguards told the Ad Hoc Sub-Committee that only 10% of the boats arriving were in a good state of repair. 80. During the delegation’s visit, representatives of the island’s inhabitants (in particular people representing the hotel and restaurant trade) and the Mayor of Lampedusa put forward their ideas for remedying this disaster for the local economy. At no time did they say that they no longer intended to take in people arriving by boat - on the contrary. They did however ask for fair compensation for the losses entailed by their island’s role as a sanctuary. 81. They therefore drew up a document containing several proposals, which they forwarded to the delegation. The key proposal is for the island to be recognised as a free zone. The delegation took due note of this proposal and of that concerning a one-year extension of the deadline for the inhabitants’ tax payments. While recognising that these matters fall outside its mandate, the Ad Hoc Sub-Committee calls on the relevant Italian authorities to consider these requests in view of the heavy burden borne by the island and its inhabitants in the face of the influx of irregular migrants, refugees and asylum-seekers arriving by sea. XV. Conclusions and recommendations ... 92. On the basis of its observations, the Ad Hoc Sub-Committee calls on the Italian authorities: i. to continue to comply immediately and without exception with their obligation to rescue persons in distress at sea and to guarantee international protection, including the right of asylum and nonrefoulement; ii. to introduce flexible measures for increasing reception capacities on Lampedusa; iii. to improve conditions at the existing centres, and in particular the Loran base, while ensuring as a matter of priority that health and safety conditions meet existing standards – even when the centres are overcrowded – and carrying out strict and frequent checks to ensure that the private company responsible for running the centres is complying with its obligations; iv. to ensure that new arrivals are able to contact their families as quickly as possible, even during their stay on Lampedusa, particularly at the Loran base, where there are problems in this regard; v. to provide appropriate reception facilities for unaccompanied minors, ensuring that they are not detained and are kept separate from adults; vi. to clarify the legal basis for the de facto detention in the reception centres in Lampedusa; vii. where Tunisians in particular are concerned, only to keep irregular migrants in administrative detention under a procedure prescribed by law, authorised by a judicial authority and subject to periodic judicial review; viii. to continue to guarantee the rapid transfer of new arrivals to reception centres elsewhere in Italy, even if their number were to increase; ix. to consider the requests by the population of Lampedusa for support commensurate with the burden it has to bear, particularly in economic terms; x. not to conclude bilateral agreements with the authorities of countries which are not safe and where the fundamental rights of the persons intercepted are not properly guaranteed, as in Libya.” C. Amnesty International 50. On 21 April 2011 Amnesty International published a report under the title “Amnesty International findings and recommendations to the Italian authorities following the research visit to Lampedusa and Mineo”. The relevant passages of the report read as follows: “ A humanitarian crisis of the Italian authorities’ own making ... Since January 2011, there has been an increasing number of arrivals on Lampedusa from North Africa. As of 19 April, over 27,000 people had arrived in Italy, mostly on the small island. Despite the significant increase in arrivals, and the predictability of ongoing arrivals in light of unfolding events in North Africa, the Italian authorities allowed the large number of arrivals on Lampedusa to accumulate until the situation on the island became unmanageable. Lampedusa is dependent on the mainland for provision of almost all basic goods and services and is not equipped to be a large reception and accommodation centre, albeit it does have the basics to function as a transit centre for smaller numbers of people. ... Lack of information about or access to asylum procedures Given that, at the time of Amnesty International’s visit on the island, UNHCR estimated that there were around 6,000 foreign nationals on Lampedusa, the number of people tasked with providing information regarding asylum was totally inadequate. As far as Amnesty International could determine, only a handful of individuals were providing basic information regarding asylum procedures, which was totally inadequate given the number of arrivals. Further, those arriving were provided with only a very brief medical assessment and a very basic screening. Moreover, there appeared to be an assumption that all Tunisian arrivals were economic migrants. The fact that, at the time of Amnesty International’s visit, foreign nationals had not been given proper information about access to asylum procedures, and were not being properly identified or screened, is a particular concern. The delegation spoke with people who had been given no, or very inadequate, information about asylum processes; in many cases they had been given no information about their situation at all. They had not been told how long they would have to stay on the island or what their eventual destination would be once moved off the island. Given that many of those arriving on Lampedusa had already endured extremely dangerous sea voyages, including some whose fellow travellers had drowned at sea, the appalling conditions on the island and the almost total absence of information were clearly leading to considerable anxiety and mental stress. In Amnesty International’s view the asylum and reception systems had completely broken down due to the severe overcrowding caused by the total failure to organize timely and orderly transfers off the island. Conditions in the ‘Centres’ of the island In Lampedusa, the Amnesty International delegation visited both the main centre at Contrada Imbriacola, registering and accommodating male adults, mainly from Tunisia, and the Base Loran Centre, accommodating children and new arrivals from Libya. The main centre at Contrada Imbriacola is equipped to function as a transit centre for relatively small numbers of people; its full capacity is just over 800 individuals. On 30 March, Amnesty International delegates spoke with people being accommodated at the centre, as they entered and exited. The delegation was not able to access the centre itself at that time, but was given access the following day when the centre had just been emptied, as all individuals were being moved off the island. Those who had been living at the centre described appalling conditions, including severe overcrowding and filthy, unusable sanitary facilities. Some people told Amnesty International delegates that they had chosen to sleep on the streets rather than in the centre because they considered it so dirty as to make it uninhabitable. Amnesty International subsequently spoke to the centre’s Director who confirmed the overcrowding stating that, on 29 March, it accommodated 1,980 people, more than double its maximum capacity. Although Amnesty International was only able to visit the centre after it had been emptied, the conditions that the delegation witnessed corroborated the reports of former inhabitants. Notwithstanding an ongoing clean-up operation at the time of the visit, there was an overwhelming smell of raw sewage. The remains of makeshift tents were observed in the centre. Piles of refuse were still evident around the centre. ... COLLECTIVE SUMMARY REMOVALS, REPORTEDLY OF TUNISIAN NATIONALS, FROM LAMPEDUSA, FROM 7 APRIL 2011 ONWARDS, FOLLOWING THE SIGNING OF AN AGREEMENT BETWEEN THE ITALIAN AND TUNISIAN AUTHORITIES Amnesty International is extremely concerned by the enforced removal that began on 7 April from Lampedusa, following the recent signing of an agreement between the Tunisian and Italian authorities. At the time of writing these forcible returns were ongoing and had reportedly been carried out twice a day by air since 11 April. On 6 April, the Italian Ministry of Interior announced that Italy had signed an agreement with Tunisia pursuant to which the latter committed itself to strengthening border controls with a view to preventing departures, and to accepting the speedy readmission of people who had recently arrived and who will be arriving in Italy. Amnesty International is particularly concerned that, according to the above ‑ mentioned announcement, Tunisian migrants arriving onto Italian shores may be ‘repatriated directly’ and with ‘simplified procedures’. In the light of this announcement, and given, in particular, Amnesty International’s findings in relation to the total inadequacy of asylum procedures on Lampedusa, the organization believes that those people who have been subjected to ‘direct repatriations’ following ‘simplified procedures’ have been victims of collective summary removals. As far as Amnesty International could ascertain, people have been removed from the island within one or two days of arrival. Thus, it appears highly unlikely that they would have had access to any meaningful or adequate opportunity to assert that they should not be returned to Tunisia on international protection or other grounds. In the circumstances those removals would amount to summary expulsions (cf. the judgments of the European Court of Human Rights in the case of Hassanpour-Omrani v Sweden and Jabari v Turkey ). Such practices are strictly prohibited under international, regional and domestic human rights and refugee law and standards. Additionally human rights and refugee law and standards require that the removing State must provide an effective remedy against removal. Removing people without giving them the chance of exercising their right to challenge their removal through an effective procedure gives rise per se to a human rights violation. This is independent of whether removal would place the individuals concerned at a real risk of serious human rights violations, which, in turn, would constitute a breach of the non ‑ refoulement principle. ...” | This case concerned the detention in a reception centre on Lampedusa and subsequently on ships moored in Palermo harbour, as well as the repatriation to Tunisia, of clandestine migrants who had landed on the Italian coast in 2011 during the events linked to the “Arab Spring”. |
347 | Rape and sexual abuse | I. THE CIRCUMSTANCES OF THE CASE A. The background A. The background A. The background 5. The applicant was born in Ukraine in 1987 and arrived in Slovenia in 2000 with her sister and mother, who had married a Slovenian. 6. Between July and December 2001, at the age of 14, she was allegedly repeatedly sexually assaulted by a family friend, X, 55 years old at the time, who together with his wife often took care of her and helped her in preparations for beauty contests. 7. In July 2002 the applicant told her mother about the alleged sexual assaults by X, but was unwilling to talk about them with anyone else. 8. On 15 July 2002 a priest gave a statement to the Maribor police, in which he said that the applicant’s mother had told him about her concern that the applicant had been raped by X. B. The police investigation 9. On 16 July 2002 the applicant’s mother lodged a criminal complaint against X, in which she alleged that X had forced the applicant to engage in sexual intercourse with him on several occasions. 10. On 17 July 2002 the applicant was questioned by Maribor police officers and described how X had forced her to engage in various sexual activities. As regards the time frame of the assaults, the applicant stated that X had first attempted to kiss her before July 2001, when she had started modelling for fashion shows. She proceeded to give an account of a number of occasions when X had sexually assaulted her. On one occasion X had lain on top of her while she was sleeping at his house and had attempted to have sexual intercourse with her, spreading her legs with one hand and putting his other hand over her mouth to prevent her from screaming, but he was interrupted by his younger son coming up the stairs. On another occasion, when they were at a swimming pool, he had groped her in the water. On yet another occasion X had allegedly taken the applicant to an abandoned workshop owned by his family and performed oral sex on her. Moreover, according to the applicant, X had forced her to perform oral sex on him at least three times, once at his home, once at his company’s garage, and the third time in his van, which he had parked in woods near the town. On that last occasion the applicant had allegedly tried to escape; however, being unfamiliar with the surroundings, she had come back to the van. The applicant stated that X had on several occasions attempted to have intercourse with her, but that she had not been certain whether he had managed to achieve penetration. She further stated that she had tried to defend herself by crying and pushing X away, but without success. 11. The applicant was also examined by an expert in gynaecology, who found that her hymen was intact. Moreover, in the course of July and August 2002 the police questioned X, who denied any sexual relations with the applicant, and three other people. 12. Following a series of unsuccessful attempts to obtain specific information from the police as regards the progress of the investigation, the applicant’s mother complained to the Maribor District State Prosecutor’s Office (hereinafter “the State Prosecutor’s Office”). 13. On 27 June 2003 the State Prosecutor’s Office sent a letter to the Maribor police, urgently requesting a copy of the criminal complaint lodged against X. 14. On 18 August 2003 the police sent a report to the State Prosecutor’s Office stating that the applicant had failed to provide a detailed account of her allegations or to indicate the locations where the alleged rapes had taken place. The police noted that the applicant had given the impression of being under severe psychological stress and in fear of her mother’s reaction. They concluded that it was impossible to confirm her allegation of rape, and equally impossible to establish the reasons for her serious emotional distress. C. The judicial investigation 15. On 28 August 2003 the State Prosecutor’s Office lodged a request for a judicial investigation in respect of X based on charges of sexual assault on a minor below the age of fifteen. The request alleged that X had forced the applicant to engage in oral sex and had had sexual intercourse with her on at least three occasions, despite her refusal and attempted resistance. 16. On 7 January 2005 X was summoned to appear before the investigating judge of the Maribor District Court. He refused to give an oral statement. On 10 March 2005 X, represented by a lawyer, submitted a written statement in which he denied the charges. He also submitted a medical report which indicated that his left arm had been disabled since birth. 17. On 26 May 2005 the investigating judge issued a decision to open a criminal investigation in respect of X. An appeal by X against this decision was rejected by the pre-trial panel of the Maribor District Court. 18. On 17 October 2005 the applicant was examined as a witness before the Ljubljana District Court, which had been asked to carry out the witness examination because the applicant lived in the area. The examination resumed on 8 November 2005. Neither X nor his counsel was informed of this examination. The applicant testified in detail as to when, where and how the alleged offences had taken place. She first described the assault which had occurred in X’s house, while she had been sleeping there, reiterating that X had been disturbed by his son. According to the applicant’s statement, the second assault had occurred when, instead of driving the applicant home, X had parked in the woods and started to kiss her forcefully. X had then undressed the applicant, parted her legs with one hand and held her wrists with the other and again attempted to have intercourse with her, but there had been no penetration. The applicant further recounted that X had on another occasion taken her to the family’s abandoned workshop and had performed oral sex on her. She stated that she had attempted to free herself of his grip, but that X had again pinned her wrists down and also slapped her across the face. Again, vaginal intercourse had been attempted but had not actually occurred. X had ordered her not to talk to anyone about this, or he would have her and her family deported from Slovenia. The applicant added that she remembered these three occasions well and the events had occurred just as she described them, and that there had been a number of other similar incidents between July and December 2001. 19. On 13 and 20 December 2005 X’s wife and another witness were examined by the investigating judge of the Maribor District Court. 20. On 13 January 2006 the Koper District Court, at the request of the Maribor District Court, examined witness D., who testified that the applicant had told her of the alleged rape. 21. On 14 April 2006 the investigating judge examined witness H., who was an employee of the company owned by X and his wife. H. testified that she had not seen X behaving improperly towards the applicant on the company’s premises. 22. On 16 May 2006 the investigating judge appointed an expert in gynaecology, B., in order to establish the probability that the applicant had engaged in sexual intercourse in the period between July and December 2001. The latter carried out a consultation with the applicant, who refused a clinical examination. She told B., among other things, that despite the attempts made by X there had been no actual sexual penetration. During the consultation, B. confronted the applicant with an orthopaedics report stating that X could not have used his left arm in the ways described by her, to which the applicant answered that she had seen X use it to lift heavy items. B. also presented the applicant with the police report stating that she had not been able to give a detailed account of the sexual assaults and specific locations, and asked her why she had not defended herself against X, for instance by scratching or biting. The applicant replied that she had not defended herself and had been unable to do so. On 19 June 2006 the expert prepared his report, which was based on the evidence in the file, including a gynaecological report from 2002 which showed that the applicant’s hymen was intact at that time, and the conversation with the applicant. He found that there was nothing to indicate with certainty that the applicant had had sexual intercourse with X at the material time. In addition to his medical opinion, the expert commented that there were certain inconsistencies in the applicant’s account of the events in issue. It can be seen from the report that neither of the alleged inconsistencies was related to any medical issue. 23. On 20 June 2006 the investigating judge appointed an expert in clinical psychology, R. The latter, after holding a consultation with the applicant, submitted her report on 4 July 2006, and concluded as follows: “Since 2001 Y. has shown all the symptoms of a victim of sexual and other kinds of abuse (emotional, behavioural and physical symptoms) ... In addition to the emotional consequences, the girl shows very typical behavioural patterns relating to the abuse experienced by her, and also some physical symptoms (disturbed sleep, nightmares, collapsing). The symptoms are indicated in the report ... The gravity of the consequences – physical and sexual in particular – is difficult to assess at the present time. But, like the short-term ones, the long-term consequences can be predicted. Their real extent will become apparent at key stages of the girl’s life and in stressful situations ... Because of these effects, which are most serious in her psychological sphere ... it is of very marginal importance whether during the perpetrator’s violent behaviour the child victim experienced hymen defloration or not ... Sexual behavioural patterns can only be assessed properly by an expert in clinical psychology ...” 24. On 15 September 2006 the Maribor district prosecutor’s office indicted X for sexual assault of a child below the age of fifteen under Article 183 §§ 1 and 2 of the Criminal Code. An objection by X to the indictment was rejected by the pre-trial panel of the Maribor District Court on 20 October 2006. D. The trial 25. The Maribor District Court scheduled a hearing for 27 June 2007. However, the hearing was adjourned at X’s request on the basis of a document which showed that he was now on sick leave for several weeks. 26. A hearing was then scheduled for 3 October 2007, but adjourned at X’s counsel’s request. The next hearing was to be held on 12 November 2007. However, owing to the absence of a jury member, the hearing was adjourned. Subsequently, X informed the court that he was about to go on a business trip, for which reason the next hearing was postponed until 16 January 2008. 27. On 16 January 2008 X failed to appear before the court. On 17 January 2008 he submitted a sick-leave certificate. 28. On 25 January 2008 X’s counsel informed the court that X had revoked his power of attorney and that he would be represented by another lawyer, M., from then on. However, the court received no new power of attorney authorising M. to act as X’s counsel. Since X was accused of a criminal offence requiring mandatory representation, on 28 January 2008 the court appointed M. as counsel for X. 29. On 14 March 2008 the court held a hearing, from which the public was excluded on the grounds of protection of privacy and public morals. The court heard evidence from X. At the hearing the applicant’s counsel sought to have M., X’s counsel, disqualified on the ground that in 2001 the applicant and her mother had sought advice from him on the matters in issue. Furthermore, the applicant’s mother had been intimately involved with him. M. denied that he had ever seen the applicant or her mother and said that he only knew that the lawyer at whose firm he had been working at that time had represented the applicant’s mother’s estranged husband in divorce proceedings. The panel dismissed the application, ruling that no statutory grounds existed for disqualifying M. as counsel. 30. On 14 March 2008 X submitted written pleadings, claiming that he would have been unable to use physical force on the applicant, as his left arm had been seriously disabled since birth and was 15 cm shorter than his right arm. X alleged that he had practically no use of his disabled arm. Moreover, he asserted that he and his family had been helping the applicant and her sister to integrate into their new community and learn Slovene, while their mother had been busying herself with her private activities. According to X, the charges of sexual assault were prompted by the applicant’s mother, who wished to extort money from him. 31. On 14 April 2008 the court held a second hearing in the case. X was questioned by the State prosecutor, mostly about the use of his left arm, and in this connection conceded that, although he usually drove automatic cars, he did occasionally drive a smaller manual transmission car. However, when asked whether he had ever driven a truck, X replied that this had no bearing on the case, acknowledging nevertheless that he had a licence to drive all categories of road vehicles. Then the applicant was summoned to testify, the court granting her request for X to be absent from the hearing room. While recounting the instances of sexual abuse by X, the applicant cried repeatedly and the hearing was adjourned for a few minutes on that account. X’s counsel M. then questioned the applicant, asking her how tall she had been and how much she had weighed at the material time. The applicant became very agitated and asked M. why, having been the first to hear her story, he was asking those questions and was now acting as X’s counsel. M. commented that this was part of the tactics. The hearing was then adjourned owing to the applicant’s distress. 32. On 9 May 2008 the court held a third hearing. The questioning of the applicant continued in the absence of X. When asked how she felt about the situation with hindsight, she cried and said that no one had helped her and that the proceedings had been dragging on for several years, during which she had had to keep reliving the trauma. 33. On 27 August 2008 the applicant lodged a supervisory appeal under the Protection of the Right to a Hearing without Undue Delay Act of 2006 (hereinafter “the 2006 Act”) with a view to accelerating the proceedings. 34. On 26 September 2008 the court held a fourth hearing, from which the public was excluded, at which X personally asked the applicant over a hundred questions, starting with a comment in the form of a question “Is it true that you have told and showed me that you could cry on cue and then everybody would believe you?” It does not appear from the record of the hearing that the applicant made any reply. X then asked the applicant a series of questions aimed at proving that they had seen each other mainly at gatherings of their families or when the applicant, in need of transport or other assistance, had actively sought his company. Among the questions asked by X were the following: “Is it true that I could not have abused you on the evening of the event as you stated on 14 April?”, “Is it true that if I had wished to satisfy my sexual needs, I would have called you at least once?”; “Why did you call me in September and ask me to take you out of town if I had already raped you five times before that date?”, “Why were you calling me, because I certainly never called you?”, or “Is it true that you specifically asked that we drive out of town alone, because you wished to talk to me and to celebrate your success at a beauty pageant?” The applicant insisted that she had not called X, nor had she initiated any outings with him, but that he had called her. X also asked the applicant whether she had told him that, once she had a boyfriend, she would always be on top, as she wanted to be the mistress. 35. Moreover, X claimed that the charges of rape were fabrications by the applicant’s mother. Hence, he asked the applicant numerous questions about her mother, including about her knowledge of Slovene, her work, and her personal relationships. Further, X confronted the applicant with the medical report which indicated that his left arm was seriously disabled. The applicant insisted that she had seen X using his left arm in his daily life, including driving cars, lifting and carrying his children and their school bags, and carrying boxes and bottles. Throughout the questioning, X disputed the accuracy and credibility of the applicant’s answers, extensively commenting on the circumstances described by her and rejecting her version of events. He continued to do so even after the presiding judge explained to him that he would have the opportunity to make his comments after the applicant’s questioning. 36. During the cross-examination, X repeated a number of questions and was eventually warned against doing this by the presiding judge. Moreover, the presiding judge ruled out of order seven questions that she perceived had no bearing on the case in issue. 37. On three occasions, when the applicant became agitated and started crying, the court ordered a short recess. After one of these recesses X asked the applicant whether she would feel better if they all went to dinner, just as they used to, and maybe then she would not cry so much. 38. At one point the applicant requested the court to adjourn the hearing as the questions were too stressful for her. However, after being told by X that the next hearing could not be held until after 19 November 2008 when he would be back from a business trip, the applicant said, while crying, that he should continue with his questioning as she wanted to get it over with. Eventually, after four hours of cross-examination of the applicant, the presiding judge adjourned the hearing until 13 October 2008. 39. X’s wife, mother-in-law and an employee of his company were examined at the next hearing, all three of them asserting that X had very little use of his left arm and certainly could not lift any burdens. 40. On 24 November 2008 a sixth hearing was held. The questioning of the applicant by X took an hour and a half. When questioned by X’s counsel M., the applicant again asserted that she had told him the whole story a long time ago. M. denied this, stating that if he had been informed he would have advised the applicant to go to hospital and to the police. Once the applicant’s questioning was over, her mother was questioned, mostly about her private relationships. 41. At the end of the hearing X’s counsel M. confirmed that he had encountered the applicant’s mother when he was working at a law firm with a lawyer who had represented her in certain court proceedings. He also stated that he would inform the court within three days as to whether he would request leave to withdraw from representing X in the proceedings in issue. On 25 November 2008 M. requested leave from the court to withdraw from the case, as he had been personally affected by certain statements made by the applicant’s mother. 42. At a hearing of 15 December 2008 the court dismissed the request by X’s counsel M., finding that there were no statutory grounds disqualifying him from representing M. The gynaecologist, B., was examined as a witness. He acknowledged that in order to clarify the circumstances he had also addressed certain issues in his report that had not been part of the investigating judge’s request. Moreover, he reiterated that the applicant’s hymen had been intact at the material time. 43. On 22 January 2009 the court held an eighth hearing in the case and examined the expert in clinical psychology, R., who again stated that sexual abuse which had happened long ago could not be proved by any material evidence, and that only the psychological consequences could be assessed. She further reiterated that the applicant displayed clear symptoms of sexual abuse. 44. On 20 February 2009 the court appointed T., another expert in gynaecology, to give an opinion on whether the applicant could have had sexual intercourse at the material time, given the results of her medical examination (see paragraph 11 above). On 10 March 2009 the expert submitted his report, which stated that those results were not inconsistent with the applicant’s account of the events in issue. 45. On 16 March 2009 the court held a hearing at which it appointed N., an expert in orthopaedics, to prepare an opinion as to whether, in view of his disabled left arm, X could have performed the acts described by the applicant. 46. On 5 May 2009 N. submitted his report, in which he found that X’s left arm was severely disabled, and that for those reasons some of the events could not have happened in the way described by the applicant. 47. On 8 June 2009 the court held a hearing at which N. was questioned. Further to questions put by the applicant’s counsel, N. explained that he had based his opinion on the documents in X’s medical file, the X-rays brought to him by X, and an examination of X. 48. A hearing was held on 9 July 2009. The applicant requested that N. be questioned further. 49. On 29 September 2009 the court held the twelfth and last hearing in the case. At the hearing the applicant and the State Prosecutor questioned N., who stated, inter alia, that X could only use his left arm to assist the right arm in carrying out specific tasks, and that he had practically no strength in his left arm. In the expert’s opinion, X would not have been able to spread the applicant’s legs with his left arm, and neither would he have been able to take off his trousers as alleged by her. After being asked by the prosecutor whether his assessment was based on the assumption that the applicant had used all her strength to resist X, N. stated: “I did not base my conclusion on that assumption, as I did not know whether she had resisted or whether she had willingly submitted.” After being asked whether the applicant, who was 14 years old at the time, could have resisted X, who had allegedly been lying on top of her, he said he believed so. N. also testified that although X had more than ordinary strength in his right arm, he could not have assaulted the applicant in the way she alleged. 50. After the examination of N., the applicant, who had sought and obtained an opinion from another orthopaedist outside the court proceedings which indicated that X might still have limited use of his left arm, asked for another orthopaedics expert to be appointed, on the grounds that there was doubt about N.’s conclusions. This request was rejected by the court as unnecessary, as was the applicant’s request for the court also to call as witnesses her sister and her mother’s former husband, who had allegedly seen X rowing with both arms. A request by the prosecutor for the applicant to be examined again was also rejected. 51. At the end of the hearing the court pronounced judgment, acquitting X of all charges. In view of this verdict, the court recommended that the applicant pursue her claim for damages, which she had submitted in the course of the proceedings, before the civil court. 52. On 15 December 2009 the applicant lodged a new supervisory appeal under the 2006 Act. On 22 December 2009 she received a reply from the court informing her that the reasoning of the judgment had been sent to her that day. 53. In the written grounds the court explained that the expert orthopaedics report contested X’s ability to carry out certain acts described by the applicant, for which he would have had to use both arms. As explained by the expert, X was not capable of even moving his left hand in a position which would have allowed him to take his trousers off or spread the applicant’s legs. According to the court, the fact that some of the applicant’s allegations were disproved by the expert raised some doubts as to her entire version of the events. On the basis of the principle that any reasonable doubt should benefit the accused ( in dubio pro reo ), the court had acquitted X. As regards the report by the expert in psychology R., which found that the applicant had suffered sexual abuse, the court noted that it could not ignore the judgment delivered in another set of proceedings concerning the applicant’s mother’s estranged husband, in which the competent court had accepted that he had engaged in sexual activity in front of the applicant and her sister and had also behaved inappropriately towards the applicant. 54. On 30 December 2009 the State Prosecutor lodged an appeal, in which she criticised the court for not considering the fact that owing to his age, gender and body mass X was much stronger than the applicant, and was also in a position of power on account of his economic and social status. Moreover, she pointed out that X had operated manual transmission vehicles, which required him to use both his arms. The prosecutor further argued that the criminal offence in question did not require the sexual act to have been committed by force; it was sufficient that the applicant opposed it. She also stressed that the proceedings had already been pending for eight years, which had aggravated the trauma suffered by the applicant. 55. The appeal was dismissed by the Maribor Higher Court on 26 May 2010, which found that the reasoning of the first-instance court’s judgment was clear and precise regarding the doubt that X had committed the alleged criminal acts. 56. The applicant subsequently asked the Supreme State Prosecutor to lodge a request for the protection of legality (an extraordinary remedy). On 28 July 2010 the Supreme State Prosecutor informed the applicant that the aforementioned request could only concern points of law and not the facts, which the applicant had called into question. E. Compensation for delays in the criminal proceedings 57. On 11 February 2011 the applicant and the Government reached an out-of-court settlement under the 2006 Act in the amount of 1,080 euros (EUR), covering all pecuniary and non-pecuniary damage incurred by the applicant as a result of a violation of her right to a trial without undue delay in the criminal proceedings in issue. The applicant also received EUR 129.60 in respect of the costs incurred in the proceedings. | This case concerned a young woman’s complaint about the criminal proceedings brought against a family friend, whom she accused of repeatedly sexually assaulting her while she was a minor, alleging that the proceedings were excessively long and traumatic for her. The applicant submitted in particular that the investigation into her allegation of sexual assault on her and the ensuing judicial proceedings had been unreasonably delayed – having lasted seven years between the lodging of her complaint and the pronouncement of the first-instance judgment. She further complained of breaches of her personal integrity during the criminal proceedings and in particular that she had been traumatised by having been cross-examined by the defendant himself during two of the hearings in her case. |
507 | General prohibition of discrimination | 2. The applicant was born in 1972 and lives in Bucharest. She was represented by S.C.A. Ionescu and Sava, a law firm in Bucharest. 3. The Government were represented by their Agent, most recently Ms O.F. Ezer, of the Ministry of Foreign Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s work IN the consular section OF THE ROMANIAN embassy IN Ljubljana 5. The applicant is a Romanian diplomat. On 1 October 2002 she started working for the Ministry of Foreign Affairs (hereinafter “the MFA”). 6. The applicant sat a competitive examination for a four-year post as a consular officer at the Romanian embassy in Ljubljana. Following the examination, she was appointed to the post by an order of the Minister for Foreign Affairs issued on 9 February 2007. At the time, she held the diplomatic rank of third secretary. Her diplomatic posting started on 2 March 2007, and since 1 January 2006 the post had been held by diplomats sent on temporary assignments. 7. When the applicant arrived to take up her post, the embassy’s diplomatic staff consisted of the ambassador and two junior diplomats: the applicant, who was in charge of consular duties (about 70% of her work), and another individual, whose main tasks were diplomatic and political cooperation and who had received no consular training. The diplomatic staff also included an economic officer, sent from the Ministry of the Economy. 8. The applicant’s consular work consisted mainly in providing help to Romanian nationals who found themselves in emergency situations in Slovenia, notably in police detention, without identity papers or hospitalised. The first pregnancy 9. In April 2007 the applicant married a Slovenian official. A few months later she became pregnant with their first child. In November 2007 she was absent from work for a few days because of health problems linked to her pregnancy. On 27 November her obstetrician ordered that she should have bed rest. On the next day she informed the ambassador of her medical condition. She also asked to take her annual leave in the period from December to January 2008. 10. On 6 December 2007 the ambassador sent an internal report on the applicant’s absence from work to the MFA, accompanied by a note written in the following terms: “Please find attached a communication from the embassy in Ljubljana which presents the act of insubordination [ actul de indisciplină ] committed by Mrs Oana Napotnik ...” 11. The ambassador described in detail the applicant’s absence from work and asked for a replacement to be sent for the month of December, when requests for consular assistance were high. As no replacement was sent from the MFA, the consular section was closed during the applicant’s absence and requests for assistance were redirected to the embassies in Zagreb, Vienna or Budapest. The applicant resumed work in February 2008. 12. The applicant returned to work during her leave, on 14 and 17 December 2007, in order to deal with urgent consular matters. 13. In December 2007 the applicant was promoted to second secretary, upon being recommended for this position by her superiors. 14. The applicant, who gave birth to her child on 16 June 2008, was on maternity leave from 2 June to 19 October 2008. She then took annual leave until 5 December 2008. 15. The consular section of the embassy was closed between 2 and 15 June 2008, when a replacement was found for the applicant; that person was on a temporary assignment. 16. Between 17 and 19 July 2008, after the start of the applicant’s maternity leave, the MFA organised an audit of the embassy in Ljubljana. According to the ensuing report, deficiencies were found in the consular activity at the embassy. In particular, it was found that consular requests and official documents had been improperly recorded in the embassy records. Some original documents issued by the consular section had not been archived or had simply been lost. Some documents had been recorded on the wrong date or had not been signed by the relevant parties. The audit team made recommendations, without proposing sanctions. The relevant part of the report read as follows: “Several deficiencies have been identified in the consular activity, despite the low volume of work. One of the reasons is linked to the parameters of Mrs Oana Napotnik’s professional activity, including the fact that during the first half of 2008, owing to her pregnancy, she was absent from work for long periods of time.” 17. On 27 February 2009 the applicant sent an answer to the MFA, pointing out in particular that the audit team had generalised some particular situations where errors had been made, and that she had been made responsible for the conduct of the diplomats who had preceded her and those who had replaced her during her absence. She also found it regrettable that she had not been invited to talk to the inspectors while the audit team had been in Ljubljana. The second pregnancy 18. The applicant returned to work on 5 December 2008. The ambassador considered that, as the applicant had worked very little that year, it would be more appropriate to postpone her annual work performance evaluation by six months. On 14 January 2009 the ambassador informed the MFA of that decision. 19. On 19 January 2009 the applicant informed the ambassador that she was pregnant and was due to give birth in the second half of July 2009. 20. On the same day the ambassador concluded the applicant’s annual performance evaluation for 2008. The overall assessment read as follows: “Although the overall assessment is that ‘the performance met the job requirements’, in Mrs Oana Napotnik’s case, bearing in mind the short period of time which she spent working in 2008, because of her maternity leave and because of frequent absences due to medical appointments from February to June, these circumstances mean that she is not best suited for consular activity, which has a certain specificity, particularly since Mrs Napotnik is the head of the consular section.” 21. The applicant was informed of this report on 23 January 2009. She disagreed with the assessment. Termination of the applicant’s posting 22. On 20 January 2009 the ambassador discussed the applicant’s situation with his superiors. In an internal note for the attention of the Minister for Foreign Affairs, the ambassador reiterated that the applicant had been repeatedly absent, owing to her first pregnancy, and it was to be expected that she would be absent again in connection with the new pregnancy. It was concluded that she was of little use to the diplomatic mission in Ljubljana. She created additional costs for the MFA because of the need to replace her on a temporary basis (notably costs with regard to lodging the replacement diplomat in Ljubljana). The note also reiterated that the audit team had found “deficiencies in the applicant’s consular activity”. It was proposed that the applicant’s posting be terminated. 23. In a separate communication sent to the MFA on 20 January 2009, the ambassador reiterated that the applicant’s prolonged and repeated absences due to her pregnancies had meant that she was of little use to the diplomatic mission in Ljubljana. The ambassador added that she represented an additional security risk because of her marriage to a Slovenian national: the applicant’s husband drove the applicant’s car, which was registered with diplomatic plates. 24. By a ministerial order of 20 January 2009, the applicant’s posting to Ljubljana was terminated. The next day the embassy in Ljubljana was given notice of the order. The applicant was informed that her mission had been terminated and that she was expected to return to the Bucharest office on 14 February 2009. She immediately requested parental leave (see Article 27 of Law no. 269/2003, quoted in paragraph 33 below). 25. At the applicant’s request, her contract of employment was suspended by orders of the Minister for Foreign Affairs, firstly in respect of her parental leave (from 14 February 2009 to 15 May 2010 for the first child, and from 15 May 2010 to 22 July 2011 for the second child), and then in order to allow her to accompany her husband on his permanent diplomatic posting abroad (lasting four years, starting from 22 July 2011). She was not paid a salary by her employer while her contract was suspended. 26. On 1 September 2015 the applicant resumed her work at the MFA. On 20 September 2016 she was promoted to first secretary. On the date of the last information received from the parties in this regard (the Government’s observations of 14 June 2019) she was still working for the MFA, in Bucharest. Civil action against tHE termination of the APPLICANT’S diplomatic posting in Slovenia 27. On 28 September 2009 the applicant lodged a civil action against the MFA concerning the termination of her posting abroad. She complained mainly that the reason for the act in question had been her pregnancy. In her view, that reason was discriminatory and thus unlawful. 28. On 21 March 2012 the Bucharest County Court dismissed the action. It reiterated that the Minister for Foreign Affairs had the discretion to organise foreign representation and terminate postings abroad whenever necessary, on serious grounds. The court concluded that the applicant’s posting had not been terminated on discriminatory grounds. The relevant parts of its findings read as follows: “The court considers that the termination [of the applicant’s posting was] allowed in the specific sphere of diplomatic activity and [did] not constitute a disciplinary measure ... it is within the discretion of [the MFA] to decide, in order to ensure the renewal [of the diplomatic corps], when to begin a diplomat’s new posting and when to terminate [the postings] of others, in order to ensure and maintain the functional capacity of diplomatic missions. ... In so far as discrimination is concerned, the court notes that decisions to terminate a posting are taken by [the MFA] with regard to all diplomats, irrespective of their sex; when [the applicant] argues that her posting should not have been terminated on these grounds, [she] is using her pregnancy in order to obtain preferential treatment.” 29. The applicant lodged an appeal with the Bucharest Court of Appeal. She maintained her arguments that her diplomatic posting had been terminated on discriminatory grounds related to her pregnancy. 30. In a final decision of 8 November 2012, the Court of Appeal dismissed the appeal and upheld the decision rendered by the County Court on 21 March 2012 (see paragraph 28 above). In addition, it found as follows: “The Labour Code does not limit an employer’s right to organise the activity of its pregnant employees, the sole prohibition being that their contract of employment may not be terminated ... ... [the applicant] did not prove that she had been discriminated against by [the MFA], as the decisions to terminate her posting had been taken by the MFA lawfully and within the scope of its discretion, with a view to ensuring the functioning of the MFA; such a measure can be taken in respect of all employees of the MFA, irrespective of sex or pregnancy.” | In this case, the applicant’s diplomatic posting abroad, in the Romanian Embassy in Ljubljana, was terminated immediately after announcing her second pregnancy. The applicant alleged that she had been discriminated against at work, arguing that the sequence of events clearly indicated that her diplomatic posting had been terminated because she was pregnant. |
788 | Providing medical information to the public | I. INTRODUCTION A. The applicants 9. The applicants in this case are (a) Open Door Counselling Ltd (hereinafter referred to as Open Door), a company incorporated under Irish law, which was engaged, inter alia, in counselling pregnant women in Dublin and in other parts of Ireland; and (b) Dublin Well Woman Centre Ltd (hereinafter referred to as Dublin Well Woman), a company also incorporated under Irish law which provided similar services at two clinics in Dublin; (c) Bonnie Maher and Ann Downes, who worked as trained counsellors for Dublin Well Woman; (d) Mrs X, born in 1950 and Ms Maeve Geraghty, born in 1970, who join in the Dublin Well Woman application as women of child-bearing age. The applicants complained of an injunction imposed by the Irish courts on Open Door and Dublin Well Woman to restrain them from providing certain information to pregnant women concerning abortion facilities outside the jurisdiction of Ireland by way of non-directive counselling (see paragraphs 13 and 20 below). Open Door and Dublin Well Woman are both non-profit- making organisations. Open Door ceased to operate in 1988 (see paragraph 21 below). Dublin Well Woman was established in 1977 and provides a broad range of services relating to counselling and marriage, family planning, procreation and health matters. The services offered by Dublin Well Woman relate to every aspect of women ’ s health, ranging from smear tests to breast examinations, infertility, artificial insemination and the counselling of pregnant women. 10. In 1983, at the time of the referendum leading to the Eighth Amendment of the Constitution (see paragraph 28 below), Dublin Well Woman issued a pamphlet stating inter alia that legal advice on the implications of the wording of the provision had been obtained and that "with this wording anybody could seek a court injunction to prevent us offering" the non-directive counselling service. The pamphlet also warned that "it would also be possible for an individual to seek a court injunction to prevent a woman travelling abroad if they believe she intends to have an abortion". B. The injunction proceedings 1. Before the High Court 11. The applicant companies were the defendants in proceedings before the High Court which were commenced on 28 June 1985 as a private action brought by the Society for the Protection of Unborn Children (Ireland) Ltd (hereinafter referred to as S.P.U.C.), which was converted into a relator action brought at the suit of the Attorney General by order of the High Court of 24 September 1986 (the Attorney General at the relation of the Society for the Protection of Unborn Children (Ireland) Ltd v. Open Door Counselling Ltd and Dublin Well Woman Centre Ltd [1988] Irish Reports, pp. 593-627). 12. S.P.U.C. sought a declaration that the activities of the applicant companies in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion were unlawful having regard to Article 40.3.3 o of the Constitution which protects the right to life of the unborn (see paragraph 28 below) and an order restraining the defendants from such counselling or assistance. 13. No evidence was adduced at the hearing of the action which proceeded on the basis of certain agreed facts. The facts as agreed at that time by Dublin Well Woman may be summarised as follows: (a) It counsels in a non-directive manner pregnant women resident in Ireland; (b) Abortion or termination of pregnancy may be one of the options discussed within the said counselling; (c) If a pregnant woman wants to consider the abortion option further, arrangements will be made by the applicant to refer her to a medical clinic in Great Britain; (d) In certain circumstances, the applicant may arrange for the travel of such pregnant women; (e) The applicant will inspect the medical clinic in Great Britain to ensure that it operates at the highest standards; (f) At those medical clinics abortions have been performed on pregnant women who have been previously counselled by the applicant; (g) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions have been performed for many years including 1984. The facts agreed by Open Door were the same as above with the exception of point (d). 14. The meaning of the concept of non-directive counselling was described in the following terms by Mr Justice Finlay CJ in the judgment of the Supreme Court in the case (judgment of 16 March 1988, [1988] Irish Reports 618 at p. 621): "It was submitted on behalf of each of the Defendants that the meaning of non-directive counselling in these agreed sets of facts was that it was counselling which neither included advice nor was judgmental but that it was a service essentially directed to eliciting from the client her own appreciation of her problem and her own considered choice for its solution. This interpretation of the phrase ‘ non-directive counselling ’ in the context of the activities of the Defendants was not disputed on behalf of the Respondent. It follows from this, of course, that non- directive counselling to pregnant women would never involve the actual advising of an abortion as the preferred option but neither, of course, could it permit the giving of advice for any reason to the pregnant women receiving such counselling against choosing to have an abortion." 15. On 19 December 1986 Mr Justice Hamilton, President of the High Court, found that the activities of Open Door and Dublin Well Woman in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion or to obtain further advice on abortion within a foreign jurisdiction were unlawful having regard to the provisions of Article 40.3.3 o of the Constitution of Ireland. He confirmed that Irish criminal law made it an offence to procure or attempt to procure an abortion, to administer an abortion or to assist in an abortion by supplying any noxious thing or instrument (sections 58 and 59 of the Offences against the Person Act 1861 - see paragraph 29 below). Furthermore, Irish constitutional law also protected the right to life of the unborn from the moment of conception onwards. An injunction was accordingly granted "... that the Defendants [Open Door and Dublin Well Woman] and each of them, their servants or agents, be perpetually restrained from counselling or assisting pregnant women within the jurisdiction of this Court to obtain further advice on abortion or to obtain an abortion". The High Court made no order relating to the costs of the proceedings, leaving each side to bear its own legal costs. 2. Before the Supreme Court 16. Open Door and Dublin Well Woman appealed against this decision to the Supreme Court which in a unanimous judgment delivered on 16 March 1988 by Mr Justice Finlay CJ rejected the appeal. The Supreme Court noted that the appellants did not consider it essential to the service which they provided for pregnant women in Ireland that they should take any part in arranging the travel of women who wished to go abroad for the purpose of having an abortion or that they arranged bookings in clinics for such women. However, they did consider it essential to inform women who wished to have an abortion outside the jurisdiction of the court of the name, address, telephone number and method of communication with a specified clinic which they had examined and were satisfied was one which maintained a high standard. 17. On the question of whether the above activity should be restrained as being contrary to the Constitution, Mr Justice Finlay CJ stated: "... the essential issues in this case do not in any way depend upon the Plaintiff establishing that the Defendants were advising or encouraging the procuring of abortions. The essential issue in this case, having regard to the nature of the guarantees contained in Article 40, s.3, sub-s.3 of the Constitution, is the issue as to whether the Defendants ’ admitted activities were assisting pregnant women within the jurisdiction to travel outside that jurisdiction in order to have an abortion. To put the matter in another way, the issue and the question of fact to be determined is: were they thus assisting in the destruction of the life of the unborn? I am satisfied beyond doubt that having regard to the admitted facts the Defendants were assisting in the ultimate destruction of the life of the unborn by abortion in that they were helping the pregnant woman who had decided upon that option to get in touch with a clinic in Great Britain which would provide the service of abortion. It seems to me an inescapable conclusion that if a woman was anxious to obtain an abortion and if she was able by availing of the counselling services of one or other of the Defendants to obtain the precise location, address and telephone number of, and method of communication with, a clinic in Great Britain which provided that service, put in plain language, that was knowingly helping her to attain her objective. I am, therefore, satisfied that the finding made by the learned trial Judge that the Defendants were assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion is well supported on the evidence ..." The Court further noted that the phrase in Article 40.3.3 o "with due regard to the equal right to life of the mother" did not arise for interpretation in the case since the applicants were not claiming that the service they were providing for pregnant women was "in any way confined to or especially directed towards the due regard to the equal right to life of the mother ...". 18. Open Door and Dublin Well Woman had submitted that if they did not provide this counselling service it was likely that pregnant women would succeed nevertheless in obtaining an abortion in circumstances less advantageous to their health. The Court rejected this argument in the following terms: "Even if it could be established, however, it would not be a valid reason why the Court should not restrain the activities in which the defendants were engaged. The function of the courts, which is not dependent on the existence of legislation, when their jurisdiction to defend and vindicate a constitutionally guaranteed right has been invoked, must be confined to the issues and to the parties before them. If the Oireachtas enacts legislation to defend and vindicate a constitutionally guaranteed right it may well do so in wider terms than are necessary for the resolution of any individual case. The courts cannot take that wide approach. They are confined to dealing with the parties and issues before them. I am satisfied, therefore, that it is no answer to the making of an order restraining these defendants ’ activities that there may be other persons or the activities of other groups or bodies which will provide the same result as that assisted by these defendants ’ activities." 19. As to whether there was a constitutional right to information about the availability of abortion outside the State, the court stated as follows: "The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40.3.3 o it is a direct destruction of the constitutionally guaranteed right to life of that unborn child. It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40, s.6, sub-s.1 ( i ) of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child." 20. The court upheld the decision of the High Court to grant an injunction but varied the terms of the order as follows: "... that the defendants and each of them, their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise." The costs of the Supreme Court appeal were awarded against the applicant companies on 3 May 1988. 21. Following the judgment of the Supreme Court, Open Door, having no assets, ceased its activities. C. Subsequent legal developments 22. On 25 September 1989 S.P.U.C. applied to the High Court for a declaration that the dissemination in certain student publications of information concerning the identity and location of abortion clinics outside the jurisdiction was unlawful and for an injunction restraining its distribution. Their standing to apply to the courts for measures to protect the right to life of the unborn had previously been recognised by the Supreme Court following a similar action in the case of Society for the Protection of Unborn Children (Ireland) Ltd v. Coogan and Others ([1989] Irish Reports, pp. 734-751). By a judgment of 11 October 1989 the High Court decided to refer certain questions to the European Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty concerning, inter alia, the question whether the right to information concerning abortion services outside Ireland was protected by Community law. 23. An appeal was brought against this decision and, on 19 December 1989, the Supreme Court granted an interlocutory injunction restraining the students from "publishing or distributing or assisting in the printing, publishing or distribution of any publication produced under their aegis providing information to persons (including pregnant women) of the identity and location of and the method of communication with a specified clinic or clinics where abortions are performed" (Society for the Protection of Unborn Children (Ireland) Ltd v. Stephen Grogan and Others, [1989] Irish Reports, pp. 753-771). Mr Justice Finlay CJ (with whom Mr Justice Walsh, Mr Justice Griffin and Mr Justice Hederman concurred) considered that the reasoning of the court in the case brought against the applicant companies applied to the activities of the students: "I reject as unsound the contention that the activity involved in this case of publishing in the students ’ manuals the name, address and telephone number, when telephoned from this State, of abortion clinics in the United Kingdom, and distributing such manuals in Ireland, can be distinguished from the activity condemned by this Court in [the Open Door Counselling case] on the grounds that the facts of that case were that the information was conveyed during periods of one to one non-directive counselling. It is clearly the fact that such information is conveyed to pregnant women, and not the method of communication which creates the unconstitutional illegality, and the judgment of this Court in the Open Door Counselling case is not open to any other interpretation." Mr Justice McCarthy also considered that an injunction should be issued and commented as follows: "In the light of the availability of such information from a variety of sources, such as imported magazines, etc., I am far from satisfied that the granting of an injunction to restrain these defendants from publishing the material impugned would save the life of a single unborn child, but I am more than satisfied that if the courts fail to enforce, and enforce forthwith, that guarantee as construed in A.G. (S.P.U.C.) v. Open Door Counselling Ltd ([1988] Irish Reports 593), then the rule of law will be set at nought." 24. In a judgment of 4 October 1991 on the questions referred under Article 177 of the EEC Treaty, following the Supreme Court ’ s judgment, the Court of Justice of the European Communities ruled that the medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty. However it found that the link between the activity of the student associations and medical terminations of pregnancy carried out in clinics in another member State was too tenuous for the prohibition on the distribution of information to be capable of being regarded as a restriction on the freedom to supply services within the meaning of Article 59 of the Treaty. The Court did not examine whether the prohibition was in breach of Article 10 (art. 10) of the Convention. In the light of its conclusions concerning the restriction on services it considered that it had no jurisdiction with regard to national legislation "lying outside the scope of Community law". Accordingly, the restrictions on the publication of information by student associations were not considered to be contrary to Community law (see paragraphs 22-23 above, the Society for the Protection of Unborn Children ( Ireland ) Ltd v. Stephen Grogan and Others [1991] European Court Reports I, pp. 4733-4742). 25. The interpretation to be given to Article 40.3.3 o of the Constitution also arose before the Supreme Court in the case of The Attorney General v. X and Others which concerned an application to the courts by the Attorney General for an injunction to prevent a 14-year-old girl who was pregnant from leaving the jurisdiction to have an abortion abroad. The girl alleged that she had been raped and had expressed the desire to commit suicide. The Supreme Court, in its judgment of 5 March 1992, found that termination of pregnancy was permissible under Article 40.3.3 o where it was established as a matter of probability that there was a real and substantial risk to the life of the mother if such termination was not effected. Finding that this test was satisfied on the facts of the case the Supreme Court discharged the injunction which had been granted by the High Court at first instance. A majority of three judges of the Supreme Court ( Finlay CJ, Hederman and Egan JJ.) expressed the view that Article 40.3.3 o empowered the courts in proper cases to restrain by injunction a pregnant woman from leaving the jurisdiction to have an abortion so that the right to life of the unborn might be defended and vindicated. During the oral hearing before the European Court of Human Rights, the Government made the following statement in the light of the Supreme Court ’ s judgment in this case: "... persons who are deemed to be entitled under Irish law to avail themselves of termination of pregnancy in these circumstances must be regarded as being entitled to have appropriate access to information in relation to the facilities for such operations, either in Ireland or abroad." D. Evidence presented by the applicants 26. The applicants presented evidence to the Court that there had been no significant drop in the number of Irish women having abortions in Great Britain since the granting of the injunction, that number being well over 3,500 women per year. They also submitted an opinion from an expert in public health (Dr J.R. Ashton) which concludes that there are five possible adverse implications for the health of Irish women arising from the injunction in the present case: 1. An increase in the birth of unwanted and rejected children; 2. An increase in illegal and unsafe abortions; 3. A lack of adequate preparation of Irish women obtaining abortions; 4. Increases in delay in obtaining abortions with ensuing increased complication rates; 5. Poor aftercare with a failure to deal adequately with medical complications and a failure to provide adequate contraceptive advice. In their written comments to the Court, S.P.U.C. claimed that the number of abortions obtained by Irish women in England, which had been rising rapidly prior to the enactment of Article 40.3.3 o, had increased at a much reduced pace. They further submitted that the number of births to married women had increased at a "very substantial rate". 27. The applicants claimed that the impugned information was available in British newspapers and magazines which were imported into Ireland as well as in the yellow pages of the London telephone directory which could be purchased from the Irish telephone service. It was also available in publications such as the British Medical Journal which was obtainable in Ireland. While not challenging the accuracy of the above information the Government observed that no newspaper or magazine had been produced in evidence to the Court. | The applicants were two Irish companies which complained about being prevented, by means of a court injunction, from providing to pregnant women information about abortion abroad. |
354 | Violence by private individuals | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1940 and lives in Donetsk. A. History of the applicant ’ s conflict with the co-owners of her flat 7. In the end of November 2001 the applicant was visited by two unfamiliar men, V.S. and A.N., who offered to buy half of the flat she lived in for 700 United States dollars ( USD ). It was a one-bedroom flat, measuring 43.3 square meters, recently privatised and acquired in equal shares by the applicant and her adult son, Y. The applicant refused to sell her half of the flat. According to her, the price offered was extraordinarily below the market value. In any event, she had no reason to sell the flat, which had been her long-established home for several decades. In response, V.S. and A.N. warned the applicant that she would regret her decision, because Y., (who was married and lived elsewhere), had offered the other half of the flat as a gift to V.S. If the applicant refused to sell her half for the price, which was offered to her, or to exchange it for a smaller flat on the outskirts of the city, V.S. would move into the flat and create intolerable living conditions for her. 8. Subsequently the applicant learned that on 18 December 2001 Y. had signed a notarised gift deed in which he transferred his title to half of the flat ( which was not as divided into allocated parts of the whole ) to V.S. 9. From November 2002 A.N., V.S. and their acquaintances started regularly visiting the applicant ’ s flat, demanding that she sell. According to the applicant, on numerous occasions they broke the locks, insulted and harassed her and caused damage to her property. Subsequently a part and then the entire of V.S. ’ s share in the flat was formally acquired by A.N. as a gift, whose value amounted to 5,602 Ukrainian hryvnias (UAH) according to the gift certificates. However, irrespective of this transfer, A.N. and V.S. continued to act in concordance in demanding the applicant move out and sell her share. 10. For instance, on 23 November 2002 A.N. and V.S. broke the locks on the entrance door when the applicant was away, entered the flat and, upon the applicant ’ s arrival, reiterated their demands that she sell her share. As the applicant protested against their presence in the flat and their overall conduct, a conflict emerged, in the course of which A.N. hit the applicant in the chest inflicting a bruise and causing soft tissue swelling. 11. On 26 November 2002 A.N., V.S. and several strangers broke into the applicant ’ s flat again. As they were irritated by the barking of the applicant ’ s dog, V.S. started kicking her and chased her out. Subsequently the applicant found her dog ’ s dead body in a garbage container. 12. Also on an unspecified date in November 2002 V.S. arrived in the flat after 11 p.m. ( when the applicant was already asleep ) and opened the balcony door, holding it open for some four hours notwithstanding the freezing temperature outside. In response to the applicant ’ s subsequent reprimands, he explained that he wished for her to catch a cold as she had been disagreeable. 13. On 15 December 2002, when the applicant ’ s daughter was visiting the applicant, V.S. arrived in the flat again. A conflict emerged, in the course of which V.S. hit the applicant on the head and stomach, inflicting concussion and blunt trauma of the abdominal wall. He also hit the applicant ’ s daughter on the head and other parts of the body, inflicting cerebral concussion and bruising of legs and arms. As a result of the conflict, the applicant and her daughter had to seek medical assistance for their injuries and the applicant received inpatient hospital treatment. 14. Subsequently V.S. and A.N. started installing in the flat from two to six strangers without the applicant ’ s consent. These tenants, mostly young males, behaved in a discourteous way. In particular, they organised loud parties; frivolously used, damaged and stole the applicant ’ s belongings; created insanitary conditions; carelessly used electricity, gas and appliances, frequently left the entrance door open, and ignored requests to contribute towards the maintenance charges on the flat. 15. On numerous occasions the applicant attempted to drive the tenants away or to call them to order. Her efforts resulted in conflicts, in the course of which she was harassed and intimidated. Her attempts to replace the locks on the entrance doors to prevent unauthorised entry into the flat resulted in them being broken and in the tenants, who frequently changed, moving in again, in spite of her discontent. As she was unable to withstand such living conditions and was afraid for her life and limb, the applicant effectively moved out, contending herself with odd living arrangements. However, she paid short visits to the flat regularly, to supervise the situation. 16. In the beginning of June 2003 V.S. drove his car onto the footpath, where the applicant was standing waiting for a bus, scaring and nearly hitting her. 17. On 11 July 2003 at about 9.20 a.m. V.S. again arrived in the flat, when the applicant was in it, and demanded that she surrender her share. A conflict emerged, in the course of which V.S. punched the applicant in the stomach, causing her physical pain. 18. On three further occasions (30 July 2004, 5 August and 1 December 2005) the applicant was severely beaten by V.S., twice accompanied by his acquaintance A.L. The applicant suffered physical pain and bruising. On 30 July 2005, in addition to that, she also sustained a second concussion, which necessitated inpatient treatment. 19. On various dates the applicant learned that A.N. and V.S. had also acquired ownership of shares in numerous other flats in Donetsk and that they had behaved similarly with the co-owners of these flats, inducing them to sell their shares on unfavourable terms. B. The applicant ’ s action for rescission of the gift deed (first set of civil proceedings) 20. On 16 October 2003 the Voroshylivsky district prosecutor instituted civil proceedings on the applicant ’ s behalf, seeking rescission of the gift deed between Y. and V.S. and the eviction of the latter on the grounds that the gift deed had been executed without the applicant ’ s consent. 21. On 12 November 2003 the Voroshylivsky District Court of Donetsk (hereafter “the Voroshylivsky Court”) allowed this claim, having found, in particular, that Article 113 of the Civil Code of Ukraine of 1963 did not authorise the transfer of title to a part of shared property, which had not been divided into allocated parts and that it also obliged co-owners of a shared property to seek the consent of their counterparts before carrying out transactions in it. 22. On 5 February 2004 the Donetsk Regional Court of Appeal (hereinafter “the Regional Court”) quashed this judgment following an appeal by the applicants ’ opponent and dismissed the prosecutor ’ s claim, having found that, unlike in the case of selling part of a shared property, giving it as a gift to a third party did not require the co-owners ’ consent. 23. On 10 August 2004 the Supreme Court of Ukraine dismissed the applicant ’ s and the prosecutor ’ s requests for leave to appeal in cassation against the Regional Court ’ s judgment. The judgment became final. C. The applicant ’ s action with a view to dispossessing V.S. and A.N. and rescinding their right of occupancy of the flat (second set of civil proceedings) 24. On 5 October 2004 the applicant instituted civil proceedings seeking the dispossession of V.S. (joined by A.N., when he acquired part of V.S. ’ s share and replaced by him, when he acquired the entire share), of his share in the flat, regard being had to his unlawful conduct towards her, the impossibility of joint use of the flat, and his refusal to pay his share of the maintenance costs. She further sought a judicial rescission of their right to occupy the flat and compensation for the costs she had borne on the flat with their shares. The defendants lodged a counterclaim, alleging, in particular, that the applicant had been interfering with their personal life and belongings, provoking conflicts, harassing them and creating intolerable living conditions, which made it impossible for them to fulfil their desire to settle in the flat. They sought damages from the applicant for this conduct and demanded that the flat be divided into allocated parts. 25. On 21 June 2005 the District Court allowed the applicant ’ s claim in part and dismissed her opponents ’ counterclaim. In particular, referring to Article 365 of the new Civil Code of Ukraine of 2003, it ordered the dispossession of A.N. (by then the owner of half the flat) of his share against payment by the applicant of compensation in the amount of UAH 5,602. The court noted, in particular, that there was extensive evidence that the defendants had allowed numerous strangers to live in the flat; that the applicant had been harassed; and that the flat ’ s appliances and the applicant ’ s belongings had been misused and damaged. It further concluded that, regard being had to the flat ’ s size and layout, it was not possible for the co-owners to use it jointly in a harmonious manner or to have it reasonably divided into two independent halves for each of them to use separately. At the same time, A.N. ’ s dispossession in return for fair compensation would not put him at a substantial disadvantage, since he had another registered residence and predominantly used the disputed flat for subletting to other persons. The court next found that, since A.N. had received the flat as a gift, fair compensation would be the payment of the indicative price ( UAH 5,602) declared by the parties as that share ’ s value in the latest gift deeds. Finally, the court found that A.N. and V.S. had no longer any right to occupy the flat and ordered partial reimbursement of the maintenance costs incurred by the applicant on the flat. 26. On 20 October 2005 the Regional Court, having reviewed the case on appeal by the applicant ’ s opponents, upheld the judgment with respect to the reimbursement of the costs borne on the flat by the applicant and the revocation of V.S. ’ s right to occupy it, as he no longer owned any share in the flat. It then quashed the ruling to dispossess A.N., having noted that, according to the expert assessment, the market value of the disputed flat had been appraised at UAH 147,756, which meant that value of half the flat had been UAH 73,878. The court further stated that the applicant ’ s claim for dispossession of A.N. and revocation of his right of occupancy had not been based on any legal provision. The relevant part of the judgment read as follows: “Neither the provisions of the Housing Code of Ukraine nor those of the Civil Code of Ukraine of 2003, which the applicant cites as the basis for her claims, nor the Property Law of Ukraine, envisage dispossession of the owner of his or her property and his or her eviction from a flat owned by him or her on the grounds cited by the applicant.” 27. The applicant appealed in cassation. She noted, in particular, that A.N. and V.S. had acquired shares in a number of Donetsk flats and had deliberately created intolerable living conditions for their co-owners in order to obtain the flats in their entirety on terms grossly unfavourable to the other co-owners. She further alleged that, having no other residence and being a victim of constant harassment, she had abandoned the flat and had been requesting refuge from various acquaintances. 28. On 2 December 2005 the district prosecutor also lodged a cassation appeal on the applicant ’ s behalf, in which he corroborated her submissions that the defendants had been harassing her, had been using the flat in bad faith and had forced the applicant, a senior lady, to leave the dwelling she had occupied for many years. He also alleged that the sum proposed by the applicant in compensation for the defendants ’ share in the flat had been fair, as it had been equal to the flat ’ s value indicated in the gift deeds on the basis of which A.N. had received the disputed share. 29. On 11 January 2006 the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal. 30. On 22 January 2006 it likewise rejected the prosecutor ’ s request for leave to appeal and the Regional Court ’ s judgment became final. D. The applicant ’ s complaints to the law-enforcement authorities and criminal proceedings against A.N., V.S. and A.L. 31. On numerous occasions between 2002 and 2007 the applicant complained to the Voroshylivsky district police in Donetsk (“the district police ”) about various instances of verbal and physical harassment, damage to and taking of her property and attempts by V.S. and A.N. to extort her share in the flat. 32. On various dates police officers arrived in the applicant ’ s flat in response to her calls for help. They examined the situation, questioned the applicant and her opponents, and subsequently refused to institute criminal proceedings (in particular, 22 January, 7 February and 24 December 2002; 22 and 24 January, 22 February, 5 and 22 March, 15 July, 30 August, 18 September, 12, 16 and 24 October, 4, 15 and 19 November and 5 December 2003; 1 June, 3 and 9 August and 15 November 2004, 20 January, 23 July, 6 August, 19 November, 13 and 28 December 2005; and 4 and 31 March and 16 and 27 July 2006). In their refusals, the police noted that the prosecution of A.N., V.S. and their acquaintances was unwarranted since the relevant facts disclosed the existence of a chronic domestic conflict between lawful occupants of a flat, who attempted to engage the police in resolving their private disagreements. The hostilities took place inside the household and did not breach the public peace. Both parties had accused each other of provoking conflict and it was not evident, which party had in fact assaulted the other and which had acted out of self ‑ defence. In any event, during these conflicts the applicant had sustained no serious damage to her health and had not presented any evidence that her belongings had in fact been taken or damaged by the accused individuals. It was not possible to exclude that she had falsified the disappearance of her belongings in order to compromise the unwanted tenants. The police further recommended that the applicant resolve the dispute concerning the use of the flat in civil proceedings and assured her that “pre-emptive conversations” had been had with the purported offenders to foster respectful conduct on their part. On several occasions the police had issued official warnings to them, advising them of the impermissibility of antisocial behaviour. 33. On 30 January 2003 the prosecutor ’ s office quashed a decision not to institute criminal proceedings in connection with the injuries caused to the applicant on 15 December 2002. On several occasions the applicant enquired about the status of these proceedings and received no reply. In 2006 the applicant was informed that the investigation had been suspended. 34. On 19 October 2005 the head of the district police instructed his officers to place the applicant ’ s flat on the police register for frequent visits with a view to preventing any offences and infringements of applicable law. He noted, in particular, that the investigations had confirmed the applicant ’ s allegations concerning A.N. ’ s and V.S. ’ s disruptive conduct. In particular, it had been established that they had been allowing numerous tenants to live in the co-owned flat, who had brought it into a decrepit and insanitary state. The persons who had been occupying the flat had also taken the applicant ’ s personal belongings without her authorisation and had used her furniture, equipment and appliances in a careless manner, as a result of which these objects were deteriorating. Moreover, these persons had interfered with the applicant ’ s ability to access the flat by changing the locks and thus effectively precluding her from living there. He also acknowledged that numerous pre-emptive conversations and warnings given by the police had not brought about any improvements. 35. On several other occasions (in particular, 28 February 2006, 4 September 200 6, 19 February 2007 and 6 March 2007) the Ministry of the Interior in Donetsk acknowledged, in response to the applicant ’ s further complaints, that her allegations concerning A.N. ’ s and his associates ’ interference with her home had some basis. They further assured the applicant that her address had been placed on the police register for frequent visits. 36. On 18 July 2006 the applicant lodged a private criminal complaint against V.S., A.N. and A.L. with the Voroshylivsky Court. Relying on Articles 125 and 126 of the Criminal Code of Ukraine, she alleged that the defendants had systematically beaten and verbally harassed her. In this respect the applicant referred to the incidents of 23 November and 15 December 2002, 30 July 2004 and 5 August 2005 ( see paragraphs 10, 13 and 18 above). She also submitted that, in her view, these incidents had to be approached not as isolated instances of ill-treatment, but as episodes of systematic and premeditated criminal conduct by an organised criminal association functioning with a view to extorting flats from Donetsk residents. She submitted that the same individuals had engaged in similar conduct vis ‑ à-vis a number of other co- owners of properties in the city. Accordingly, she requested the District Court ’ s assistance in transmitting her complaints to the public law-enforcement authorities with a view to instituting criminal proceedings concerning extortion and coercion. 37. On various dates five other residents of Donetsk joined the proceedings, alleging that the same defendants had acquired shares in their flats and had been pressurising and terrorising them with a view to extorting the remaining shares. 38. On 19 December 2006 Judge M. of the Voroshylivsky Court decided that the applicant ’ s and other complainants ’ allegations disclosed an appearance that serious crimes, warranting institution of public criminal proceedings, had been committed. Accordingly, the judge instituted criminal proceedings on suspicion of fraud, extortion, coercion, circumvention of the law and several other crimes, and transferred the case to the Donetsk regional prosecutor for investigation. 39. On 24 January 2007 the prosecutor ’ s office appealed against this decision, alleging that applicable law did not authorise judges to institute public criminal proceedings in the above circumstances. 40. On 27 March 2007 the Regional Court upheld the prosecutor ’ s office ’ s appeal and returned the case to the Voroshylivsky Court to be examined by another judge with respect to the complaints which could be addressed in private prosecution proceedings. 41. Subsequently (23 August 2007) Judge P. of the Voroshylivsky Court returned the applicant ’ s and other complainants ’ submissions without examination. She found that the injured parties had failed to comply with the rules on territorial jurisdiction and with other unspecified procedural requirements. 42. On 26 July 2007 the regional police instituted criminal proceedings in respect of a complaint about extortion lodged by a certain A.C., who had allegedly been forced to abandon her flat on account of the intolerable living conditions created by the co-owners of her flat. 43. On 15 August 2007 the police joined the applicant ’ s complaints concerning extortion to the aforementioned criminal proceedings. 44. On the same date A.N., V.S. and A.L. were arrested and placed in custody. 45. On various further dates complaints by eleven other individuals relating to the same persons ’ misconduct were joined to the proceedings. 46. On 29 December 2007 deputy head of the regional prosecutor ’ s office signed the bill of indictment in respect of A.N., V.S. and A.L. charging them, in particular, under Article 189 § 4 of the Criminal Code, with extorting property in an organised group and transferring the case to the Kyivskiy District Court of Donetsk (hereafter “the Kyivskiy Court”) for trial. 47. On various dates in 2008 the defendants were released from custody pending trial. 48. On 24 May 2011 the Kyivskiy Court acquitted all the defendants of the charges under Article 189 of the Criminal Code. It noted, in particular, as follows: “ ... The court comes to a conclusion that the basis of the present criminal proceedings is the existence of a private-law dispute between the defendants and the injured parties concerning the use of shared property, which the injured parties demand to resolve by way of criminal proceedings in view of their extremely antagonistic relationship with the defendants.” 49. On 27 February 2012 the Regional Court quashed this verdict on appeal by the prosecution and the injured parties and remitted the case for retrial. 50. On 17 April 2012 the defendants were rearrested and placed in custody. 51. On 12 October 2012 the Kyivskiy Court found that all the defendants were guilty of extortion under Article 189 § 4 and sentenced them to eleven, ten and eight years ’ imprisonment respectively. It also ordered the confiscation of all their personal property. The court found, in particular, that the case-file contained sufficient evidence that the episodes of the applicant ’ s harassment ( listed in paragraphs 10, 12-13 and 16 ‑ 18 above ) had indeed taken place. It also awarded the applicant UAH 35,273.47 in pecuniary and UAH 30,000 in non-pecuniary damage to be paid jointly and separately by the defendants. 52. On 6 March 2013, following an appeal by the defendants, the Regional Court upheld this verdict on appeal concerning all points, except one episode unrelated to the applicant ’ s case. 53. On 18 September 2014 the Higher Specialised Civil and Criminal Court rejected the cassation appeals lodged by A.N. and V.S. | This case concerned in particular the systematic abuse carried out against the applicant by a criminal group, and the alleged failure of the Ukrainian authorities to prevent it. |
9 | Adoption | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1955 and lives in Săvârșin. 6. She was adopted on 25 February 1972, at the age of seventeen. 7. The applicant ’ s adoptive mother also had another adopted daughter, H.M. The applicant ’ s mother died in 1986. 8. In 2003, the two sisters were jointly granted title to ten hectares of forest, based on their entitlement through adoption to inherit land which had been expropriated from their grandmother. 9. Subsequently, the applicant brought an action for division of the land between the sisters. 10. While the proceedings were ongoing, H.M. brought an action for annulment of the applicant ’ s adoption. She claimed that the main aim pursued by her adoptive mother when she had sought to adopt the applicant had been to ensure emotional and financial support for her in old age and help with everyday activities. H.M. averred that the only aim pursued by the applicant in agreeing to the adoption had been to obtain inheritance rights. 11. The applicant submitted that the main reason why her sister had lodged the action for the annulment of her adoption had been to preclude her from inheriting half of the ten hectares of land and to keep all the property inherited from their adoptive mother for herself. In this respect she claimed that the lawfulness of the adoption order had never been questioned before, although it had been issued thirty-two years previously. She concluded that the misunderstandings which had arisen between her and her sister after the death of their adoptive mother could not justify the annulment of an adoption concluded in accordance with the law. 12. In his final oral submissions before the first-instance court the applicant ’ s lawyer raised the objection of lack of locus standi of the plaintiff. He contended that H.M. had not proved a legitimate and current interest in seeking the annulment of her sister ’ s adoption. 13. On 7 December 2004 the Suceava County Court dismissed the applicant ’ s objection and declared the applicant ’ s adoption void, finding that it had not had a purpose envisioned by the Family Code. It held that the only aim of the applicant ’ s adoption had been the fulfilment of the patrimonial interests of the adoptive mother and the adopted child, and that it had not been intended to ensure a better life for the applicant. 14. The applicant lodged an appeal on points of law, maintaining that she had lived with her adoptive mother since she was nine years old, although the adoption order had only been issued in 1972 when she was seventeen. She submitted that the family relationship established between her and her adoptive mother since she was nine had been proved by witness statements which were in the case file, and that it was also attested to in the report drafted by the authorities when they carried out a social investigation in connection with her adoption. 15. The judgment of the court of first instance was upheld by a decision of the Suceava Court of Appeal rendered on 15 April 2005. A dissenting opinion to that decision stated that the adoption had not been improper, as its main aim had been the welfare of the applicant, who had been born into a family with eight children and a difficult financial situation. | This case concerned the annulment of a woman’s adoption, at the instigation of her adoptive sister, 31 years after it had been approved and 18 years after the death of their adoptive mother. The applicant alleged in particular that the annulment of her adoption had been an arbitrary and disproportionate intrusion into her family life, submitting that she had lived with her adoptive mother since the age of nine and that their relationship had been based on affection, responsibility and mutual support. She also complained that, after the annulment of her adoption, she lost title to the five hectares of forest she inherited from her adoptive mother. |
159 | Prenatal medical tests | I. THE CIRCUMSTANCES OF THE CASE 12. The applicants were born in 1961 and 1962 respectively and live in Rosny-sous-Bois. 13. In the spring of 1996 Mrs Draon began her first pregnancy. The second ultrasound scan, carried out in the fifth month of pregnancy, revealed an anomaly in the development of the foetus. 14. On 20 August 1996 an amniocentesis was carried out at Saint ‑ Antoine hospital, run by Assistance Publique - Hôpitaux de Paris (AP ‑ HP). The amniotic fluid sample was sent for analysis to the establishment ’ s cytogenetics laboratory (headed by Professor T.) with a request for karyotype and digestive enzyme analysis. In September 1996 T. informed the applicants that the amniocentesis showed the foetus had “a male chromosomal pattern with no anomaly detected”. 15. R. was born on 10 December 1996. Very soon, multiple anomalies were observed, particularly defective psychomotor development. The examinations carried out led to the conclusion that there was a congenital cardiopathy due to a “chromosomal anomaly”. 16. When informed of this T. admitted that his service had made the wrong diagnosis, the anomaly having already been entirely detectable at the time of the amniocentesis. He stated: “Concerning the child Draon R., ... we regret to have to say that there was indeed an asymmetry between the foetus ’ s two copies of chromosome 11; that anomaly or peculiarity escaped our attention”. 17. According to the medical reports, R. presents cerebral malformations causing grave disorders, severe impairment and permanent total invalidity, together with arrested weight gain. This means that it is necessary to make material arrangements for his everyday care, supervision and education, including ongoing specialist and non-specialist treatment. 18. On 10 December 1998 the applicants sent a claim to AP-HP seeking compensation for the damage suffered as a result of R. ’ s disability. 19. In a letter dated 8 February 1999 AP-HP replied that it “[did] not intend to deny liability in this case” but invited the applicants to “submit an application to the Paris Administrative Court which, in its wisdom, will assess the damage for which compensation should be paid”. 20. On 29 March 1999 the applicants submitted to the Paris Administrative Court a statement of their claim against AP-HP, requesting an assessment of the damage suffered. 21. At the same time the applicants submitted to the urgent applications judge at the same court a request for the appointment of an expert and an interim award. 22. In a decision of 10 May 1999 the urgent applications judge of the Paris Administrative Court made a first interim award of FRF 250,000 (EUR 38,112.25) and appointed an expert. He made the following points, among other observations: “ [ AP-HP ] does not deny liability for the failure to diagnose the chromosomal anomaly which the boy R. is suffering from; ... having regard to the non-pecuniary damage, the disruption in the conditions of their lives and the special burdens arising for Mr and Mrs Draon from their child ’ s infirmity, AP-HP ’ s liability towards them in the sum of 250,000 francs may be considered, at the current stage of the investigation, not seriously open to challenge”. 23. The expert filed his report on 16 July 1999 and confirmed the seriousness of R. ’ s state of health. 24. On 14 December 1999, in a supplementary memorial on the merits, the applicants requested the Administrative Court to assess the amount of the compensation which AP-HP should be required to pay. 25. AP - HP ’ s memorial in reply was registered on 19 July 2000. The applicants then filed a rejoinder and further documents concerning the modifications to their home and the equipment rendered necessary by R. ’ s state of health. 26. In addition, the applicants again asked the urgent applications judge to make an interim award. In a decision of 11 August 2001 the urgent applications judge of the Paris Administrative Court made an additional interim award of FRF 750,000 (EUR 114,336.76) to the applicants “in view of the severity of the disorders from which the boy R. continues to suffer and the high costs of bringing him up and caring for him since 1996”. 27. After being prompted several times, verbally and in writing, by the applicants, the Paris Administrative Court informed them that the case had been set down for hearing on 19 March 2002. 28. On 5 March 2002 Law no. 2002-303 of 4 March 2002 was published in the Official Gazette of the French Republic. Section 1 of that Law, being applicable to pending proceedings, affected those brought by the applicants. 29. In a letter of 15 March 2002 the Paris Administrative Court informed the applicants that the hearing had been put back to a later date and that the case was likely to be decided on the basis of a rule over which the court did not have discretion, since it applied to their claim by virtue of section 1 of the Law of 4 March 2002. 30. In a judgment of 3 September 2002 the Paris Administrative Court, acting on a proposal made by the Government Commissioner, deferred its decision and submitted to the Conseil d ’ Etat a request for an opinion on interpretation of the provisions of the Law of 4 March 2002 and their compatibility with international conventions. 31. On 6 December 2002 the Conseil d ’ Etat gave an opinion in the context of the litigation in progress ( avis contentieux ) which is reproduced below (see paragraph 51). 32. On the basis of that opinion, the Paris Administrative Court ruled on the merits of the case on 2 September 2003. It began with the following observations: “Liability The provisions of section 1 of the Law of 4 March 2002, in the absence of provisions therein deferring their entry into force, are applicable under the conditions of ordinary law following publication of that Law in the Official Gazette of the French Republic. Since the rules the Law lays down were framed by Parliament on general - interest grounds relating to ethical considerations, the proper organisation of the health service and the equitable treatment of all disabled persons, they are not incompatible with the requirements of Article 6 of [the Convention], with those of Articles 5, 8, 13 and 14 of [the Convention] or with those of Article 1 of Protocol No. 1 [to the Convention]. The general - interest grounds which Parliament took into consideration when framing the rules set out in the first three paragraphs of section 1 justify their application to situations which arose prior to the commencement of pending proceedings. It follows that those provisions are applicable to the present action, brought on 29 March 1999; The administrative courts do not have jurisdiction to rule on the constitutionality of legislation; [the applicants ’ ] request that this court review the constitutionality of the Law of 4 March 2002 must therefore be refused; It appears from the investigation that in the fifth month of Mrs Draon ’ s pregnancy, after an ultrasound scan had shown a manifest problem affecting the growth of the foetus, she and Mr Draon were advised to consider the option of an abortion if karyotype analysis after an amniocentesis revealed a chromosomal abnormality. Mr and Mrs Draon then decided to have that test performed at Saint-Antoine Hospital. They were informed by the hospital on 13 September 1996 that no anomaly of the foetus ’ s male chromosomal pattern had been detected. However, very soon after the baby ’ s birth on 10 December 1996 magnetic resonance imaging revealed a serious malformation of the brain due to a karyotypic anomaly; The report of the expert appointed by the court states that this anomaly was entirely detectable; failure to detect it therefore constituted gross negligence on AP-HP ’ s part which deprived Mr and Mrs Draon of the possibility of seeking an abortion on therapeutic grounds and entitles them to compensation under section 1 of the Law of 4 March 2002 ”. 33. The court then assessed the damage sustained by the applicants as follows: “ ... firstly, ... the amounts requested in respect of non-specialist care, the specific costs not borne by social security, the costs of building a house suited to the child ’ s needs with a number of modifications to the home and the purchase of a specially adapted vehicle relate to special burdens arising throughout the life of the child from his disability and cannot therefore be sums for which [AP-HP] is liable; ... secondly, ... Mr and Mrs Draon are suffering non-pecuniary damage and major disruption in their lives, particularly their work, regard being had to the profound and lasting change to their lives brought about by the birth of a seriously disabled child; ... these two heads of damage must be assessed, in the circumstances of the case, at 180,000 euros; ... lastly ..., although Mr and Mrs Draon submitted that they could no longer holiday in a property they had purchased in Spain, they are not deprived of the right to use that property; consequently their claim for compensation for loss of enjoyment of real property must be rejected; ... ” 34. The court concluded by ordering AP-HP to pay the applicants the sum of EUR 180,000, less the amount of the interim awards, interest being payable on the resulting sum at the statutory rate from the date of receipt of the claim on 14 December 1998, the interest due being capitalised on 14 December 1999 and subsequently on each anniversary from that date onwards. AP-HP was also ordered to pay the applicants the sum of EUR 3,000 in respect of costs not included in the expenses and to bear the cost of the expert opinion ordered by the president of the court. 35. On 3 September 2003 the applicants appealed against the judgment. Their appeal is currently pending before the Paris Administrative Court of Appeal. II. Every disabled person shall be entitled, whatever the cause of his or her disability, to the solidarity of the national community as a whole. III. The National Advisory Council for Disabled Persons shall be charged, in a manner laid down by decree, with assessing the material, financial and non-material situation of disabled persons in France, and of disabled persons of French nationality living outside France and receiving assistance by virtue of national solidarity, and with presenting all proposals deemed necessary to Parliament, with the aim of ensuring, through an ongoing pluri-annual programme, that assistance is provided to such persons ... ” 50. These provisions entered into force “under the conditions of ordinary law following publication of the Law in the Official Gazette of the French Republic ” (see paragraph 51 below) [1]. Law no. 2002-303 was published in the Official Gazette on 5 March 2002 and it therefore came into force on 7 March 2002. C. The opinion given by the Judicial Assembly of the Conseil d ’ Etat on 6 December 2002 under the Administrative Disputes (Reform) Act (the Law of 31 December 1987 ) (extracts) 51. The Conseil d ’ Etat observed in particular: “ ... II. The date of the Law ’ s entry into force: The liability criteria set out in the second sub-paragraph of paragraph I of section 1 were enacted in favour of persons born with disabilities resulting from medical negligence whether that negligence directly caused the disability, aggravated it or made it impossible to take steps to attenuate it. They were laid down with sufficient precision to be applied by the relevant courts without the need for further legislation to clarify their scope. The different liability criteria defined in the third sub-paragraph of paragraph I of section 1 were enacted in favour of the parents of children born with a disability which, on account of gross negligence on the part of a medical practitioner or health ‑ care establishment, was not detected during pregnancy. They are sufficiently precise to be applied without the need for further legislative provisions or regulations. Admittedly, they bar inclusion of the damage consisting in the special burdens arising from the disability throughout the child ’ s life in the damage for which the parents can obtain compensation, and provide that such damage is to be made good through reliance on national solidarity. But the very terms of the Law, interpreted with the aid of its drafting history, show that Parliament intended to exclude compensation for that head of damage on the ground that, although there was a causal link between negligence and damage, that link was not such as to justify making the person who committed the negligent act liable for the resulting damage. In providing that this type of damage should be made good by reliance on national solidarity, Parliament did not therefore make implementation of the rules on liability for negligence which it had introduced subject to the enactment of subsequent legislation laying down the conditions under which national solidarity would be mobilised to assist disabled persons. It follows that, since the Law does not contain provisions for the deferred entry into force of section 1, and since in addition Parliament ’ s intention, as revealed by the Law ’ s drafting history, was to make it applicable immediately, the provisions of section 1 came into force under the conditions of ordinary law following the Law ’ s publication in the Official Gazette of the French Republic. III. – The element of the benefit mentioned in point 3 of Article L. 245-3 [of the Social Action and Family Code] may also be claimed, under conditions to be laid down by decree, by beneficiaries of the [disabled child ’ s education] allowance [formerly the AES], where on account of their child ’ s disability they are likely to bear burdens of the type covered by that paragraph. ... Article L. 245-3 [of the Social Action and Family Code] – Compensatory benefit may be used, under conditions to be laid down by decree, for 1. burdens arising from the need for human assistance, including, where necessary, the assistance provided by family helpers; 2. burdens arising from the need for technical assistance, particularly the costs which remain payable by an insured person where such technical assistance forms one of the categories of benefit contemplated in point 1 of Article 321-1 of the Social Security Code; 3. burdens arising from adaptation of the home or vehicle of the disabled person, and any extra expenditure needed for his or her transport; 4. specific or exceptional burdens, such as those arising from the purchase or maintenance of products needed on account of the disability; ... ... – The element of the benefit mentioned in point 1 of Article L. 245-3 shall be granted to any disabled person either where his or her state of health makes necessary the effective assistance of a third person for the essential acts of his or her existence, or requires regular supervision, or where he or she is obliged to incur additional expenditure through carrying on an occupation or holding elective office.” 56. The new compensatory benefit is initially payable in full to persons over the age at which entitlement to the AES (renamed “ disabled child ’ s allowance ” by the new legislation – see section 12 above) begins. With regard to children, section 13 of the Law of 11 February 2005 provides: “Within three years from the entry into force of the present Law compensatory benefit shall be extended to disabled children. Within a maximum of five years those provisions of the present Law which distinguish between disabled persons on the ground of age in respect of compensation for the disability and payment of the costs of residence in social and medico -social establishments shall be repealed.” 57. The entry into force of the Law of 11 February 2005 is subject to publication of the implementing decrees. Section 101 provides: “The regulations implementing the present Law shall be published within six months of its publication, after being referred for opinion to the National Advisory Council for Disabled Persons. ... ” 58. According to the information supplied by the Government, the new compensatory benefit should come into force on 1 January 2006. It is expected that it will be payable in full to disabled children by 12 February 2008. In the meantime, children will apparently receive only part of the benefit: only the costs of adapting a disabled child ’ s home or vehicle, or his or her additional transport costs, can already be financed by the new system. | The applicants are parents of children with severe congenital disabilities which, due to medical errors, were not discovered during prenatal medical examinations. They brought proceedings against the hospitals concerned. A new law of 4 March 2002, introduced while their proceedings were pending, meant that it was no longer possible to claim compensation from the hospital/doctor responsible for life-long “special burdens” resulting from the child’s disability. The compensation they were awarded did not therefore cover those “special burdens”. |
1,045 | Military intervention not exercising effective control | I. THE CIRCUMSTANCES OF THE CASE 10. The applicants are six women from northern Iraq, born in 1950, 1970, 1951, 1939, 1949 and 1947 respectively. The first applicant brought the application on her own behalf and on behalf of her deceased son, Ismail Hassan Sherif. The remaining applicants brought the application on their own behalf and on behalf of their deceased husbands, Ahmad Fatah Hassan, Abdula Teli Hussein, Abdulkadir Izat Khan Hassan, Abdulrahman Mohammad Sherriff and Guli Zekri Guli respectively. The fourth applicant has also brought the application on behalf of her deceased son, Sarabast Abdulkadir Izzat. 11. The facts of the case are in dispute between the parties. The applicants'version of the facts 12. The applicants are shepherdesses who earn their living by shepherding sheep in the valleys and hills surrounding their village of Azadi in Sarsang province near the Turkish border. Their deceased relatives were likewise employed. 13. On 1 April 1995 the applicants learned that the Turkish army, which had crossed earlier into Iraq, was in their area. They saw military activity and witnessed military helicopters transporting soldiers and food in the valley below their village. 14. On the morning of 2 April 1995 Ismail Hassan Sherif, Ahmad Fatah Hassan, Abdula Teli Hussein, Abdulkadir Izat Khan Hassan, Abdulrahman Mohammad Sherriff, Guli Zekri Guli and Sarabast Abdulkadir Izatthe, together with the first, third, fourth and fifth applicants, left the village to take their flocks of sheep to the hills. The second and sixth applicants remained in the village to take care of their children. 15. After the party of eleven shepherds (the first, third, fourth and fifth applicants and Ismail Hassan Sherif, Ahmad Fatah Hassan, Abdula Teli Hussein, Abdulkadir Izat Khan Hassan, Abdulrahman Mohammad Sherriff, Guli Zekri Guli and Sarabast Abdulkadir Izzat ) had walked for fifteen minutes in the direction of Spna, with the four women walking in front of the seven men, they met Turkish soldiers. The latter started to shout abuse at the eleven shepherds, hitting them with their rifle butts, kicking them and slapping them on the face. They separated the women from the men. They told the women to return to the village and then took the men away. The four applicants returned to the village and told the other villagers what had happened. 16. In the meantime, the second and sixth applicants had begun to worry about their husbands. They had heard gunfire and had been told by a fellow villager that the Turkish army was nearby and that the shooting had come from the direction of a cave situated outside the village in the direction of Spna. The villager thought that Turkish soldiers had been firing inside the cave. As a result, the second and sixth applicants together with three other identified women decided to go to look for their men in the direction of the cave. This occurred before the first, third, fourth and fifth applicants had returned to the village. When the second and sixth applicants and the three other women reached the Turkish soldiers they saw the shepherds with them. The soldiers fired in their direction. The women left and went down into the valley. There they met another group of soldiers and requested permission to talk to the men. The soldiers pointed their guns at them and the women left. 17. Instead of going to the village, the five women tried to hide in the valley but were spotted by the soldiers who threatened to kill them. Eventually the women reached the cave, but the men were not there. They saw a military helicopter land. They asked the soldiers for permission to see their men but the soldiers refused. The five women continued their search until about 1 p.m. with no success. They returned to the village and told their fellow villagers about what had happened. 18. Some of the village men, accompanied by members of the Kurdistan Democratic Party (“the KDP”), went to Anshki, a nearby town where a bigger Turkish military unit was based. This unit was responsible for overseeing the military operation in the area. The village men asked the officer in charge to release the shepherds and to allow them to fetch their sheep from the hills. The officer claimed at first that he did not know anything about the shepherds. He subsequently promised the representatives of the KDP that the shepherds would be released. As this did not happen, the KDP representatives made several additional attempts to obtain information. The officer said that if the shepherds had been detained, they would be released. He eventually gave permission for the men to fetch the sheep. He denied that the shepherds had been detained, but warned the men not to look for them. When the men asked why not, the officer became angry and did not reply. When the men went to fetch the sheep, they looked for the shepherds but could not find them. 19. On 3 April 1995 the Turkish army withdrew from the area around the village and the village men set off in the direction of Spna to look for the seven shepherds who had gone missing. In an area close to where the seven shepherds had last been seen with the Turkish soldiers they found the bodies of Ismail Hassan Sherif, Ahmad Fatah Hassan, Abdulkadir Izat Khan Hassan, Sarabast Abdulkadir Izat and Abdulrahman Mohammad Sherriff. The bodies had several bullet wounds and had been badly mutilated - ears, tongues and genitals were missing. The bodies were taken to the main road and from there to Azadi hospital in Dohuk where autopsies were conducted. 20. On 4 April 1995 the KDP held a press conference in Dohuk. Mr SN, the KDP Chief for the Amedi region, stated that, upon receiving information that several shepherds had been arrested by Turkish soldiers, he had visited the Turkish army commander in Kadish and had asked for their release. He had handed him a list of names. The commander had told him that he would take action. The commander had radioed his troops and had told SN that the men and sheep would be released. SN had returned to his office. Having received no news, he had returned to the commander who had promised that the shepherds would be released after the military operation. SN made four or five representations to the commander during that day. The Turkish army having withdrawn during the night, SN returned to the commander the following morning. On that occasion the commander denied that the shepherds had been arrested. He told SN that they might have been killed. At the press conference SN exhibited the list he had given to the Turkish commander containing the names of the seven shepherds. The six applicants were also present at the conference and answered questions. 21. On 5 April 1995 the bodies of Abdula Teli Hussein and Guli Zekri Guli were also found in a state similar to that of the bodies of the other five shepherds. 22. On 5 April 1995 the husband of the first applicant was killed in a separate incident. The four brothers of the husband of the fifth applicant were also killed in a separate incident. These incidents do not form part of the present application. 23. On 7 April 1995 the six applicants and other witnesses were interviewed by Dr RA and Mr Kerim Yildiz in the presence of the muhtar of the Tamim area of Sarsang province. 24. The six applicants have since filed several petitions with the authorities of the region requesting that an investigation be conducted into the deaths of their relatives. They applied to the Governor of Dohuk and gave statements. The Governor said that the deaths would be investigated. However, the applicants have not been informed of any follow-up to the Governor's undertaking. The Government's version of the facts 25. The respondent Government confirm that a Turkish military operation took place in northern Iraq between 19 March 1995 and 16 April 1995. The Turkish forces advanced to Mount Medina. The records of the armed forces do not show the presence of any Turkish soldiers in the area indicated by the applicants, the Azadi village being ten kilometres south of the operation zone. There is no record of a complaint having been made to any of the officers of the units operating in the Mount Medina region. Documents and materials submitted by the parties 1. Written statements given by the applicants 26. Following the events, the applicants'statements were taken on 7 June 1995 by Dr Rızgar Amin and Kerim Yıldız in the Azadi village of Sarsang province in the governorate of Dohuk ( Iraq ) close to the Turkish border. (a) Halima Musa Issa 27. The applicant was the mother of Ismail Hassan Sheriff, who was allegedly killed under torture by members of the Turkish army on 2 April 1995, and the wife of Mala Hassan Mohammad Sheriff who was also allegedly killed by members of the Turkish army in a separate incident on 5 April 1995. The applicant claimed the following in relation to the alleged incidents: “ I and the rest of the villagers heard that the Turkish army was in the area the day before my son was killed. We had seen many military helicopters dropping soldiers and food in the valley near our village. In the morning of 2 April 1995, I prepared food for my shepherd son as usual. We decided to go out to herd sheep. We thought the Turkish army would not harm us. We (seven shepherds and four women) left the village and walked towards the Spna area. The women were walking in front of the men. Then we met many Turkish soldiers who immediately arrested us and began to hit us. They slapped us around the face, kicked us and were very angry and rude. Then they separated us and asked the women to go back to the village. We saw the soldiers take the seven shepherds towards the cave. We went back to the village and told the rest of the village about what had happened. Some of the men from the village went and asked one of the Turkish army officers to let them retrieve the flocks of sheep from the valley, but he refused and denied having arrested our men. Then some men went to Anshki and asked for the Turkish army officer in charge and requested him to release the shepherds and to let them recover their flocks of sheep. The men went at least five times that day to get information about the men. The Turkish army officer said that if the men were arrested they would be released. He gave permission for the men to bring back the flocks of sheep, but denied knowing anything about our shepherds and warned the men not to go and look for our shepherds. When they asked why they should not go looking for our shepherds, the officer got angry and did not answer. Once again, some villagers went to the valley to look for our shepherds. They found our flocks of sheep in the early afternoon but still did not know what had happened to our shepherds. We also informed the party (KDP). They said that they met with the Turkish military officers on many occasions but this did not change our men's fate. The following day, after the Turkish army withdrew from our area, the men went to the surrounding area to look for our shepherds. They found my son and four other shepherds that day. Their bodies were brought back to the main road and from there their bodies were taken to the hospital in Dohuk for medical examination. The other two bodies were found two days later. The witness replied to the following questions: Q: Where do you come from originally? A: We are originally from the village of Terina and have been living in Azadi collective village ever since being moved here under Saddam's regime. Q: How far is the place where they killed your son? A: Around ¼ hours'walk from our village. Q: How old was your son? A: He was 20 years'old. Q: Who were the other three women who were with you that day? A: Fatima Darwesh, Fatima Salim and Salia Shawan. Q: Can they give us testimonies? A: Yes. Q: How far from here is the place where they killed your son? A: About 15 minutes'walk. Q: Who do you think killed your son? A: The Turks. Q: How do you know that it was the Turks who killed your son? A: I know it was the Turks. My son was innocent like the other shepherds and the Turks killed them. I saw the Turkish soldiers take away my son and the rest of the shepherds. Q: Why would the Turkish army kill your son? A: I don't know. He did not do anything wrong. He was innocent. They killed an innocent man. They (the Turks) want to kill Kurds. Q: Was your son armed? A: No, apart from a lighter he did not have anything on him. Q: Do you have any witnesses that the Turkish army killed your son? A: Yes. We were four women who saw the Turkish army take away our men. You can also ask the Party (KDP) because they talked to the Turkish army officers. Q: How did they kill your son? A: They cut him to pieces. His ears were cut off, they took his tongue out of his mouth. I cannot describe it to you. They have not left anything. They have chained him and dragged him. His body was full of bullets, his genitals were cut. Q: Have you submitted a petition anywhere in relation to the Turkish army? A: Yes. Q: Where? A: In Sarsang, Dohuk, and I and the others have spoken to many foreign groups. Q: Is there an investigation into the killings? A: No, they [Dohok Governor] keep telling us that they will investigate. Each one takes statements from us and they say God will help you. Q: Have you been given autopsy reports on your son and husband? A: No, I haven't. I will try to get one for you. Q: Do you have anything more to add to your statement? A: I would not be able to tell you everything that happened because my heart is burning. I know my son and husband were innocent and did not have any problem with anybody. The Turks left me with my children and I do not know how I will live. Please help to find out the truth.” (b) Beebin Ahmad Omer 28. The applicant was the wife of Ahmad Fatah Hassan, a shepherd who was allegedly killed by members of the Turkish army. In her statement the applicant alleged the following: “It was early in the morning, on 2 April, and I was at home when I heard the sound of gunshots in the distance. We had heard that the Turkish army was in the area and our shepherds were out with the sheep, so I was concerned. I went out to find out what was happening. Some other people were outside and a man was telling them that the Turkish army was near our village and that the shooting was coming from the direction of the cave. That is in the direction of Spna, not far from the village. The man said that it seemed to him that the Turkish troops were firing inside the cave. We talked about what to do and we thought that we would go to find the shepherds. I and the other women went out to look for the men. We thought that we would not be harmed if it was only women who went to look. When we saw the soldiers from a distance, our men were with them. The soldiers saw us and they began to fire at us to frighten us. We went away from them and watched what was happening. We saw our shepherds with the Turkish soldiers but we could not do anything. We saw some more soldiers down in the valley and we went over to them to ask them to let us go to the shepherds. We begged them, but they pointed guns at us so we went away from them. We spent some time searching for the men and checked the cave, but there was no one there. We were still looking for the shepherds when we saw a Turkish army helicopter land nearby. We went to another group of Turkish soldiers and asked them to let us see the shepherds but they didn't let us. We searched for a long time but we could not find the shepherds. Then we went back to the village to tell the men of the village about what had happened. They went to the KDP (Kurdistan Democratic Party Officials) to get help and some men went to the Turkish officers in the area to have the men released. The men, headed by the local KDP chief, went to the Turkish officer in charge at Anskhi to ask him to let the men go and to let the sheep be brought back but he said he did not know anything. We had seen our shepherds with the Turkish soldiers and so we were frightened for the safety of the shepherds. The next day some people went out again to search for the men. They found the five bodies near the cave. My husband's body was among them. The bodies were brought to the main road so they could be taken to Azadi hospital in Dohuk. The village people kept looking for the other two missing shepherds. Two days later they found their bodies. ” (c) Safia Shawan Ibrahim 29. The applicant was the wife of Abdula Teli Hussein, one of the shepherds allegedly killed by members of the Turkish army. She stated: “That morning, the 2 nd of April 1995, I set out with my husband and the other shepherds and women to tend to the sheep. There were seven shepherds and four women including myself. We had not gone very far from the village when we met the Turkish soldiers. There was a large number of soldiers and they surrounded us. They started to attack us and hit us with their rifle butts and shouted abuse at us. They hit the women as well as the men. After some time they told the women to go back to the village. The men were still with the soldiers when we left. At this time there were seven shepherds with the soldiers. We went back to the village and told the men of the village what had happened. The men of the village set out to go to the Turkish army officers to ask them to let the shepherds go as they were not doing any wrong. The men made many representations to the army officials throughout the day and they went to Anshki to make further representations. They said that they were told to return to the village and warned not to look for the men. The men went out to look for the shepherds and found the flocks of sheep but there was no trace of the shepherds. The following day the village men once again went off to look for the shepherds. They found the bodies of five of them. Two days later the bodies of the other two were found. I saw the body of my husband. He had been killed by many bullets. The body was taken to the hospital. I want you to take the necessary action against the soldiers for what they have done to my husband. ” (d) Fatime Darwish Murty Khan 30. The applicant was the mother of Sarbest Abdulkadir Izat and the wife of Abdulkadir Izat Khan (Hassan), who was allegedly killed under torture by members of the Turkish army between the 2 and 3 April 1995. She claimed the following: “From our village we could see the army down in the valley on the day before the incident in which my husband was killed. On the morning of 2 April 1995 I went with my husband and son to herd sheep. We met with the other women and men and set off in the direction of Spna. We went with the men because the men thought that if we were with them there would not be any trouble. We walked ahead of the men. There were seven men and four women in the group. The Turkish soldiers stopped us. They hit us and beat us with their rifle butts and humiliated us. I was frightened for my life. The soldiers told us to go back and they took our shepherds away with them. We ran back to the village and told the men in the village what had happened. We went back to the valley and spent the rest of the day looking for our shepherds. Some men went to the Turkish soldiers to ask them to let our shepherds go. Then some men went to Anshki and asked a high - ranking Turkish army officer to release our shepherds and to let us bring the sheep back. The men went many times that day to get information about our shepherds. Party (KDP) representatives also went to the Turkish army officers many times, but nothing happened. The next day the bodies of my husband and son were found with terrible things done to them. They were found in the cave. The bodies of three other shepherds were found with them. The other two shepherds'bodies were found a few days later. It was a terrible thing that was done to our shepherds. My husband and son did not do anything wrong. I do not know why they did this to him and the others. Please help us. We have nothing left. ” (e) Fahima Salim Muran 31. The applicant was the wife of Mohammad Sheriff, who was allegedly killed under torture by the Turkish army between 2 and 3 April 1995. She stated: “The day of the incident I got ready to go out to herd sheep with my husband and the other shepherds. We had heard that the Turkish army was in the area but we did not feel in danger. We went to do our work. I was going with my husband to the hills to herd the sheep. We all went together. I walked with the other women. We were walking along when the soldiers appeared in front of us. They came all around us and attacked us with their rifle butts and beat us. They were shouting at us all the time they were beating us. Then we were told to go back to the village and the men were still with the soldiers. We saw the soldiers take our men towards the cave. There were seven men. We were four women. We went back to the village and told the rest of the villagers about what had happened. I know that some of the men went and asked one of the Turkish army officers to let them bring the flocks of sheep back from the valley and petitioned the officer to release the men. Later that day the men also went to Anshki to the larger military base and asked the officer in charge to let our men go and to return the flocks of sheep, but they did not get any information about our men. The men were warned not to go looking for the shepherds. The body of my husband was found the next day. His body was in pieces. He had been shot many times. I don't know why the Turks did this to him. He was an innocent man and we were on our way to herd our sheep. The Turks killed my husband and they also killed his four brothers [in a separate incident]. We had no trouble with the army and there was no reason to kill our men. The body of my husband was brought to the hospital in Dohuk for medical examination. The Turks are gone now, but I am left with my children with no father. I do not know who to petition about the terrible things that have happened to us. ” (f) Basna Rashid Omer 32. The applicant was the wife of Guli Zekri Guli, one of the shepherds allegedly killed by members of the Turkish army. The applicant claimed the following in her statements: “It was early in the morning of 2 April 1995 and I woke up to prepare breakfast for my children. While I was preparing breakfast I heard the sound of gunfire. I was startled and went out of the house. I saw our villager and asked him what had happened. He told me that the Turkish army was near our village, and that the shooting came from the direction of the cave. The only cave near the village is in the direction of Spna. He told me that it seemed to him that the Turkish troops were firing inside the cave. After a while I and four other women, Beebin, Binafis, Safia, Bahia, left the village to go in the direction of the gunfire. We were very concerned about our husbands and sons who were grazing our animals in the mountains. Then we saw the shepherds with the Turkish soldiers. We went towards them and when we were still far away from them the Turkish troops suddenly fired on us without any warning. Probably they wanted to frighten us, so that we would not approach them. We saw our shepherds being taken away by the soldiers. We went further down in the valley and met some other Turkish soldiers. We begged them to release our shepherds and to let us talk to them. They told us that they would kill us if we did not go back to the village. Despite many pleas and much begging they forced us to go back to the village. We had to leave the soldiers and we went and hid ourselves in a place in the valley in order to be able to see what the soldiers were going to do next. Four soldiers saw us and came over to us and threatened us to go back to our village or we would be killed. They were very angry when they saw us and told us “We don't want to see you around again. Go back to your home, otherwise we will kill you.” We left our hiding place and went to the cave to look for the shepherds. Our men were not there. Then we saw a Turkish army helicopter land nearby. For the third time we tried to see our husbands and sons, so we went to the Turkish soldiers and asked them to let us see the shepherds, but they didn't let us. When we didn't see them in the cave we thought that they might have taken them somewhere else. We spent until about 1 p. m. in the area trying to find them. Then we decided to go back to the village. The village men came towards us when we were near the village and wanted to find out what had happened. We told them that the Turkish troops took the men, but we don't know what happened after that. The village men went to Anshki with the representatives of the party, [Kurdistan Democratic Party] KDP and met the military commander there. They told him the story and asked him to release our shepherds. The Turkish army commander first told him that he didn't know anything about the arrest of the shepherds. Later on, the Commander told the KDP people that they will soon release the shepherds, but this never happened. We were left confused and not knowing what to do. They went back to Anshki and once again asked the Turkish troops to let them see the shepherds, but they did not get any further news about our men. I can't remember everything the Turkish commander told the party men, but you can ask the party, they will tell you everything. The following day, the village people went to the valley once again to look for them and they found the dead bodies of five of them. They brought their bodies to the main road. Afterwards the village men took the bodies to Azadi hospital in Dohuk. The village people kept looking for the two other missing shepherds. Two days later they found their bodies. One of them was my husband's. They took their bodies to Azadi hospital in Dohuk. The following questions were asked. Q: How many soldiers were there? A: A lot, but I don't know how many, but the soldiers were everywhere. Q: How do you know that the soldiers were Turkish? A: Because they were speaking Turkish and it was the Turkish army which was around at the time. The Turks had been in the surrounding area over the previous few days. They were all over the place. We do not have any other army here. The Iraqi army left some time ago and their uniform was different from the Turkish army uniform. Q: You say you saw a Turkish helicopter landing nearby. How do you know it was a Turkish army helicopter and what happened? A: I told you, we haven't seen any other army in the area for sometime. The other alternative is the Iraqi army. But you see, we haven't seen the Iraqi army recently and we know what they look like. The soldiers were not Iraqi soldiers. They left some time ago. The helicopters dropped the soldiers and food in the valley. Q: You say the Turkish army threatened to kill you if you didn't leave the place? How? A: By pointing their guns at us and using bad words and shouting at us. We were asked to leave the place and this kind of thing. Q: Did you see your husband's body? Can you describe his body? A: I saw it for a short time. I saw that his ears were cut [crying] I can't describe to you, those who committed this crime cannot be human beings and I can't understand why they didn't just shoot him with a gun. Why did they kill him in this way? How can they cut the body of my husband like this? They are not human. Q: Was your husband armed? A: No, he has never carried a gun in his life. Q: Had your husband any connection with the PKK? A: No. We have never seen the PKK. We have never seen their peshmargas. We never had trouble with them. Q: So why did the Turkish troops kill your husband? A: I do not know. Because we are Kurds, maybe they do not like us. They kill us because we are defenceless and there is no one to defend us against them. ” 2. Statement made by Mr Shookri Nerwayi, the KDP Chief in Amedi region in Iraq, during a press conference held in Dohok, a day after the bodies of the shepherds were found 33. Mr Nerwayi claimed the following during the press conference: “I was in Amadia town when reports came to me that the Turkish army had attacked the Spna area and the Bawrki area at 4. 30 a.m. Past experience with the Turkish army has taught us that, wherever they go, they assault poor people. As an example, before the current incident two of our citizens were on their way back to Hemzeki village. The Turkish soldiers arrested them. After assaulting and beating them, killing one and wounding the other. I reported this incident to the Turkish army commander and asked him to keep us informed about their operations, so that we can ask the villagers to leave their villages before the operations to avoid civilian casualties. I heard about the Turkish army operation in Spna area, and I went early in the morning to the Turkish army commander in Kadish. I told him that I received information about the arrest of several shepherds by the Turkish army. I officially gave him this list (showing a list of names of the deceased) of the shepherds reported to have been arrested by the Turkish army. I told him that the people who had been arrested were shepherds and were known to us. I said that they were out herding their sheep and I asked the commander to send orders to release them as they were innocent people minding their own business. He told me he would take action. Indeed, he radioed his troops, and then told me that he ordered them to release the men and the sheep. I went back to my office in Kadish. During the day, as I had not heard any news of the shepherds, I made 4 or 5 representations to the Turkish army commander, asking him to release the men as soon as possible. Each time, he promised that he would order his soldiers to release them and made excuses for not releasing them. He told me after the military operation he would let the men go. The Turkish army withdrew (from the Spna area) during the night, and the following morning I went back to the Turkish army commander. At that time, he denied having arrested the men. He said go and look for them: they might have been killed. We told the shepherds'relatives, who went to the area once again and found the shepherds'bodies. I am giving this account so that you know that we made representations to the Turkish army and asked the Turkish army to release the shepherds, but they did not. I hope that you publicise the incident so that who killed these men is known. I hope that you will do something both to prevent future atrocities by Turkish army and end the oppression they bring upon us. ” 3. Post- mortem forensic examination reports dated 4 April 1995 34. A post-mortem examination was performed by Dr Abdula Salih, a specialist surgeon, at the Baghdad Forensic Medicine Institute of the Iraqi Ministry of Justice, on the bodies of Ahmed Fattah Hassan, Ismail Hasan Muhammed, Abdulmalik Hussein, Abdulkader Izzat Khan, Abdulrahman Muhammad Sherriff, Sarias Abdulkadir and Gulei Thekeri. 35. Dr Abdula Salih diagnosed the cause of death as brain damage due to gunshot wounds. He noted the presence of gunshot wounds, cutting and other wounds on the bodies of the deceased. 4. A copy of a video recording labelled “Documentaries from Turkish TV Stations” 36. This video recording, compiled from various Turkish TV stations, contains pictures of Turkish army presence in northern Iraq between 19 March and 2 May 1995. It further comprises interviews and news reports about the operations conducted by the Turkish army in northern Iraq. 5. A copy of a video recording about a press conference held by the Governor of Dahouk in northern Iraq regarding the killing of the applicants'relatives and pictures of the latter's mutilated bodies 37. On 4 April 1995 the Governor of Dahouk held a press conference attended by of the representatives of international human rights organisations and agencies, representatives of the Kurdistan Democratic Party (“KDP”) and of the local assembly in northern Iraq as well as by the relatives of the deceased persons. The KDP spokesperson stated that the purpose of the press conference was to give information about the Turkish army's encroachment on northern Iraq since 19 March 1995. 38. It was alleged that Turkish armed forces were in control of the Sersing, Amadia and Spna areas. As a result of the military campaign launched by the Turkish army at the relevant time, allegedly eleven persons had died, seven persons had been wounded, thirty one houses had been burned and the inhabitants of fifty-one villages had left their homes for reasons of insecurity. 39. The KDP spokesperson alleged that on 2 April 1995 eleven persons had been arrested by members of the Turkish troops. These persons were Abdulkader Izzet, Serbest Abdulkader, Ismail Hassan Sheriff, Abdullatif Hüseyin, Abdurrahman Muhammet Sheriff, Goly Zikry, Ahmed Fatah, Fatma Darwish, Fahima Selim, Safia Zwa and Halima Mussa. The latter four persons, all women, were released and informed their relatives in their village. The villagers informed a KDP officer in charge of the Amadia region, Mr Shookri, about the arrest and detention of seven men by the Turkish army. Mr Shookri went to speak to the leader of the Turkish troops and asked him to release these men. He also submitted a petition containing the names of the persons under arrest. The leader of the Turkish troops promised that they would be released. However, following the withdrawal of the Turkish army troops, the villagers found the corpses of five of the seven men. Their bodies had been mutilated and some of them had been decapitated. At the end of the press conference, Mr Shookri took the floor and stated that the leader of the Turkish troops had denied that they had killed these men. On 4 April 1995 two men were still missing. 40. The KDP spokesperson stated that they had condemned the acts of the Turkish army in the region and called on them to withdraw. He noted that they would seek compensation from the Turkish Government for the crimes committed by the Turkish army. 41. The KDP spokesperson also called on the PKK to withdraw from northern Iraq. He remarked that the inhabitants were unable to construct houses and set up new villages along the Turkish border on account of PKK activity over the last four years. He underlined in this connection the difficulties in controlling the 340 kilometres of border. 42. At the end of the press conference, the mutilated bodies of the deceased persons and bullets removed from them were shown. 6. Statements and a report by a Turkish journalist, Koray Düzgören, who has written about the military operations of the Turkish army in northern Iraq 43. In his written statements Koray Düzgören claimed that the Turkish army had carried out cross-border operations, called “hot pursuit actions”, against PKK militants in May 1983, August 1986, March 1987 before the Gulf war and on 5 September 1991, 11 October 1991, 1 6 May 1992 and 7 October 1992 after the Gulf war. He alleged that these operations were aimed at preventing the incursion of PKK militants into Turkey and from dissuading the Kurdish groups from setting up a Kurdish state in northern Iraq. He noted, with reference to the statements made by the former head of the General Staff, General Hüseyin Kıvrıkoğlu, in August 1992 that Turkish troops were positioned in the vicinity of a small airport in the Sersing area of northern Iraq. 44. In his report dated 5 June 1996, Mr Düzgören noted that since 20 April 1996 seventeen villages had been subjected to intermittent attacks from artillery fire from the hills on the Turkish border or from helicopters and aircraft. The artillery fire discharged by the Turkish army caused damage to buildings and killed one person and wounded eleven others. In his opinion, the reason for these attacks was to create a buffer zone south of the border and to cut off the logistic support given to the PKK by the villagers in the region. 7. Chronology of cross - border operations carried out by the Turkish army, prepared by a Turkish working group “Coming Together for Peace” in June 1996 45. The Turkish security forces carried out fourteen major cross-border operations between January 1994 and November 1998. The largest operation, called “ Çelik (steel) operation” and carried out with the participation of seventy to eighty thousand troops accompanied by tanks, armoured vehicles, aircraft and helicopters, lasted almost six weeks between 19 March and 2 May 1995. The Turkish troops penetrated 40-50 kilometres southwards into Iraq and 385 kilometres to the east. 8. A letter dated 23 October 2000 from Mr Safeen Dizayee, the head of the Kurdistan Democratic Party office in Ankara, to the Turkish Ministry for Foreign Affairs 46. The Government submitted a document, furnished by the Kurdistan Democratic Party (“KDP”), one of the two main Kurdish factions in northern Iraq, which stated: “At the time of the incident Mr Newayi was a co-ordinator with the Turkish military and no accusations were made against the army since no investigation was conducted yet in order to come to any such conclusions. The families of the killed individuals, being Iraqi Kurdish citizens, approached the KDP and local authorities to report the incident, which is a natural thing to do. The PKK was active in the Bahdinan (Duhok province) region at the time of the incident and many confrontations were reported between KDP peshmergas and the PKK.” 9. A newspaper article dated 5 October 2000 reporting the payment of compensation to Iraqi Kurds 47. A daily newspaper, “ Binyıl”, reported in its edition of 5 October 2 000 that one of the Kurdish Iraqi leaders, Mr Mesut Barzani, had stated during his visit to Ankara that the Turkish Government had paid compensation to the relatives of thirty-eight persons who had lost their lives during an aerial campaign of the Turkish army in northern Iraq on 15 August. Mr Barzani said that a serious investigation had been carried out into the incident. He further noted that the attack had not been deliberate and that the families had received the compensation awarded to them. According to sources close to Mr Barzani, the payment, which was unprecedented, was made in cash. 10. Report of Dr Chris Milroy, Forensic Pathologist 48. After having viewed video footage showing the bodies of a number of Iraqi peasants (see paragraph 42 above), Dr Milroy observed the following: “ ... All the bodies show a number of gunshot wounds. The cameraman tends to concentrate on the larger wounds, but smaller circular wounds are also shown. The wounds all appear to be caused by high velocity bullets. A typical gun that would fire such bullets would be a 7.62 mm or 5.56 mm rifle. The larger wounds on the bodies are exit wounds of bullets, the wounds being made larger in some cases probably by bone fragments exiting the body. The smaller wounds are the entrance wounds of the bullets. It is not possible to determine the range at which these people were shot at from this vdeo. Some of the wounds are near the genitalia, but these all appear to be bullet wounds, and there is no evidence of any other weapon being used, or of deliberate genital mutilation. The video also shows bullet shells with the marking “MKE”. MKE is the mark of the manufacturer Makina Kimya Endustrisi Kurumu of Kırıkkale, Ankara, Turkey. Overall the bodies all show multiple gunshot wounds in keeping with bullets fired from high velocity rifles.” | According to the applicants, Iraqi nationals, a group of their relatives – shepherds from an Iraqi province near the Turkish border – encountered Turkish soldiers in the hills who were allegedly carrying out military operations in the area and who immediately abused and assaulted them. Following the withdrawal of the Turkish troops from the area, the bodies of the shepherds were found with bullet wounds and severely mutilated. |
475 | Online hate speech | I. THE CIRCUMSTANCES OF THE CASE 10. The applicant company is a public limited liability company ( aktsiaselts ), registered in Estonia. A. Background to the case 11. The applicant company is the owner of Delfi, an Internet news portal that published up to 330 news articles a day at the time of the lodging of the application. Delfi is one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia, and also operates in Latvia and Lithuania. 12. At the material time, at the end of the body of the news articles there were the words “ add your comment ” and fields for comments, the commenter ’ s name and his or her e-mail address (optional). Below these fields there were buttons labelled “ publish the comment ” and “ read comments ”. The part for reading comments left by others was a separate area which could be accessed by clicking on the “ read comments ” button. The comments were uploaded automatically and were, as such, not edited or moderated by the applicant company. The articles received about 10,000 readers ’ comments daily, the majority posted under pseudonyms. 13. Nevertheless, there was a system of notice-and-take-down in place: any reader could mark a comment as leim (Estonian for an insulting or mocking message or a message inciting hatred on the Internet) and the comment was removed expeditiously. Furthermore, comments that included certain stems of obscene words were automatically deleted. In addition, a victim of a defamatory comment could directly notify the applicant company, in which case the comment was removed immediately. 14. The applicant company had made efforts to advise users that the comments did not reflect its own opinion and that the authors of comments were responsible for their content. On Delfi ’ s website there were Rules on posting comments which included the following. “ The Delfi message board is a technical medium allowing users to publish comments. Delfi does not edit the comments. An author of a comment is liable for his or her comment. It is worth noting that there have been cases in the Estonian courts where authors have been punished for the contents of a comment ... Delfi prohibits comments whose content does not comply with good practice. These are comments that – contain threats; – contain insults; – incite hostility and violence; – incite illegal activities ... – contain off-topic links, spam or advertisements; – are without substance and/or off topic; – contain obscene expressions and vulgarities ... Delfi reserves the right to remove such comments and restrict their authors ’ access to the writing of comments ... ” The functioning of the notice-and-take-down system was also explained in the Rules on posting comments. 15. The Government submitted that in Estonia Delfi had a notorious history of publishing defamatory and degrading comments. Thus, on 22 September 2005 the weekly newspaper Eesti Ekspress had published an open letter from its editorial board to the Minister of Justice, the Chief Public Prosecutor and the Chancellor of Justice in which concern was expressed about the incessant taunting of people on public websites in Estonia. Delfi was named as a source of brutal and arrogant mockery. The addressees of the public letter responded to it in the 29 September 2005 edition of Eesti Ekspress. The Minister of Justice emphasised that the insulted persons had the right to defend their honour and reputation in court by bringing a suit against Delfi and claiming damages. The Chief Public Prosecutor referred to the legal grounds which made threats, incitement to social hatred, and sexual abuse of minors punishable under criminal law, and noted that liability for defamation and insults was dealt with under civil procedure. The Chancellor of Justice referred to the legal provisions designed to ensure freedom of expression as well as the protection of everyone ’ s honour and good name, including sections 1043 and 1046 of the Obligations Act ( Võlaõigusseadus ). B. Article and comments published on the Internet news portal 16. On 24 January 2006 the applicant company published an article on the Delfi portal under the heading “ SLK Destroyed Planned Ice Road ”. Ice roads are public roads over the frozen sea which are open between the Estonian mainland and some islands in winter. The abbreviation “ SLK ” stands for AS Saaremaa Laevakompanii (Saaremaa Shipping Company, a public limited liability company). SLK provides a public ferry transport service between the mainland and certain islands. At the material time, L. was a member of the supervisory board of SLK and the company ’ s sole or majority shareholder. 17. On 24 and 25 January 2006 the article attracted 185 comments. About twenty of them contained personal threats and offensive language directed at L. 18. On 9 March 2006 L. ’ s lawyers requested the applicant company to remove the offensive comments and claimed 500,000 Estonian kroons (EEK) (approximately 32,000 euros (EUR)) in compensation for non-pecuniary damage. The request concerned the following twenty comments. “ 1. ( 1) there are currents in [V]äinameri (2) open water is closer to the places you referred to, and the ice is thinner. Proposal – let ’ s do the same as in 1905, let ’ s go to [K]uressaare with sticks and put [L.] and [Le.] in a bag 2. bloody shitheads... they ’re loaded anyway thanks to that monopoly and State subsidies and have now started to worry that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew! 3. good that [La. ’ s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into the oven! 4. [ little L.] go and drown yourself 5. aha ... [I] hardly believe that that happened by accident... assholes fck 6. rascal !!! [ in Russian] 7. What are you whining for, knock this bastard down once and for all[ .] In future the other ones ... will know what they risk, even they will only have one little life. 8. ... is goddamn right. Lynching, to warn the other [islanders] and would-be men. Then nothing like that will be done again! In any event, [L.] very much deserves that, doesn ’ t he. 9. “ a good man lives a long time, a shitty man a day or two ” 10. If there was an ice road, [one] could easily save 500 for a full car, fckng [L.] pay for that economy, why does it take 3 [hours] for your ferries if they are such good icebreakers, go and break ice in Pärnu port ... instead, fcking monkey, I will cross [the strait] anyway and if I drown, it ’ s your fault 11. and can ’ t anyone stand up to these shits? 12. inhabitants of Saaremaa and Hiiumaa islands, do 1:0 to this dope. 13. wonder whether [L.] won ’ t be knocked down in Saaremaa? screwing one ’ s own folk like that. 14. The people will chatter for a couple of days on the Internet, but the crooks (and also those who are backed and whom we ourselves have elected to represent us) pocket the money and pay no attention to this flaming – no one gives a shit about this. Once [M.] and other big crooks also used to boss around, but their greed struck back (RIP). Will also strike back for these crooks sooner or later. As they sow, so shall they reap, but they should nevertheless be contained (by lynching as the State is powerless towards them – it is really them who govern the State), because they only live for today. Tomorrow, the flood. 15. this [V.] will one day get hit with a cake by me. damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there – thinking that ... a pig is going to be slaughtered. no way 16. bastards !!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!! 17. Estonian State, led by scum [and] financed by scum, of course does not prevent or punish antisocial acts by scum. But well, every [L.] has his Michaelmas ... and this cannot at all be compared to a ram ’ s Michaelmas. [1] Actually feel sorry for [L.] – he’s a human, after all ... :D :D :D 18. ... if after such acts [L.] should all of a sudden happen to be on sick leave and also next time the ice road is destroyed ... will he [then] dare to act like a pig for the third time? :) 19. fucking bastard, that [L.]... could have gone home with my baby soon ... anyway his company cannot guarantee a normal ferry service and the prices are such that ... real creep ... a question arises whose pockets and mouths he has filled up with money so that he ’ s acting like a pig from year to year 20. you can ’ t make bread from shit; and paper and internet can stand everything; and just for my own fun (really the State and [L.] do not care about the people ’ s opinion) ... just for fun, with no greed for money – I pee into [L. ’ s] ear and then I also shit onto his head. :) ” 19. On the same day, that is about six weeks after their publication, the offensive comments were removed by the applicant company. 20. On 23 March 2006 the applicant company responded to the request from L. ’ s lawyers. It informed L. that the comments had been removed under the notice-and-take-down obligation, and refused the claim for damages. C. Civil proceedings against the applicant company 21. On 13 April 2006 L. brought a civil suit in the Harju County Court against the applicant company. 22. At the hearing of 28 May 2007, the representatives of the applicant company submitted, inter alia, that in cases like that concerning the “ Bronze Night ” (disturbances of public order related to the relocation of the Bronze Soldier monument in April 2007) Delfi had removed between 5,000 and 10,000 comments per day, on its own initiative. 23. By a judgment of 25 June 2007, L. ’ s claim was dismissed. The County Court found that the applicant company ’ s liability was excluded under the Information Society Services Act ( Infoühiskonna teenuse seadus ), which was based on Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ( Directive on electronic commerce ). The court considered that the comments section on the applicant company ’ s news portal was to be distinguished from its journalistic section. The administration of the former by the applicant company was essentially of a mechanical and passive nature. The applicant company could not be considered the publisher of the comments, nor did it have any obligation to monitor them. 24. On 22 October 2007 the Tallinn Court of Appeal allowed an appeal by L. It considered that the County Court had erred in finding that the applicant company ’ s liability was excluded under the Information Society Services Act. The County Court ’ s judgment was quashed and the case was referred back to the first-instance court for fresh consideration. 25. On 21 January 2008 the Supreme Court declined to hear an appeal by the applicant company. 26. On 27 June 2008 the Harju County Court, having re-examined the case, found for L. In accordance with the Court of Appeal ’ s instructions, it relied on the Obligations Act and deemed the Information Society Services Act inapplicable. It observed that the applicant company had indicated on its website that comments were not edited, that the posting of comments that were contrary to good practice was prohibited, and that the applicant company reserved the right to remove such comments. A system was put in place whereby users could notify the applicant company of any inappropriate comments. However, the County Court considered that this was insufficient and did not allow adequate protection for the personality rights of others. The court found that the applicant company itself was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer stating that it was not liable for the content of the comments. 27. The County Court found that the news article itself published on the Delfi news portal was a balanced one. A number of comments, however, were vulgar in form; they were humiliating and defamatory, and impaired L. ’ s honour, dignity and reputation. The comments went beyond justified criticism and amounted to simple insults. The court concluded that freedom of expression did not extend to protection of the comments concerned and that L. ’ s personality rights had been violated. L. was awarded EEK 5,000 (EUR 320) in compensation for non-pecuniary damage. 28. On 16 December 2008 the Tallinn Court of Appeal upheld the County Court ’ s judgment. It emphasised that the applicant company had not been required to exercise prior control over comments posted on its news portal. However, having chosen not to do so, it should have created some other effective system which would have ensured rapid removal of unlawful comments. The Court of Appeal considered that the measures taken by the applicant company were insufficient and that it was contrary to the principle of good faith to place the burden of monitoring the comments on their potential victims. 29. The Court of Appeal rejected the applicant company ’ s argument that its liability was excluded under the Information Society Services Act. It noted that the applicant company was not a technical intermediary in respect of the comments, and that its activity was not of a merely technical, automatic and passive nature; instead, it invited users to post comments. Thus, the applicant company was a provider of content services rather than of technical services. 30. On 10 June 2009 the Supreme Court dismissed an appeal by the applicant company. It upheld the Court of Appeal ’ s judgment in substance, but partly modified its reasoning. 31. The Supreme Court held as follows. “ 10. The Chamber finds that the allegations set out in the appeal do not serve as a basis for reversing the judgment of the Court of Appeal. The conclusion reached in the Court of Appeal ’ s judgment is correct, but the legal reasoning of the judgment must be amended and supplemented on the basis of Article 692 § 2 of the Code of Civil Procedure. 11. The parties do not dispute the following circumstances: (a) on 24 January 2006 the defendant ’ s Internet portal ‘ Delfi ’ published an article entitled ‘ SLK Destroyed Planned Ice Road ’; (b) the defendant provided visitors to the Internet portal with the opportunity to comment on articles; (c) of the comments published [ avaldatud [2] ] on the aforementioned article, twenty contain content which is derogatory towards the plaintiff [L.]; (d) the defendant removed the derogatory comments after the plaintiff ’ s letter of 9 March 2006. 12. The legal dispute between the parties relates to whether the defendant as an entrepreneur is the publisher within the meaning of the Obligations Act, whether what was published (the content of comments) is unlawful, and whether the defendant is liable for the publication of comments with unlawful content. 13. The Chamber agrees with the conclusion of the Court of Appeal that the defendant does not fall within the circumstances precluding liability as specified in section 10 of the ISSA [Information Society Services Act]. According to section 2(6) of the Technical Regulations and Standards Act, an information society service is a service specified in section 2(1) of the ISSA. According to this provision, ‘ information society services ’ are services provided in the form of economic or professional activities at the direct request of a recipient of the services, without the parties being simultaneously present at the same location, and such services involve the processing, storage or transmission of data by electronic means intended for the digital processing and storage of data. Hence, important conditions for the provision of information society services are that the services are provided without the physical presence of the parties, the data are transmitted by electronic means, and the service is provided for a fee on the basis of a request by the user of the service. Sections 8 to 11 of the ISSA establish the liability of providers of different information society services. Section 10 of the ISSA states that where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: ( a ) the provider does not have actual knowledge of the contents of the information and, as regards claims for damages, is not aware of any facts or circumstances indicating any illegal activity or information; ( b ) the provider, upon having knowledge or becoming aware of the aforementioned facts, acts expeditiously to remove or to disable access to the information. Hence, the provision in question is applied in the event that the service provided consists in storing data on [the service provider ’ s] server and enabling users to have access to these data. Subject to the conditions specified in section 10 of the ISSA, the provider of such a service is exempted from liability for the content of information stored by it, because the provider of the service merely fulfils the role of an intermediary within the meaning of the provision referred to, and does not initiate or modify the information. Since the Information Society Services Act is based on Directive 200 0 /31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), the principles and objectives of that Directive must also be taken into account in the interpretation of the provisions of the Act in question. Articles 12 to 15 of the Directive, which form the basis for sections 8 to 11 of the ISSA, are complemented by Recital 42 of the preamble to the Directive, according to which the exemptions from liability established in Articles 12 to 15 cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. Hence, the providers of so-called ‘ content services ’ who have control over the content of the information stored cannot rely on the exemptions specified in Articles 12 to 15 of the Directive. The Chamber shares the opinion of the Court of Appeal that the activities of the defendant in publishing the comments are not merely of a technical, automatic and passive nature. The objective of the defendant is not merely the provision of an intermediary service. The defendant has integrated the comments section into its news portal, inviting visitors to the website to complement the news with their own judgments [ hinnangud ] and opinions (comments). In the comments section, the defendant actively calls for comments on the news items appearing on the portal. The number of visits to the defendant ’ s portal depends on the number of comments; the revenue earned from advertisements published on the portal, in turn, depends on the [number of visits]. Thus, the defendant has an economic interest in the posting of comments. The fact that the defendant is not the author of the comments does not mean that the defendant has no control over the comments section. The defendant sets out the rules for the comments section and makes changes to it (removes a comment) if those rules are breached. By contrast, a user of the defendant ’ s service cannot change or delete a comment he or she has posted. He or she can only report an inappropriate comment. Thus, the defendant can determine which of the comments added will be published and which will not be published. The fact that the defendant does not make use of this possibility does not lead to the conclusion that the publishing of comments is not under the defendant ’ s control. The Chamber agrees with the opinion of the Court of Appeal that the defendant, which governs the information stored in the comments section, provides a content service, for which reason the circumstances precluding liability, as specified in section 10 of the ISSA, do not apply in the present case. 14. It is not disputed that the defendant is the publisher of an article entitled ‘ SLK Destroyed Planned Ice Road ’, published on the Delfi Internet portal on 24 January 2006. The County Court also found that the defendant must be regarded as the publisher of the comments. The Court of Appeal, agreeing with that opinion, noted that the fact that the defendant relied on a violation of its right to freedom of expression showed that it considered itself – and not the authors of the comments – to be the publisher of the comments. In the opinion of the Chamber, in the present case both the defendant and the authors of the comments are the publishers of the comments within the meaning of the Obligations Act. The plaintiff has the right to choose against whom to bring the suit. The suit has only been brought against the defendant [Delfi]. The Chamber has explained the definitions of “ disclosure ” and “ discloser ” in paragraph 24 of its judgment of 21 December 2005 in civil case no. 3-2-1-95-05, finding that for the purposes of section 1047 of the Obligations Act, disclosure [ avaldamine ] means communication of information to third parties and the discloser is a person who communicates the information to third parties. In addition, the Chamber explained that in the case of publication [ avaldamine ] of information in the media, the discloser/publisher [ avaldaja ] can be a media company as well as the person who transmitted the information to the media publication. Publishing of news and comments on an Internet portal is also a journalistic activity [ ajakirjanduslik tegevus ]. At the same time, because of the nature of Internet media [ internetiajakirjandus ], it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication [ trükiajakirjanduse väljaanne ]. While the publisher [ ( väljaandja ) of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the author of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher [ väljaandja ] of printed media and an Internet portal operator are publishers/disclosers [ avaldajad ] as entrepreneurs. In cases concerning a value judgment [ väärtushinnang ] that prejudices and denigrates a person ’ s honour and good name, in determining the definition of publication/disclosure and publisher/discloser it is irrelevant whether the value judgment is derived from the published/disclosed information or is derogatory because of its substantive meaning ... Hence, publication/disclosure is communication to third parties of a value judgment on a person (section 1046(1) of the Obligations Act) and/or of information which allows a value judgment to be made, and a publisher/discloser is a person who communicates such judgments [ hinnangud ] and information to third parties. In the present case the comments have been made accessible to an unlimited number of persons (the general public). 15. In reply to the allegations in the defendant ’ s appeal to the effect that the Court of Appeal wrongly applied Article 45 of the Constitution since, in justifying the interference with freedom of expression, it relied on the principle of good faith, and not the law, and that the removal of a comment from the portal is an interference with the freedom of expression of the person posting the comment, the Chamber explains the following. The exercise of any fundamental right is restricted by Article 19 § 2 of the Constitution, which provides that everyone must honour and consider the rights and freedoms of others, and must observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. The first sentence of the first paragraph of Article 45 of the Constitution provides for everyone ’ s right to freedom of expression, that is, the right to disseminate information of any content in any manner. That right is restricted by the prohibition on injuring a person ’ s honour and good name, as laid down in the Constitution (Article 17). The Chamber is of the opinion that in handling the conflict between freedom of expression on the one hand, and honour and good name on the other, regard must be had to the fact that Article 17 of the Constitution, which is formulated as a prohibition, does not completely preclude any interference with a person ’ s honour and good name, but only prohibits defamation thereof (section 1046 of the Obligations Act). In other words, disregarding the aforementioned prohibition would not be in conformity with the Constitution (Article 11 of the Constitution). The second sentence of the first paragraph of Article 45 of the Constitution includes the possibility of restricting the freedom of expression by law in order to protect a person ’ s honour and good name. In the interests of the protection of a person ’ s honour and good name, the following provisions of the Obligations Act may be regarded as restricting the freedom of expression: sections 1045(1)(4), 1046(1), 1047(1), (2) and (4), 1055(1) and (2), and 134(2). The County Court found that injuring the plaintiff ’ s honour was not justified and was therefore unlawful; as there was no discussion of the [news] topic in the comments, the plaintiff was simply insulted in order to degrade him. The Court of Appeal also agreed with that opinion. The Chamber finds that if section 1046 of the Obligations Act is interpreted in conformity with the Constitution, injuring a person ’ s honour is unlawful. The legal assessment by the courts of the twenty comments of a derogatory nature is substantiated. The courts have correctly found that those comments are defamatory since they are of a vulgar nature, degrade human dignity and contain threats. The Chamber does not agree with the opinion of the Court of Appeal that the removal of comments of an unlawful nature interfering with the personality rights of the plaintiff is not an interference with the freedom of expression of the authors of the comments. The Chamber considers that the application of any measure restricting a fundamental right in any manner may be regarded as an interference with the exercise of that fundamental right. Interference by an Internet portal operator with the freedom of expression of persons posting comments is, however, justified by the obligation of the portal operator-entrepreneur to respect the honour and good name of third parties, as arising from the Constitution (Article 17) and the law (section 1046 of the Obligations Act), and to avoid causing them harm (section 1045(1 )( 4) of the Obligations Act). 16. According to the judgment of the Court of Appeal, the contents of the comments were unlawful; they were linguistically inappropriate. Value judgments ... are inappropriate if it is obvious to a sensible reader that their meaning is vulgar and intended to degrade human dignity and ridicule a person. The comments did not contain any information which would have required excessive verification on the initiative of the portal operator. Hence, the defendant ’ s allegation that it was not and should not have been aware of the unlawfulness of the comments is groundless. On account of the obligation arising from law to avoid causing harm, the defendant should have prevented the publication of comments with clearly unlawful content. The defendant did not do so. In accordance with section 1047(3) of the Obligations Act, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential violation. The publication of linguistically inappropriate value judgments injuring another person ’ s honour cannot be justified by relying on the circumstances specified in section 1047(3) of the Obligations Act: such judgments are not derived from any information disclosed but are created and published for the purpose of damaging the honour and good name of the party concerned. Hence, the publication of comments of a clearly unlawful nature was also unlawful. After the disclosure, the defendant failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. In such circumstances, the courts have reasonably found that the defendant ’ s inactivity is unlawful. The defendant is liable for the damage caused to the plaintiff, since the courts have established that the defendant has not proved the absence of culpability [ süü ] (section 1050(1) of the Obligations Act). ” D. Subsequent developments 32. On 1 October 2009 Delfi announced on its Internet portal that persons who had posted offensive comments were not allowed to post a new comment until they had read and accepted the Rules on posting comments. Furthermore, it was announced that Delfi had set up a team of moderators who carried out follow-up moderation of comments posted on the portal. First of all, the moderators reviewed all user notices of inappropriate comments. The compliance of comments with the Rules on posting comments was monitored as well. According to the information published, the number of comments posted by Delfi ’ s readers in August 2009 had been 190,000. Delfi ’ s moderators had removed 15,000 comments (about 8%), mainly consisting of spam or irrelevant comments. The percentage of defamatory comments had been less than 0.5% of the total number of comments. | This was the first case in which the Court had been called upon to examine a complaint about liability for user-generated comments on an Internet news portal. The applicant company, which runs a news portal run on a commercial basis, complained that it had been held liable by the national courts for the offensive comments posted by its readers below one of its online news articles about a ferry company. At the request of the lawyers of the owner of the ferry company, the applicant company removed the offensive comments about six weeks after their publication. |
984 | 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 8. The applicant was born in 1968 and is now serving a sentence of imprisonment in Tbilisi. A. Background 9. In 2003 the so-called “Rose Revolution” erupted in Georgia, after elections perceived as rigged. It consisted of twenty days of peaceful protests, and caused the then President, Mr Eduard Shevardnadze, former First Secretary of the Georgian Communist Party and former Soviet foreign minister, who had led Georgia since 1992, to resign. New presidential and parliamentary elections were held in 2004. They were won by the United National Movement (“UNM”), led by Mr Mikheil Saakashvili, one of the Rose Revolution’s protagonists. 10. The applicant was an active participant in those events, a close collaborator of Mr Saakashvili, and a leading figure in UNM. 11. Until 1 October 2012, when UNM lost the parliamentary elections to the coalition Georgian Dream, led by Mr Bidzina Ivanishvili, the applicant was a member of the Georgian Government: from 2005 to 2012 he was Minister of Internal Affairs and then, from July to October 2012, Prime Minister. 12. On 15 October 2012, two weeks after the parliamentary elections, the applicant was elected Secretary General of UNM, which became the chief opposition party in Georgia. 13. Shortly after his term of office came to an end, after the presidential election on 27 October 2013, Mr Saakashvili, who had been President of Georgia since 2004, left the country. B. The incident at Tbilisi Airport on 30 November 2012 14. Between 1 November 2012 and 21 May 2013, when he was arrested (see paragraph 26 below), the applicant had made five trips abroad, always returning as scheduled. 15. According to the Government, on 30 November 2012 the applicant had attempted to cross the border at Tbilisi Airport using a fake passport. 16. After checking the passport against the official electronic database, an officer of the Border Police spotted a discrepancy between the photograph in it, which matched the applicant’s appearance, and the other data, including the name, Levan Maisuradze, which differed from the information about the applicant in the database. The officer returned the passport to the applicant’s personal assistant, asking for clarification. The assistant then brought from the applicant’s office another passport, issued in the applicant’s real name and matching all his identification data. After a check of that passport’s authenticity, the applicant was allowed to cross the border. 17. The same day the Border Police opened a criminal investigation into the incident. The head officer immediately went to Tbilisi Airport to interview the officer who had discovered the allegedly fake passport. According to evidence gathered in the course of the ensuing investigation, while he was at the airport the head of the Border Police received a call from the applicant on his mobile telephone. Relying on his status and long-standing personal connections within the Ministry of Internal Affairs, the applicant demanded that the incident not be investigated and that the border-police officer not be asked to give evidence in relation to the incident. According to statements later given to the investigating officers by the head of the Border Police, the applicant had threatened him personally and with regard to his career and used obscene language during their telephone conversation. 18. When interviewed on 1 and 7 December 2012 in relation to the incident, the applicant denied having presented a passport under the name of Levan Maisuradze, and said that he only had four passports, two ordinary ones and two diplomatic ones, all issued under his real name. C. The criminal proceedings against the applicant in relation to the State Programme for Job Seekers and the house in the village of Kvariati 1. The initial phase of the proceedings 19. On 13 December 2012 the Prosecutor’s Office of Western Georgia in Kutaisi opened criminal proceedings against the applicant and Mr Z.T., the Minister of Health, Labour and Social Affairs in his government (who immediately after the October 2012 elections had been appointed governor of the Kakheti region), for alleged embezzlement and abuse of official authority, in relation to a “State programme for job seekers” put in place by the applicant’s government between July and September 2012. 20. The same day the applicant and Mr Z.T. appeared before the prosecuting authorities and were interviewed as witnesses. 21. On 18 January 2013 the Prosecutor’s Office of the Ajarian Autonomous Republic opened separate criminal proceedings against the applicant for alleged abuse of official authority in relation to a private house in Kvariati, a resort on Georgia’s southern Black Sea coast. 22. On 13 February 2013 the applicant was examined as a witness in the context of those separate criminal proceedings. 23. On 20 May 2013 the two sets of proceedings were joined. 2. The applicant’s arrest and placement in pre-trial detention (a) The arrest 24. On 21 May 2013 the applicant and Mr Z.T. were summoned by the investigator attached to the Prosecutor’s Office of Western Georgia in Kutaisi, which was dealing with the joined case, for an interview that day. The same day the applicant’s wife left Georgia. 25. The applicant appeared for the interview, which took place from 12.25 p.m. to 3.05 p.m. on 21 May 2013. 26. Three-quarters of an hour after the interview, at 3.50 p.m., the investigator arrested the applicant under Article 171 § 2 (e) of the Code of Criminal Procedure (see paragraph 144 below). She noted that the arrest was being made because, faced with a reasonable suspicion of having committed an offence and a possible punishment, the applicant might try to flee. That risk was corroborated by his attempt to cross the border with a fake passport in 2012 (see paragraphs 15-18 above), as well as by his many trips abroad, which showed that he would have no difficulties getting out of Georgia. The investigator also noted that the applicant had held high office for many years, and was still an influential figure. There was hence a risk that he would obstruct the investigation. 27. Shortly before that, at 3.31 p.m., the investigator had also arrested Mr Z.T. 28. Later that day, at 9.50 p.m., the applicant was charged. 29. The first charge was that between July and September 2012 he had devised, and Mr Z.T. and the director of Georgia’s Social Service Agency had implemented, a scheme creating fictitious public-sector jobs for 21,837 persons whereby they were unduly paid a total of 5,240,880 Georgian laris (GEL) (at that time equivalent to 2,421,953 euros (EUR)) of budgetary funds for carrying out campaign work for UNM in the run-up to the October 2012 elections. According to the authorities, the applicant had thereby bought votes contrary to Article 164 1 of the Criminal Code, misappropriated property in large quantities, acting in an organised group and using his official position contrary to Article 182 §§ 2 (a) and (d) and 3 (b) of the Code, and abused his power as a public official holding a political post contrary to Article 332 § 2 of the Code. 30. The second charge was that after 2009 the applicant had systematically used the house in Kvariati, which belonged to a limited liability company under investigation by the Ministry of Internal Affairs, for family vacations, that in 2011 and 2012 he had had work costing GEL 131,884.60 done on that house with funds of the Ministry of Internal Affairs, and that he had caused GEL 25,784.70 to be spent on the salaries of staff servicing the house, thus depriving the State budget of a total of GEL 157,669.30 (at that time equivalent to EUR 73,216). According to the prosecuting authorities, the applicant had thereby infringed the inviolability of property by using an official position contrary to Article 160 § 3 (b) of the Criminal Code, misappropriated property in large quantities by using an official position contrary to Article 182 §§ 2 (d) and 3 (b), and abused his power as a public official holding a political post contrary to Article 332 § 2 of the Code. 31. In their observations, the Government set out the witness and other evidence on which those two sets of charges were based. Many of the witnesses whose statements related to the first set of charges were current or former officials of the Social Service Agency, of the Ministry of Health, Labour and Social Affairs, or of other ministries or government departments; some were UNM party officials. Many of the witnesses whose statements related to the second set of charges were former officials of the Ministry of Internal Affairs. 32. In the meantime, the prosecuting authorities searched the applicant’s flat. They discovered and seized GEL 29,000 (at that time equivalent to EUR 13,812), 33,100 United States dollars and EUR 54,200 in cash. (b) The placement in pre-trial detention (i) Proceedings before the Kutaisi City Court 33. On 22 May 2013 the district prosecutor’s office of Western Georgia asked the Kutaisi City Court to place the applicant in pre-trial detention. It described the offences with which the applicant was charged and cited the witness and other evidence supporting the charges. It also argued that there was a risk that the applicant would flee and a risk that he would obstruct the gathering of evidence, and that those risks could not be averted by a less restrictive measure. 34. In the prosecution’s view, the risk of flight was borne out, firstly, by the applicant’s having established, by dint of his having held high public office for several years, many contacts abroad and in Georgia, which would facilitate his departure from the country. Since 2009 he had crossed the border more than sixty times. Secondly, the applicant’s wife had left the country on 21 May 2013, immediately after the applicant had been served with the summons to appear for his interview with the investigator in Kutaisi. Thirdly, the search of the applicant’s flat on 21 May 2013 had revealed large sums in cash. It was reasonable to suppose that the applicant had amassed that money in order to be able to leave the country. Fourthly, the applicant had a fake international passport that had been issued to him at the time when he had still been Minister of Internal Affairs. Lastly, the seriousness of the charges which the applicant was facing and the severity of the possible sentence also had to be taken into account. 35. The risk of obstructing the gathering of evidence was, for its part, borne out by the applicant’s having held a number of high political posts and by his uncivil attempt to put pressure on the head of the Border Police during the incident on 30 November 2012 (see paragraph 17 above). 36. The prosecution requested that the applicant’s co-accused, Mr Z.T., also be placed in pre-trial detention. 37. Counsel for the applicant opposed the prosecution’s request. In their written submissions to the Kutaisi City Court they argued that since the applicant had been a member of the Government, by law only the Minister of Justice could institute criminal proceedings against him. Yet he had been arrested by an investigator from the district prosecutor’s office of Western Georgia, and charged by a prosecutor from the same office. His arrest and the criminal proceedings against him were therefore unlawful. Moreover, his arrest had been in breach of Article 171 of the Code of Criminal Procedure (see paragraph 144 below). The alleged risk that he would flee was not supported by concrete evidence, and was belied by his repeated appearances before the investigating authorities and his public pledge that he would cooperate with them. Also, he had been out of Georgia many times and had not once tried to flee, including after the opening of the investigation. On the day of his arrest he had voluntarily appeared for questioning. There had therefore been no need to detain him without a judicial warrant. The alleged risk of his obstructing the investigation was also not specifically borne out. Moreover, the investigation had already lasted several months without any instances of his having interfered with it being reported. Counsel for the applicant also invited the court to take into account the applicant’s achievements in combating crime and police reform during his time in office. 38. The Kutaisi City Court heard the prosecution’s request at a public hearing held on the same day, 22 May 2013. Both parties made oral submissions. 39. After the hearing, the court decided to place the applicant in pre-trial detention, but to release Mr Z.T. on bail. It briefly noted that, according to the materials in the case file, there had been no serious procedural breaches in the applicant’s arrest or the bringing of charges against him. In particular, by law only acting, not former, members of the Government had to be prosecuted by the Minister of Justice rather than a regular prosecutor. The court went on to say that there was enough information to show that there was a reasonable suspicion against the applicant and Mr Z.T. The other pre-requisites for placing the applicant in pre-trial detention were also in place. A number of investigative steps were yet to be carried out, and as was apparent from the prosecution’s request, there was a risk that the applicant would tamper with the evidence or put pressure on witnesses. That was borne out, in particular, by the applicant’s having already tried to put pressure on a witness against him. Another factor which suggested such a risk was that the applicant had for many years held high public office and was still an influential figure in some circles of Georgian society, especially bearing in mind that the charges against him related to his time in office. Many witnesses were former subordinates of his or people under his professional or personal influence. The court also agreed with the prosecution that there was a risk that the applicant would flee. That was borne out, in particular, by his facing serious charges and the possibility of a severe sentence. Lastly, the court found that those two risks could not be averted by a less restrictive measure. 40. The court fixed the pre-trial conference hearing for 15 July 2013. 41. The applicant was remanded in custody in Prison no. 9 in Tbilisi. (ii) Proceedings before the Kutaisi Court of Appeal 42. The applicant appealed to the Kutaisi Court of Appeal. He argued that on a proper reading of the relevant statutory provisions the Minister of Justice alone was competent to prosecute offences committed by anyone in their capacity as member of the Government, not only someone who was such a member at the time when the prosecution was being brought. He also argued that the Kutaisi City Court had erred by not examining in detail the lawfulness of his arrest. That arrest had been in breach of Article 171 of the Code of Criminal Procedure, in particular because on the day of the arrest he had voluntarily appeared for questioning. It was also hard to believe that the Kutaisi City Court, which had ruled on the prosecution’s request just three or four hours after it had been made, had really studied the evidence said to give rise to a reasonable suspicion against the applicant. There were no facts or information in the case file to suggest that he had committed the offences. The lower court had also expected him to disprove the risks of flight and obstruction of justice alleged by the prosecution rather than require the prosecution to establish those risks. Its finding that the applicant had put pressure on a witness ran counter to the presumption of innocence. He had never called or threatened the head of the Border Police. The Kutaisi City Court had also disregarded the fact that in the months before his arrest he had voluntarily appeared for questioning several times. Neither that court nor the prosecution had pointed to evidence showing that he would flee abroad. He had travelled out of Georgia many times since the investigation had been opened. The argument that his being an influential figure in some circles suggested that he could influence witnesses made it clear that he was a victim of political persecution. His character showed that there was not even a minimal risk of his fleeing, putting pressure on witnesses or destroying evidence. 43. On 25 May 2013 the Kutaisi Court of Appeal, having examined the appeal on the papers, declared it inadmissible. It noted that the Kutaisi City Court had reviewed the materials in the case and the evidence submitted to it, and had checked whether the gathering of that evidence and the bringing of the charges against the applicant had complied with the Code of Criminal Procedure. When deciding to place the applicant in pre-trial detention, that court had taken into account his personality and the risk of his obstructing the proceedings. Since that court had already dealt with all the points raised in the appeal, as well as with all the important points concerning the lawfulness of the applicant’s detention, there was no reason to entertain the appeal. 3. The two adjournments of the pre-trial conference hearing 44. On 2 July 2013 the prosecution, citing the need for additional investigative steps, asked the Kutaisi City Court to adjourn the pre-trial conference hearing until 11 September 2013. On 5 July 2013 the court partly allowed the request, adjourning the conference until 23 August 2013. 45. On 12 August 2013 the applicant, citing the volume of materials in the case file and the need for more time to prepare his defence, sought a further adjournment of the pre-trial conference. The prosecution objected, stating that the applicant was trying to protract the proceedings and leave less time for the examination of the case on the merits. On 14 August 2013 the Kutaisi City Court allowed the request in full and scheduled the pre-trial conference for 12 September 2013. 4. The applicant’s request for release during the pre-trial conference hearing 46. The pre-trial conference hearing took place on 12, 19 and 25 September 2013. 47. At the session on 25 September 2013 the applicant requested to be released from pre-trial detention. He pointed out that he had publicly pledged to cooperate with the investigation, that before his arrest he had always duly appeared for questioning, and that he had been abroad many times and had always returned as scheduled. He also offered to hand in his passport. He went on to say that since the investigation had already been concluded and the authorities had secured all witness and other evidence, there was no longer a risk of his influencing witnesses, which in any event did not exist since he no longer held the high posts which he had occupied previously. 48. The prosecution argued that the applicant’s high political status and connections abroad and his possession of two diplomatic passports and a fake passport made it easy for him to leave Georgia. It was also possible that he had other unidentified passports, a device used by other former officials to get out of the country. The surrender of his passport would therefore not obviate the risk of flight. The risk of his influencing witnesses was also still present. He had already done so on 30 November 2012, when no longer occupying an official post. Moreover, the witnesses were still due to testify at trial, which was by law the only way of adducing their evidence. 49. The Kutaisi City Court examined and rejected the request for release the same day. It gave its decision orally. As evidenced by the audio record of the hearing, the judge said, without further explanation, that the “request for termination of the pre-trial detention [wa]s to be rejected”. 5. The applicant’s request for release of 7 October 2013 50. The applicant’s trial started on 7 October 2013, and he again sought release from pre-trial detention. He pointed out that before his arrest he had always appeared freely before the investigating authorities, had repeatedly declared that he had no intention of fleeing, had been abroad and back even after the proceedings against him had started, was the secretary general of a major political party, and had a wife and two children. All those factors showed that there was no real risk of his fleeing. Nor was there any risk of his influencing witnesses. The prosecuting authorities had already questioned a considerable number of witnesses, and there was no risk that those witnesses would change their statements, as they could incur criminal liability if they did so. 51. The Kutaisi City Court rejected the request in a written decision of the same day. It noted that the applicant had failed to point to, or provide evidence of, new circumstances calling for a reconsideration of the decision to place him in pre-trial detention. In that decision, the court had already dealt with all the points raised in his request. The fact that the trial had already started had no bearing on the justification for the applicant’s detention. 52. The court went on to say that its decision could be appealed against at the same time as its final judgment on the merits of the criminal case. 6. The applicant’s conviction and sentence and his appeals against them 53. On 17 February 2014 the Kutaisi City Court found the applicant guilty of buying votes contrary to Article 164 1 of the Criminal Code, and of misappropriating property in large quantities, acting in an organised group and using his official position contrary to Article 182 §§ 2 (a) and (d) and 3 (b) of the Code, in relation to the fictitious-jobs scheme (see paragraph 29 above). The court also found the applicant guilty of infringing the inviolability of property by using an official position contrary to Article 160 § 3 (b) of the Code, and of misappropriating property in large quantities by using an official position contrary to Article 182 §§ 2 (d) and 3 (b) of the Code, in relation to the house in Kvariati (see paragraph 30 above). The court dismissed the charges of abuse of power under Article 332 § 2 of the Code as superfluous. It sentenced the applicant to five years’ imprisonment and banned him from holding public office for one and a half years. 54. The applicant appealed against that judgment, but on 21 October 2014 the Kutaisi Court of Appeal upheld it in full. 55. On 18 June 2015 the Supreme Court declared the applicant’s ensuing appeal on points of law inadmissible. D. The other criminal cases against the applicant 56. On 28 May 2013 the Chief Public Prosecutor’s Office charged the applicant with exceeding his power by using violence, contrary to Article 333 § 3 (b) of the Criminal Code, in relation to his role in a police operation to disperse a rally on 26 May 2011. On 30 May 2013 the Tbilisi City Court placed the applicant in pre-trial detention in relation to that charge, and on 27 February 2014 convicted him of it. The applicant appealed against that judgment, but on 11 August 2014 the Tbilisi Court of Appeal upheld it. An appeal by the applicant to the Supreme Court on points of law was declared inadmissible on 27 February 2015. 57. On 24 June 2013 the Tbilisi Prosecutor’s Office charged the applicant with abusing his power as a public official holding a political post, contrary to Article 332 § 2 of the Criminal Code. The case concerned the applicant’s role, in his capacity as Minister of Internal Affairs, in the alleged cover-up of a 2006 murder implicating high-ranking officers of the Ministry and the applicant’s wife (see Enukidze and Girgvliani v. Georgia, no. 25091/07, §§ 15-22, 26 April 2011). Two days later, on 26 June 2013, the Tbilisi City Court refused the prosecution’s request to place the applicant in pre-trial detention in relation to that charge. The applicant was later additionally charged with forging official documents in his capacity as an official, contrary to Article 341 of the Criminal Code. On 20 October 2014 the Tbilisi City Court convicted him of the two offences, and on 4 August 2015 the Tbilisi Court of Appeal upheld the conviction. 58. On 28 July 2014 the Chief Public Prosecutor’s Office charged the applicant with exceeding his power by using violence, contrary to Article 333 § 3 (b) of the Criminal Code, in relation to his role in the planning and supervision of a police raid on a private television and radio company, Imedi Media Holding, on 7 November 2007, and the ensuing withdrawal of the company’s broadcasting licence (see Akhvlediani and Others v. Georgia (dec.), no. 22026/10, §§ 6-8, 9 April 2013). The case is apparently still pending before the Tbilisi City Court. 59. On 5 August 2014 the Chief Public Prosecutor’s Office charged the applicant with exceeding his power by using violence, contrary to Article 333 § 3 (b) of the Criminal Code, in relation to his having allegedly ordered high-ranking police officers to have a member of parliament subjected to ill-treatment in reprisal for having made insulting public statements about Mr Saakashvili’s wife. The prosecuting authorities later also charged the applicant with wilfully causing that person grievous bodily harm, acting in concert with others, contrary to Article 117 § 5 (e) of the Criminal Code. On 22 September 2016 the Tbilisi City Court convicted the applicant of those offences. On 24 February 2017 the Tbilisi Court of Appeal upheld that judgment. E. Alleged covert removal of the applicant from his prison cell on 14 December 2013 and investigations into that allegation 1. The applicant’s allegations 60. On 17 December 2013, during a court hearing in the trial against him, which was being broadcast live on television, the applicant stated that at about 1.30 a.m. the previous Saturday, 14 December 2013, he had been taken out of his prison cell, put in a car with his head shrouded in his jacket, and driven from Prison no. 9 in Tbilisi, where he was being held in custody, to what he believed to be the Penitentiary Department building. There, he had been taken to an office where, having had the jacket removed from his head, he had seen two men. The first had been the then Chief Public Prosecutor, Mr O.P. The applicant was not certain of the identity of the second, as he had left the office shortly after his arrival, but surmised that he had been Mr D.D., the head of the Penitentiary Department. Mr O.P. – who had been appointed as Chief Public Prosecutor on 21 November 2013 and resigned on 30 December 2013 over allegations that he had a criminal record in Germany – had requested the applicant to provide information about the death in 2005 of Mr Zurab Zhvania, the then Prime Minister, and about the bank accounts of the already former President of Georgia, Mr Saakashvili. If the applicant did that, he would be allowed to leave Georgia with “the money that he [had] made during his time in office”. 61. Mr Zhvania was one of the protagonists of the Rose Revolution (see paragraph 9 above). Shortly after it, in February 2004, he became Prime Minister. In December 2004 the applicant became Minister of Internal Affairs in his government. Mr Zhvania died in February 2005. On 3 February 2005 his dead body was found along with the dead body of Mr R.U., a deputy regional governor, in a flat in Tbilisi. According to the official version of the events, the two had died accidentally from carbon monoxide poisoning caused by faulty ventilation in a gas heater. The circumstances of Mr Zhvania’s death are still a subject of heated debate in Georgia, and Georgian Dream made it one of their campaign promises in the October 2012 elections to elucidate them. Shortly after those elections, in November 2012, the investigation into Mr Zhvania’s death was renewed and is apparently still pending. The applicant was questioned as a witness in the course of that renewed investigation on 21 March 2014. During the hearing before the Grand Chamber, the Government stated that while no one had asked the applicant anything about Mr Zhvania’s death on 14 December 2013, there was still a “huge question” to him in relation to that death, in view of the lack of credibility of the version that he had put forward at the time when it had happened: that it had been due to an accident. 62. According to the applicant, he had replied to Mr O.P. that it made no sense to accuse Mr Saakashvili of corruption. As for Mr Zhvania’s death, the investigation into it in 2005 had been comprehensive, and there was no further information that he could provide in relation to it. Mr O.P. had then threatened the applicant that if he did not cooperate, his detention conditions would worsen and he would not be able to get out of prison “until [Mr Irakli Garibashvili]’s government was in power”. Mr Garibashvili had become Prime Minister of Georgia on 20 November 2013, succeeding Mr Ivanishvili, who had become Prime Minister on 25 October 2012, following the parliamentary election won by Georgian Dream (see paragraph 11 above). 63. According to the applicant, he was then taken back to Prison no. 9, arriving in his cell at about 2.30 a.m. 64. The applicant went on to say that he could describe the office where the meeting had taken place and identify the two men who had taken him from Prison no. 9 to that office. 65. At the end of his statement, the applicant suggested that the authorities could verify his allegations by checking the footage from the surveillance cameras in Prison no. 9. He also requested an examination of the footage from the road-traffic cameras situated along the road allegedly taken by the car transporting him from the prison to the Penitentiary Department. 66. In the proceedings before the Grand Chamber, the applicant submitted that he had first discussed the meeting with the Chief Public Prosecutor with his lawyers when they had visited him in prison two days later, on Monday 16 December 2013. According to him, he could not have voiced his allegations earlier, as he was not allowed to receive visitors during the weekend and did not have free access to a telephone. For their part, the Government submitted that the applicant could have telephoned his lawyers or the Public Defender at any time, including at weekends and during the night. 2. The authorities’ initial reaction to those allegations 67. The applicant’s allegations prompted public reactions from several high officials. 68. On the same day, 17 December 2013, the Prime Minister stated that the allegations were an attempt to discredit the Government and a provocation, and that “questions should be rather put to psychologists and psychiatrists” in connection with them. In an official statement put out the same day, the Chief Public Prosecutor’s Office described the allegations as “absurd and untrue”, and surmised that the applicant had made them to manipulate public opinion and the criminal trial against him. 69. For her part, the Minister of Justice stated that, while the allegations appeared “unbelievable”, they were to be addressed seriously. 70. The following day, 18 December 2013, the Prime Minister again described the allegations as a provocation and said that he would not take seriously calls for the Minister of Prisons and the Chief Public Prosecutor to be suspended from office. For his part, the Minister of Prisons stated that “[the applicant had] not [been] taken out of prison” and that the allegations were “an absolute lie”. He went on to specify, in relation to the surveillance camera footage to which the applicant referred (see paragraph 65 above), that “the footage [could] not be obtained, as no investigation [was] being launched into such unserious matters”. He noted, however, that if an investigation were opened, the investigators would obtain access to the footage, which otherwise no one had the right to see. 71. The next day, 19 December 2013, Georgia’s Public Defender visited the applicant in prison to discuss his allegations. After the meeting, he called for an investigation into them. 3. Inquiry by the Ministry of Prisons’ General Inspectorate (December 2013 – January 2014) 72. On 20 December 2013 the Ministry of Prisons’ General Inspectorate opened an internal inquiry into the applicant’s allegations. It was in the main handled by two inspectors. (a) The surveillance camera footage from Prison no. 9 and the Penitentiary Department building 73. The same day, 20 December 2013, the General Inspectorate’s deputy head wrote to the deputy head of the Ministry’s Penitentiary Department, requesting a copy of the footage from the surveillance cameras in Prison no. 9 and the Penitentiary Department building for the period between 12 midnight on 13 December 2013 and 12 noon on 14 December 2013. 74. In his reply of the same day, the Penitentiary Department’s deputy head said that the request could not be complied with as the footage from those cameras was kept for only twenty-four hours, following which it was automatically deleted. 75. At that time there were apparently no rules on the amount of time for which the footage was to be kept. Such rules were first put in place in May 2015 in response to criticism by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) in the report of its visit to Georgia in 2014. 76. According to the Government, the applicant was aware of the limited time for which the footage was kept and had for that reason first voiced his allegations about the meeting with the Chief Public Prosecutor three days after it had taken place. 77. According to the applicant, the footage was kept for longer than twenty-four hours. In support of that assertion, he pointed out that the General Inspectorate’s deputy head was apparently unaware of the time-limit when asking for it (see paragraph 73 above). The applicant also submitted an affidavit by Mr G.M., deputy Minister of Prisons between 2010 and 2012, who had been in charge of reforming the surveillance system in prisons and had set up the Ministry’s information-technology department in 2011. According to that affidavit, surveillance camera footage was saved on servers and back-up servers in the Penitentiary Department itself, and kept for a month. It could not be deleted before the expiry of that period without outside interference. 78. According to the Georgian Government’s response to the CPT’s report on its visit to Georgia in 2014 (CPT/Inf (2015) 43), footage from the surveillance cameras was kept for twenty-four hours in every prison equipped with a video surveillance system, the reason for the limited duration being a lack of adequate technical equipment. Footage was kept for longer in several prisons where the surveillance equipment and servers had been upgraded shortly before that (ibid., at pp. 17-18). (b) Other steps taken in the course of the inquiry 79. On 24 December 2013 the General Inspectorate’s head asked eight private companies who owned facilities equipped with surveillance cameras, such as petrol stations, along the road supposedly taken by the car transporting the applicant from Prison no. 9 to the Penitentiary Department to provide the footage for the period between 12 midnight on 13 December 2013 and 12 noon on 14 December 2013. All but one of those companies, which replied that the footage had already been deleted, complied with the request, and the footage was simultaneously reviewed by the two inspectors between 25 and 31 December 2013. Their notes stated briefly, without providing further details, that they had seen nothing of interest. 80. On 3 January 2014 one of the inspectors interviewed the applicant and the governor and deputy governor of Prison no. 9. 81. The applicant stated that he had been taken out of his cell by the governor, who had told him that a prosecutor wished to speak with him. Once in the prison yard, two other men, whose features he clearly remembered, had put him in a dark-coloured car, probably a Toyota Land Cruiser Prado or 200. The car had been driven by a third man whose features the applicant could not make out because once inside the car he had been blindfolded with his jacket. The car had moved for about ten minutes along main roads. Based on the direction of the drive, the applicant had surmised that he was being taken to the Penitentiary Department. During the drive, one of the men in the car had made a mobile telephone call informing someone that they would arrive in about five minutes. A short while after that, the same person had received a call saying that they would arrive in one minute. The applicant stated that he did not wish to describe in detail the office to which he had been taken, but that he could recognise it. He relayed in detail his conversation with the head of the Penitentiary Department, Mr D.D., noting that he had appeared heavily intoxicated. He did not describe in detail his ensuing conversation with the Chief Public Prosecutor, Mr O.P., stating that he had already spoken about that at the hearing on 17 December 2013. 82. The governor and the deputy governor both stated that they had been in Prison no. 9 in the early hours of the day of the alleged meeting, 14 December 2013, but that they had not seen or spoken to the applicant. When asked about the surveillance cameras, the governor said that if there had been any problem with them, he would have been told about it by the officers working in the technical room, which had not happened. He also specified that his service car was a black Toyota Land Cruiser Prado, and provided the registration number. 83. Still on 3 January 2014 one of the inspectors reviewed the logs for the movement of vehicles in and out of Prison no. 9. They did not contain any entries suggesting that the applicant had been taken out of the prison during the night in question. 84. The same day the General Inspectorate’s head asked the Ministry of Internal Affairs to provide footage from the road-traffic cameras along the road supposedly taken by the car transporting the applicant from Prison no. 9 to the Penitentiary Department for the time between 12 noon on 13 December 2013 and 12 noon on 14 December 2013. Footage from nine road-traffic cameras for the time between 12 midnight on 13 December 2013 and 6 a.m. on 14 December 2013 was provided on 13 January 2014 and was reviewed by three inspectors the same day. Their notes stated briefly, without providing further details, that they had seen nothing of interest in it. 85. The next day, 4 January 2014, the inspectors interviewed two prison officers supervising the movement of prisoners in Prison no. 9 and a prison officer tasked with escorting prisoners in the applicant’s wing in and out of their cells, all three of whom had been on duty between 10 a.m. on 13 December 2013 and 10 a.m. on 14 December 2013. All three officers dismissed the applicant’s allegations as untrue, and stated that if he had been taken out of his cell they would have known about it and would have recorded it in the relevant logs. 86. On 6 January 2014 one of the inspectors interviewed two prison officers who had been in charge of monitoring the surveillance cameras in Prison no. 9 from screens in a technical room inside the prison and who had been on duty between 7 p.m. on 13 December 2013 and 10 a.m. on 14 December 2013. Both of them stated that nothing unusual had happened that night and that the cameras had been working properly throughout. The two officers had learned about the applicant’s allegations from the media, and dismissed them as untrue. They also stated that there was a surveillance camera inside the applicant’s cell, and that it enabled them to monitor all of his movements in and out of it. 87. On 9 January 2014 one of the inspectors reviewed the logs for the movement of people in and out of Prison no. 9. They did not contain any entries suggesting that the applicant had been taken out during the night in question, but showed that he had been visited by his three lawyers two days later, on 16 December 2013. 88. Neither Mr O.P. nor Mr D.D. were interviewed or asked to provide explanations in the course of the inquiry. 89. On 14 January 2014 one of the inspectors drew up a report in which he stated that the inquiry had not confirmed the applicant’s allegations. In a letter dated 14 April 2014 the Chief Public Prosecutor’s Office informed the applicant’s lawyer, apparently in response to a request for information on his part made on 6 March 2014, that the inquiry was complete. 4. Developments after the end of the inquiry 90. The day after the end of the inquiry, 15 January 2014, the Public Defender reiterated his call for a full-scale investigation into the applicant’s allegations (see paragraph 71 above). 91. On 17 January 2014 several non-governmental organisations also urged the authorities to carry out a full investigation into the applicant’s allegations, expressing concern in particular about the lingering uncertainty surrounding the footage from the prison surveillance cameras. 92. In a television interview on 11 February 2014, the Prime Minister, Mr Garibashvili, said that the applicant’s allegations were “absurd and ridiculous” and that he had very much liked a “rhetorical question” asked by the former Prime Minister, Mr Ivanishvili, in relation to them a few days earlier, on 8 February 2014: “So what happened after [Mr O.P.] abducted [the applicant]? What did he do to [him] then, did he rape him or what?” 93. On 10 May 2014 a member of parliament from UNM revealed documents showing that in December 2013 forty officials from the Ministry of Prisons – among whom were the head of the Penitentiary Department, Mr D.D., his deputies, the governors of several prisons, and a Mr G.G., head of the special forces of the Ministry of Prisons – had received high bonuses: GEL 17,756 (at that time equivalent to EUR 7,430) for Mr D.D.; GEL 38,128 (EUR 15,954) and GEL 30,463 (EUR 12,747) respectively for his deputies; for prison governors, sums ranging from GEL 18,259 (EUR 7,640) for the governor of Prison no. 8 to GEL 29,609 (EUR 12,390) for the governor of Prison no. 9; and GEL 18,692 (EUR 7,821) for Mr G.G. The member of parliament suggested that the bonuses had been paid to recompense those officials for keeping the meeting between the applicant and the Chief Public Prosecutor secret. In response to those allegations, Mr D.D. stated that the bonuses had been exceptionally high because all those who had received them had worked in difficult conditions for twenty-four hours a day. For his part, the Minister of Prisons stated that the bonuses had been personally approved by Mr D.D. 94. At the hearing before the Grand Chamber, the Government denied the existence of any link between those bonuses and the applicant’s allegations, emphasising that officials from other prisons had also received them. The Government also stated that it was usual for such bonuses to be paid at the end of the year to government employees, especially law-enforcement officials. 95. In an interview with a newspaper journalist on 19 May 2014 Ms L.M., adviser to Mr D.D., said: “[E]ven a child knows that [the applicant] was taken from his prison cell by D.D.”. In a television interview later that day she said that she had spoken with officials from the Penitentiary Department who had confirmed that Mr D.D. had instructed them to conceal the surveillance-camera footage from the early hours of 14 December 2013. The following day, 20 May 2014, Mr D.D. dismissed Ms L.M. from her post. Three days later, on 23 May 2014, he himself resigned, apparently in connection with the controversy which had erupted following the disclosure of the bonuses paid in December 2013 (see paragraph 93 above). 96. On 17 June 2016, during an appeal court hearing in an unrelated criminal case concerning a 2006 operation in the course of which officers of the special forces of the Ministry of Internal Affairs had killed two people, one of the co-accused, Mr G.Ts., stated that he had information about the applicant’s meeting with the Chief Public Prosecutor. A number of people had been arrested and accused in that case, which became known as the “Kortebi” case, including (a) the six officers who had carried out the operation, one of whom was a Mr I.M.; (b) the special forces’ then deputy head, Mr G.G. (who several years later, in December 2013, was appointed by Mr D.D. as head of the special forces of the Ministry of Prisons – see paragraph 93 above); (c) Mr I.P., former deputy head of the Central Criminal Police Department of the Ministry of Internal Affairs; and (d) the above-mentioned Mr G.Ts., former deputy head of that Department’s Investigation Unit. 5. Investigation by the Chief Public Prosecutor’s Office (June 2016 – February 2017) 97. After the delivery of the Chamber judgment on 14 June 2016 (see paragraph 3 above), the speaker and several members of the Georgian Parliament called for a fresh investigation into the applicant’s allegations. The Minister of Justice stated that she hoped that the prosecuting authorities would carry out an investigation in connection with the Chamber’s findings under Article 18 of the Convention. She went on to say that the Government would seek a referral of the case before the Grand Chamber. 98. On 21 June 2016 the Chief Public Prosecutor’s Office opened a criminal investigation and assigned it to two investigators from its investigative department. 99. The applicant was interviewed on 24 June 2016. He reiterated his assertions of 17 December 2013 and 3 January 2014 in relation to his conversations with Mr D.D. and Mr O.P., and the car which had taken him to his meeting with them (see paragraphs 60 and 81 above). With regard to his removal from Prison no. 9, the applicant stated that when entering his cell to take him out, the prison governor had been accompanied by his deputy. He also stated that although he could not describe the two men who had then put him in the car, he could recognise them, in particular one of them, who had a distinctive face. The applicant also named the roads along which the car had allegedly driven. 100. On 29 June 2016 one of the investigators interviewed the governor of Prison no. 9. He stated that the applicant had not been taken out of his cell, either by himself or by anyone else. He also stated, inter alia, that pre-trial detainees were entitled to telephone the Public Defender’s Office at any time during the week, and that between 13 and 17 December 2013 the applicant had not asked to make such a call. He stated, further, that a surveillance camera had been installed in the applicant’s cell with his consent, for his own safety, but that the footage from that camera, just like the footage from all other surveillance cameras in the prison, was only kept for twenty-four hours. 101. The following day, 30 June 2016, the other investigator interviewed the deputy governor of Prison no. 9. His statement was almost identical to that of the governor. He stated that he had learned about the applicant’s allegations from the media and that they were false. He also confirmed that pre-trial detainees were entitled to telephone the Public Defender’s Office at any time during the week. 102. On 1 July 2016 the investigators interviewed the two prison officers in charge of monitoring the surveillance cameras in Prison no. 9. They confirmed the statements that they had given during the internal inquiry (see paragraph 86 above). Both stated that the footage from the cameras was only kept for twenty-four hours and then automatically deleted. Only if something unusual was noted during that time would the relevant footage be specially retrieved and kept for a month. Since nothing of the sort had happened in the early hours of 14 December 2013, the footage for that period had not been retrieved. 103. On 4 and 5 July 2016 the investigators interviewed the two prison officers in charge of supervising the movement of prisoners in Prison no. 9. They likewise confirmed their statements given during the internal inquiry (see paragraph 85 above). 104. On 5 July 2016 one of the investigators interviewed the prison officer in charge of escorting prisoners in the applicant’s wing in and out of their cells. He stated that no one had gone into the applicant’s cell in the early hours of 14 December 2013. 105. On 12 July 2016 one of the investigators interviewed one of the inspectors from the General Inspectorate of the Ministry of Prisons who had carried out the internal inquiry. The inspector described the steps that he had taken during the inquiry. In response to a question about the surveillance camera footage from Prison no. 9, he stated that the inquiry had been informed that that footage was only kept for twenty-four hours. He went on to say that the examination of the footage from the private and the road ‑ traffic cameras had not yielded any relevant information. In particular, it had been impossible to make out the registration numbers of the vehicles caught on camera. No car matching the description given by the applicant had been spotted. 106. On 26 July 2016 one of the investigators interviewed Mr D.D.’s deputy. He stated that the footage from the surveillance cameras was kept for twenty-four hours, and denied the applicant’s allegations. He explained that he had been at work in the Penitentiary Department building in the early hours of 14 December 2013, in his office which was just opposite that of Mr D.D., and that he had not seen the applicant or Mr O.P. there. 107. Between 7 and 22 July 2016 the investigators reviewed the footage obtained during the internal inquiry (see paragraphs 79 and 84 above). Their reports said, without giving further details, that they had not seen anything in it of interest for the case. 108. On 2 August 2016 the investigators interviewed Mr G.Ts. (see paragraph96 above) in the presence of a judge. He stated, inter alia, that on 4 February 2015, while in court for a pre-trial hearing in the “Kortebi” case, he had heard one of his co-accused, Mr G.G., former deputy head of the special forces of the Ministry of Internal Affairs and former head of the special forces of the Ministry of Prisons (see paragraphs 93 and 96 above), say that he had been one of those who had transported the applicant on 14 December 2013, and that for that reason it would not be in the authorities’ interests to keep him in detention for a long time. According to Mr G.Ts., that conversation had been recorded by the video camera in the courtroom, and overheard by another of the co-accused, Mr I.P. (see paragraphs 96 above and 109 below). Mr G.Ts. also stated that about a month later, in March 2015, Mr G.G. and the other special-forces officers accused in the “Kortebi” case, including Mr I.M., had been placed in a cell in Prison no. 9 adjacent to his. Mr G.Ts. had then heard Mr G.G. tell his cellmates that he and Mr I.M. had transported the applicant on 14 December 2013, and that it had been agreed with the authorities to release the special ‑ forces officers if they agreed to give evidence against Mr I.P. and others connected with UNM in the “Kortebi” case. (From the materials in the case file it appears that those officers, who had been charged with aggravated murder under Article 109 of the Criminal Code, were released in August 2015 under personal surety.) Mr G.Ts. had been able to hear the entire conversation through the wall as they had talked in loud voices. Mr G.Ts. also stated that during his stay in Prison no. 9 a prison officer had told him about the applicant’s removal from his cell. When asked why he had not spoken about that earlier, Mr G.Ts. replied that it was because he had no trust in the prosecuting authorities. He also stated that he had no incentive to bend the truth in favour of the applicant as the applicant had dismissed him from his post and had caused him to be detained in connection with a fight. 109. On 3 August 2016 the investigators interviewed Mr I.P., then in detention, in the presence of a judge. Mr I.P. stated that shortly before his arrest in the “Kortebi” case in February 2015 (see paragraph 96 above), he had met with Mr G.G., who had told him, albeit in veiled terms, that he and Mr I.M. had transported the applicant from Prison no. 9 to the Penitentiary Department, and that if the prosecuting authorities did not take that into account he would start talking about it in public. Mr I.P. also confirmed Mr G.Ts.’s story about the conversation in the courtroom on 4 February 2015 (see paragraph 108 above). He stated, in addition, that a Mr K.T., with whom he had shared a cell in Prison no. 9, had told him that he had seen the applicant being taken out of his cell on 14 December 2013 (see paragraph 112 below). However, Mr K.T. had only spoken about that after the delivery of the Chamber judgment on 14 June 2016 (see paragraph 3 above). 110. On 9 August 2016 one of the investigators interviewed Mr G.G. and the other interviewed Mr I.M. Mr G.G. denied Mr G.Ts.’s and Mr I.P.’s assertions that it had been he who had transported the applicant. He was not asked about the bonus which he had received in December 2013 (see paragraph 93 above). Mr I.M. likewise denied that he had transported the applicant, and stated that he had only started working at the Penitentiary Department on 16 December 2013, two days after the alleged incident. 111. On 9, 10 and 11 August 2016 the investigators interviewed the other five special-forces officers detained in relation to the “Kortebi” case alongside Mr G.G., Mr I.M., Mr G.Ts. and Mr I.P. (see paragraph 96 above). All of them stated that they had learned about the applicant’s allegations from the media, and that during their stay in the same cell as Mr G.G. he had not told them anything about the applicant’s alleged removal from his cell. 112. On 11 August 2016 one of the investigators interviewed Mr K.T., who from 13 to 14 December 2013 had been detained in a cell in the same wing as that of the applicant, in the presence of a judge. Mr K.T., who had previously held various high-ranking positions in the Ministry of Internal Affairs and the Ministry of Defence, stated that on 14 December 2013 he had seen the prison governor take the applicant out of his cell through the gap between the door of his cell and its frame. He had discussed that with Mr I.P. (see paragraph 109 above), with whom he had later shared a cell, but only after the delivery of the Chamber judgment on 14 June 2016 (see paragraph 3 above). When asked why he had not spoken about all this earlier, Mr K.T. replied that when observing the reactions to the applicant’s allegations, he had realised that his speaking about the issue might have repercussions for him, especially as he was detained in the same prison in which some of the alleged perpetrators were employed. 113. The next day, 12 August 2016, the investigators went to Prison no. 9 and examined Mr K.T.’s cell. According to their report, it was impossible to observe the corridor from inside the cell with the door closed. The door was fully intact and there was no gap between the door and the frame. The examination was video recorded by one of the investigators. 114. Four days later, on 16 August 2016, the prosecutor supervising the investigation decided to carry out an experiment in the cell with Mr K.T.’s participation, with a view to checking whether Mr K.T. could really observe the corridor from inside the cell. Mr K.T refused to take part in the experiment, saying that he first wished to consult with his lawyer. One of the investigators called the lawyer but he refused to see Mr K.T. The next day, 17 August 2016, Mr K.T. again refused to participate in the experiment in the absence of his lawyer. On 18 August 2016 the report of the cell’s examination was sent to the National Forensic Bureau together with the video recording. The experts were asked, among other things, to examine whether there was a gap between the cell door when closed and the frame, and if so, to specify its size and exact location. In their report, filed on 24 August 2016, the experts stated that there was no such gap because the door protruded thirty millimetres from its frame. They went on to say that, in view of the door’s width and locking system, it was impossible to deform it without special instruments. 115. In the meantime, on 12 and 17 August 2016 the investigators interviewed three inmates who had shared Mr K.T.’s cell at the relevant time. All three stated that they had only learned about the applicant’s allegations from the media, and that Mr K.T. had not spoken to them about that. The investigators also obtained confirmation from the Ministry of Prisons that no work had been done in Mr K.T.’s cell between 14 December 2013 and the time when they examined it. 116. On 4, 5, 10 and 11 August and 2 and 3 September 2016 the investigators also interviewed nine prison officers working in Prison no. 9. All but one of those officers had been on duty during the early hours of 14 December 2013. All of them stated that they had learned about the applicant’s allegations from the media. None of them had seen the prison governor or deputy governor that night in the wing containing the applicant’s cell. 117. On 13 August 2016 one of the investigators interviewed Ms L.M. (see paragraph 95 above). She stated that relations between her and her former boss, Mr D.D., had become strained after the bonuses paid in December 2013 (see paragraph 93 above). She went on to say that she had only learned about the applicant’s allegations from the media, and that her statements in May 2014 had been twisted and taken out of context by the journalists who had interviewed her. She knew nothing about the incident. 118. On 1 September 2016 one of the investigators interviewed the by then former head of the Penitentiary Department, Mr D.D. He denied the applicant’s allegations, and stated that on 13 December 2013 he had been in Batumi, coming back to Tbilisi late in the evening and remaining in his office late into the night. According to him, the applicant had voiced his allegations three days after the incident because he was aware that the surveillance-camera footage was only kept for twenty-four hours. He also stated that his service car at the relevant time had been a Toyota Land Cruiser 200. He was not asked about the December 2013 bonuses (see paragraph 93 above). 119. On 2 September 2016 the same investigator interviewed the by then former Chief Public Prosecutor, Mr O.P. He described the applicant’s allegations as false and politically motivated. He had never met the applicant in person or been in the Penitentiary Department building. During the early hours of 14 December 2013 he had been in his office. At the relevant time, there had been no need to question the applicant and, had such a need arisen, he could have been questioned via the official channels rather than in the way alleged by him. Mr O.P. also stated that his service car at the relevant time had been a Lexus LX 570. 120. On 24 October 2016 the investigators interviewed two of the three inspectors from the Ministry of Prisons’ General Inspectorate who had reviewed the surveillance footage in December 2013 and January 2014 (see paragraphs 79 and 84 above). They said, among other things, that they had been unable to make out any vehicle registration numbers and that they had not seen a vehicle matching the description given by the applicant. 121. On 8 November 2016 the applicant’s lawyer asked the Ministry of Prisons and the Chief Public Prosecutor’s Office for a copy of the footage obtained in the internal inquiry. He received no reply to those requests. 122. Between 21 and 23 January 2017 the investigators asked four experts from the National Forensic Bureau to check whether the footage had been tampered with. In their report, the experts stated that they had not detected any traces of editing. They confirmed that statement when interviewed on 10 and 11 February 2017. 123. The investigators also obtained expert reports and statements by the prison officers confirming that the prison logs for 13 and 14 December 2013 had not been tampered with. 124. The investigators obtained, in addition, data from the prosecuting authorities’ document-management system according to which between approximately 1 a.m. and 1.25 a.m. on 14 December 2013 the Chief Public Prosecutor, Mr O.P., had been logged in the system and working on official correspondence. At the hearing before the Grand Chamber, the applicant’s representatives challenged the authenticity of that data. They also stated that even if it were to be taken at face value, it only showed that Mr O.P. had been in his office until 1.25 a.m. on 14 December 2013, whereas the alleged meeting with the applicant had taken place about twenty or thirty minutes later. Since the Chief Public Prosecutor’s Office building was just a few hundred metres away from the Penitentiary Department building, that data did not therefore negate the applicant’s allegations. 125. On 11 February 2017 a prosecutor from the Chief Public Prosecutor’s Office closed the investigation. In his decision he set out in detail the witness and other evidence obtained during the investigation, and concluded that on 14 December 2013 the applicant had not been taken out of his cell. F. Criminal cases against other members of UNM’s leadership 126. Since the parliamentary elections in October 2012, a number of former high public officials from UNM, including the President of Georgia until October 2013, Mr Saakashvili, and several government ministers, have been prosecuted, some in separate sets of proceedings, in relation to offences allegedly committed by them while in office. 1. Statements by Georgian Dream government ministers in connection with those cases 127. At a press conference on 22 November 2012 Georgian Dream’s then leader and Prime Minister of Georgia since 25 October 2012, Mr Ivanishvili, in response to a question whether the recent arrests of several former senior officials would lead to criminal proceedings against others, including the President, Mr Saakashvili, stated that it was not his wish to have an indefinite number of arrests, including that of Mr Saakashvili. He added that he was not interfering with the work of the prosecuting authorities and it was up to them to decide who should face prosecution. He went on to say that UNM’s “conduct increase[d] the queues at the prosecutors’ offices”. 128. According to an affidavit by Mr G.B., a former member of UNM’s leadership, submitted by the applicant, shortly after the 2012 parliamentary elections, on 12 October 2012, he had met in private with Mr Ivanishvili to discuss the transition of power. Mr Ivanishvili had allegedly told him, inter alia, that key members of the UNM leadership would face criminal prosecution unless they refrained from challenging the new government: “The more problems you create, the more people from your team will go to jail”. 2. Statements by foreign governments, international organisations and non-governmental organisations in relation to those cases 129. In November 2012 those criminal prosecutions drew expressions of concern from NATO’s Secretary General, the European Commission’s President, the European Union’s High Commissioner for Foreign and Security Policy and the United States’ Secretary of State. In December 2012 a group of United States senators wrote an open letter to Georgia’s Prime Minister to express their concern that the proceedings could be politically motivated. In February 2013 a group of United States congressmen did the same in a letter to the United States Secretary of State. So did twenty-three members of the European Parliament, in a March 2013 address to Georgia’s Prime Minister, as well as the foreign ministers of Poland and Sweden. 130. In May 2013 the Special Representative on South Caucasus of the Parliamentary Assembly of the Organization of Security and Cooperation in Europe (“OSCE”) expressed concern over the applicant’s and Mr Z.T.’s arrests. So did several United States senators, leaders of the European People’s Party and the President of Estonia. 131. In his report, “Georgia in Transition”, published in September 2013, the European Union Special Adviser on Constitutional and Legal Reform and Human Rights in Georgia, Mr Thomas Hammarberg, former Council of Europe Commissioner for Human Rights, said, at pp. 8-9 (footnotes omitted): “The Prosecutor’s Office has initiated investigations against a number of office-holders in the previous administration. Prosecutors have questioned 6 156 persons, most of them UNM party activists, as witnesses in the framework of investigations into different suspected crimes, including misuse of the State funds and money laundering. The opposition party considers this questioning to be a politically motivated attack on the opposition. Currently, 35 former central officials are charged of whom 14 are in pre-trial detention, 14 have been released on bail, one is released without restrictive measure, one has been pardoned by the President after conviction and five have left the country. Other former civil servants have also been charged or were convicted. One of those charged and held in pre-trial detention is [the applicant] who is not only a former Prime Minister and former Minister of Internal Affairs but was also Secretary General of UNM at the time of arrest. The UNM has consistently and vehemently been challenging the necessity of applying this measure of restraint. The case has raised deep concerns in relation to the forthcoming presidential election – as one of the key organisers of the opposition became prevented from contributing to the campaign. ... There are signs that the courts are more independent than earlier in relation to requests from the prosecutors. For instance, there was an acquittal in a case against another former Minister, and the request for pre-trial detention was refused in another case against a leading UNM politician.” 132. In a report on his visit to Georgia in January 2014 (CommDH(2014)9) the Council of Europe’s Commissioner for Human Rights noted, in paragraphs 33-36, the allegations of selective justice in relation to those criminal cases and stated, in paragraph 41: “The persistence of allegations and other information indicative of deficiencies marring the criminal investigation and judicial processes in cases involving political opponents are a cause for concern, as this can cast doubt on the outcome of the cases concerned even when there have been solid grounds for the charges retained and the final convictions. The Georgian authorities must address these issues at the systemic level, in the interests of respecting fair trial guarantees for everyone and in enhancing public trust in the institutions responsible for upholding the law.” 133. In Resolution 2015 (2014), adopted on 1 October 2014, the Council of Europe’s Parliamentary Assembly stated: “2. The otherwise smooth handover of power was accompanied by a polarised and antagonistic political climate, especially during the period of cohabitation between the then President Mi[k]heil Saakashvili and the Georgian Dream coalition government. The Assembly regrets that these tensions sometimes overshadowed the many positive changes that were taking place in the democratic environment of Georgia. The United National Movement (UNM) has reported that several thousand of its activists and supporters were regularly interrogated and intimidated by various investigative agencies (some up to 30 times). A number of major opposition figures, including members of parliament, were violently attacked. It should be noted that two years on, almost the entire leadership of the former ruling party has been arrested or is under prosecution or investigation: former Prime Minister and UNM Secretary General, [the applicant], former Defence Minister, [B.A.], and former Tbilisi mayor and UNM campaign manager, [G.U.], are in prison (pre-trial detention). The judicial authorities have brought charges against the former President, Mikheil Saakashvili – and ordered pre-trial detention in absentia – and have done the same for former Defence Minister, [D.K.], and former Minister of Justice, [Z.A.]. ... ... 5. The Assembly recalls its concerns about the administration of justice and the independence of the judiciary in Georgia. In that respect, it welcomes the adoption of a comprehensive reform package that aims to ensure genuine independence of the judiciary and a truly adversarial justice system. The Assembly welcomes the first signs that the judiciary is now working more independently. However, it also notes that the proceedings in sensitive legal cases, including against former members of government (some of whom are leading members of the opposition), have revealed continuing vulnerabilities and deficiencies in the justice system that need to be addressed. ... Further reforms of the judiciary, including of the prosecution services, are therefore necessary. In this respect, the Assembly: ... 5.4. while welcoming the recent decrease in its use, expresses its concern about the continued widespread use of pre-trial detention in Georgia. ... ... 9. The Assembly takes note of the numerous changes in local governments in Georgia as a result of local councillors and city officials resigning or switching sides following the change of power at national level. ... The Assembly is ... seriously concerned by credible reports that a number of these changes were the result of undue pressure on local United National Movement (UNM) activists by supporters of the ruling coalition. The Assembly is also concerned by reports of violent disturbances of the campaign activities of the UNM, allegedly by Georgian Dream supporters, as well as reports that a considerable number of opposition candidates in the local elections, mainly from the UNM, withdrew their candidatures, allegedly under pressure from the authorities. ...” 134. The report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (PACE doc. 13588, 5 September 2014) which led to that resolution said, among other things (footnotes omitted): “60. Many interlocutors have reported that there seems to be less political interference in the work of the courts and that the judiciary has become increasingly more independent, including in relation to the prosecution, which has been a point of concern in previous reports. This seems to be confirmed by the court proceedings against former government members, where requests of the prosecution have regularly been denied. There has been a decrease in the granting of pre-trial detention by the courts, combined with a decline of requests by the prosecution service. According to the authorities, in the first half of 2013, the prosecution service made 9% fewer requests for pre-trial detention than in the same period the previous year, and only 46% of the requests for measures of constraint, such as pre-trial detention or bail, were granted by the courts. However, despite this positive trend, the use of pre-trial detention is still too widespread in Georgia. ... ... 90. Following the 2012 parliamentary elections, more than 20 000 complaints were lodged with the prosecutor general by citizens claiming to have been victims of abuses committed by, or under, the previous authorities. More than 4 000 claims concern allegations of torture and ill-treatment in prisons, while more than 1 200 concern violations of property rights and approximately 1 000 complaints were filed against in total 322 prosecutors by persons claiming that they were forced to accept plea-bargain agreements. 91. The authorities announced that the ‘restoration of justice’ would be one of their key priorities and underscored that there would be no impunity for former officials for past abuses. In the following months a number of leading members of the former governing party and ministerial officials were arrested for alleged crimes committed under their responsibility during their tenure in office. The United National Movement has decried these arrests as political prosecutions and as revanchist justice. For its part, the authorities have stressed that no selective or political motivated justice is taking place, or will take place, in Georgia, but that these people are accused of serious ordinary crimes, for which the authorities have sufficient proof to warrant an investigation or initiate prosecution. 92. In support of their position, the authorities point to the fact that both the Minister of Defence and the Minister of Justice left the country in a hurry the day after the elections, as did a number of high-level officials from the Ministry of the Interior. While the former Minister of Defence voluntarily returned to Georgia, the others are still on the run and are the subject of an Interpol Red Notice. 93. There has been some confusion regarding the number of former officials concerned by these investigations. Until now, 35 officials of the former authorities have been charged with criminal offences. Of these, 14 are in pre-trial detention, 13 have been released on bail, one was released without restrictive measures, five have fled the country and three have been convicted, one of whom was pardoned by President Saakashvili. In addition, charges have been brought against a considerable number of former civil servants. 94. The allegations of selective and politically motivated justice and revanchist policies by the new authorities are of concern. In addition, they considerably raise emotions and tensions in an already politically tense climate, which is not beneficial for the political environment and democratic development of the country. 95. The most publicised cases against former UNM government officials are those against former Minister of Defence [B.A.], former Prime Minister and Interior Minister – and current UNM Secretary General – [the applicant], and former Tbilisi Mayor [G.U.], who were all influential members of former President Saakashvili’s inner circle. ... 102. We wish to emphasise that there cannot be any impunity for ordinary crimes including, or even especially, for government members and politicians, whether current or past. However, especially in the current political context, it is important that in the criminal cases against former government officials, any perception of politically motivated or revanchist justice is avoided. The authorities should therefore ensure that the legal processes are conducted transparently and in a way which fully respects Georgia’s obligations under Articles 5 and 6 of the European Convention on Human Rights. Not only should selective or politically motivated justice not take place, it should also be seen as not taking place.” 135. In Resolution 2077 (2015), adopted on 1 October 2015, the Council of Europe’s Parliamentary Assembly stated: “7. The following abusive grounds for pretrial detention have been observed in a number of States Parties to the European Convention on Human Rights, namely: 7.1. to put pressure on detainees in order to coerce them into confessing to a crime or otherwise co-operating with the prosecution, including by testifying against a third person (for example ... certain cases of opposition leaders in Georgia, such as [the applicant]); 7.2. to discredit or otherwise neutralise political competitors (for example, certain cases of United National Movement (UNM) leaders in Georgia); ... 11. The root causes of the abusive use of pretrial detention include: ... 11.4. the possibility of ‘forum shopping’ by the prosecution, which may be tempted to develop different strategies to ensure that requests for pretrial detention in certain cases are decided by a judge who, for various reasons, is expected to be ‘accommodating’ (for example in Georgia, the Russian Federation and Turkey); 11.5. the possibility for the prosecution to circumvent statutory time limits imposed on pretrial detention by modifying or staggering indictments (for example, in the cases of [G.U] and [B.A.], before the judgment of the Constitutional Court of Georgia in September 2015).” 136. As a result of the concerns about the criminal prosecutions against former government officials from UNM, in February 2013 the OSCE’s Office for Democratic Institutions and Human Rights assigned monitors to fourteen of those cases, including the case against the applicant at issue in these proceedings. In its report, published in December 2014, the Office noted a number of shortcomings with respect to those fourteen cases, including the cases against the applicant. The specific points in the report highlighted by the applicant related to the criticisms, in paragraphs 222-29, of the Georgian courts’ failure to give appropriate reasons regarding the credibility of the witness and other evidence against him, of the cogency of those courts’ findings in relation to each of the elements of the offences of which he was convicted, for example the exact manner in which he had exceeded his powers, and of the quality of their reasoning in relation to the factors determining his sentence. 137. By way of general findings, the report also noted, in paragraph 6 of its executive summary, that Georgian law was generally in line with international standards and guaranteed the right to an independent tribunal. There were, however, some aspects which raised concerns in that respect, such as the practices of transferring judges between courts, allocating cases without a fully transparent procedure, and changing judges in the course of ongoing proceedings with no explanation. Another issue was comments by public officials about ongoing criminal proceedings made in a manner implying that they had some control over the prosecuting authorities (see paragraph 7 of the executive summary). Public officials had also expressed their views on the guilt of some defendants before they had been convicted, which raised an issue with regard to the presumption of innocence (see paragraph 9 of the executive summary). The report also expressed concern about the courts’ failure in some cases to give reasons for their decisions to order pre-trial detention or to reject requests for release, and about the lack of provision in the Code of Criminal Procedure for periodic review of pre-trial detention. That had contributed to a practice of automatic prolongation of pre-trial detention up to the maximum statutory time-limit of nine months (see paragraph 11 of the executive summary). 3. Refusals to extradite former UNM officials to Georgia 138. In a decision of 27 February 2014 (no. 58/EXT/2014), the Court of Appeal of Aix-en-Provence refused to extradite to Georgia Mr D.K., Minister of Defence from 2006 to 2008. It held, among other things, that the prosecution against him was politically motivated. It based that finding on the fact that even though the Georgian court had issued warrants for the arrest of both Mr D.K. and his brother-in-law, who were being sought on identical charges, and even though the two had been found together when Mr D.K. had been arrested by the French authorities, the Georgian authorities had at first only sought the extradition of Mr D.K., specifically mentioning his political responsibilities in the Interpol Red Notice. The only difference between the two was that Mr D.K.’s brother-in-law was not involved in politics. 139. In a judgment of 9 April 2015 (no. 447/2015), the Greek Court of Cassation refused to extradite to Georgia Mr D.A., former head of the Ministry of Internal Affairs’ Department for Constitutional Security. It held that there were compelling reasons to believe that there was a risk that, if extradited, his position would worsen owing to his political beliefs and his having held high office in a previous government which was in opposition to the current one. 140. In a decision of 21 March 2016 (unreported), the Westminster Magistrates’ Court also refused to extradite Mr D.K. to Georgia (see paragraph 138 above). Having reviewed at length reports and other evidence about the political and legal situation there since 2012 and the criminal proceedings against Mr D.K., the chief magistrate concluded: “On the facts as found above ... I am not sure that the request for Mr [D.K.]’s extradition is for the purpose of prosecuting or punishing him on account of his political opinions. I am aware that the requests may have been made for entirely proper purposes. The evidence may be there to sustain one or more convictions. However this is not the test. On balance I consider it more likely than not that the desire to prosecute former UNM politicians is a purpose behind these requests. It may not be the only purpose, but without that factor I do not believe, on balance, that these requests would have been made and pursued in the way they have been. As for the future, I have considerable respect for the judiciary of Georgia. I believe it is likely that the judiciary will successfully resist pressure on them from the administration, through the public prosecutors. However, looking at what has happened to others, I am satisfied that there is a reasonable chance, a serious possibility, that this defendant’s liberty will be restricted (and in particular that he may be detained in pre-trial detention) because of a flawed prosecution process motivated by a desire to obtain a conviction of a UNM politician, or by a desire to obtain evidence from Mr [D.K.] that can be used against senior former colleagues. ...” 141. The court described the evidence which had led it to conclude that there was a possibility that Mr D.K. could be placed in pre-trial detention in order to be pressured to give evidence against former colleagues of his in UNM in these terms: “I have heard evidence, about which I cannot be sure but think it is likely correct, that pressure has been applied by the prosecutor’s office to witnesses to leave UNM and/or give false testimony. ... Mr [G.U.] gave evidence that he was told by former [P]rime [M]inister Garibashvili, who was also relaying the views of former Prime Minister Ivanishvili, that if he helped to locate [Mr] Saakashvili’s bank accounts ‘it would help relieve the situation of [Mr D.K.] as well and that all the charges against him w[ould] be dropped.’ The same witness suggested that if returned, illegal methods would be used to force him ([Mr D.K.]) to give evidence against [Mr] Saakashvili.” 4. Interpol’s deletion of information about Mr Saakashvili and Mr D.K. 142. In July 2015 Interpol decided to delete from its files all information relating to Mr Saakashvili and Mr D.K. It did so on the basis of two recommendations by the Commission for the Control of Interpol’s Files, according to which the political elements surrounding their cases prevailed over the common-law criminal elements. In arriving at that conclusion, the Commission said that in cases of doubt, it had to decide in the interest of the party seeking deletion. IV. COMPARATIVE-LAW MATERIALS 166. Misuse of power, or détournement de pouvoir as it is called in France, where the notion originated, is a well-known concept in administrative law. Despite variations in the formulation, it now exists in many domestic legal systems. It is one of the ways in which decisions by the administrative authorities can be tainted or, put differently, one of the grounds on which they can be set aside. 167. There is misuse of power when an authority uses its power for a purpose other than the one for which it was conferred. It is based on the idea that the authorities are not free to choose the aims which they can pursue, and must only use their powers to further the goals for which the law has bestowed those powers on them. This means two things: first, that the authorities must act in the public interest, and secondly, that each of their powers must only be used for the specific purpose or purposes for which it was conferred. 168. According to information available to the Court, the courts of several High Contracting States accept as proof of misuse of power the terms of the impugned decision, documents in the file relating to the adoption of that decision, documents created in the course of the judicial ‑ review proceedings, presumptions of fact, and, more generally, contextual evidence. When faced with a situation in which an authority has pursued both an authorised and an ulterior purpose, they assess which of those purposes was predominant. If they find that the authorised purpose was predominant, they regard the authority’s decision as valid. If, conversely, they find that the ulterior purpose was predominant, they quash the decision as invalid. | This case concerned the arrest and pre-trial detention of the applicant, a former Prime Minister of Georgia, and his complaint that these measures had had ulterior purposes. The applicant alleged in particular that the arrest and pre-trial detention had aimed to remove him from the political scene, and that the Chief Public Prosecutor – by having him covertly removed from his cell late at night several months after his arrest to question him – had attempted to use his detention as leverage to pressure him to provide information about the foreign bank accounts of the former President of Georgia Mikheil Saakashvili and about the death in 2005 of the former Prime Minister of Georgia Zurab Zhvania. |
423 | Challenging the lawfulness of detention | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant is an Algerian national who was born in 1960 and was, at the time of the introduction of the application being detained in Safi Military Barracks, Safi. 6. The facts of the case, as submitted by the parties, may be summarised as follows. A. Background 7. The applicant arrived in Malta on 24 June 2006 without documents, having travelled by boat from Libya in an irregular manner. Upon his arrival he was served with a removal order in accordance with Article 14 of the Immigration Act (“the Act”). The reason for his detention was given as being that under Article 5 of the Act, he was in Malta without leave. He was consequently detained at the police headquarters. 8. On 26 June the applicant was questioned by the police and he gave a statement. On 28 June 2006 he was arraigned in court charged with aiding, assisting, counselling or procuring other persons to enter or to attempt to enter Malta or having conspired to that effect. He was remanded in custody. 9. On 1 October 2006, pending proceedings, the applicant made a late preliminary application for refugee status, which was considered by the Refugee Commissioner as expressing his desire for recognition of refugee status. 10. On 25 October 2006 the Court of Magistrates found the applicant guilty and sentenced him to eighteen months'imprisonment. 11. While in prison, on 17 April 2007, the applicant made a formal application for asylum and was interviewed on the same day. 12. After serving his sentence, the applicant was released from prison on 27 June 2007 and was placed in a detention centre pending the determination of his asylum claim. 13. The applicant's asylum application was rejected on 24 April 2007 and subsequently on appeal on 18 July 2007 as he had failed to provide convincing evidence that he would face a real risk or had a well- founded fear of persecution. 14. The applicant remained in detention awaiting removal under the Government's immigration policy until 6 January 2009 when his removal order was lifted in view of the lack of prospects of his eventual deportation. The applicant claimed that the conditions of detention in Blocks C and B had been inappropriate. Both facilities had been overcrowded, particularly in the summer months, with inadequate sanitary and other facilities, limited medical care, no possibility of constructive activities and limited recreational opportunities. The applicant made reference to reports of the CPT, the Council of Europe Human Rights Commissioner and the LIBE Committee of the European Parliament documenting such conditions. | The case concerned an Algerian national who was born in 1960 and was, at the time of the introduction of the application, detained in Safi Military Barracks (Malta). He arrived in Malta in June 2006 by boat and was immediately detained. He was subsequently charged and found guilty of aiding others to enter Malta. On completing his sentence of imprisonment, he was released but immediately placed in a detention centre for a little more than 18 months. |
1,061 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant company, “Intersplav” (hereinafter “the applicant”), is a joint venture enterprise, based in the town of Sverdlovsk in the Lugansk Region, Ukraine. 9. The facts of the case, as submitted by the parties, may be summarised as follows. 10. The applicant manufactures goods using recycled scrap metal purchased in Ukraine, bearing a 20 % VAT rate. The major part of the applicant ’ s production is exported from Ukraine at a zero VAT rate. The applicant is thereby entitled to a refund of the VAT due on the price of the scrap metal. Under the Law on Value-Added Tax (see the Domestic Law part below) such a refund should be made within a one-month period following the applicant ’ s submission of the relevant calculations to the local tax administration. If the refund is delayed, compensation is payable. Both payments (the refund and compensation) are made by the State Treasury upon the submissions of the relevant tax authority. 11. Since April 1998, the VAT refund to the applicant has been systematically delayed due to the failure of the Sverdlovsk Town Tax Administration to confirm the amounts involved. For the same reason, the applicant could not receive compensation for the delayed VAT refund. 12. Since 1998, the applicant has complained to the Lugansk Regional Tax Administration and the State Tax Administration about the failure of the Sverdlovsk Town Tax Administration to issue certificates for the VAT refunds on time. However, these authorities found no illegalities in the actions of the Sverdlovsk Town Tax Administration, whilst recognising the existence of the State ’ s debts to the applicant. 13. The applicant also complained to the Sverdlovsk Prosecutor and the General Prosecutor ’ s Office, without any result. 14. In its letter of 22 October 2002, the applicant claimed that further obstacles had arisen in running its business, including new discriminatory legislation, transport controls by the police, and judicial proceedings against its employees for defamation instituted by the Tax Administration. 15. Since 1998, the applicant has instituted a number of proceedings, more than 140 [1] so far, in the Lugansk Commercial Court against the Sverdlovsk Town Tax Administration and the State Treasury Department in order to receive compensation for the delayed refund of the VAT. 16. In the proceedings during 1999-2000, the applicant requested the court to oblige the Tax Administration to confirm the amounts of compensation due to the applicant. The court found for the applicant and ordered the tax administration to issue the requested confirmation for the amounts claimed. 17. In the proceedings during 2001-2003, the applicant changed the subject of its claim and requested the courts to award it the amounts of the VAT refund and compensation directly. The Tax Administration and Treasury both opposed the claims; the former on the basis of an alleged lack of competence in VAT refunding, the latter on the basis of the impossibility of refunding any VAT without prior confirmation of such an amount by the Tax Administration. The court found for the applicant and awarded the claimed amounts in its decisions between 2001 and 2004. It confirmed the applicant ’ s right to compensation for the various delayed VAT refunds. 18. The court decisions given between 1999 and 2002 were executed within periods ranging from four days to two years and eight months. The oldest decision that remained unenforced in February 2004, according to the applicant, was given on 18 March 2003. 19. In its further correspondence, the applicant maintained that the Tax Authorities claimed that the court decisions given in its favour should not be directly enforceable, but would require the prior confirmation of the awarded amounts by the Tax Administration. 20. On 17 March 2004 the applicant lodged a claim with the Lugansk Commercial Court against the Lugansk Regional Department of the State Treasury and the Sverdlovsk Town Tax Administration for their refusal to enforce the judgments rendered by the said court in the period between March 2003 and February 2004 (see the annex) and for a proposal to convert the amounts awarded by the above judgments into loan bonds with a five-year term. 21. On 24 May 2004 the court found for the applicant and ordered the defendants to enforce the impugned judgments. 22. The applicant maintained that, as of 18 June 2004, the amount of the State debt to the company confirmed by court decisions was UAH 26,363,200 ( around EUR 4,119,250 ). | Since 1998, the applicant, a Ukrainian-Spanish Joint Venture, had been complaining without success to the Lugansk Regional Tax Administration and the State Tax Administration about the failure of the Sverdlovsk Town Tax Administration to issue certificates for the VAT refunds on time. However, while recognising the existence of the State’s debts to the applicant, the authorities found no fault with the Tax Administration. The applicant maintained that, as of 18 June 2004, the amount of the State debt to the company confirmed by court decisions was 26,363,200 hrivnas (around 4,119,250 euros). It complained, in particular, that the State’s practice of groundlessly refusing to confirm the applicant’s entitlement to VAT refunds constituted an interference with the peaceful enjoyment of its property, and caused significant losses to its business. |
645 | Journalists and publishing companies | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants are journalists. At the relevant time they were employed by one of the two national television stations in Denmark, Danmarks Radio, hereafter “DR”. The first applicant produced a television programme, described as a documentary, called “When the doctor knows best”, which was broadcast at 8 p.m. on 24 September 2008, and seen by 534,000 viewers. The second applicant was the first applicant ’ s superior and responsible for the content of the programme. 7. The television programme concerned the treatment of pleural mesothelioma cancer, notably at Copenhagen University Hospital ( Rigshospitalet ), where Consultant S was in charge of treatment. It focused on two types of chemotherapy medication, Alimta, produced by L, and Vinorelbine, produced by F. Copenhagen University Hospital and S used Vinorelbine as first-line treatment in combination with Cisplatin or Carboplatin, depending on whether the treatment was related to an operation (operable patients) or to prolonging life and relieving pain and symptoms (inoperable patients). 8. Three experts participated in the programme : a medical doctor from Karolinska Hospital in Sweden, a professor from Switzerland and a medical doctor from Grosshandorf Hospital in Germany. They all used Alimta as first-line treatment, most often in combination with Cisplatin or Carboplatin. The programme followed four patients and their relatives, who told their stories, and a narrator spoke as a voice-over throughout the programme. 9. In preparation for the programme, the first applicant had carried out research on the subject which included, inter alia, the following. 10. On 20 September 2004 the European Union had approved the marketing of Alimta in combination with Cisplatin for treatment of patients with inoperable pleural mesothelioma cancer. The background for the approval was, among others, research which had been carried out examining the effect of treatment with Alimta in combination with Cisplatin as compared to treatment with Cisplatin alone (a phase III trial, see paragraph 14 below) as first-line therapy. 11. In July 2007 the Minister for Internal Affairs and Health replied to various questions posed by Members of Parliament as to the treatment of pleural mesothelioma cancer in Denmark. The Minister replied, inter alia, that there was no proof that an Alimta -based treatment was more efficient than other chemotherapy-based treatments, including that offered in Denmark; that the combination of Vinorelbine and Cisplatin, which was used at Copenhagen University Hospital, resulted in a one-year survival rate of 50% and a median lifetime of 12 months, which was exactly the survival rate from using the combination of Alimta and Cisplatin, but that there had been no direct comparison of the two treatments; and that there was no internationally accepted standard chemotherapy for the treatment of pleural mesothelioma cancer, but that several single and combined treatments were used. 12. On 11 June 2008 Copenhagen University Hospital produced a memorandum about pleural mesothelioma cancer and its treatment, which was sent to DR. It stressed that international studies, including of Vinorelbine and Alimta, had not shown that any two-combination regime was superior to other two ‑ combination regimes. That information was confirmed by the professor from Switzerland in an email of 25 June 2008 and by the medical doctor from Grosshandorf Hospital in Germany in an email of 27 June 2008. The memorandum also referred to a fund aimed at developing research on pleural mesothelioma cancer, in the amount of 90,000 Danish kroner (DKK), equal to approximately 12,000 Euros (EUR), received by S from company F, which produces Vinorelbine. The money had been used to pay nurses and students and for data collection. It emerged that there had been no financial profit for the doctors involved. 13. Having received the above-mentioned memorandum, the first applicant again contacted the professor from Switzerland and the medical doctor at Grosshandorf Hospital in Germany. In essence, they confirmed in subsequent emails of 2 and 21 July 2008 that since there had been no direct comparative clinical studies, there was no scientific evidence that one two ‑ combination regime was superior to another two-combination regime. 14. Medical research studies involving human subjects are called clinical trials. They are divided into different stages, called phases. Generally, it can be said that the earliest phase trials may look at whether a drug is safe or at its side-effects. A later phase II trial aims to find out whether the treatment works well enough, for which types of cancer the treatment works, more about side effects and how to manage them and more about the best dose to use. A later phase III trial aims to test whether a new treatment is better than existing treatments (standard treatment). These trials may compare a completely new treatment with the standard treatment or with different doses or ways of giving a standard treatment. A. The proceedings before the courts 15. Subsequent to the broadcast on 24 September 2008 of the television programme, on 27 October 2008 Copenhagen University Hospital and S instituted defamation proceedings before the Copenhagen City Court ( Københavns Byret ) against the Director of DR and the two applicants, maintaining that the latter, in the programme in question, had made direct and indirect accusations, covered by Article 267 of the Penal Code ( Straffeloven ), against Copenhagen University Hospital and S, of malpractice regarding certain patients suffering from pleural mesothelioma cancer, allegedly resulting in the patients ’ unnecessary death and shortening of life, in the interest of S ’ s professional prestige and private finances. 16. Before the City Court, the applicants, S, and Medical Director H for Copenhagen University Hospital gave evidence. 17. The first applicant stated, inter alia : “ ... that she had not criticised Copenhagen University Hospital for improper treatment causing death. Her message was only to point out that the substance of Alimta had been better documented than the substance of Vinorelbine. She had collected statements from patients and experts, but could not state herself whether Alimta was a better product than Vinorelbine ... The experts had not stated whether Alimta in combination with another product was better than Vinorelbine in combination with another product. However, all experts had emphasised that Alimta had been evaluated in a phase III trial, for which reason it was a more thoroughly tested product. ... her questions had been answered during her conversations with professor M on 19 October 2007 and S on 22 October 2007. Subsequently no one had been willing to answer her questions. That was the only real conversation she had had with S. The next time she had called him, he had put down the receiver. When it had not been possible for her to get any response to her many points of criticism, she had contacted H ... she had wanted statements from both H and S as the programme would be unbalanced if they were not heard ... Some found that Alimta had been better documented than Vinorelbine. She was not aware of any trial demonstrating that a combination with Alimta was better than a combination with another medicinal product ... ”. S stated, inter alia, the following: “ Alimta has been used for second-line therapy in Denmark since 2004, and since 2007 as first-line therapy. Patients had been given the impression in the media that Alimta was a miracle cure. Therefore Copenhagen University Hospital had introduced it as an option. Today, Alimta is used in combination with Carboplatin as the standard therapy for inoperable patients ... Sometimes in autumn 2008, the standard therapy for operable patients had been changed to Cisplatin in combination with Alimta. If some patients were offered Alimta everybody had to be offered Alimta ... After the programme had been broadcast ... patients started mistrusting the Vinorelbine therapy. Afterwards it was not possible to perform the trial [phase II] on this drug. Nor would it be possible to obtain funding for the trial. Therefore no trial had been performed of Vinorelbine ... he had provided the information included in professor M ’ s memorandum of 23 September 2008 ... he had talked to [the first applicant] several times and had spent a lot of time and energy on explaining cancer therapy ... he had also lost confidence in [the first applicant] ... ” H stated, among other things: “ ... The approval of Alimta by the Danish Medicines Agency for the treatment of mesothelioma only means that a marketing authorisation has been granted for the drug, which means that advertisement of the product is permitted. Vinorelbine has also been approved by the Danish Medicines Agency, but for a wide range of oncological therapies ... in 2003 when Alimta was tested [phase III] the bar had been set quite low. The study compared Alimta with a clearly inferior treatment that would not actually be offered to anybody. It would have been more relevant to study Alimta in combination with Cisplatin versus Vinorelbine with Cisplatin .... S has made a phase II trial of the standard therapy [ Vinorelbine ] ... Subsequently the standard therapy regimen has been expanded to include Alimta, which is not a better product than Vinorelbine, but eight times more expensive ... if two drugs are equally effective, but one of them is eight times more expensive than the other, patients will be offered therapy using the cheaper drug. ... The standard therapies now offered by Copenhagen University Hospital are Vinorelbine in combination with Cisplatin for inoperable patients and Alimta in combination with Cisplatin for operable patients ... the shift to Alimta as the standard therapy at Copenhagen University Hospital did not reflect that Alimta was medically better. The [applicants ’ ] programme had had a large impact as patients were asking not to be treated with Vinorelbine. Copenhagen University Hospital had therefore had to change medical products because patients had the clear impression that Vinorelbine was not as good as Alimta ... It is quite usual for Copenhagen University Hospital to surrender material to the press and to answer questions, but the questions of [the first applicant] were never-ending. Copenhagen University Hospital has spent about a man-year, or about DKK 400,000, responding to inquiries from [the first applicant], and huge efforts had been made to accommodate her requests ... the programme had created distrust towards both Copenhagen University Hospital and S and had created uncertainty in both patients and relatives. He had received 50 to 100 “hate mails” himself ... ” 18. By a judgment of 9 April 2010, the Copenhagen City Court found against the applicants (and the Director of DR) and sentenced them each to 10 day-fines of 1,000 Danish Kroner (DKK). The allegations were declared null and void. The reasoning was as follows: “ ... Based on the evidence, the City Court accepts as a fact that in 2004, following a phase III trial, EMEA approved Alimta in combination with Cisplatin for treating patients suffering from inoperable malignant pleural mesothelioma and that subsequently the same was approved by the Danish Medicines Agency. The court also accept as a fact that Vinorelbine is a drug dating back more than 20 years whose effect had been documented by clinical experience and approved by the Danish Medicines Agency for a wide range of oncological therapies. Finally, the court also accepts as a fact that it has not been documented that Alimta therapy in combination with a platin medicinal product is more effective than Vinorelbine therapy in combination with a platin medicinal product. As regards the term “experimental drug” the court accepts as a fact that a drug administered to patients in a trial is referred to as an experimental drug, no matter whether the same drug is the standard therapy offered outside the trial setting. No matter that [the applicants] are deemed to have been aware of the above circumstances following their comprehensive research of the matter, it was said in the programme that, for dying patients, [S and Copenhagen University Hospital] had prescribed a “non-approved chemotherapy regimen” not approved for the diagnosis or which was not “the correct chemotherapy”, and that [S and Copenhagen University Hospital] used an “experimental drug”, the “worst-case scenario being that patients would die earlier than if they had been treated with an approved substance”, or that it would have “fatal consequences”. Moreover, the phrase “the only drug with a known effect” was used. Since no account was given in the programme of the above-mentioned trials and approval process and the terminology applied for that process, the court finds that it would seem to a non-professional viewer that Alimta was the only effective drug for mesothelioma, particularly because the programme linked the treatment of two patients with Vinorelbine to their death, whereas the prospect of several more years to live was held out to the one patient who had been given Alimta therapy in Germany. Moreover, the programme also linked S ’ s use of Vinorelbine to his personal esteem and his “personal research account”, although [the applicants] had been made aware of the research grant management procedure though Professor M ’ s memorandum of 23 September 2008 before the broadcast. Since no account was given either of the procedure for managing research grants, the court also finds in this respect that it would seem to a non-professional viewer that S had a personal financial interest in starting Vinorelbine treatment rather than Alimta. The [applicants] are therefore considered to have violated Article 267 of the Penal Code. According to the information on [the applicants ’ ] knowledge after their comprehensive research of the matter, the court finds no basis for exempting them from punishment or remitting the penalty under Article 269 of the Penal Code, compare also Article 10 of the Convention. ... [The applicants] are furthermore jointly and severally liable for paying legal costs of DKK 62,250.” 19. On appeal, on 10 June 2011 the judgment was upheld by the High Court of Eastern Denmark ( Østre Landsret ) with the following reasoning: “In the introduction to the programme ‘ When the doctor knows best ’ a narrator states, among other things: ‘ A Danish doctor is entering a medical congress to show his research results. For years he has gone his own way, he has treated dying patients with chemotherapy that is not approved. ’ Later during the programme, it is stated at which hospitals one can receive treatment for pleural mesothelioma cancer, that these hospitals co-operate with Copenhagen University Hospital, and a reference is made to a named Consultant, S, head of the Scandinavian Centre for treatment of pleural mesothelioma cancer. During the various interviews, a narrator states, inter alia : - ‘ The doctor does not give his patients the only approved medication. Instead, he uses a test medication. In the worst scenario, that may result in the patients dying earlier than if they had been given the approved substance. ’ - ‘ There is only one approved chemotherapy against pleural mesothelioma cancer, but that is not offered to SP [one of the patients followed in the programme ]. The doctors chose to treat her with a substance that is not approved for the diagnosis, and whose effect on pleural mesothelioma cancer is not substantiated. ’ - ‘ However, that chemotherapy turned out to have huge consequences for her [SP]. ’ - ‘ S can freely choose the medication that he thinks is best. There is only one treatment which, in comparative studies, has proved to have an effect on pleural mesothelioma cancer. Accordingly, that is the only medication which is approved as treatment. That medication is called Alimta. However, S chose not to use that medication on his patients. ’ - ‘ Thus, it has not been proved whether Vinorelbine works. According to the calculations made by DR, close to 300 patients in Denmark have been given test medication. In the worst scenario, that may result in patients dying earlier than if they had been given the approved medication. ’ - ’ For her [SP] the lack of effect of treatment by Vinorelbine turns out to have had fatal consequences. ’ - ‘ The family K ask themselves why S goes his own way. They suspect that he has other interests than those of the patients. That suspicion grows, when they talk to SK ’ s personal doctor. ’ - ‘ It turns out, however, that S may also have had other reasons for choosing Vinorelbine. Because he has used this medication in medical tests on the patients. In a phase when they are fighting for their lives. ’ - ’ The question remains: why does S carry out tests with Vinorelbine? Could it have something to do with the prestige which is implicit in having research articles published? ’ - ‘ We do not know whether it is prestige that impels S. ’ - ‘ Thus, S will not acknowledge what leading experts agree on; [namely] that Alimta is the only medication whose effect is substantiated. ’ - ‘ Here it turns out that S has received more than DKK 800,000 over the last five and a half years from the company F. That is the company behind the test medication Vinorelbine. The money has been paid into S ’ s personal research account. DKK 90,000 is earmarked for the tests. S withheld that information. ’ The programme ends by informing us, among other things, that two of the patients who were interviewed have passed away. The narrator says, inter alia : ‘ TJ, who was part of S ’ s tests with Vinorelbine, died on 4 January 2008. ’ With these statements, [the applicants] not only passed on assertions by patients, relatives and experts, but also took a stand, so that the programme undisputedly gave the viewers the impression that malpractice has occurred at Copenhagen University Hospital, in that S has deliberately used medication ( Vinorelbine ), which is not approved for treatment of pleural mesothelioma cancer, and whose effect has not been substantiated, that the medication in question was part of a test, and that the test medication has resulted in patients dying or having their lives shortened. The way that the programme is built up with its beginning and ending, the viewers get the clear impression that the reasons behind this choice of medication [ Vinorelbine ] were S ’ s professional prestige and personal finances. Against this background, in the programme, the applicants, as producer of the programme and as chief sub-editor, have made an allegation against Copenhagen University Hospital and S of malpractice and of nourishing irrelevant considerations to the detriment of the lives and health of patients. Such an accusation is likely to disparage [Copenhagen University Hospital and S] in the eyes of their fellow citizens as set out in Article 267 of the Penal Code. It must have been clear to them [the applicants] that they were making such an allegation by way of their presentation of the programme. The applicants have not attempted to establish the truth of the allegation, but have submitted that the allegation shall be unpunishable by virtue of Article 269 (1) of the Penal Code as they acted in lawful protection of an obvious public interest or the interest of others or, in the alternative, that punishment should be remitted under Article 269 (2) of the Penal Code because they were justified in regarding the allegations as true. These provisions must, in connection with Article 267 of the Penal Code, be understood in the light of Article 10 of the Convention on the protection of freedom of expression. A very considerable public interest is related to journalistic discussion about risk to life and health, or suspicion thereof, as regards public hospital treatment. When balancing considerations of freedom of expression with considerations of the protection of the name and reputation of persons and companies, the former is accorded tremendous weight on the scale. That entails acknowledgement of a very far-reaching freedom of expression for the press, and accordingly the press must be permitted, as the public control- and information organ ( ‘ public watchdog ’ ), a certain amount of exaggeration and provocation in connection with their discussion of these questions, when factually there are reasons for expressing criticism. On the basis of the information in the case, including the research material that the applicants possessed before the broadcast of the programme, in particular the emails from [the medical doctor from Grosshandorf Hospital in Germany and the professor from Switzerland], the replies by the Minister for Internal Affairs and Health to various questions [posed by Members of Parliament], and the memorandum of 11 June 2008 produced by Copenhagen University Hospital [about pleural mesothelioma cancer], it can be established that Vinorelbine in combination with Cisplatin or Carboplatin was standard treatment at Copenhagen University Hospital, that the European Union on 20 September 2004 approved the marketing of Alimta in connection with Cisplatin for treatment of inoperable patients with pleural mesothelioma cancer, that there was no substantiation or basis for believing that an Alimta -based treatment was more efficient than the treatment offered by Copenhagen University Hospital, that some patients at Copenhagen University Hospital, who were already about to receive Vinorelbine as standard treatment, were chosen and offered the same medicine as part of a test [it is not known for what], and that S did not make any private financial profit from these tests. Against this background, including the fact that the word ‘ approved ’ was not explained during the programme, namely the difference between medication approved for treatment and [medication] approved for marketing, and by consistently using the word “test medication”, even though only one patient in the programme participated in tests, [the applicants] made allegations which were based on an incorrect factual basis, of which they must have been aware via the research material. The aim of the programme – to make a critical assessment of the treatment of patients with pleural mesothelioma cancer offered by Copenhagen University Hospital and the responsible consultant – is a legitimate part of the press ’ s role as ‘ public watchdog ’, but it cannot justify an allegation, which is built on a factually incorrect basis, and thus a wrong premise. [The applicants], who did not limit themselves to referring to or disseminating statements by experts, patients and relatives, did not have any basis for making such serious allegations against Copenhagen University Hospital and S. The allegations cannot be justified on the grounds that Copenhagen University Hospital and S refused to participate in the programme. Against this background, and since in relation to Article 10 there is no interest to protect when there is no factual basis for the accusations, the allegations are not unpunishable under Article 269 (1), nor is there any basis for remitting the punishment under Article 269 (2) [of the Penal Code]. It is an aggravating factor that the wrongful accusations were disseminated on national television during primetime and on DR ’ s homepage, by means of which the accusations had a significant spread. Accordingly, [the High Court] agrees [with the Copenhagen City Court ’ s judgment] that [the applicants] be fined under Article 267, and that the allegations be declared null and void by virtue of Article 273 (1). The High Court thus dismisses the appeal and upholds the judgment of the Copenhagen City Court. The applicants shall be jointly and severally liable for paying legal costs of the High Court appeal to Copenhagen University Hospital and S, in the amount of DKK 90,000, which constitutes the legal fee inclusive of VAT. In fixing the amount, the High Court took into account the scope and duration of the case.” 20. On 27 October 2011 the Appeals Permission Board ( Procesbevillingsnævnet ) refused the applicants ’ request for leave to appeal to the Supreme Court ( Højesteret ). B. Complaints lodged with the Patient Insurance Association 21. Subsequent to the broadcast on 24 September 2008 of the television programme, four complaints were lodged with the Patient Insurance Association ( Patientforsikringen ) relating to the issues raised by the programme. A press release published on the Associations ’ website on 9 March read as follows: “As of today, the Patient Insurance Association has received four complaints relating to the treatment of mesothelioma patients with combinatorial drugs other than Carboplatin and Alimta. That treatment was questioned by the Danish Broadcasting Corporation (DR) in a documentary programme in September 2008. The Patient Insurance Association has received four complaints relating to the criticism raised. This means that the persons claiming compensation are either patients or their dependants, one of the reasons being their belief that the combinatorial drugs administered to treat the disease were incorrect ones. All four complaints have been refused, one of the reasons being that the independent medical oncologists who assessed the cases found that it was in compliance with optimum medical standards to treat patients with the selected combination therapy. Two of the cases have been appealed against to the National Agency for Patients ’ Rights and Complaints ( Patientskadeankenævnet ). The National Agency for Patients ’ Rights and Complaints upheld the decision of the Patient Insurance Association, finding, inter alia: ’ ... [ patients ] were offered Carboplatin and Vinorelbine, which must be considered to be as active as other combinations with a favourable profile of adverse reactions ’. The other appeal does not concern the issue of combination therapy.” | This case concerned two Danish journalists working for a national television station and their conviction of defamation following a programme broadcast criticising the treatment of cancer at Copenhagen University Hospital. The Danish courts concluded that their programme had undisputedly given viewers the impression that malpractice had occurred at the hospital. They found in particular that the programme had accused the hospital’s cancer consultant of preferring to use a chemotherapy which was just a test product in order to promote his professional prestige and personal finances; and that that had resulted in certain patients dying or having their lives cut short. |
646 | Journalists and publishing companies | 5. The applicant was born in 1957 and lives in Carate Urio (Como). 6. The facts of the case, as submitted by the parties, may be summarised as follows. I. THE CIRCUMSTANCES OF THE CASE A. Publication of the articles 7. The applicant is a well-known Italian journalist. At the material time, specifically from January 2007 until 15 July 2008, he was the editor-in-chief of Libero, a national daily newspaper that sold around 125, 000 copies per day. 8. On 17 February 2007 one of the main Italian newspapers, La Stampa, published an article covering the story of a thirteen-year old girl who had undergone an abortion. The article suggested that the girl had been forced to undergo the abortion by her parents and G.C., the guardianship judge ( giudice tutelare ) who had authorised the procedure. Later that day it was reported that there had been no pressure placed on the teenager, and that she had decided alone to terminate the pregnancy. This clarification was widely disseminated by different sources: in particular, the National Press Agency (ANSA) issued a number of press releases on 17 February 20 0 7 clarifying the events; the television news bulletins broadcast by Rai2 and Rai3 ( Italy ’ s public national television channels) reported that the news concerning the alleged pressure on the teenager was false; the newspapers Corriere della Sera and La Repubblica reported the facts of the case in the same vein. 9. On 18 February 2007 two articles were published in Libero concerning the events involving the teenager. Despite the clarification disseminated the previous day by other media, both articles reported that the girl had been forced to undergo an abortion by her parents and G.C. 10. The first article, written by an unknown person under the pseudonym “Dreyfus”, was entitled “ Judge orders abortion. The law is stronger than life” ( Il giudice ordina l ’ aborto. La legge più forte della vita ). 11. It was worded as follows: “ A teenager from Turin has been forced by her parents to [ have an abortion ] ... the magistrate has heard the parties and has applied the law – the law! – ordering the compulsory abortion ... she did not want. She struggled ... [ N]ow the young mother (you are still considered as a mother even if your son died) is hospitalised as mentally ill. She had screamed in vain ‘ if you kill my son, I will commit suicide ’ ... if there were the death penalty, and if [ it were ever ] applicable, this would have been the case, [f]or the parents, the gynaecologist and [G.C.] ... the medicine and the judiciary are accomplices in the [coercive abortion] ”. 12. The second article, written by the journalist A. M. , was entitled “Forced to abort by her parents and the judge ” ( Costretta ad abortire dai genitori e dal giudice ). The relevant parts read as follows: “Pregnant [girl] at the early age of thirteen undergoes abortion and is hospitalised in a psychiatric centre ... ) After the abortion [the thirteen-year old girl] accused her family of forcing her to [have an abortion] ... ” B. Defamation proceedings brought against the applicant 1. First-instance proceedings 13. On 27 April 2007 G.C. filed a criminal complaint against the applicant and A.M. with the Milan District Court. The applicant was charged with defamation, aggravated by the fact that the offence consisted of imputing a specific fact (Article 595 §§ 1 and 2 of the Criminal Code), and failure of newspaper ’ s editor-in-chief to control what had been published – omesso controllo ( Article 57 of the Criminal Code ). 14. In a judgment of 26 January 2009, filed in the relevant registry on 20 March 2009, the District Court found the applicant guilty of omesso controllo, as far as the article drafted by A. M. was concerned, and of aggravated defamation since, as head of the newspaper, he was responsible for the article published under the pseudonym “Dreyfus”. The applicant was ordered to pay a fine of 5, 000 euros ( EUR ), damages in the sum of EUR 10. 000 and costs in the sum of EUR 2, 500 ( to be paid jointly with A.M. ), with publication of the judgment in Libero. 15. It concluded: ( i ) that both articles contained false information, and (ii ) that the content of both articles had severely damaged the reputation of the victim, clearly overstepping the boundaries of the applicant ’ s right to freely impart information. 2. Appeal proceedings 16. The applicant lodged an appeal. 17. In its judgment of 17 June 2011, filed in the relevant registry on 24 June 2011, the Milan Court of Appeal quashed the first-instance judgment in part. It pointed out that the articles at issue had reported false information, since the thirteen-year old girl had decided alone to terminate the pregnancy. Accordingly, the Court of Appeal found that the penalty imposed was too lenient, particularly in the light of the seriousness of the offence committed, and a finding that the applicant was a recidivist. The Court of Appeal thus increased the penalty to one year and two months ’ imprisonment, and upheld the fine of EUR 5, 000. The Court of Appeal did not suspend the enforcement of the penalty and decided to record the conviction on the applicant ’ s criminal record. In addition, the damages were also increased from EUR 10, 000 to EUR 30, 000. 3. Appeal on points of law 18. The applicant appealed on points of law. 19. In a judgment of 26 September 2012, deposited in the relevant registry on 23 October 2012, the Court of Cassation upheld the Court of Appeal ’ s findings, assessing, inter alia, the compatibility of the conviction and the sentence imposed in the light of the case - law of the Court. In particular, the Court of Cassation sought to justify the imposition of a custodial sentence by arguing that there were exceptional circumstances in the case. In particular, the imposition of the detention measure had been justified by a set of concurrent factors, such as the existence of the aggravating circumstance of “ imputing a specific fact”; the applicant ’ s personality, his criminal record (the applicant being a recidivist) and the fact that the publication of false information had undermined the reputation of G.C., a member of the judiciary. 20. By a decision of 30 November 2012, filed in the relevant registry on the same date, the Milan Court responsible for the execution of sentences ( Tribunale di Sorveglianza di Milano ) ordered the applicant to serve his sentence under house arrest ( pericolo di fuga ), on the grounds that there was no risk that he might abscond. 21. On an unspecified date, relying on Article 87 § 11 of the Constitution, the applicant filed a request with the President of the Italian Republic to convert the remainder of the detention period into a fine. 22. By a decree of 21 December 2012 the applicant ’ s request was granted and his sentence was commuted into the payment of a EUR 15 ,532 fine. 23. In his decision to commute the applicant ’ s penalty, the President relied on the criticism expressed by the European Court of Human Rights with respect to the imposition of custodial sentences on journalists. He also expressed his concerns about the ongoing review of the legislation on defamation, which was on hold owing to difficulties in striking a balance between the need to set out more lenient sanctions while at the same time ensuring more effective redress measures. 24. The applicant spent twenty-one days under house arrest, starting 30 November 2012 until 21 December 2012, when he was released (see paragraphs 20-22). III. COUNCIL OF EUROPE DOCUMENTS 31. On 24 January 2013 the Parliamentary Assembly of the Council of Europe adopted Resolution 1920 (2013) entitled “The state of media freedom in Europe”. In this document, referring to the fourteen-month prison sentence imposed on the applicant, the Assembly asked the European Commission for Democracy through Law (hereinafter “ the Venice Commission”) to prepare an opinion on whether the Italian laws on defamation were in line with Article 10 of the Convention. 32. On 9 November 2013 the Venice Commission, in Opinion no. 715/2013 (“Opinion on the Legislation on Defamation of Italy”) observed that a reform of the legislation on defamation was ongoing (see paragraph 30 above ) : the amendments proposed envisaged, inter alia, limitation of the use of criminal provisions, abolition of imprisonment as a possible penalty and an upper limit for fines, lacking in Article 595 § § 3 and 4 of the Criminal Code (repealed by the Bill). The Venice Commission was of the opinion that [ high fines posed “ a threat with almost as much chilling effect as imprisonment” ] but also recalled that this was to be regarded as “a remarkable improvement, in accordance with the Council of Europe calls for lighter sanctions for defamation”. 33. The Venice Commission, however, albeit satisfied with the amendments proposed, observed that the Bill, presented in 2013, was still pending before the Senate Standing Committee on Justice. | Found guilty of defamation, the applicant, a journalist, was fined and given a prison sentence, part of which he served under house arrest. The national courts found that articles published under his control had falsely reported that a 13-year old girl had been forced to have an abortion by her parents and a guardianship judge, despite clarifications in the press the day before that the girl had wanted the abortion. |
655 | Private persons | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1934 and lives in Ledinci. In December 2006 her pension was 6,568.30 Serbian Dinars (“RSD”), i.e. approximately 80 Euros (“EUR”). 6. The relevant facts of the case, as submitted by the parties, may be summarised as follows. A. The criminal case and other related proceedings 7. On 8 April 2005 the Novi Sad Municipal Court, acting on the basis of a private criminal action ( privatna krivična tužba ) filed on 10 March 2003, found the applicant guilty of criminal defamation ( kleveta ) and sentenced her to six months ’ imprisonment, suspended for a period of two years ( uslovna osuda; see paragraph 35 below). Ms SN, a journalist, was also found guilty of the same offence and sentenced identically. 8. The Municipal Court noted, inter alia, that on 12 December 2002 Dnevnik, a Novi Sad daily newspaper, had published an article, prepared by Ms SN and based on the information provided by the applicant, to the effect that the latter ’ s lawyer, Mr NB, had deliberately failed to represent her properly in a pending civil case. The article maintained that this was subsequently confirmed by the Novi Sad Police Department. The Municipal Court described the applicant ’ s and article ’ s assertions as lacking any factual basis and being aimed solely at harming the honour and reputation of Mr NB, a highly respected member of the Novi Sad legal community and a former judge. 9. On 11 January 2006 the Novi Sad District Court upheld this judgment on appeal and endorsed its reasoning. The applicant received the District Court ’ s decision on 19 July 2006. 10. On 16 August 2006 the applicant filed a request for the reopening of these proceedings. 11. Following two remittals, on 29 July 2009 the Municipal Court accepted the applicant ’ s motion and reopened the case. The applicant personally and a number of witnesses were reheard and numerous documents/files were re-examined, but ultimately, on 25 March 2011, both the original conviction and the sentence imposed were reaffirmed in their entirety. The Municipal Court ’ s reasoning likewise remained the same. It clarified, however, that, whilst the police had indeed filed a criminal complaint against Mr NB on 1 5 May 2002, by 5 July 2002 the Novi Sad Municipal Public Prosecutor ’ s Office had informed the applicant of its formal rejection based on the applicable statute of limitation. The applicant had thereafter attempted to take over the prosecution of the case in the capacity of a subsidiary prosecutor, but this had ultimately been rejected by the courts by 30 September 2004. 12. On 29 November 2011 the Novi Sad Appeals Court upheld the Municipal Court ’ s judgment of 25 March 2011. The applicant was served with the Appeals Court ’ s decision on 21 December 2011. 13. On 19 January 2012 the applicant filed a further appeal with the Constitutional Court, complaining, inter alia, about the outcome, fairness and length of the criminal proceedings, as well as the alleged breach of her freedom of expression. This appeal is still pending. B. The civil suit and other related proceedings 14. On 19 December 2006 Mr NB filed a separate civil claim for damages with the Novi Sad Municipal Court, alleging that he had suffered mental anguish due to the publication of the impugned article. 15. On 31 January 2007 the Municipal Court ruled partly in favour of Mr NB and ordered the applicant to pay RSD 300,000 in compensation, together with default interest, plus costs in the amount of RSD 94,120, i.e. approximately EUR 4,900 Euros in all. 16. In its reasoning the Municipal Court found that: (a) the applicant had already been convicted of defamation within the criminal proceedings (see paragraph 40 below); (b) having examined Mr NB ’ s professional conduct, her allegations had clearly lacked any factual basis; and (c) this had offended the honour, reputation and dignity of Mr NB and had caused him profound mental anguish (see paragraph 38 below). 17. On 16 April 2009 the District Court in Novi Sad rejected the applicant ’ s appeal, and in so doing endorsed the reasons given at first instance. The applicant received the District Court ’ s decision on 30 April 2009. 18. The applicant could not file an appeal on points of law, revizija, with the Supreme Court in view of the amount of damages awarded. 19. On 29 May 2009 the applicant thus filed an appeal with the Constitutional Court. This appeal was, effectively, supplemented by memorials of 21 November 2009, 27 June 2011 and 25 November 2011. The applicant complained about the breach of her right to freedom of expression, as well as the procedural fairness. Concerning the former she specifically referred to the disproportionate nature of the damages awarded, and cited the relevant Strasbourg case-law (such as, for example, Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, Series A no. 316 ‑ B; and Filipović v. Serbia, no. 27935/05, 20 November 2007 ). The applicant, lastly, complained about the consequent danger to her life and her health, as described at paragraphs 30 and 31 below. 20. On 6 August 2009 the applicant requested that the Constitutional Court order the suspension of the civil enforcement proceedings brought against her (see paragraphs 25-29 below). 21. On 9 December 2009 the Municipal Court rejected the applicant ’ s motion for the reopening of the civil proceedings, and on 7 May 2010 the Novi Sad High Court upheld this decision on appeal. 22. On 27 April 2011 the applicant again requested that the Constitutional Court order the suspension of the said enforcement proceedings. 23. On 15 December 2011 the Constitutional Court rejected the constitutional appeal on its merits, stating, inter alia, that the impugned decisions had been adopted in accordance with the law, that they had been well-reasoned, and that it was not its function to assess whether the amount of compensation which had been awarded was disproportionate. The Constitutional Court made no mention of the applicant ’ s complaint concerning her medical situation. 24. The applicant was apparently informed of this decision in the Constitutional Court ’ s letter of 21 December 2011, and received it by 23 April 2012 at the latest. C. The enforcement proceedings 25. On 13 July 2009 Mr NB filed a motion with the Novi Sad Municipal Court, seeking enforcement of its judgment dated 31 January 2007. 26. On 14 July 2009 the Municipal Court issued an enforcement order whereby two thirds of the applicant ’ s pension were to be transferred to the creditor ’ s bank account each month, until the sums awarded to the latter have been paid in full (see paragraphs 41-43 below). 27. The said deductions to the applicant ’ s monthly income began as of 8 August 2009. 28. In May 2012 the applicant ’ s monthly pension was RSD 19,707, approximately EUR 170. After deductions, the applicant was left with approximately EUR 60 on which to live. 29. By 30 June 201 3 the applicant had paid a total of RSD 496, 471. 1 0, i.e. approximately EUR 4,350. However, given the accrued and future interest, she would have to continue with the payments for approximately another two years ( see paragraphs 44-50 below). D. The applicant ’ s medical condition 30. The applicant suffered from a number of diseases including cataracts, progressive ocular hypertension, which had allegedly caused a total loss of vision in her left eye, angina pectoris, and clinical depression. She had also had a pacemaker installed several years ago, had suffered a stroke and was in need of hip surgery. 31. The applicant maintained that she needed a minimum of RSD 5,000 monthly for her medication, i.e. approximately EUR 44, but that she could no longer afford to buy it. E. Other relevant facts 32. On 21 September 2006, concerning the same article published on 12 December 2002, the Novi Sad Municipal Court ruled in favour of Mr NB and ordered Ms SN, Dnevnik, and the Autonomous Province of Vojvodina (as the said newspaper ’ s founder) jointly to pay RSD 300,000 in compensation for the non-pecuniary damage suffered, together with default interest, plus costs in the amount of RSD 55,600, i.e. approximately EUR 4,12 0 in all. On 13 December 2006 this judgment was upheld by the Novi Sad District Court on appeal. 33. The applicant maintained that on 13 April 2013 her gas supply had been disconnected in view of her continuing inability to pay her utilities. I. The Constitutional Court ’ s decision IUz-82/09 of 12 July 2012 published in OG RS no. 73/12 47. Based on this decision and as of 27 July 2012, the Constitutional Court repealed the method of calculating interest as set out in Article 3 § 1 of the Statutory Interest Act 2001. J. The Statutory Interest Act 2012 ( Zakon o zateznoj kamati; published in OG RS no. 119/12) 48. Article 2 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement. 49. Article 3 states that such interest shall be calculated annually based on the Serbian National Bank ’ s reference interest rate and increased by eight percentage points. 50. This act entered into force on 25 December 2012 and thereby repealed the Statutory Interest Act 2001. | In 2006 the applicant, a pensioner suffering from various illnesses, was found guilty of defaming her lawyer. In July 2009 the Municipal Court issued an enforcement order requiring two thirds of the applicant’s pension to be transferred to the lawyer’s bank account each month, until the sums awarded had been paid in full. The applicant complained of the defamation judgment in the civil proceedings, and of the way the compensation payment had been enforced. She stated in particular that the enforcement had caused her extreme financial hardship. |
1,027 | (2) A State may take measures derogating from its Convention obligations only to the extent strictly required by the situation | I. THE CIRCUMSTANCES OF THE CASE 8. The facts of the case, as submitted by the parties, may be summarised as follows. A. The derogation 9. On 11 September 2001 four commercial aeroplanes were hijacked over the United States of America. Two of them were flown directly at the Twin Towers of the World Trade Centre and a third at the Pentagon, causing great loss of life and destruction to property. The Islamist extremist terrorist organisation al - Qaeda, led by Osama Bin Laden, claimed responsibility. The United Kingdom joined with the United States of America in military action in Afghanistan, which had been used as a base for al - Qaeda training camps. 10. The Government contended that the events of 11 September 2001 demonstrated that international terrorists, notably those associated with al - Qaeda, had the intention and capacity to mount attacks against civilian targets on an unprecedented scale. Further, given the loose-knit, global structure of al - Qaeda and its affiliates and their fanaticism, ruthlessness and determination, it would be difficult for the State to prevent future attacks. In the Government ’ s assessment, the United Kingdom, because of its close links with the United States of America, was a particular target. They considered that there was an emergency of a most serious kind threatening the life of the nation. Moreover, they considered that the threat came principally, but not exclusively, from a number of foreign nationals present in the United Kingdom, who were providing a support network for Islamist terrorist operations linked to al - Qaeda. A number of these foreign nationals could not be deported because of the risk that they would suffer treatment contrary to Article 3 of the Convention in their countries of origin. 11. On 11 November 2001 the Secretary of State made a derogation order under section 14 of the Human Rights Act 1998 (“the 1998 Act” – see paragraph 94 below ) in which he set out the terms of a proposed notification to the Secretary General of the Council of Europe of a derogation pursuant to Article 15 of the Convention. On 18 December 2001 the Government lodged the derogation with the Secretary General of the Council of Europe. The derogation notice provided as follows: “ Public emergency in the United Kingdom The terrorist attacks in New York, Washington, D.C. and Pennsylvania on 11 September 2001 resulted in several thousand deaths, including many British victims and others from seventy different countries. In its Resolutions 1368 (2001) and 1373 (2001), the United Nations Security Council recognised the attacks as a threat to international peace and security. The threat from international terrorism is a continuing one. In its Resolution 1373 (2001), the Security Council, acting under Chapter VII of the United Nations Charter, required all States to take measures to prevent the commission of terrorist attacks, including by denying safe haven to those who finance, plan, support or commit terrorist attacks. There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom. As a result, a public emergency, within the meaning of Article 15 § 1 of the Convention, exists in the United Kingdom. The Anti-terrorism, Crime and Security Act 2001 As a result of the public emergency, provision is made in the Anti-terrorism, Crime and Security Act 2001, inter alia, for an extended power to arrest and detain a foreign national which will apply where it is intended to remove or deport the person from the United Kingdom but where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domestic ‑ law powers. The extended power to arrest and detain will apply where the Secretary of State issues a certificate indicating his belief that the person ’ s presence in the United Kingdom is a risk to national security and that he suspects the person of being an international terrorist. That certificate will be subject to an appeal to the Special Immigration Appeals Commission ( ‘ SIAC ’ ), established under the Special Immigration Appeals Commission Act 1997, which will have power to cancel it if it considers that the certificate should not have been issued. There will be an appeal on a point of law from a ruling by SIAC. In addition, the certificate will be reviewed by SIAC at regular intervals. SIAC will also be able to grant bail, where appropriate, subject to conditions. It will be open to a detainee to end his detention at any time by agreeing to leave the United Kingdom. The extended power of arrest and detention in the Anti-terrorism, Crime and Security Act 2001 is a measure which is strictly required by the exigencies of the situation. It is a temporary provision which comes into force for an initial period of fifteen months and then expires unless renewed by Parliament. Thereafter, it is subject to annual renewal by Parliament. If, at any time, in the Government ’ s assessment, the public emergency no longer exists or the extended power is no longer strictly required by the exigencies of the situation, then the Secretary of State will, by order, repeal the provision. Domestic - law powers of detention (other than under the Anti-terrorism, Crime and Security Act 2001) The Government has powers under the Immigration Act 1971 ( ‘ the 1971 Act ’ ) to remove or deport persons on the ground that their presence in the United Kingdom is not conducive to the public good on national security grounds. Persons can also be arrested and detained under Schedules 2 and 3 to the 1971 Act pending their removal or deportation. The courts in the United Kingdom have ruled that this power of detention can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal and that, if it becomes clear that removal is not going to be possible within a reasonable time, detention will be unlawful ( R. v. Governor of Durham Prison, ex parte Singh [1984] All ER 983). Article 5 § 1 (f) of the Convention It is well established that Article 5 § 1 (f) permits the detention of a person with a view to deportation only in circumstances where ‘ action is being taken with a view to deportation ’ ( Chahal v. the United Kingdom (1996) 23 EHRR 413 at paragraph 112). In that case the European Court of Human Rights indicated that detention will cease to be permissible under Article 5 § 1 (f) if deportation proceedings are not prosecuted with due diligence and that it was necessary in such cases to determine whether the duration of the deportation proceedings was excessive (paragraph 113). In some cases, where the intention remains to remove or deport a person on national security grounds, continued detention may not be consistent with Article 5 § 1 (f) as interpreted by the Court in the Chahal case. This may be the case, for example, if the person has established that removal to their own country might result in treatment contrary to Article 3 of the Convention. In such circumstances, irrespective of the gravity of the threat to national security posed by the person concerned, it is well established that Article 3 prevents removal or deportation to a place where there is a real risk that the person will suffer treatment contrary to that Article. If no alternative destination is immediately available then removal or deportation may not, for the time being, be possible even though the ultimate intention remains to remove or deport the person once satisfactory arrangements can be made. In addition, it may not be possible to prosecute the person for a criminal offence given the strict rules on the admissibility of evidence in the criminal justice system of the United Kingdom and the high standard of proof required. Derogation under Article 15 of the Convention The Government has considered whether the exercise of the extended power to detain contained in the Anti-terrorism, Crime and Security Act 2001 may be inconsistent with the obligations under Article 5 § 1 of the Convention. As indicated above, there may be cases where, notwithstanding a continuing intention to remove or deport a person who is being detained, it is not possible to say that ‘ action is being taken with a view to deportation ’ within the meaning of Article 5 § 1 (f) as interpreted by the Court in the Chahal case. To the extent, therefore, that the exercise of the extended power may be inconsistent with the United Kingdom ’ s obligations under Article 5 § 1, the Government has decided to avail itself of the right of derogation conferred by Article 15 § 1 of the Convention and will continue to do so until further notice.” The derogation notice then set out the provisions of Part 4 of the Anti- terrorism, Crime and Security Bill 2001. 12. On 12 November 2001 the Anti- terrorism, Crime and Security Bill, containing the clauses which were to eventually become Part 4 of the Anti- terrorism, Crime and Security Act 2001 (“the 2001 Act ” – see paragraph 90 below ), was introduced into the House of Commons. The Bill was passed by Parliament in two weeks, with three days of debate on the floor of the House of Commons set aside for its 125 clauses in a restrictive programming motion, prompting both the Joint Committee of Human Rights and the Home Affairs Select Committee to complain of the speed with which they were being asked to consider the matter. 13. The 2001 Act came into force on 4 December 2001. During the lifetime of the legislation, sixteen individuals, including the present eleven applicants, were certified under section 21 and detained. The first six applicants were certified on 17 December 2001 and taken into detention shortly thereafter. The seventh applicant was certified and detained in early February 2002; the ninth applicant on 22 April 2002; the eighth applicant on 23 October 2002; the tenth applicant on 14 January 2003; and the eleventh applicant was certified on 2 October 2003 and kept in detention, having previously been held under other legislation. B. The derogation proceedings 14. In proceedings before the Special Immigration Appeals Commission (SIAC – see paragraphs 91 - 93 below), the first seven applicants challenged the legality of the derogation, claiming that their detention under the 2001 Act was in breach of their rights under Articles 3, 5, 6 and 14 of the Convention. Each, in addition, challenged the Secretary of State ’ s decision to certify him as an international terrorist. 15. On 30 July 2002, having examined both open and closed material and heard submissions from special advocates in addition to counsel for the parties and for the third party, Liberty, SIAC delivered its ruling on the legality of the derogation. It held that, on the basis of the open material, it was satisfied that the threat from al - Qaeda had created a public emergency threatening the life of the nation, within the meaning of Article 15 of the Convention, and that the closed material confirmed this view. SIAC further held that the fact that the objective of protecting the public from international terrorists could possibly have been achieved by alternative methods did not demonstrate that the measures actually adopted were not strictly necessary. Moreover, since the purpose of the detention was the protection of the United Kingdom, the fact that the detainee was at liberty to leave demonstrated that the measures were properly tailored to the state of emergency. SIAC rejected the applicants ’ complaints under Article 3 of the Convention. It held that, in so far as they related to conditions of detention, the applicants should bring proceedings in the ordinary civil courts, and that SIAC had no jurisdiction to determine such a complaint as it was not a “derogation issue”. It further saw no merit in the applicants ’ argument that detention for an indefinite period was contrary to Article 3. On this point, SIAC held that the detention was not indefinite, since it was governed by the time - limits of the 2001 Act itself and since the 2001 Act provided that each applicant ’ s certification was subject to automatic review by SIAC every six months. In any event, the mere fact that no term had yet been fixed for preventive detention did not give rise to a breach of Article 3. SIAC did not accept that Article 6 of the Convention applied to the certification process. The certification of each applicant as a suspected international terrorist was not a “charge” but instead a statement of suspicion and the proceedings before SIAC were not for the determination of a criminal charge. Furthermore, there was no relevant civil right at issue and Article 6 did not apply in its civil limb either. SIAC did, however, rule that the derogation was unlawful because the relevant provisions of the 2001 Act unjustifiably discriminated against foreign nationals, in breach of Article 14 of the Convention. The powers of the 2001 Act could properly be confined to non-nationals only if the threat stemmed exclusively, or almost exclusively, from non-nationals and the evidence did not support that conclusion. In paragraphs 94- 95 of its judgment, SIAC held: “94. If there is to be an effective derogation from the right to liberty enshrined in Article 5 in respect of suspected international terrorists – and we can see powerful arguments in favour of such a derogation – the derogation ought rationally to extend to all irremovable suspected international terrorists. It would properly be confined to the alien section of the population only if, as [counsel for the appellants] contends, the threat stems exclusively or almost exclusively from that alien section. 95. But the evidence before us demonstrates beyond argument that the threat is not so confined. There are many British nationals already identified – mostly in detention abroad – who fall within the definition of ‘ suspected international terrorists ’, and it was clear from the submissions made to us that in the opinion of the [Secretary of State] there are others at liberty in the United Kingdom who could be similarly defined. In those circumstances we fail to see how the derogation can be regarded as other than discriminatory on the grounds of national origin.” SIAC thus quashed the derogation order of 11 November 2001 and issued a declaration of incompatibility in respect of section 23 of the 2001 Act under section 4 of the 1998 Act ( see paragraph 94 below). It adjourned the first seven applicants ’ individual appeals against certification (see paragraphs 24 - 69 below) pending the outcome of the Secretary of State ’ s appeal and the applicants ’ cross-appeal on points of law against the above ruling. 16. On 2 5 October 2002 the Court of Appeal delivered its judgment ( A. and Others v. Secretary of State for the Home Department [2002] EWCA Civ 1502). It held that SIAC had been entitled to find that there was a public emergency threatening the life of the nation. However, contrary to the view of SIAC, it held that the approach adopted by the Secretary of State could be objectively justified. There was a rational connection between the detention of non-nationals who could not be deported because of fears for their safety, and the purpose which the Secretary of State wished to achieve, which was to remove non-nationals who posed a threat to national security. Moreover, the applicants would be detained for no longer than was necessary before they could be deported or until the emergency was resolved or they ceased to be a threat to the country ’ s safety. There was no discrimination contrary to Article 14 of the Convention, because British nationals suspected of being terrorists were not in an analogous situation to similarly suspected foreign nationals who could not be deported because of fears for their safety. Such foreign nationals did not have a right to remain in the country but only a right, for the time being, not to be removed for their own safety. The Court of Appeal added that it was well established in international law that, in some situations, States could distinguish between nationals and non-nationals, especially in times of emergency. It further concluded that Parliament had been entitled to limit the measures proposed so as to affect only foreign nationals suspected of terrorist links because it was entitled to reach the conclusion that detention of only the limited class of foreign nationals with which the measures were concerned was, in the circumstances, “strictly required” within the meaning of Article 15 of the Convention. The Court of Appeal agreed with SIAC that the proceedings to appeal against certification were not “criminal” within the meaning of Article 6 § 1 of the Convention. It found, however, that the civil limb of Article 6 applied but that the proceedings were as fair as could reasonably be achieved. It further held that the applicants had not demonstrated that their detention amounted to a breach of Article 3 of the Convention. 17. The applicants were granted leave to appeal to the House of Lords, which delivered its judgment on 16 December 2004 ([2004] UKHL 56). A majority of the Law Lords, expressly or impliedly, found that the applicants ’ detention under Part 4 of the 2001 Act did not fall within the exception to the general right of liberty set out in Article 5 § 1 (f) of the Convention (see Lord Bingham, at paragraphs 8-9; Lord Hoffman, at paragraph 97; Lord Hope, at paragraphs 103-05; Lord Scott, at paragraph 155; Lord Rodger, at paragraph 163; Baroness Hale, at paragraph 222 ). Lord Bingham summarised the position in this way: “9. ... A person who commits a serious crime under the criminal law of this country may of course, whether a national or a non-national, be charged, tried and, if convicted, imprisoned. But a non-national who faces the prospect of torture or inhuman treatment if returned to his own country, and who cannot be deported to any third country, and is not charged with any crime, may not under Article 5 § 1 (f) of the Convention and Schedule 3 to the Immigration Act 1971 be detained here even if judged to be a threat to national security. ” 18. The House of Lords further held, by eight to one (Lords Bingham and Scott with considerable hesitation), that SIAC ’ s conclusion that there was a public emergency threatening the life of the nation should not be displaced. Lord Hope assessed the evidence as follows: “118. There is ample evidence within [the open] material to show that the government were fully justified in taking the view in November 2001 that there was an emergency threatening the life of the nation. ... [The] United Kingdom was at danger of attacks from the al - Qaeda network which had the capacity through its associates to inflict massive casualties and have a devastating effect on the functioning of the nation. This had been demonstrated by the events of 11 September 2001 in New York, Pennsylvania and Washington. There was a significant body of foreign nationals in the United Kingdom who had the will and the capability of mounting coordinated attacks here which would be just as destructive to human life and to property. There was ample intelligence to show that international terrorist organisations involved in recent attacks and in preparation for other attacks of terrorism had links with the United Kingdom, and that they and others posed a continuing threat to this country. There was a growing body of evidence showing preparations made for the use of weapons of mass destruction in this campaign. ... [It] was considered [by the Home Office] that the serious threats to the nation emanated predominantly, albeit not exclusively, and more immediately from the category of foreign nationals. 119. The picture which emerges clearly from these statements is of a current state of emergency. It is an emergency which is constituted by the threat that these attacks will be carried out. It threatens the life of the nation because of the appalling consequences that would affect us all if they were to occur here. But it cannot yet be said that these attacks are imminent. On 15 October 2001 the Secretary of State said in the House of Commons that there was no immediate intelligence pointing to a specific threat to the United Kingdom: see Hansard (HC Debates, col 925). On 5 March 2002 this assessment of the position was repeated in the government ’ s response to the Second Report of the House of Commons Select Committee on Defence on the Threat from Terrorism (HC 348, para 13) where it was stated that it would be wrong to say that there was evidence of a particular threat. I would not conclude from the material which we have seen that there was no current emergency. But I would conclude that the emergency which the threats constitute is of a different kind, or on a different level, from that which would undoubtedly ensue if the threats were ever to materialise. The evidence indicates that the latter emergency cannot yet be said to be imminent. It has to be recognised that, as the attacks are likely to come without warning, it may not be possible to identify a stage when they can be said to be imminent. This is an important factor, and I do not leave it out of account. But the fact is that the stage when the nation has to face that kind of emergency, the emergency of imminent attack, has not been reached. ” Lord Hoffman, who dissented, accepted that there was credible evidence of a threat of serious terrorist attack within the United Kingdom, but considered that it would not destroy the life of the nation, since the threat was not so fundamental as to threaten “our institutions of government or our existence as a civil community”. He concluded that “the real threat to the life of the nation ... comes not from terrorism but from laws such as these”. 19. The other Law Lords (Lords Bingham, Nicholls, Hope, Scott, Rodger, Carswell and Baroness Hale, with Lord Walker dissenting) rejected the Government ’ s submission that it was for Parliament and the executive, rather than the courts, to judge the response necessary to protect the security of the public. Lord Bingham expressed his view as follows: “42. It follows from this analysis that the appellants are in my opinion entitled to invite the courts to review, on proportionality grounds, the derogation order and the compatibility with the Convention of section 23 [of the 2001 Act] and the courts are not effectively precluded by any doctrine of deference from scrutinising the issues raised. It also follows that I do not accept the full breadth of the Attorney - General ’ s submissions. I do not in particular accept the distinction which he drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true ... that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic State, a cornerstone of the rule of law itself. The Attorney - General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right; has required courts (in section 2) to take account of relevant Strasbourg jurisprudence; has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate. ” 20. The majority therefore examined whether the detention regime under Part 4 of the 2001 Act was a proportionate response to the emergency situation, and concluded that it did not rationally address the threat to security and was a disproportionate response to that threat. They relied on three principal grounds: firstly, that the detention scheme applied only to non-nationals suspected of international terrorism and did not address the threat which came from United Kingdom nationals who were also so suspected; secondly, that it left suspected international terrorists at liberty to leave the United Kingdom and continue their threatening activities abroad; thirdly, that the legislation was drafted too broadly, so that it could, in principle, apply to individuals suspected of involvement with international terrorist organisations which did not fall within the scope of the derogation. On the first point, Lord Bingham emphasised that SIAC ’ s finding that the terrorist threat was not confined to non-nationals had not been challenged. Since SIAC was the responsible fact-finding tribunal, it was unnecessary to examine the basis for its finding, but there was evidence that “upwards of a thousand individuals from the UK are estimated on the basis of intelligence to have attended training camps in Afghanistan in the last five years”; that some British citizens were said to have planned to return from Afghanistan to the United Kingdom; and that the background material relating to the applicants showed the high level of involvement of British citizens and those otherwise connected with the United Kingdom in the terrorist networks. Lord Bingham continued: “33. ... It is plain that sections 21 and 23 of the 2001 Act do not address the threat presented by UK nationals since they do not provide for the certification and detention of UK nationals. It is beside the point that other sections of the 2001 Act and the 2000 Act do apply to UK nationals, since they are not the subject of derogation, are not the subject of complaint and apply equally to foreign nationals. Yet the threat from UK nationals, if quantitatively smaller, is not said to be qualitatively different from that from foreign nationals. It is also plain that sections 21 and 23 do permit a person certified and detained to leave the United Kingdom and go to any other country willing to receive him, as two of the appellants did when they left for Morocco and France respectively ... Such freedom to leave is wholly explicable in terms of immigration control: if the British authorities wish to deport a foreign national but cannot deport him to country ‘ A ’ because of Chahal their purpose is as well served by his voluntary departure for country ‘ B ’. But allowing a suspected international terrorist to leave our shores and depart to another country, perhaps a country as close as France, there to pursue his criminal designs, is hard to reconcile with a belief in his capacity to inflict serious injury to the people and interests of this country. ... ... 35. The fifth step in the appellants ’ argument permits of little elaboration. But it seems reasonable to assume that those suspected international terrorists who are UK nationals are not simply ignored by the authorities. When [the fifth applicant] was released from prison by SIAC on bail ... it was on condition (among other things) that he wear an electronic monitoring tag at all times; that he remain at his premises at all times; that he telephone a named security company five times each day at specified times; that he permit the company to install monitoring equipment at his premises; that he limit entry to his premises to his family, his solicitor, his medical attendants and other approved persons; that he make no contact with any other person; that he have on his premises no computer equipment, mobile telephone or other electronic communications device; that he cancel the existing telephone link to his premises; and that he install a dedicated telephone link permitting contact only with the security company. The appellants suggested that conditions of this kind, strictly enforced, would effectively inhibit terrorist activity. It is hard to see why this would not be so. 36. In urging the fundamental importance of the right to personal freedom, as the sixth step in their proportionality argument, the appellants were able to draw on the long libertarian tradition of English law, dating back to Chapter 39 of Magna Carta 1215, given effect in the ancient remedy of habeas corpus, declared in the Petition of Right 1628, upheld in a series of landmark decisions down the centuries and embodied in the substance and procedure of the law to our own day. ... In its treatment of Article 5 of the European Convention, the European Court also has recognised the prime importance of personal freedom. ... ... 43. The appellants ’ proportionality challenge to the order and section 23 is, in my opinion, sound, for all the reasons they gave and also for those given by the European Commissioner for Human Rights and the Newton Committee. The Attorney - General could give no persuasive answer.” 21. In addition, the majority held that the 2001 Act was discriminatory and inconsistent with Article 14 of the Convention, from which there had been no derogation. The applicants were in a comparable situation to United Kingdom nationals suspected of being international terrorists, with whom they shared the characteristics of being irremovable from the United Kingdom and being considered a threat to national security. Since the detention scheme was aimed primarily at the protection of the United Kingdom from terrorist attack, rather than immigration control, there was no objective reason to treat the applicants differently on grounds of their nationality or immigration status. 22. Although the applicants ’ appeal had included complaints under Articles 3 and 16 of the Convention, the House of Lords did not consider it necessary to determine these complaints since it had found the derogation to be unlawful on other grounds. 23. It granted a quashing order in respect of the derogation order, and a declaration under section 4 of the 1998 Act (see paragraph 94 below) that section 23 of the 2001 Act was incompatible with Articles 5 § 1 and 14 of the Convention in so far as it was disproportionate and permitted discriminatory detention of suspected international terrorists. C. The certification proceedings: the “generic” judgment and appeals 24. Meanwhile, SIAC ’ s hearing of the applicants ’ individual appeals against certification commenced in May 2003, after the Court of Appeal had given judgment in the derogation proceedings but before the above judgment of the House of Lords. 25. For the purposes of each appeal to SIAC, the Secretary of State filed an “open statement” summarising the facts connected to the decision to certify each applicant and as much of the supporting evidence which the Secretary of State considered could be disclosed without giving rise to any risk to national security. A further, “closed” statement of facts and evidence was also placed before SIAC in each case. 26. On 29 October 2003 SIAC issued a “generic” judgment in which it made a number of findings of general application to all the appeals against certification. As regards preliminary issues, it found, inter alia, that it had jurisdiction to hear an appeal against certification even where the person certified had left the United Kingdom and the certificate had been revoked. It held that the tests whether reasonable grounds existed for suspicion that a person was a “terrorist” and for belief that his presence in the United Kingdom was a risk to national security, within the meaning of section 21 of the 2001 Act, fell “some way short of proof even on the balance of probabilities ”. It further held that “ reasonable grounds could be based on material which would not be admissible in a normal trial in court, such as hearsay evidence of an unidentified informant ”. The weight that was to be attached to any particular piece of evidence was a matter for consideration in the light of all the evidence viewed as a whole. Information which might have been obtained by torture should not automatically be excluded, but the court should have regard to any evidence about the manner in which it was obtained and judge its weight and reliability accordingly. SIAC held that the detention provisions in the 2001 Act should be interpreted in the light of the terms of the derogation. The threat to the life of the nation was not confined to activities within the United Kingdom, because the nation ’ s life included its diplomatic, cultural and tourism-related activities abroad. Moreover, attacks on the United Kingdom ’ s allies could also create a risk to the United Kingdom, given the interdependence of countries facing a global terrorist threat. The derogation identified the threat as emanating from al - Qaeda and its associates. It was therefore necessary, in respect of both the “national security” and the “international terrorist” limbs of section 21 of the 2001 Act, to show reasonable grounds for suspicion that the person certified was part of a group which was connected, directly or indirectly, to al - Qaeda. Even if the main focus of the group in question was a national struggle, if it backed al - Qaeda for a part of its agenda and the individual nonetheless supported the group, it was a legitimate inference that he was supporting and assisting al - Qaeda. SIAC also made a number of findings of fact of general application concerning organisations alleged by the Secretary of State to be linked to al ‑ Qaeda. These findings were based on both “open” and “closed” material. Thus, it held, for example, that the Salafist Group for Call and Combat (GSPC), which was formed in Algeria in 1998, was an international terrorist organisation linked to al - Qaeda through training and funding, but that the earlier Algerian organisation, Armed Islamic Group (GIA), was not. The Egyptian Islamic Jihad (EIJ) was either part of al - Qaeda or very closely linked to it. The Chechen Arab Mujahaddin was an international terrorist group, pursuing an anti-West agenda beyond the struggle for Chechen independence, with close links to al - Qaeda. SIAC also identified as falling within the terms of the derogation a group of primarily Algerian extremists centred around Abu Doha, an Algerian who had lived in the United Kingdom from about 1999. It was alleged that Abu Doha had held a senior role in training camps in Afghanistan and had many contacts in al - Qaeda, including a connection with the Frankfurt cell which had been accused of plotting to bomb the Strasbourg Christmas Market in December 2000. Abu Doha was arrested in February 2001, following an extradition request from the United States of America, but his group remained active. 27. The applicants appealed against SIAC ’ s ruling that evidence which might have been obtained by torture was admissible. For the purposes of the appeal, the parties agreed that the proceedings before SIAC to challenge certification fell within Article 5 § 4 of the Convention and as such had to satisfy the basic requirements of a fair trial. It was not, therefore, necessary to decide whether Article 6 also applied and the issue was left open. On 11 August 2004 the Court of Appeal, by a majority, upheld SIAC ’ s decision ([2004] EWCA Civ 1123). On 8 December 2005 the House of Lords held unanimously that the evidence of a suspect or witness which had been obtained by torture had long been regarded as inherently unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles on which courts should administer justice. It followed that such evidence might not lawfully be admitted against a party to proceedings in a United Kingdom court, irrespective of where, by whom and on whose authority the torture had been inflicted. Since the person challenging certification had only limited access to the material advanced against him in the proceedings before SIAC, he could not be expected to do more than raise a plausible reason that material might have been so obtained and it was then for SIAC to initiate the relevant enquiries. The House of Lords therefore allowed the applicants ’ appeals and remitted each case to SIAC for reconsideration ([2005] UKHL 71). 28. SIAC ’ s conclusions as regards each applicant ’ s case are set out in paragraphs 29 - 69 below. Of the sixteen individuals, including the eleven applicants, detained under Part 4 of the 2001 Act, one had his certificate cancelled by SIAC. D. The certification proceedings: the individual determinations 1. The first applicant 29. The first applicant was born in a Palestinian refugee camp in Jordan, is stateless, and was granted indefinite leave to remain in the United Kingdom in 1997. On 17 December 2001 the first applicant was certified by the Secretary of State as a suspected international terrorist under section 21 of the 2001 Act. On 18 December 2001 a deportation order was made on the same grounds. 30. The first applicant was taken into detention on 19 December 2001. He subsequently appealed to SIAC against certification and the decision to make a deportation order. On 24 July 2002 he was transferred to Broadmoor Secure Mental Hospital. 31. The first applicant and his representatives were served with the Secretary of State ’ s “open” material, including a police report which showed that large sums of money had moved through the four bank accounts in his name. SIAC and the special advocate instructed on behalf of the first applicant were in addition presented with “closed” evidence. Assisted by an interpreter, the first applicant gave oral evidence to SIAC and called one witness to testify to his good character. He also filed four medical reports concerning his mental health. SIAC observed in its judgment of 29 October 2003: “We are acutely aware that the open material relied on against the Applicant is very general and that the case depends in the main upon assertions which are largely unsupported. The central allegation is that he has been involved in fund - raising and distribution of those funds for terrorist groups with links to al - Qaeda. It is also said that he has procured false documents and helped facilitate the movement of jihad volunteers to training camps in Afghanistan. He is said to be closely involved with senior extremists and associates of Osama Bin Laden both in the United Kingdom and overseas. His case is and always has been that he is concerned and concerned only with welfare projects, in particular a school in Afghanistan for the children of Arab speakers there and projects such as construction of wells and provision of food to communities in Afghanistan. He has also raised money for refugees from Chechnya. Any contact with so-called extremists has been in that context and he had no reason to believe they were terrorists or were interested in terrorism. We recognise the real difficulties that the Appellant has in making this appeal. We have made appropriate allowance for those difficulties and his mental problems. We note [his counsel ’ s] concerns that there has been gross oversimplification by the Security Service of the situation which is, he submits, highly complex and a tendency to assume that any devout Muslim who believed that the way of life practised by the Taliban in Afghanistan was the true way to follow must be suspect. We note, too, that initially the Respondent asserted that all the Appellant ’ s fund - raising activities were for the purpose of assisting terrorism and that it was only when evidence was produced by the Appellant to show that there were legitimate charitable objectives that he accepted that at least some money was raised for those purposes. In so far as connections with named individuals are relied on, we bear in mind that some of them, who are alleged to be involved in terrorism, have appeals pending ... and that allegations against others have not been tested nor have alleged links been able to be explained. ... [The first applicant ’ s counsel] accepted, as he had to, the unreliability of the Applicant ’ s evidence about his movements in the 1990s, but asked us not to hold it against him because of his mental state. We do not accept that we can do that. The lies were a deliberate attempt to rebut the allegation that he had been a mujahid in Afghanistan, saying that he spent three years in a Jordanian prison. There was an overstatement by the police of the amount involved through the bank account. This we accept, but there was still a substantial sum of money going through them. And [the applicant ’ s counsel] submitted that the allegation was that he had provided false documents for others not for himself. Thus his false Iraq passport was not material. It does however show an ability to obtain a false passport. [The applicant ’ s counsel] attacked the reliability of the intelligence relied on against the Appellant since it was only belatedly accepted that he had been involved in genuine charitable work and that some of the money going through his account and raised by him was for such a purpose. We recognise the danger that all activities by one who is under suspicion may be regarded as themselves suspicious and that there may not be a fair consideration of all material to see whether it truly does support the suspicion. We have considered all the material, in particular that which is closed, with that danger in mind. As we have said, the open evidence taken in isolation cannot provide the reasons why we are dismissing this appeal and we sympathise with [the first applicant ’ s counsel ’ s] concerns that he had a most difficult task. We were not impressed with the Appellant as a witness, even making all allowances for his mental state and the difficulties under which he was labouring. He was often evasive and vague and has admittedly told lies in relation to his movements in the 1990s. His explanations about some of the transactions recorded in his bank accounts we have found difficult to follow or accept. We should say that we do not consider that the Respondent ’ s case is significantly advanced by what has been said about the Appellant ’ s involvement with Algeria or Chechnya; the case depends essentially on the evidence about the Appellant ’ s dealings with Afghanistan and with terrorists known to have links with al - Qaeda. It is clear that the Appellant was a very successful fund - raiser and, more importantly, that he was able to get the money to Afghanistan. Whatever his problems, he was able to and was relied on to provide an efficient service. His explanations both of who were the well known terrorists whose children were at the school and of the various of the more substantial payments shown in the bank accounts are unsatisfactory. He was vague where, having regard to the allegations made against him, we would have expected some detail. ... We have considered all the evidence critically. The closed material confirms our view that the certification in this case was correct. There is both a reasonable belief that the Appellant ’ s presence in the United Kingdom is a risk to national security and a reasonable suspicion that he is a terrorist within the meaning of section 21 of the 2001 Act. This appeal is accordingly dismissed.” 32. In accordance with the terms of the 2001 Act, the first applicant ’ s case was reviewed by SIAC six months later. In its judgment of 2 July 2004, SIAC found that: “The updated open generic material ... continues to show that there is a direct terrorist threat to the United Kingdom from a group or groups of largely North African Islamic extremists, linked in various ways to al - Qaeda. Although some of his contacts have been detained, the range of extremists prominent in various groups was such that he would have no difficulty and retains the will and ability to add his considerable experience of logistic support to them in pursuit of the extremist Islamic agenda in the UK. The certificate is properly maintained.” 33. SIAC reviewed the case again on 15 December 2004 and again found that the certificate should be maintained. 2. The second applicant 34. The second applicant is a citizen of Morocco born on 28 February 1963. He entered the United Kingdom as a visitor in 1985 and was granted leave to remain as a student. On 21 June 1988 he was granted indefinite leave to remain on the basis of his marriage to a British citizen, which subsequently broke down. In 1990 and again in 1997 he applied for naturalisation, but no decision was made on those applications. In 2000 he remarried another British citizen, with whom he has a child. 35. On 17 December 2001 the second applicant was certified by the Secretary of State as a suspected international terrorist under section 21 of the 2001 Act. A deportation order was made on the same date. The second applicant was taken into detention on 19 December 2001. He appealed against the certification and deportation order but, nonetheless, elected to leave the United Kingdom for Morocco on 22 December 2001. He pursued his appeals from Morocco. 36. In its judgment of 29 October 2003, SIAC summarised the “open” case against the second applicant as follows: “ ... (1) he has links with both the GIA and the GSPC [Algerian terrorist groups: see paragraph 26 above] and is a close associate of a number of Islamic extremists with links to al - Qaeda and/or Bin Laden. (2) he has been concerned in the preparation and/or instigation of acts of international terrorism by procuring high-tech equipment (including communications equipment) for the GSPC and/or Islamic extremists in Chechnya led by Ibn Khattab and has also procured clothing for the latter group. (3) he has supported one or more of the GIA, the GSPC and the Ibn Khattab faction in Chechnya by his involvement in fraud perpetrated to facilitate the funding of extremists and storing and handling of propaganda videos promoting the jihad. 9. The Secretary of State ’ s open case expands on those allegations and further indicates the use of at least one alias and a pattern of association with individuals known or assessed to be involved in terrorism [five individuals were identified]. All these were described by [counsel for the Secretary of State] as ‘ known Algerian Islamic extremists ’. 10. Witness B [for the Secretary of State] confirmed that the allegation against [the second applicant] is that he is a member of a network, rather than a member of any particular organisation such as the GSPC or the GIA. ” SIAC continued by explaining the findings it had made against the applicant: “Like the other Appellants, [the second applicant] is not charged in these proceedings with a series of individual offences. The issue is whether, taking the evidence as a whole, it is reasonable to suspect him of being an international terrorist (as defined). When we look at the material before us, as we do, we treat it cumulatively. It might be that the material relating to fraud alone, or to clothing alone, or to videos alone, or to associations, would not by itself show that a person was in any way involved in terrorism or its support. But we need to assess the situation when various factors are found combined in the same person. Those factors are as follows. First is his involvement in acts of fraud, of which he must be aware but of which he seeks to provide no explanation, excusing himself apparently on the ground that he is not aware which particular act or acts the Secretary of State has in mind. Secondly, he has been involved in raising consciousness (and hence in raising money) about the struggle in Chechnya, and has been doing so in a specifically Islamic (rather than a merely humanitarian) context, using and distributing films which, according to the evidence before us, tend to be found in extremist communities. In the generic evidence, we have dealt with the Chechen Arab Mujahaddin and the significance of support for it which we accepted is given in full knowledge of its wider jihadist agenda. ... [He] has done so as a close associate of Abu Doha. Given the information we have about Abu Doha which, as we have said, we have no reason to doubt, we regard [the second applicant ’ s] claim that Abu Doha was doing nothing illegal (save that he was hiding his activities from the Russians) as entirely implausible. ... [He] has had associations with a number of other individuals involved in terrorism. They are for the most part specified by name in the open case but are not mentioned in his own statement. ... These are the five features which meet in [the second applicant]. No doubt the Secretary of State could have made his case by demonstrating various combinations of them in a single person. With all five, we regard the case as compelling. We are entirely satisfied that the Secretary of State is reasonable in his suspicion that [the second applicant] supports or assists the GIA, the GSPC, and the looser group based around Abu Doha, and in his belief that at any time [the second applicant] is in the United Kingdom his presence here is a risk to national security.” 3. The third applicant 37. The third applicant is of Tunisian nationality, born in 1963 and resident in the United Kingdom from about 1994. He was certified by the Secretary of State on 18 December 2001 and detained the following day. 38. In its judgment of 29 October 2003, dismissing the third applicant ’ s appeal against certification, SIAC observed: “The case against the Appellant, as framed in the open material, is that he is a key member of an extreme Islamist group known as the Tunisia Fighting Group (TFG). It is said that this group was formed during 2000 and had its origins in the Tunisian Islamic Front (known as the FIT since the name is in French). Its ultimate aim is said to be to establish an Islamic State in Tunisia. It is further asserted that the Appellant has been in regular contact with a number of known extremists including some who have been involved in terrorist activities or planning. Both the FIT and the TFG are said to have links with al - Qaeda. The open material deployed against the Appellant is not at all substantial. The evidence which is relied on against him is largely to be found in the closed material. This has meant that he has been at a real disadvantage in dealing with the case because he is not aware of those with whom he is alleged to have been in contact. ... In his statement the Appellant says that he has never heard of the TFG and is certainly not a member of it. ... We have no doubts that the TFG exists ... [and] also that it has links to al - Qaeda. Our reasons for so concluding must be given in the closed judgment. In May 1998 the Appellant and some ten others were arrested in a joint Special Branch and Security Service operation pursuant to warrants under the Prevention of Terrorism Act. The Appellant was released without charge and in due course received £18,500 compensation for wrongful arrest. The arrests were in connection with allegations of involvement in a plot to target the World Cup in France. We of course give weight to the absence of any admissible evidence to support the Appellant ’ s involvement in the alleged conspiracy, but it is not and cannot be the answer to this appeal. We have to consider all the material to see whether there are reasonable grounds for a belief or suspicion of the kind referred to in section 21(a) or (b) of the 2001 Act. ... We are satisfied that the Appellant is a member of the TFG, itself an international terrorist organisation within the scope of the 2001 Act, and that he has links with an international terrorist group. We appreciate that our open reasons for being so satisfied are sparse. That is because the material which drives us to that conclusion is mainly closed. We have considered it carefully and in the context of knowing the Appellant denies any involvement in terrorism or any knowing support for or assistance to terrorists. We have therefore been careful only to rely on material which cannot in our judgment have an innocent explanation.” 39. SIAC reached similar conclusions in its periodic reviews of the case on 2 July and on 15 December 2004. 4. The fourth applicant 40. The fourth applicant was born in Algeria in 1971 and first entered the United Kingdom in 1994. In May 1997 he was arrested and charged with a number of offences, including a conspiracy to export to Algeria material which it was alleged was to be used for the purposes of terrorism. It was alleged that he was a member of GIA. The case against the applicant was abandoned in March 2000 when a key witness, a Security Service agent, who was to give evidence concerning the need for civilians to defend themselves against atrocities allegedly committed by the Algerian government, decided that it was too dangerous for him to give evidence. 41. In 1998 the fourth applicant married a French national. He became a French citizen in May 2001, although he did not inform the United Kingdom authorities of this. The Secretary of State certified him under section 21 of the 2001 Act on 17 December 2001 and he was detained on 19 December 2001. On 13 March 2002 he left for France, where he was interviewed on arrival by security officials and then set at liberty. Since he had left the United Kingdom, the certificate against him was revoked and the revocation was backdated to 22 March 2002. 42. In its judgment of 29 October 2003, SIAC held that the backdating of the revocation meant that the fourth applicant could not be regarded as having been certified at the time he lodged his appeal and that, therefore, he had no right of appeal. It nonetheless decided to consider the appeal on the basis that this conclusion might be wrong. Since the Secretary of State could not reasonably have known at the time the certificate was issued that the applicant was a French citizen and could safely be removed to France, it could not be said on that ground that the certificate should not have been issued. SIAC therefore continued by assessing the evidence against him: “In reaching our decision, we will have to consider not only the open but also the closed material. The Appellant appears to have suspected that he was the subject of surveillance over much of the relevant period. We are conscious of the need to be very careful not to assume guilt from association. There must be more than friendship or consorting with those who are believed to be involved in international terrorism to justify a reasonable suspicion that the Appellant is himself involved in those activities or is at least knowingly supporting or assisting them. We bear in mind [his solicitor ’ s] concerns that what has happened here is an attempt to resurrect the prosecution with nothing to add from his activities since. Detention must be regarded as a last resort and so cannot be justified on the basis of association alone and in any event the guilt of the associates has never been established. ... Nonetheless, continued association with those who are suspected of being involved in international terrorism with links to al - Qaeda in the light of the reasonable suspicion that the Appellant was himself actively involved in terrorist activities for the GIA is a matter which can properly be taken into account. The GSPC, which broke away from the GIA, has links to al - Qaeda and the Appellant has continued to associate with those who took to the GSPC rather than the GIA. We are in fact satisfied that not only was the Appellant actively involved initially with the GIA and then with the GSPC but also that he provided false documentation for their members and for the Mujahaddin in Chechnya as is alleged in the open statement. But we accept that his activities in 2000 and 2001 justify the use of the expression that he had been maintaining a low profile, and we make that observation having regard to both open and closed material. Nonetheless, a low profile does not mean that he is not properly to be regarded as an international terrorist within the meaning of section 21. An assessment has to be made of what he may do in the light of what he has done and the fact that he has shown willingness and the ability to give assistance and support in the past and continues the associations and to provide some help (e.g. the use of his van) is highly relevant. We have not found this aspect of the Appellant ’ s case at all easy. We have given full weight to all [his solicitor ’ s] submissions which were so persuasively put before us but in the end have reached the view that, looking at the evidence as a whole, the decision to issue a certificate was not wrong. Accordingly, we would not have allowed the appeal on the facts.” 5. The fifth applicant 43. The fifth applicant was born in Algeria in 1969. In his statement to SIAC he claimed to have developed polio as a child which left him with a permanently weak and paralysed right leg. He was arrested and tortured by the Algerian government in 1991, whereupon he left Algeria for Saudi Arabia. In 1992 he moved to Pakistan and travelled to Afghanistan on several occasions. In August 1995 he entered the United Kingdom and claimed asylum, alleging in the course of that claim that his leg had been injured by a shell in Afghanistan in 1994. His asylum claim was refused and his appeal against the refusal was dismissed in December 1999. The applicant married a French citizen and had a child with her. 44. He was certified by the Secretary of State under section 21 of the 2001 Act on 17 December 2001 and detained on 19 December 2001. In its judgment of 29 October 2003, dismissing the fifth applicant ’ s appeal against certification, SIAC observed: “The open statements provided to justify the certification do not refer to a great deal of source material and so consist mainly of assertions. As with most of these appeals, the main part of the evidence lies in closed material and so, as we are well aware, the Appellants have been at a disadvantage in that they have not been able to deal with what might be taken to be incriminating evidence. The Special Advocates have been able to challenge certain matters and sometimes to good effect. That indeed was the case in relation to a camp in Dorset attended by a number of those, including the Appellant, of interest to the Security Service. ... The case against the Appellant is that he was a member of the GIA and, since its split from the GIA, of the GSPC. He is associated with a number of leading extremists, some of whom are also members of or associated with the GSPC, and has provided active support in the form of the supply of false documents and facilitating young Muslims from the United Kingdom to travel to Afghanistan to train for jihad. He is regarded as having undertaken an important role in the support activities undertaken on behalf of the GSPC and other Islamic extremists in the United Kingdom and outside it. All this the Appellant denies and in his statement he gives innocent explanations for the associations alleged against him. He was indeed friendly with in particular other Algerians in the United Kingdom and, so far as [the fourth applicant] was concerned, the families were close because, apart from anything else, their respective wives were French. He attended [the eighth applicant ’ s] mosque. He was an impressive preacher and the Appellant says he listened but was never involved. Indeed he did not know [the eighth applicant] except through Chechen relief, which the Appellant and many hundreds of other Muslims supported, and he had never spoken to him on the telephone. He had on occasions approached [the eighth applicant] at Friday prayers at the mosque if he wanted guidance on some social problem.” SIAC referred to “open” surveillance reports which showed the applicant to have been in contact with other alleged members of GIA and GSPC, including at a camp in Dorset in July 1999. Further “open” evidence concerned his “unhelpful” and “not altogether truthful” responses to questioning by officers of the Security Service in July and September 2001. SIAC continued: “Reliance is placed on various articles found in his house when he was arrested. These include a copy of the fatwa issued by Bin Laden. The Appellant says he had never seen it and could not explain its presence. A GSPC communiqué was, he says, probably one handed out at the mosque. Analysis of the hard drive of his computer showed it had visited an Internet site that specialised in United States military technology. This was not something which could be relevant to the Appellant ’ s studies. And a hand - drawn diagram of a missile rocket he has not seen before. It might, he thinks, have been in a book about Islam he had bought second hand from the mosque. We note the denials, but we have to consider all the evidence. As will be clear from this judgment, we have reason to doubt some of the Appellant ’ s assertions. But the closed material confirms our view that there is indeed reasonable suspicion that the Appellant is an international terrorist within the meaning of section 21 and reasonable belief that his presence in the United Kingdom is a risk to national security. We have no doubt that he has been involved in the production of false documentation, has facilitated young Muslims to travel to Afghanistan to train for jihad and has actively assisted terrorists who have links with al - Qaeda. We are satisfied too that he has actively assisted the GSPC. We have no hesitation in dismissing his appeal.” 45. On 22 April 2004, because of concerns about his health, the fifth applicant was released from prison on bail on strict conditions, which amounted to house arrest with further controls. In its review judgment of 2 July 2004, SIAC held: “. .. in granting bail, [SIAC] did not revise its view as to the strength of the grounds for believing he was an international terrorist and a threat to national security. The threat could be managed proportionately in his case in view of his severe mental illness. That however is no reason to cancel the certificate. There might be circumstances in which he breaches the terms of his bail or for other reasons it was necessary to revoke it. The need for the certificate to continue must depend on whether the terms of the statute and of the derogation continue to be met. A number of his contacts remain at large including some who are regarded as actively involved in terrorist planning. There is nothing to suggest that his mental illness has diminished his commitment to the extremist Islamic cause; he has the experience and capacity to involve himself once more in extremist activity. The bail restraints on him are essential; those are imposed pursuant to his certification and the SIAC dismissal of his appeal against it. The certificate is properly maintained.” 46. On 15 December 2004, SIAC again reviewed the case and decided that the certificate should be maintained. 6. The sixth applicant 47. The sixth applicant was born in Algeria in 1967 and was resident in the United Kingdom from 1989. The Secretary of State issued a certificate against him on 17 December 2001 and he was taken into detention on 19 December 2001. 48. In its judgment of 29 October 2003, SIAC observed as follows: “Although we have to make our decision on the basis both of the open and of the closed material, it is important to indicate the case against [the sixth applicant] as it has been set out by the Secretary of State in open material, because that is the case that [the sixth applicant] knows that he has to meet. In assessing his statement and the other evidence and arguments submitted on his behalf, we remind ourselves always that he is not aware of the Secretary of State ’ s closed material, but nevertheless that he is not operating entirely in a vacuum because of the open allegations; and we may test the Appellant ’ s own case by the way he deals with those allegations. The Secretary of State ’ s case against [the sixth applicant] is summarised as follows: (1) he belongs to and/or is a member of the GSPC, and previously was involved with the GIA; (2) he has supported and assisted the GSPC (and previously the GIA) through his involvement in credit card fraud which is a main source of income in the United Kingdom for the GSPC; (3) from about August 2000, [the sixth applicant] took on an important role in procuring telecommunications equipment for the GSPC and the provision of logistical support for satellite phones by way of purchase and allocation of airtimes for those phones; (4) he has also played an important part in procuring telecommunications equipment and other equipment for the Mujahaddin fighting in Chechnya – that is to say the faction which until 2002 was under the command of Ibn Khattab. ” SIAC then reviewed the open evidence before it regarding the purchase by Abu Doha, assisted by the sixth and seventh applicants, of a number of satellite telephones and other telecommunications equipment to the value of 229,265 pounds sterling and the nature and extent of the connection between the sixth and seventh applicants. It concluded: “In the circumstances we have set out, it appears to us that the Secretary of State has ample ground for suspicion that [the sixth applicant ’ s] procurement activities were directed to the support of the extremist Arab Islamist faction fighting in Chechnya. That support arises from [the sixth applicant ’ s] connections with and support of the GSPC. We emphasise, as is the case with other appeals as well, that it is the accumulation of factors, each lending support to the others rather than undermining other points, providing colour and context for the activities seen as a whole which is persuasive; it would be wrong to take a piece in isolation, thereby to diminish its significance and to miss the larger picture. The generic judgment supports these conclusions. These are activities falling centrally within the derogation. [The sixth applicant] has provided only implausible denials and has failed to offer credible alternative explanations. That is sufficient to determine his appeal, without making any further reference to the Secretary of State ’ s other allegations which, as was acknowledged in the open statement and in open evidence before [SIAC], can be properly sustained only by examination of the closed material.” 49. SIAC reviewed the case on 2 July 2004 and on 28 February 2005 and, on each occasion, decided that there were still grounds for maintaining the certificate. 7. The seventh applicant 50. The seventh applicant was born in Algeria in 1971 and apparently entered the United Kingdom using false French identity papers in or before 1994. On 7 December 2001 he was convicted of a number of driving offences and sentenced to four months ’ imprisonment. He was certified by the Secretary of State on 5 February 2002 and taken into detention pursuant to the certificate as soon as his prison sentence ended on 9 February 2002. 51. In its judgment of 29 October 2003, SIAC noted that the allegations against the seventh applicant were that he had been a member of GSPC since 1997 or 1998, and before that a member of GIA; that his contacts with leading GSPC members in the United Kingdom showed that he was a trusted member of the organisation; and that he had been involved with Abu Doha and the sixth applicant in purchasing telecommunications equipment for use by extremists in Chechnya and Algeria. It further noted that: “[The seventh applicant] did not give evidence before [SIAC] and, indeed, chose not to attend the hearing of his appeal. His statement, which we have of course read, is in the most general terms, and, perhaps not surprisingly, [his counsel ’ s] submissions, both oral and written, were similarly general. [The seventh applicant ’ s] approach to the present proceedings of themselves and the fact that he did not give oral evidence or make any detailed written statement are not matters to be put in the scale against him. We well understand the difficulty that Appellants have in circumstances where the allegations against them are only summarised and where much of the evidence on which those allegations are based cannot, for reasons of national security, be communicated to the Appellants themselves. However, [the seventh applicant] is in the best position to know what his activities and motives have been in the relevant period. Nothing prevents him from giving a full description and account of those activities if he wishes to do so. The fact that he has chosen to provide no detailed account of his activities means that he has provided no material to counter the evidence and arguments of others. ” SIAC concluded that the open and closed material supported the allegations against the seventh applicant and it dismissed his appeal. 52. In its review judgments of 2 July and 15 December 2004, SIAC decided that the certificate should be maintained. 8. The eighth applicant 53. The eighth applicant is a Jordanian national, born in Bethlehem in 1960. He arrived in the United Kingdom on 16 September 1993 and claimed asylum. He was recognised as a refugee and granted leave to remain until 30 June 1998. On 8 May 1998 he applied for indefinite leave to remain but the application had not been determined at the time of the coming into force of the 2001 Act. 54. The eighth applicant was convicted in absentia in Jordan for his involvement in terrorist attacks there and in relation to a plot to plant bombs to coincide with the millennium. He was investigated in February 2001 by anti-terrorism police officers in connection with a plot to cause explosions at the Strasbourg Christmas Market in December 2000, but no charges were brought against him. When the 2001 Act was passed he went into hiding. He was arrested on 23 October 2002 and was immediately made the subject of a section 21 certificate and taken into detention. On the same date, a deportation order was made against him. 55. In its judgment of 8 March 2004, dismissing the eighth applicant ’ s appeal against certification, SIAC observed as follows: “[The eighth applicant ’ s counsel], on instructions from the Appellant, informed us that his client had chosen not to attend the hearing or to participate in any way. He had read the decisions relating to the Appellants who had been certified when the 2001 Act came into force and the generic judgment and so felt certain that the result of his appeal was a foregone conclusion. There had been many references to his role in the other appeals and some had been certified and detained, at least in part, on the basis that they associated with him. Since that association was regarded as sufficient to justify their continued detention, he considered that the decision on his appeal had, in effect, already been taken. He had chosen not to play any part precisely because he has no faith in the ability of the system to get at the truth. He considered that the SIAC procedure had deliberately been established to avoid open and public scrutiny of the respondent ’ s case, which deprived individuals of a fair opportunity to challenge the case against them. Having said that, [the eighth applicant ’ s counsel] made it clear that the appeal was not being withdrawn. It was accordingly necessary for us to consider it and to take into account the statement made by the Appellant. [His counsel] emphasised a number of matters which, he suggested, should be regarded as favourable to the Appellant ’ s contention that he was not and never had been involved in terrorism within the meaning of the 2001 Act. Furthermore, the allegations showed that a distorted and over-simplified view was being taken by the security services of the Appellant ’ s activities and his role as a respected teacher and believer in the rights of Islamic communication throughout the world. We should make it clear that we have considered the case against the Appellant on its merits. We have not been influenced by any findings made in other appeals or the generic judgments. One of the reasons why this judgment has taken a long time to be prepared was the need for us to read through and consider the evidence, both open and closed, that has been put before us. There is much more of it than in most of the other appeals. That is a reflection of the fact that the Appellant has been associated with and had dealings with many of the others who have been certified and with individuals and groups themselves linked to al - Qaeda. We see no reason to dissent from the views expressed in the generic judgment of the significance of the various individuals and groups referred to in it. But that does not mean we have therefore automatically accepted its views. We draw attention to the fact that the panel which produced the generic judgment was not the same constitution as this panel and that such input as there was by the chairman of this panel to the generic judgment was limited to issues of law. We have considered the case against the Appellant on the material put before us in this appeal. ... When it came to the closed session, the Special Advocates informed us that after careful consideration they had decided that it would not be in the Appellant ’ s interests for them to take any part in the proceedings. We were very concerned at this, taking the view that the decision was wrong. The appeal was still being pursued and the Appellant did not know what was relied on against him in the closed material. We were unable to understand how in the circumstances it could not be in his interests for the Special Advocates, at their discretion, to elicit or identify matters favourable to the Appellant and to make submissions to us to seek to persuade us that evidence was in fact unreliable or did not justify the assessment made. When we asked [one of the two Special Advocates appointed on behalf of the eighth applicant] to tell us why he had decided as he had he told us that he could not do so since to do so would not be in the Appellant ’ s interest. We adjourned to enable the Special Advocates to seek to discover from the Appellant through his representatives whether he did wish them to do what they could on his behalf and we also contacted the Solicitor - General who had appointed the Special Advocates to seek her help in trying to persuade them to assist us. The Appellant ’ s representatives indicated that they had nothing to say on the subject and the Solicitor - General took the view that it would be wrong for her to intervene in any way. Our further attempts to persuade the Special Advocates to change their minds were unsuccessful and since we could not compel them to act in any particular way we had to proceed without them. [Counsel for the Secretary of State], at our request, identified various matters which might be regarded as possibly exculpatory and we ourselves raised other matters in the course of the closed hearing. We are conscious that the absence of a Special Advocate makes our task even more difficult than it normally is and that the potential unfairness to the Appellant is the more apparent. We do not doubt that the Special Advocates believed they had good reasons for adopting the stance that they did and we are equally sure that they thought long and hard about whether they were doing the right thing. But we are bound to record our clear view that they were wrong and that there could be no reason for not continuing to take part in an appeal that was still being pursued. ... As it happens, the evidence in this case against the Appellant is so strong that no Special Advocates, however brilliant, could have persuaded us that reasonable suspicion had not been established so that the certification was not justified. Thus the absence of Special Advocates has not prejudiced the Appellant. ... ” 56. SIAC then summarised the open case against the applicant, which was that he had associated with and acted as spiritual adviser to a number of individuals and groups linked with al - Qaeda. He held extreme and fundamentalist views and had been reported as having, in his speeches at a London mosque, given his blessing to the killing of Jews and Americans, wherever they were. SIAC concluded: “We are satisfied that the Appellant ’ s activities went far beyond the mere giving of advice. He has certainly given the support of the Koran to those who wish to further the aims of al - Qaeda and to engage in suicide bombing and other murderous activities. The evidence is sufficient to show that he has been concerned in the instigation of acts of international terrorism. But spiritual advice given in the knowledge of the purposes for which and the uses to which it is to be put provides assistance within the meaning of section 21(4) of the 2001 Act. ... There are a large number of allegations made. We see no point in dealing with them seriatim. We have indicated why we have formed the view that the case made against the Appellant is established. Indeed, were the standard higher than reasonable suspicion, we would have had no doubt that it was established. The Appellant was heavily involved, indeed was at the centre in the United Kingdom of terrorist activities associated with al - Qaeda. He is a truly dangerous individual and these appeals are dismissed.” 9. The ninth applicant 57. The ninth applicant is Algerian, born in 1972. In 1991 he left Algeria for Afghanistan, where he taught Arabic in a refugee camp. He claimed asylum in the United Kingdom in 1993. In 1994 he was granted leave to remain for four years and in 2000 he was granted indefinite leave to remain, on the basis that he was to be regarded as a refugee. On four occasions, the last in May 1998, the applicant was arrested and released without charge. The first three arrests related to credit card fraud. The arrest in May 1998 related to alleged terrorist activities and the applicant was subsequently paid compensation by the police for false arrest. 58. The ninth applicant was certified by the Secretary of State and made the subject of a deportation order on 22 April 2002. He was detained on the same day. According to the evidence of one of the witnesses for the Secretary of State, he was not certified, with the other applicants, in December 2001 because one of his files had been lost. 59. In its judgment of 29 October 2003, SIAC noted that the allegations against the ninth applicant were that he was an active supporter of GSPC and had raised considerable sums of money for it through fraud. There was evidence that the applicant had in the past been found, by customs officers, attempting to enter the United Kingdom by ferry with large amounts of cash and that he had close links with others who had been convicted of credit card fraud. SIAC held that evidence of involvement in fraud did not establish involvement in terrorism. However, it noted that the applicant had been present at a camp in Dorset in the company of the fifth applicant and a number of others suspected of being GSPC supporters and that a telephone bill had been found at his house at the time of his arrest in the name of Yarkas, who had been arrested in Spain in November 2001 due to his alleged links with al - Qaeda. The applicant had given evidence but had not been a convincing witness and had not given a credible explanation for the foregoing. The closed evidence supported the Secretary of State ’ s allegations and SIAC therefore dismissed the applicant ’ s appeal against certification. 60. In its review judgments of 2 July 2004 and 15 December 2004, SIAC held that the certificate was properly maintained. 10. The tenth applicant 61. The tenth applicant is an Algerian national. Following a bomb explosion in Algeria, his left hand was amputated at the wrist and his right arm was amputated below the elbow. In 1999 he travelled to the United Kingdom, via Abu Dhabi and Afghanistan, and claimed asylum. His claim was refused on 27 February 2001. He was then in custody, having been arrested on 15 February 2001 and charged with possession of articles for suspected terrorist purposes, conspiracy to defraud and conspiracy to make false instruments. At the time of his arrest he was found to have in his possession approximately forty blank French driving licences, identity cards and passports, a credit card reader, laminators and an embossing machine. The charges were not, however, proceeded with and he was released on 17 May 2001. 62. On 14 January 2003 the Secretary of State issued a certificate against him under section 21 of the 2001 Act and he was taken into detention. A deportation order was made against him on the same day. 63. In its judgment of 27 January 2004, SIAC noted that the essence of the case against the tenth applicant was that since his arrival in the United Kingdom he had been closely associated with a network of extremists formerly led by Abu Doha (see paragraph 26 above). In particular, it was alleged that he had provided logistical support in the form of false documentation and money raised through credit card fraud. He had spent a lot of time at the Finsbury Park Mosque, a known centre of Islamist extremism, and was alleged to have attended a meeting there in June 2001 at which threats were made against the G8 summit in Genoa. The applicant submitted a written statement on 28 June 2003 in which he denied the allegations against him. He did not, however, participate in the hearing of his appeal, as SIAC explained in its judgment: “He was, said [his counsel], a genuine refugee, a member of no organisation or group and not involved in terrorism or in advocating terrorism. He had no knowledge of any planned terrorist attacks and could not understand why the accusations had been made against him. He had seen none of the underlying material and had no means of challenging it. In effect, he could do no more than assert that it could not justify the conclusion that he was an international terrorist within the meaning of the Act since he was not. He had had read to him the decisions of [SIAC] in the previous appeals. Given the relevance which was placed on the closed material and the statutory test applicable, he felt that the result was a foregone conclusion. He did not wish in participating in the appeal to give an impression which was false that he could deal with the matters which were being relied on against him. He had no confidence in the proceedings. Accordingly he would take no active part in them beyond the statement which [his counsel] made on his behalf. He did not withdraw his appeal. While we appreciate the handicap under which he and indeed all the Appellants labour, we wish to make it clear that no appeal is a foregone conclusion. We have to and we do consider the evidence put before us, whether open or closed, with care because we recognise that the result is detention for an unspecified period without trial. While we recognise that the Special Advocate has a difficult task when he has and can obtain no instructions on closed material, he is able to test evidence from the Security Service and to draw our attention to material which assists the Appellant ’ s case.” SIAC found that there was ample evidence to support the view that the applicant was involved in fraudulent activities. The evidence before it, most of it closed, was sufficient to establish that he was doing it to raise money for terrorist causes and to support those involved in terrorism. It therefore dismissed the appeal against certification. 64. SIAC reached similar decisions in its review judgments of 4 August 2004 and 16 February 2005. In the latter judgment, it noted that although the applicant had been transferred to Broadmoor Secure Mental Hospital because of mental health problems, that made no difference to the assessment of the risk to national security which he would pose if released. 11. The eleventh applicant 65. The eleventh applicant is an Algerian national. He entered the United Kingdom in February 1998, using a false Italian identity card, and claimed asylum the following week. While his claim was pending, in July 2001, he travelled to Georgia using a false French passport and was deported back to the United Kingdom, where he was informed that his travel outside the United Kingdom had terminated his asylum claim. He made a second claim for asylum, which was refused on 21 August 2001. The applicant absconded. He was arrested on 10 October 2001 and held in an immigration detention centre, from which he absconded in February 2002. He was rearrested on 19 September 2002 and detained at Belmarsh Prison under immigration law provisions. 66. On 2 October 2003 the Secretary of State certified him as an international terrorist under section 21 of the 2001 Act and made a deportation order against him on grounds of national security. 67. In its judgment of 12 July 2004, dismissing the eleventh applicant ’ s appeal against certification, SIAC set out the open case against him. It was alleged that he was an established and senior member of the Abu Doha group (see paragraph 26 above). In July 2001 he had attempted to travel to Chechnya and, when arrested by the Georgian police, he had been found in possession of telephone numbers associated with a senior member of the Abu Doha group and a named member of GSPC, who was known to be involved in fund - raising for the Chechen Mujahaddin. He was alleged to have provided money and logistical support to a North African extremist Islamist network based in Pakistan and Afghanistan, with links to al - Qaeda, and to have assisted members of the Abu Doha group in travelling to Afghanistan, Pakistan and Chechnya. He had lived at the Finsbury Park Mosque for over a year in 1999/2000. He was very security - conscious and during a trip to St Albans in September 2001 he had taken measures to avoid being followed. When he was arrested in September 2002 he was found in possession of a false Belgian passport bearing the photograph of a senior member of the Abu Doha group. He was alleged to have been heavily involved in the supply of false documents and the fraudulent use of cheque books and credit cards. 68. The applicant filed a written statement in which he denied being an international terrorist. He admitted that he had travelled to Afghanistan in 1999 and that he had attempted to go to Chechnya in 2001, but claimed that his interest in these countries was no more than that shown by many devout Muslims. He refused to participate in the hearing of his appeal or to be represented by a lawyer, in protest at the fundamental unfairness of the procedure. In view of the applicant ’ s position, the special advocates decided that his interests would best be served if they refrained from making submissions on his behalf or asking questions of the witnesses in the closed session. 69. In dismissing the applicant ’ s appeal, SIAC held as follows: “We recognise the difficulties faced by an Appellant who only sees only the open material and can understand [the eleventh applicant ’ s] perception that the procedures are unfair. However, each case will turn upon its own individual facts, and it would be wrong to give the impression, which [his solicitor] sought to do, that this particular Appellant had been placed in a position where he was prevented by reason of the procedures under the Act from mounting an effective defence in response to the case made against him. We have summarised the information made available to [the eleventh applicant] at the various stages of the procedure ... and [ his ] response to this information in his written statement. While some of the assessments in the open material can fairly be described as general assertions unsupported by any documentary evidence, in response to which [the eleventh applicant] would not have been able to give any more than an equally general denial, it is clear that in respect of other assessments [ he ] was provided with a great deal of detailed information: names, dates, places and supporting documents. [The eleventh applicant] is in the best position to give an account of his whereabouts and activities since he first claimed asylum in 1998. His written statement is significant not so much for what it says, as for what it does not say. To take one example: the visit to St Albans and the photo-booth where [the eleventh applicant] says that the Respondent ’ s specific assertion is ‘ completely wrong ’ ... [The eleventh applicant] has not denied that he went to St Albans. He knows who accompanied him and why they went there. He has not explained why they went there, nor has he identified his companion, despite having been provided with the photographs taken during the surveillance operation. ... ” SIAC continued by noting the inconsistencies in the applicant ’ s various accounts of his trips to Afghanistan, Georgia and Dubai and his failure to deal with the Secretary of State ’ s allegations that he had associated with various members of the Abu Doha group, identified by name. SIAC continued: “The matters referred to ... are not an exhaustive list, merely the most obvious examples of the way in which [the eleventh applicant ’ s] written statement fails to deal with the open case made against him. Given the unsatisfactory nature of the statement we do not feel able to give any significant weight to the general denials contained within it ... We have dealt with these matters in some detail because they are useful illustrations of the extent to which [the eleventh applicant] would have been able to answer the case against him, if he had chosen to do so. While we do not draw any adverse inference from [ his ] failure to give evidence, or otherwise participate in the hearing of his appeal, we do have to determine his appeal on the evidence and we are left with the position that there has been no effective challenge by way of evidence, cross-examination or submission to the open material produced by the Respondent. ... The standard of proof prescribed by section 25(2) of the 2001 Act is relatively low: are there reasonable grounds for belief or suspicion. As explained above, we are satisfied that this low threshold is easily crossed on the basis of the open material alone. If the totality of the material, both open and closed, is considered, we have no doubt that [the eleventh applicant] was a senior, and active, member of the Abu Doha group as described in the Respondent ’ s evidence.” E. The conditions of detention and the effect of detention on the applicants ’ health 70. The detained applicants were all initially detained at Belmarsh Prison in London. The sixth applicant was transferred to Woodhill Prison and the first, seventh and tenth applicants were transferred to Broadmoor Secure Mental Hospital. 71. They were held in prison under the same regime as other standard - risk Category A prisoners, which was considered the appropriate security classification on the basis of the risk they posed. They were allowed visitors, once those visitors had been security - cleared, and could associate with other prisoners, make telephone calls and write and receive letters. They had access to an imam and to their legal representatives. They had the same level of access to health care, exercise, education and work as any other prisoner of their security ranking. Following a recommendation of the inspector appointed under the 2001 Act to review the detention regime, the Government created a Special Unit at Woodhill Prison to house the 2001 Act detainees. The Unit, which was refurbished in consultation with the detained applicants and their representatives and had a specially selected and trained staff, would have allowed for a more relaxed regime, including more out-of-cell time. The applicants, however, chose not to move to the Unit, a decision which the inspector found regrettable. 72. The first applicant, who alleged a history of ill-treatment in Israeli detention and who had first been treated for depression in May 1999, suffered a severe deterioration in his mental health while detained in Belmarsh Prison. He was transferred to Broadmoor Secure Mental Hospital in July 2002. 73. The seventh applicant reported a family history of psychiatric disorder and had experienced depression as an adolescent. He claimed to suffer increasingly throughout his detention from depression, paranoia and auditory hallucinations. He attempted suicide in May 2004 and was transferred to Broadmoor Secure Mental Hospital on 17 November 2004. 74. The tenth applicant, a double amputee, claimed to have been detained and tortured in Algeria. He suffered a deterioration in his physical and mental health in Belmarsh Prison. He went on hunger strike in May/June 2003 and refused to use the prostheses which had been issued to him or to cooperate with his nurses. Early in November 2003, the prison authorities withdrew his nursing care. His legal representatives applied for judicial review of this decision and in December 2003 nursing care was resumed following the order of the Administrative Court. On 1 November 2004 the tenth applicant was transferred to Broadmoor Secure Mental Hospital. 75. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the detained applicants in February 2002 and again in March 2004, and made a number of criticisms of the conditions in which the detained applicants were held. The Government rejected these criticisms (see paragraphs 101 - 02 below). 76. In October 2004, at the request of the applicants ’ legal representatives, a group of eight consultant psychiatrists prepared a Joint Psychiatric Report on the detained applicants, which concluded: “The detainees originate from countries where mental illness is highly stigmatised. In addition, for devout Muslims there is a direct prohibition against suicide. This is particularly significant given the number who have attempted or are considering suicide. All of the detainees have serious mental health problems which are the direct result of, or are seriously exacerbated by, the indefinite nature of the detention. The mental health problems predominantly take the form of major depressive disorder and anxiety. A number of detainees have developed psychotic symptoms, as they have deteriorated. Some detainees are also experiencing PTSD [post-traumatic stress disorder] either as a result of their pre-migration trauma, the circumstances around their arrest and imprisonment or the interaction between the two. Continued deterioration in their mental health is affected also by the nature of, and their mistrust in, the prison regime and the appeals process as well as the underlying and central factor of the indefinite nature of detention. The prison health -care system is unable to meet their health needs adequately. There is a failure to perceive self - harm and distressed behaviour as part of the clinical condition rather than merely being seen as manipulation. There is inadequate provision for complex physical health problems. Their mental health problems are unlikely to resolve while they are maintained in their current situation and given the evidence of repeated interviews it is highly likely that they will continue to deteriorate while in detention. The problems described by the detainees are remarkably similar to the problems identified in the literature examining the impact of immigration detention. This literature describes very high levels of depression and anxiety and eloquently makes the point that the length of time in detention relates directly to the severity of symptoms and that it is detention per se which is causing these problems to deteriorate.” 77. For the purposes of the present proceedings, the Government requested a Consultant Psychiatrist, Dr J., to comment on the above Joint Psychiatric Report. Dr J. was critical of the methodology and conclusions of the authors of the Joint Report. In particular, he wrote (references to other reports omitted): “I would comment that I find many of the assertions made do not bear close inspection. For example in the case of [the first applicant] it was my finding after a careful and detailed assessment that his mental state after imprisonment and then detention in Broadmoor Hospital was, overall, no worse and arguably no better than it had been before he was arrested. Nor do his records suggest initial improvement followed by deterioration in Broadmoor Hospital. I found he deteriorated in HMP Belmarsh [Prison] because he chose to go on hunger strike and that he had a fluctuating course in Broadmoor Hospital despite agreeing to eat, his histrionic behaviour in both places being essentially the same. In his case I found the diagnosis to be one of personality disorder, diagnoses of major depressive disorder, psychosis and PTSD not being sustainable. Moreover, it was my finding that his frequent self-harming was indeed manipulative. ... I am not alone in finding the diagnoses claimed by the authors of this report to be mistaken and have drawn attention in my own report to the scepticism of some others who have reported on [the first and seventh applicants]. It is not the case therefore that there is the consensus of opinion claimed in the report and I note that in both the cases I assessed [the first and seventh applicants], their so-called psychotic symptoms claimed by some reporters and said not to be present before they were detained, were in fact present before they were arrested. An issue I find to be of the greatest concern relates to the tacit acceptance of information gained by self-report. It appears to be accepted by the authors of the report, for example, that three of the detainees had been the victims of detention and torture and all felt themselves seriously threatened prior to migration. Nowhere have I seen any evidence to corroborate these claims or indeed any attempt to check them. As it is the case that immigrants and asylum-seekers need to justify their attempts to gain entry to another country, is it not possible or even probable that some may not always be entirely truthful in what they claim about their past experiences or their current symptoms? Where alleged terrorists are concerned it should be borne in mind that they have denied such allegations in spite of the open and closed evidence against them, which has been considered at the highest level. Surely this should raise doubts about their truthfulness?” F. The release of the fifth applicant on bail 78. On 20 January 2004, SIAC decided that it should, in principle, grant bail to the fifth applicant. The Secretary of State attempted to appeal against this decision but was informed by the Court of Appeal in an interim decision dated 12 February 2004 that it had no jurisdiction to entertain an appeal. 79. SIAC explained its reasons for granting bail in greater detail in a judgment dated 22 April 2004. It held that under the 2001 Act it had a power to grant bail only in an exceptional case, where it was satisfied that if bail were not granted the detainee ’ s mental or physical condition would deteriorate to such an extent as to render his continued detention a breach of Article 3 of the Convention on grounds of inhumanity, or Article 8 on grounds of disproportionality. 80. SIAC noted that there had been concerns about the fifth applicant ’ s mental health among prison staff from May 2002, although these concerns had not been communicated to his legal representatives. In December 2003 he had suffered a serious relapse into severe depression with psychotic symptoms, including auditory hallucinations and suicide ideation. A number of psychologists and psychiatrists had examined him, at the request of his legal representatives and at the initiative of the Home Office, and had agreed that he was seriously ill and that his mental health would be likely to improve if he were allowed to go home. SIAC concluded: “We do not think that the threshold has been crossed so that there is a breach of [the fifth applicant ’ s] human rights. The jurisprudence of the [ European Court of Human Rights ] emphasises the high threshold which must be crossed and that detention is unlikely to be regarded as disproportionate unless it at least verges on treatment which would constitute a breach of Article 3. But we are satisfied that, if he were not released, there would be such a breach. To permit someone to reach a state whereby he requires treatment in a special hospital or continuous care and attention to ensure he does not harm himself can constitute a breach of Article 8, unless perhaps there is no possible alternative to detention, and probably of Article 3. As we have said, we do not have to wait until that situation exists. Provided that we are persuaded, as we are, that the conditions we impose are sufficient to minimise the risk to the security of the State if [the fifth applicant] is released, we can act as we have. We must emphasise that the grant of bail is exceptional. We are only doing so because the medical evidence is all one way and the detention has caused the mental illness which will get worse. ... ” 81. The fifth applicant was, therefore, released on bail on 22 April 2004 on conditions amounting to house arrest. He was not permitted to leave his home address and had to wear an electronic tag at all times. He had no Internet access and a telephone link to the Security Service only. He was required to report by telephone to the Security Service five times a day and allow its agents access to his home at any time. He was not permitted contact with any person other than his wife and child, legal representative and a Home Office - approved doctor or see any visitor except with prior Home Office approval. G. Events following the House of Lords ’ judgment of 16 December 2004 82. The declaration of incompatibility made by the House of Lords on 16 December 200 4, in common with all such declarations, was not binding on the parties to the litigation (see paragraph 94 below). The applicants remained in detention, except for the second and fourth applicants who had elected to leave the United Kingdom and the fifth applicant who had been released on bail on conditions amounting to house arrest. Moreover, none of the applicants was entitled, under domestic law, to compensation in respect of their detention. The applicants, therefore, lodged their application to the Court on 21 January 2005. 83. At the end of January 2005, the Government announced their intention to repeal Part 4 of the 2001 Act and replace it with a regime of control orders, which would impose various restrictions on individuals, regardless of nationality, reasonably suspected of being involved in terrorism. 84. Those applicants who remained in detention were released on 10 ‑ 11 March 2005 and immediately made subject to control orders under the Prevention of Terrorism Act 2005, which came into effect on 11 March 2005. 85. The Government withdrew the derogation notice on 16 March 2005. 86. On 11 August 2005, following negotiations commenced towards the end of 2003 to seek from the Algerian and Jordanian governments assurances that the applicants would not be ill-treated if returned, the Government served notices of intention to deport on the fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants. These applicants were taken into immigration custody pending removal to Algeria (the fifth, sixth, seventh, ninth, tenth and eleventh applicants) and Jordan (the eighth applicant). On 9 April 2008 the Court of Appeal ruled that the eighth applicant could not lawfully be extradited to Jordan, because it was likely that evidence which had been obtained by torture could be used against him there at trial, in flagrant violation of his right to a fair trial. At the date of adoption of the present judgment, the case was pending before the House of Lords. III. DOMESTIC AND INTERNATIONAL COMMENT ON PART 4 OF THE 2001 ACT A. The Newton Committee 98. Part 4 of the 2001 Act provided for the creation of a Committee of Privy Counsellors to review its operation. The Committee, under the chairmanship of Lord Newton, reported in December 2003. Having recorded the Home Office ’ s argument that the threat from al - Qaeda terrorism was predominantly from foreigners, the Newton Committee ’ s report drew attention to: “ ... accumulating evidence that this is not now the case. The British suicide bombers who attacked Tel Aviv in May 2003, Richard Reid ( ‘ the Shoe Bomber ’ ), and recent arrests suggest that the threat from UK citizens is real. Almost 30% of Terrorism Act 2000 suspects in the past year have been British. We have been told that, of the people of interest to the authorities because of their suspected involvement in international terrorism, nearly half are British nationals.” Given this evidence, the Newton Committee observed that not only were there arguments of principle against having discriminatory provisions, but there were also compelling arguments of limited efficacy in addressing the terrorist threat. The Newton Committee therefore called for new legislation to be introduced as a matter of urgency which would deal with the terrorist threat without discrimination on grounds of nationality and which would not require a derogation from Article 5 of the Convention. 99. In February 2004 the Government published their response to the Newton Committee ’ s report. It continued to accept that the terrorist threat “came predominantly, but not exclusively, from foreign nationals” and made the following observation about the Newton Committee ’ s suggestion that counter-terrorist measures should apply to all persons within the jurisdiction regardless of nationality: “While it would be possible to seek other powers to detain British citizens who may be involved in international terrorism it would be a very grave step. The Government believes that such draconian powers would be difficult to justify. Experience has demonstrated the dangers of such an approach and the damage it can do to community cohesion and thus to support from all parts of the public that is so essential to countering the terrorist threat. ” The Government also indicated that work was under way to try to establish framework agreements with potential destination countries for the purposes of deportation of terrorist suspects. B. The Joint Parliamentary Committee on Human Rights 100. The Joint Committee has constitutional responsibility in the United Kingdom for scrutinising legislation to ensure that it is compatible with Convention rights. In its Second Report of the Session 2001-02, drawn up very shortly after publication of the Bill which became the 2001 Act, the Joint Committee expressed concern at the potentially discriminatory effect of the proposed measure, as follows: “38. Second, by relying on immigration legislation to provide for the detention of suspected international terrorists, the Bill risks discriminating, in the authorisation of detention without charge, between those suspected international terrorists who are subject to immigration control and those who have an unconditional right to remain in the United Kingdom. We are concerned that this might lead to discrimination in the enjoyment of the right to liberty on the ground of nationality. If that could not be shown to have an objective, rational and proportionate justification, it might lead to actions which would be incompatible with Article 5 of the ECHR [the Convention] either taken alone or in combination with the right to be free of discrimination in the enjoyment of Convention rights under Article 14 of the ECHR [the Convention]. It could also lead to violations of the right to be free of discrimination under Article 26 and the right to liberty under Article 9 of the ICCPR [International Covenant on Civil and Political Rights]. 39. We raised this matter with the Home Secretary in oral evidence. Having considered his response, we are not persuaded that the risk of discrimination on the ground of nationality in the provisions of Part 4 of the Bill has been sufficiently taken on board.” In its Sixth Report of the Session 2003-04 (23 February 2004), the Joint Committee expressed deep concern “about the human rights implications of making the detention power an aspect of immigration law rather than anti-terrorism law” and warned of “a significant risk that Part 4 violates the right to be free of discrimination under ECHR [the Convention] Article 14”. Following the Report of the Newton Committee and the Secretary of State ’ s discussion paper published in response to it, the Joint Committee returned to this subject in its Eighteenth Report of the Session 2003-04 (21 July 2004), paragraphs 42 - 44: “42. The discussion paper rejects the Newton Report ’ s recommendation that new legislation replacing Part 4 [of the 2001 Act] should apply equally to all nationalities including British citizens. It states the Government ’ s belief that it is defensible to distinguish between foreign nationals and UK nationals because of their different rights and responsibilities. 43. We have consistently expressed our concern that the provisions of Part 4 [of the 2001 Act] unjustifiably discriminate on grounds of nationality and are therefore in breach of Article 14 ECHR [of the Convention]. Along with Lord Newton, we find it extraordinary that the discussion paper asserts that seeking the same power to detain British citizens would be ‘ a very grave step ’ and that ‘ such draconian powers would be difficult to justify ’. 44. The interests at stake for a foreign national and a UK national are the same: their fundamental right to liberty under Article 5 ECHR [of the Convention] and related procedural rights. Article 1 of the ECHR [the Convention] requires States to secure the Convention rights to everyone within their jurisdiction. Article 14 requires the enjoyment of Convention rights to be secured without discrimination on the ground of nationality. The Government ’ s explanation in its discussion paper of its reluctance to seek the same powers in relation to UK nationals appears to suggest that it regards the liberty interests of foreign nationals as less worthy of protection than exactly the same interests of UK nationals, which is impermissible under the Convention.” C. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 101. The CPT visited the detained applicants in February 2002 and again in March 2004. In its report published on 9 June 2005, the CPT was critical of the conditions in which the applicants were held in Belmarsh Prison and Broadmoor Secure Mental Hospital and reported allegations of ill-treatment by staff. It found the regime in Woodhill Prison to be more relaxed. The CPT found that the health of the majority of the detained applicants had declined as a result of their detention, in particular its indefinite character. The CPT stated in its report: “In fact, the information gathered during the 2004 visit reveals that the authorities are at a loss at how to manage this type of detained person, imprisoned with no real prospect of release and without the necessary support to counter the damaging effects of this unique form of detention. They also highlight the limited capacity of the prison system to respond to a task that is difficult to reconcile with its normal responsibilities. The stated objective, in the response to the CPT ’ s report on the February 2002 visit, of formulating a strategy to enable the Prison Service to manage most appropriately the care and detention of persons held under the 2001 Act, has not been achieved. Two years after the CPT visited these detained persons, many of them were in a poor mental state as a result of their detention, and some were also in poor physical condition. Detention had caused mental disorders in the majority of persons detained under the [2001 Act] and for those who had been subjected to traumatic experiences or even torture in the past, it had clearly reawakened the experience and even led to the serious recurrence of former disorders. The trauma of detention had become even more detrimental to their health since it was combined with an absence of control resulting from the indefinite character of their detention, the uphill difficulty of challenging their detention and the fact of not knowing what evidence was being used against them to certify and/or uphold their certification as persons suspected of international terrorism. For some of them, their situation at the time of the visit could be considered as amounting to inhuman and degrading treatment.” 102. The Government published their response to the CPT ’ s 2004 report on 9 June 2005. The Government strongly disputed the allegations of ill-treatment by prison staff and pointed out that the detained applicants had at their disposal the remedies provided by administrative and civil law to all prisoners to complain of ill-treatment. The Government ’ s response continued: “Although the Government respects the conclusions reached by the delegates of the [CPT] based on the observations on the day of visit, it categorically rejects the suggestion that at any point during their detention the [2001 Act] detainees were treated in an ‘ inhuman or degrading ’ manner that may have amounted to a breach in the United Kingdom ’ s international human rights obligations. The Government firmly believes that at all times the detainees received appropriate care and treatment in Belmarsh and had access to all necessary medical support, both physical and psychological, from medical support staff and doctors. The Government accepts that the individuals had difficult backgrounds prior to detention, but does not accept that ‘ detention had caused mental disorders ’. Some of the detainees had mental health issues prior to detention, but that did not stop them engaging in the activities that led to their certification and detention. Mental health issues do not prevent an individual from posing a risk to national security. ... The Government does not accept that those certified under [the 2001 Act] were detained without any prospect of their release. ... ... On no occasion did SIAC, or any other court, find that the conditions of detention breached the absolute obligation imposed upon the Government by Article 3 of [the Convention]. It is the Government ’ s view that, given the extensive judicial safeguards available to the detainees, the Government would not have been able to maintain the detention of these individuals had the powers breached the detainees ’ Article 3 rights in any way. To suggest otherwise would be to ignore the extensive contact the detainees had with the British judicial system and the absolute obligation upon the judiciary to protect against any such breach.” D. The European Commissioner for Human Rights 103. In August 2002 the European Commissioner for Human Rights to the Council of Europe published his opinion on certain aspects of the United Kingdom ’ s derogation from Article 5 of the Convention and Part 4 of the 2001 Act. In that opinion he expressly criticised the lack of sufficient scrutiny by Parliament of the derogation provisions and questioned whether the nature of the al - Qaeda threat was a justifiable basis for recognising a public emergency threatening the life of the nation: “Whilst acknowledging the obligations of the governments to protect their citizens against the threat of terrorism, the Commissioner is of the opinion that general appeals to an increased risk of terrorist activity post September 11 2001 cannot, on their own be sufficient to justify derogating from the Convention. Several European States long faced with recurring terrorist activity have not considered it necessary to derogate from Convention rights. Nor have any found it necessary to do so under the present circumstances. Detailed information pointing to a real and imminent danger to public safety in the United Kingdom will, therefore, have to be shown. ” The Commissioner continued, with reference to the detention scheme under Part 4 of the 2001 Act: “In so far as these measures are applicable only to non-deportable foreigners, they might appear, moreover, to be ushering in a two-track justice, whereby different human rights standards apply to foreigners and nationals.” 104. On 8 June 2005 the Commissioner published a report arising out of his visit to the United Kingdom in November 2004. He specifically referred to the House of Lords ’ decision in the applicants ’ case and noted the fact that the Government had not sought to renew the relevant provisions of the 2001 Act in March 2005. He welcomed the decision of the House of Lords, which corresponded with his own previously published opinion, and also welcomed the release of the applicants, emphasising that as a result of his visit he was in a position personally to testify to “the extremely agitated psychological state of many of them”. As a result of interviews which he had conducted with, among others, the Home Secretary, the Lord Chancellor, the Attorney - General, the Lord Chief Justice and the Director of Public Prosecutions, the Commissioner also expressed a conclusion about the availability under the law of the United Kingdom of alternative measures to combat the threat of terrorism: “Terrorist activity not only must but can be combated within the existing framework of human rights guarantees, which provide precisely for a balancing, in questions concerning national security, of individual rights and the public interest and allow for the use of proportionate special powers. What is required is well-resourced policing, international cooperation and the forceful application of the law. It is to be noted, in this context, that in the Terrorist Act 2000, the United Kingdom already has amongst the toughest and most comprehensive anti-terror legislation in Europe .” E. The United Nations Committee on the Elimination of All Forms of Racial Discrimination 105. The Committee ’ s Concluding Observations on the United Kingdom, dated 1 0 December 2003, stated at paragraph 17: “17. The Committee is deeply concerned about provisions of the Anti- terrorism, Crime and Security Act which provide for the indefinite detention without charge or trial, pending deportation, of non-nationals of the United Kingdom who are suspected of terrorism-related activities. While acknowledging the State Party ’ s national security concerns, the Committee recommends that the State Party seek to balance those concerns with the protection of human rights and its international legal obligations. In this regard, the Committee draws the State Party ’ s attention to its statement of 8 March 2002 in which it underlines the obligation of States to ‘ ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent, or national or ethnic origin ’ .” II. Prohibition of arbitrariness All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment, and must be subject to appropriate supervision.” C. The European Commission against Racism and Intolerance (ECRI) 108. In its General Policy Recommendation No. 8 on combating racism while fighting terrorism, published on 8 June 2004, ECRI considered it the duty of the State to fight against terrorism; stressed that the response should not itself encroach on the values of freedom, democracy, justice, the rule of law, human rights and humanitarian law; stressed that the fight against terrorism should not become a pretext under which racial discrimination was allowed to flourish; noted that the fight against terrorism since 11 September 2001 had in some cases resulted in the adoption of discriminatory legislation, notably on grounds of nationality, national or ethnic origin and religion; stressed the responsibility of member States to ensure that the fight against terrorism did not have a negative impact on any minority group; and recommended States: “ ... to review legislation and regulations adopted in connection with the fight against terrorism to ensure that these do not discriminate directly or indirectly against persons or group of persons, notably on grounds of ‘ race ’, colour, language, religion, nationality or national or ethnic origin, and to abrogate any such discriminatory legislation.” V. THE NOTION OF A “PUBLIC EMERGENCY” UNDER ARTICLE 4 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) 109. Article 4 § 1 of the ICCPR states as follows: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” In spring 1984, a group of thirty-one experts in international law, convened by the International Commission of Jurists, the International Association of Penal law, the American Association for the International Commission of Jurists, the Urban Morgan Institute for Human Rights and the International Institute of Higher Studies in Criminal Sciences, met in Siracusa ( Italy ) to consider the above provision, inter alia. Paragraphs 39 ‑ 40 of the resulting “Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights” declare, under the heading “ Public emergency which threatens the life of the nation ”: “ 39. A State Party may take measures derogating from its obligations under the International Covenant on Civil and Political Rights pursuant to Article 4 (hereinafter called ‘ derogation measures ’ ) only when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation. A threat to the life of the nation is one that: (a) affects the whole of the population and either the whole or part of the territory of the State; and (b) threatens the physical integrity of the population, the political independence or the territorial integrity of the State or the existence or basic functioning of institutions indispensable to ensure and protect the rights recognised in the Covenant. 40. Internal conflict and unrest that do not constitute a grave and imminent threat to the life of the nation cannot justify derogations under Article 4. ” Paragraph 54 of the Siracusa Principles continues as follows : “54. The principle of strict necessity shall be applied in an objective manner. Each measure shall be directed to an actual, clear, present, or imminent danger and may not be imposed merely because of an apprehension of potential danger.” 110. The United Nations Human Rights Committee, in General Comment No. 29 on Article 4 of the ICCPR (24 July 2001), observed in paragraph 2: “Measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature.” VI. OTHER MATERIALS CONCERNING NON-DISCLOSURE OF EVIDENCE IN NATIONAL SECURITY CASES 111. In Charkaoui v. Minister of Citizenship and Immigration [2007] 1 SCR 350, McLachlin CJ, for the Supreme Court of Canada, observed in paragraph 53: “ Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to it.” That right was not absolute and might be limited in the interests of national security ( paragraphs 57-58); however, paragraph 64 provides : “ ... The judge is therefore not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring. Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted. How can one meet a case one does not know?” 112. In Hamdi v. Rumsfeld 542 US 507 (2004), O ’ Connor J, writing for the majority of the Supreme Court of the United States of America, said (p. 533): “ We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government ’ s factual assertions before a neutral decision - maker [authority cited]. ‘ For more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified ... ’ These essential constitutional promises may not be eroded.” 113. The Council of Europe ’ s Commissioner for Human Rights, in paragraph 21 of his report of 8 June 2005 (see paragraph 104 above), and the Joint Parliamentary Committee on Human Rights (see paragraph 100 above), in paragraph 76 of its Twelfth Report of the Session 2005-2006, (HL Paper 122, HC 915) had difficulty in accepting that a hearing could be fair if an adverse decision could be based on material that the controlled person has no effective opportunity to challenge or rebut. | The House of Lords had ruled, at last instance, in a judgment of 16 December 2004, on the applicants’ action in the domestic courts challenging the fundamental legality of the derogation notified in November 2001 under Article 15 of the Convention. It held that there was an emergency threatening the life of the nation but that the detention scheme did not rationally address the threat to security and was therefore disproportionate. It found, in particular, that there was evidence that United Kingdom nationals were also involved in terrorist networks linked to al-Qaeda and that the detention scheme in question discriminated unjustifiably against foreign nationals. It therefore made a declaration of incompatibility under the Human Rights Act and quashed the derogation order. Part 4 of the impugned Anti-Terrorism, Crime and Security Act 2001 remained in force, however, until it was repealed by Parliament in March 2005. As soon as the applicants still in detention were released, they were made subject to control orders under the Prevention of Terrorism Act 2005. |
866 | In the context of criminal justice | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1951 and lives in County Tyrone, Northern Ireland. 6. In April 2000 the girlfriend of the applicant’s son wished to leave Northern Ireland with the applicant’s ten-month old grandson and return to live in Australia following her separation from the applicant’s son. In order to try and force her son and his girlfriend to reconcile their differences, and in the hope that her grandson would not return to Australia, the applicant disappeared with her grandson at 6 p.m. on 19 April 2000 without the parents’ permission. The police were called and the child was returned unharmed on the morning of 21 April 2000. 7. The applicant was subsequently arrested for child abduction. At a police interview on 24 April 2000, in the presence of her solicitor, the applicant confirmed that she had been aware at the time that she took her grandson that her conduct amounted to child abduction. 8. By letter dated 10 October 2000 the Director of Public Prosecutions recorded his decision that the public interest did not require the initiation of criminal proceedings against the applicant and that no such proceedings should therefore be brought. Instead, he indicated that a caution should be administered. 9. The applicant received a caution for child abduction which was formally administered on 17 November 2000. 10. On 6 March 2003, in reply to a query from the applicant, the police advised her that her caution would remain on record for five years, and so would be held on record until 17 November 2005. 11. On 14 September 2006 the applicant was offered employment as a Health Care Family Support Worker within Foyle Health and Social Services Trust (“the Trust”) through Westcare Business Services (“Westcare”), subject to vetting. She was asked to disclose details of prior convictions and cautions. She accordingly disclosed details of the incident of April 2000 and her subsequent caution on the form provided, and consented to a criminal record check. Westcare contacted the Criminal Records Office of the Police Service of Northern Ireland (“Criminal Records Office”) to verify the details disclosed. The existence of the caution was duly verified. 12. On 31 October 2006 Westcare withdrew the offer of employment, indicating that it had taken into account the verification by the Criminal Records Office of the caution for child abduction. 13. The applicant subsequently sought to challenge her acceptance of the caution in November 2000 by letter to the Criminal Records Office. In an undated letter, the Criminal Records Office replied to her in the following terms: “... in a case where someone agrees to be cautioned by the police for a particular offence, by doing so they are accepting that they were guilty of the offence in the first place. This information is printed on the caution form, which you signed on 17 th November 2000. Regrettably there is no way to change that. The case cannot be brought back to a court because the whole idea of the caution was to keep it out of court in the first instance. I should also point out that the information given to Sgt Dunne and which he relayed to you in 2003, about the weeding date for an adult caution, was correct at that time but there has since been a policy change. Normally an adult caution will be weeded after a period of five years, provided the defendant has not been convicted of any further offences. However following the murder of the schoolgirls in Soham England and the subsequent Bichard Report the weeding policy was changed in relation to all cases where the injured party is a child. The current policy is that all convictions and cautions, where the injured party is a child, are kept on the record system for life.” 14. The letter concluded: “I fully appreciate that the offence in your case was not the normal type of offence and that the child did not suffer any harm and that it was never your intention that he should suffer any harm. The offence code under which the offence comes for computing purposes classes the offence as ‘child abduction’ (by other person). Which means a person other than a parent of the child. ... Perhaps you would be good enough to contact me ... in order that we might discuss the matter and perhaps find some means of ameliorating the consequences of the information given above.” 15. By letter dated 6 May 2006 to the applicant’s solicitor, the Criminal Records Office confirmed that in signing the caution form the applicant had accepted guilt for the offence in question and that nothing could be done to change the criminal record. The applicant’s solicitor subsequently informed her that there did not appear to be any action which she could take in relation to the removal of the caution. 16. By letter dated 6 December 2006 Detective Superintendent Thomson of the Northern Ireland Police Service confirmed that he would not delete the caution from police records. However he proposed, with the applicant’s agreement, to add a comment to the effect that the incident was domestically related and that in any vetting context the applicant should be approached for an explanation. 17. In January 2007 the Northern Ireland Legal Services Commission (“the LSC”) refused an application for legal aid, made by the applicant’s solicitor, to review the Trust’s decision not to employ the applicant. The solicitor informed the applicant that she could appeal the LSC’s decision at a cost of GBP 500 for representation by counsel, but the applicant could not afford to instigate legal proceedings without public funding. 18. In February 2007 the applicant was interviewed for a position as a Family Support Worker. The interview letter advised that the position was a regulated one under Article 31 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 and she was asked to complete a consent form and bring it to the interview. 19. On 29 March 2007 the applicant was informed that her application for the position was unsuccessful. No reasons were provided. | In 2000 the applicant was arrested by the police after disappearing with her baby grandson for a day in an attempt to prevent his departure to Australia following the breakup of her son’s marriage. The authorities decided not to prosecute and she was instead cautioned for child abduction. The caution was initially intended to remain on her record for five years, but owing to a change of policy in cases where the injured party was a child, that period was later extended to life. The applicant complained about the indefinite retention and disclosure of her caution data and the impact of this on her employment prospects. |
922 | Absence of outside influence | I. THE PARTICULAR CIRCUMSTANCES OF THE CASE A. Background 6. Mr Carl G. Holm is a Swedish national. He is an economist and resides at Täby in Sweden. At the material time, he was employed by the Swedish Federation of Industries ( Sveriges Industriförbund ). 7. In 1974 the applicant formed together with others a foundation named Contra. According to him its aim was to scrutinise governments of communist regimes in Eastern Europe and the Swedish Social Democratic Workers Party ( Sveriges socialdemokratiska arbetareparti - the "SAP"). 8. In 1985 a publishing house, Tidens förlag AB, published a book entitled "Till höger om neutraliteten" (To the right of neutrality). It contained a survey of right-wing organisations and individuals, including a 52-page chapter on the applicant and his involvement in Contra. The author of the book, Mr Sven Ove Hansson, was then employed by the publisher and had previously served as an ideological adviser to the SAP. Tidens förlag AB was, from its foundation in 1912 until 1 January 1985, owned by the SAP directly. As of the latter date, 85% of its shares were held by a company owned by the SAP, namely AB Förenade Arebolagen. The remaining 15% were held by Folkparkernas Centralorganisation which, the applicant states, was controlled by the SAP. Tidens förlag AB is known for publishing books and articles portraying social democratic views. B. Institution of libel proceedings 9. On 15 April 1986 the applicant brought a private prosecution for aggravated libel ( grovt förtal ), and in the alternative for libel ( förtal ), against Mr Hansson in the District Court ( tingsrätten ) of Stockholm, under Chapter 7, section 4, paragraph 9, of the 1949 Freedom of the Press Act ( tryckfrihetsförordningen, an instrument forming part of the Swedish Constitution) and Chapter 5, Articles 1 and 2, of the Penal Code ( brottsbalken ). In the same proceedings he sued both the author and the publisher for damages, claiming 200,000 Swedish kronor. He contended that the book contained allegations implying that he belonged to certain nazi and fascist groups, calculated to cast doubt on his honour and to expose him to contempt; in view of the wide distribution of the book and the applicant ’ s central position in the Swedish Federation of Industries, the libel was aggravated. The impugned passages of the book included allegations which can be summarised as follows: (a) in 1973 the applicant had chaired the youth section of the World Anti-Communist League ’ s Conference in London, an organisation whose membership was said to consist largely of neo- nazis and former SS-members, for example the then chairman of the nazi -oriented Swedish National Union; (b) the applicant had, by reason of his right-wing extremism, been expelled in 1974 from the Democratic Alliance and the Conservative Youth Organisation; it was therefore regrettable that he still held important positions within the Swedish Federation of Industries and the Swedish Employers ’ Federation; (c) he had been reported to the police for embezzlement of the Democratic Alliance ’ s funds; an audit had shown that he had transferred 1,340 Swedish kronor from the association ’ s account to his own account; (d) he had failed to dissociate himself immediately from a co-member of a splinter group of the Democratic Alliance, who had provided grenades to two Nordic National Party activists and who had urged the latter to place one of the grenades in an office of the Democratic Alliance and advised them on how to enter the office; the activists had been convicted of having placed the grenades and the applicant ’ s associate of having aided and abetted causing bodily harm; (e) Contra had been collaborating with the above-mentioned Swedish National Union in Lund and Malmö and the applicant had negotiated with the latter about the setting up of a local Contra group; (f) organisations like Contra were infiltrated to the highest echelons by neo- nazi groups, which selected the most militant members of such organisations and incited them to engage in illegal activities. C. Constitution of a jury before the District Court and related proceedings 10. At a sitting held by the District Court on 10 November 1986, the defendants, but not the applicant, asked for the case to be considered with a jury. As a result of the defendants ’ request, the question whether a criminal offence had been committed was to be examined, according to the provisions of the Freedom of the Press Act, by a jury, composed on the basis of a list of two groups of names (see paragraphs 15, 18 and 19 below). The list, which had been published by the Stockholm County Council ( Stockholms läns landsting ), indicated the jurors ’ political affiliations. The first group comprised sixteen persons, seven of whom were members of the SAP, five of the Conservative Party, two of the Liberal Party, one of the Centre Party and one of the Communist Party. The second group included eight names, of whom four were members of the SAP, two of the Conservative Party and two of the Liberal Party. The applicant, referring to paragraph 9 of Article 13 in Chapter 4 of the Code of Judicial Procedure ( rättegångsbalken ), filed a complaint with the District Court under Chapter 12, section 8, of the Freedom of the Press Act, asking it to exclude as being disqualified those jurors who were members of the SAP (see paragraph 21 below). In support of his request, he pointed to the position as regards ownership of Tidens förlag AB (see paragraph 8 above) and argued that the publisher was the "mouthpiece" of the social democratic movement. However, the District Court rejected his request on 10 November 1986, finding that, regardless of whether the publisher could be seen as a "mouthpiece" as described by the applicant, the reasons invoked by him did not constitute grounds for disqualifying the jurors concerned. In an appeal against this decision to the Svea Court of Appeal ( Svea Hovrätt ), the applicant submitted, in addition to the above arguments, that the contents of the book were of a political nature and that the case had political undertones. The Court of Appeal dismissed the appeal on 4 December 1986, without stating any reasons. It was not open to the applicant to appeal further against this decision (Chapter 12, section 8, of the Freedom of the Press Act). 11. In the meantime, at the above-mentioned sitting on 10 November 1986, the District Court proceeded with the constitution of the jury in accordance with Chapter 12 of the Freedom of the Press Act. Exercising their right under section 10, the applicant and the defence each rejected three jurors from the first group and one from the second group. Those eliminated by the applicant were all SAP members and those by the defendants were members of the Conservative Party. Lots were drawn in accordance with the procedure described in paragraph 19 below, and a jury of nine members was constituted. Of these, five were members of the SAP - one of the them was subsequently replaced by another SAP member -, two of the Conservative Party, one of the Liberal Party and one of the Communist Party. 12. As appears from information submitted by the applicant, which was not contested by the Government, the SAP jurors were active members of the Party, holding or having held various offices in it and on its behalf at local level (for further details, see paragraph 27 of the Commission ’ s report). D. The findings on the merits 13. On 14 October 1987, the District Court, sitting with three judges and a jury of nine, examined the merits of the case. In its judgment of the same date the court noted that the jury had replied in the negative to the questions put to it concerning the alleged unlawfulness of the impugned passages of the book. Accordingly, the District Court dismissed the charges made by the applicant and his claims for damages. In view of the conclusions reached on the merits, it ordered him to pay 67,860 Swedish kronor in costs. It was not possible under Swedish law for the applicant to appeal against the jury ’ s verdict (see paragraph 16 below). | The applicant, an economist who, at the material time, was employed by the Swedish Federation of Industries, complained that a libel action, brought by him against the author and the publisher of a book, had not been determined by an independent and impartial tribunal on account of the political nature of the case and, in particular, of the participation of five active members of the Swedish Social Democratic Workers Party ("SAP") in the jury at the District Court. |
660 | Persons arrested or under criminal prosecution | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1957 and lives in Kristiansand. A. Factual background to the defamation proceedings brought by the applicant 6. On 19 May 2000, two girls of eight and ten years of age were raped and stabbed to death in Baneheia, a recreation area in the city of Kristiansand. Two young men were later convicted of the crimes and sentenced to 21 and 19 years of imprisonment respectively for rape and murder committed in particularly aggravating circumstances. The case received intense and extensive coverage in the national media. 7. In 1988 the applicant had been convicted of murder, attempted murder and eight instances of assault, all committed by the use of knife in June 1987 in Kristiansand. He had been sentenced to 11 years ’ imprisonment and to five years ’ security measures ( sikring ) (which under the relevant law at the time, could be imposed where it was established that the person concerned was not mentally ill (and thus criminally liable) but had an underdeveloped and permanently impaired mental capacity and that, because of this condition, there was a clear risk of his or her committing further criminal offences ). Shortly before the expiry of the security measures on 20 September 1999, the public prosecutor had requested a prolongation, which a first instance court had granted in March 2000 for a period of three years (but which an appellate court refused in January 2001). In May 1999 the applicant had been released from security detention ( lukket sikring ) and had been placed under supervision at liberty ( fri sikring ). Thereafter he had lived in Kristiansand, partly in a camping cabin and partly in his family ’ s cabin by the river and had been working at a protected workplace for persons on rehabilitation scheme. He was a substance abuser and was connected to a group which used to gather at the so-called “Acid Knoll”, a place in the recreation area where the murders had taken place. 8. During the early stages of the murder investigation, the applicant and a number of other previously convicted persons were interrogated as witnesses. The police ’ s interest in the applicant attracted considerable media attention. 9. Two days after the murder, the police collected the applicant from his workplace and brought him to the police station. The police interrogated him for 10 hours until 00.30 am on 24 May 2000, and then brought him to his home. The interrogation became known to the press and was presented in the national media on 23 and 24 May 2000 together with information about his criminal trial in 1988 and the imposition of security measures in his case. In their issues published on those dates, three national newspapers, Aftenposten, Dagbladet and Verdens Gang, reported on the applicant but without stating his identity. 10. Also a national television channel, the TV2, gave extensive reports. In a news broadcast on 23 May 2000, at 9 pm (while the applicant was being interrogated), it stated: “Possibly the most special candidate of these persons (former convicted, Court ’ s addition) is precisely this 42-year-old because of his past and because he has been seen in the area where the murder occurred, at the time when it occurred, but so far there are no suspects, and it is precisely that which now is a little exciting in this case. Habitually, this type of investigation takes a long time, but when one carries out this type of alibi checkups, the case may soon take a new and special turn.” 11. In a news broadcast on 24 May 2000, 6.30 pm, TV2 reported that members of the press had followed a 42 year old murderer from Kristiansand in his footsteps. Then ensued an interview with the applicant, during which he was filmed from behind and partly from the side, on his way to the so-called “Acid Knoll” in the Baneheia area. 12. On 25 May 2000 Dagbladet published information about the applicant ’ s place of residence, in a report which also contained an interview with him. B. Publication giving rise to the defamation proceedings brought by the applicant against Fædrelandsvennen 13. On 24 May 2000, the newspaper Fædrelandsvennen, which is mainly a subscription newspaper (45,000 subscribers) and the principal district newspaper on the southern coast of Norway, published a report on the Baneheia case. The front page carried the following headline and introduction: “ Convicted Murderer: I am completely innocent AT WORK: At 7.10 this morning, a 42-year-old convicted murderer from Kristiansand toddled off to the bus to return to work. Last night, he had been driven home by the police, after having been interrogated for approximately 10 hours concerning his movements on Friday, the day when C and D were killed. ALIBI: - I am completely innocent, said the 42-year-old to Fædrelandsvennen in the early hours of today. The man says he has an alibi for Friday night. The 42-year-old, who was seen by several witnesses in Baneheia on Friday, is probably the most interesting of several criminally convicted persons whose movements are now being checked by the police. SENTENCE TO SECURITY MEASURES: In 1988, the 42-year-old was sentenced to 11 years imprisonment and five years security measures [ sikring ] for one murder by knife, one attempted murder and several other acts of violence, with knife. The term of security measures [ sikringstid ] imposed on him expired on 20 September last year, but as late as in March this year, he was sentenced to another three years of security measures. The judgment has been appealed against.” Inside the newspaper at page 4 appeared an article entitled “ Murder convict returns to work today ” With the subtitle: “ I am completely innocent ” 14. The article contained a brief interview with the applicant, in which he stated that he had nothing to do with the matter and that he had witnesses. Next to the article appeared a large photograph showing the applicant from the side while entering a bus, not showing his head and the upper part of his bust inside the bus. A caption stated that the 42 year old was on his way to work at 7 am and: “ ‘ I am completely innocent`”, says the previously murder convicted man who yesterday was interrogated for 10 hours.” 15. Underneath on the same page, the paper reproduced another article entitled: “ Sent home after 10 hours ’ interrogation ” The introduction stated : “At 2 pm yesterday a 42 year old murder convict was fetched by the police at his workplace. 11 hours later he was brought to his home” 16. The article was accompanied by a large photograph of “the 42-year-old”, with his head blurred, accompanied by two police officers. 17. The article stated that the police had collected him at his workplace in the afternoon of 23 May 2000 for a 10 hour long interrogation. It described inter alia the background for the police ’ s interest in the applicant, reiterating that he had purportedly been seen by several witnesses in Baneheia on Friday night when the two girls had disappeared. Furthermore, reference was made to the factual background of his conviction in 1988. The following sub-titles were used: “Seen by the police”, “Released for one year”, “Berserk with a knife”, and “Victims at random”. 18. The article further quoted statements by a Chief Constable, Mr A. Pedersen, underlining that there “ were still no suspects in the case” and that all of the people summoned for questioning had “formal status as witnesses in the case.” This point was further elaborated on in an interview with the Chief Constable on the same page, entitled “No one imprisoned today.” 19. In yet another article appearing under the heading “Have got the murderer in the papers”, the Chief Constable was quoted to have said to Verdens Gang that “the police have received so much information of substance that they have the answer in their documents to the question who had murdered the two young girls.” 20. The Baneheia case was also the main item on the front page of Fædrelandsvennen on 25 May 2000, with the heading “DNA traces found at murder place”. The article reiterated that according to the preliminary autopsy report, both of the girls had been sexually abused, that they had been murdered with a pointed and sharp penetrating arm, most probably with a knife. Page 6 of the paper contained an interview with some neighbours of the 42 year old, entitled “Neighbours fear prejudgment”, published together with a photograph of a residential development site. The article named a specific residential development area, Q, and its precise location, Z, stating that it was the “nearest neighbour to the 42-year-old convicted of murder.” 21. In a further article on the same page, under the heading “They want to know where I am”, the paper mentioned the name of the street where the applicant lived (Y), that of his neighbourhood (Z), and that of the company where he worked. The article rendered a statement by the applicant maintaining his innocence and informing that the police had wanted to know his whereabouts but had let him in peace. Next to the article appeared a photograph of the applicant seen from behind, at a relatively long distance, on his way down towards the Z-river, with the caption: “The 42 year old murder convict on his way home yesterday”. 22. On the same page appeared an article headed “Searching for a locally known murderer”, which quoted Chief Constable Pedersen as stating inter alia that the main emphasis of their investigation had been based on the belief that the murderer(s) had been locally known but that a wider Nordic focus had also been discussed. He had added that it was dangerous to concentrate the investigation on a specific milieu. 23. At the material time, Fædrelandsvennen was published in the afternoon, whereas Dagbladet, Verdens Gang and Aftenposten were published in the morning. C. Defamation proceedings brought by the applicant against Fædrelandsvennen 24. In October 2000, after the arrest of the actual perpetrators in the Baneheia case, the applicant, represented by a lawyer, demanded that Fædrelandsvennen apologise for its coverage and compensate him for pecuniary and non-pecuniary damage he had sustained. As the newspaper refused, in December 2000 the applicant ’ s lawyer brought on his behalf defamation proceedings before the Kristiansand City Court ( tingrett ) against Fædrelandsvennen, its editor-in-chief, Mr F. Holmer-Hoven and journalist B. The applicant claimed compensation for pecuniary and non-pecuniary damage. 25. By a judgment of 16 April 2003 the City Court rejected the applicant ’ s action. 26. The applicant then appealed to Agder High Court ( lagmannsrett ). He waived his claim for pecuniary damage, which matter was formally discontinued ( hevet ), but maintained his claim for non-pecuniary damage. 27. By a judgment of 23 December 2004, the High Court, sitting with three judges, found that an ordinary reader could perceive the impugned press reports published by the Fædrelandsvennen on 24 and 25 May 2005 as pointing to the applicant as a possible perpetrator of the murders of the two girls in Baneheia. The High Court observed that, although the paper had not mentioned the applicant by name, it ought to have been possible for those who knew him in advance to recognise him, in particular from the photograph taken of him from behind and from the information about his residence- and work places contained in the 25 May 2000 issue. It was hard to derive anything specific about the strength of the suspicion. Although it was true that formally speaking the applicant had only been given witness status, seen as a whole the report was capable of giving the ordinary reader the impression that the paper regarded the applicant as a person who already at an early stage of the investigation had stood out as the most probable perpetrator among those who had been in the police ’ s search light. The High Court moreover noted a number of other aspects of the publications confirming this impression. It concluded that the impugned publications were defamatory in the sense of Article 247 of the Penal Code. 28. As to the question whether the publications were unlawful ( rettstridig ), the High Court was of the view that it generally should fall within the State ’ s margin of appreciation to strike a fair balance between the interests in protection of freedom of speech under Article 10 of the Convention and the interests in protection of reputation under Article 8, bearing in mind also the presumption of innocence under Article 6 § 2. On the particular facts of this case, the High Court considered that there was undoubtedly a great public interest in the investigation of the murders and in the pursuit of the culpable persons. However, with two votes to one, the High Court found that, on balance, the interests in allowing the publications weighed more heavily than those against and that the impugned news coverage had therefore not been unlawful. 29. The dissenting member found that the “identification” of the applicant and its extensive press coverage by Fædrelandsvennen had been unlawful and that he should be awarded compensation under section 3-6 of the Damage Compensation Act 1969, namely NOK 150,000 by the newspaper and NOK 25,000 each from the editor-in-chief and from the journalist. The applicant appealed against the High Court ’ s application of the law to the Supreme Court, alleging that it entailed a violation of Articles 6 § 2 and 8 of the Convention. He maintained that in its coverage on 24 and 25 May 2000 the Fædrelandsvennen had portrayed him as the perpetrator of the most aggravated offences seen in modern times in Norway. He had not consented to the media coverage which had been a great burden to him. He had lost his job and home and suffered from serious psychological problems. 30. By a judgment of 14 December 2004 the Supreme Court, by three votes to two, found in favour of the respondents and rejected the applicant ’ s claim. 31. Mr Justice Stang Lund, whose reasoning was endorsed in the main by the other judges in the majority, inter alia concurred with the High Court ’ s finding that, the Fædrelandsvennen ’ s focus on the applicant as a previously convicted knife killer, his presence in Baneheia on the day when the criminal acts had been committed and the investigation of the applicant, for an ordinary reader must have been perceived as if he could be suspected of having committed the murders. It had already been publicly known that the perpetrators of the murders had used pointed penetrating weapons against the girls. This information together with the rendering of parts of the judgment by which the applicant had been convicted in 1988 and the security measures case, were likely to harm his good name and reputation and to expose him to hatred and contempt, thus fulfilling the objective constitutive elements in Article 247 of the Penal Code. On these points Mr Justice Stang Lund stated: “ ( 56) Taking as a starting point the wording, typography, the internal context and the use of photographs it must be ascertained how the report and articles were likely to be understood by the ordinary reader .... The statements must be considered in the context of the whole report they are part of. (57) The High Court unanimously found that the factual information had to be considered in the context of the other content of the reports and the articles published on 24 and 25 May 2000, and concluded: ‘ In the High Court ’ s opinion the conclusion of the interpretation is that Fædrelandsvennen pointed to [the applicant] as a possible perpetrator of the murders of the two girls in Baneheia. His name is not stated, but it was possible for those who previously knew [the applicant] to recognize him in particular because of the photograph taken of him from behind and because of the information about where he lives and the work place in the report dated 25 May. It is difficult to evaluate how strong the suspicion created was. Even though it is correctly underlined that the police had given [the applicant] only a witness status without formally charging or suspecting him, in the High Court ’ s view the report as a whole was capable of giving the ordinary viewer the impression that the newspaper considered [the applicant] to be a man who already at this early stage in the investigation stood out as the most likely perpetrator among the persons who were in the police ’ s search light. ’ (58) The High Court, amongst other aspects, emphasised that in the front page story of 24 May it was stated that [the applicant] was ‘ probably the most interesting of several convicted persons whose movements are now being checked by the police ’, that he had been questioned for 10 hours after having been collected by the police at his work place, and that the report was illustrated with Dagbladet ’ s photograph of [the applicant] with his head blanked, being escorted by two police officers. The High Court found that the photograph created associations of arrest. This was presented together with the information that, after having been brought home, another police car with a dog patrol had arrived at the house, had passed by in low speed, had turned and had vanished in the dark. In addition to this the newspaper rendered statements by a police inspector to Verdens Gang that the police had received much information with substance, and that the answer to who had killed the two little girls was to be found in the police records. Also the rendering on 25 May that the police were looking for a locally known murderer with a greatly deviant personal character, in the High Court ’ s opinion supports the view that the applicant may be a person with the special character that are a requisite for committing such a heinous crime. The High Court did not find that the rendering of [the applicant] ’ s denial and of the neighbours ’ warning against prejudging were sufficient to weaken the suspicion created by the newspaper coverage as a whole. (59) I concur with the High Court in that the focus by Fædrelandsvennen on [the applicant] as a previously convicted knife killer, his presence in Baneheia that afternoon the misdeed was carried out, and the investigation of him, for an ordinary reader must have been perceived as if he could be suspected of having committed these killings. It was already publicly known that the perpetrator(s) had used knives when the girls were killed. This information, together with the description of parts of his criminal conviction from 1988 and the security measures [ sikring ], was likely to harm [the applicant] ’ s good name and reputation and to expose him to hatred and contempt. The objective description of the offence in Article 247 is therefore fulfilled. (60) The adversary party has stated that the reports in Fædrelandsvennen of 24 and 25 May did not contribute to identify [the applicant] beyond that occurred in TV2 in the evening of 24 May, where he was interviewed and filmed from behind and from the side while walking towards Baneheia. My comment to this is that Fædrelandsvennen in connection with the reports of 25 May 2000 about [the applicant] informed about ‘ the 42 year old ’ s ’ work place and place of residence. The photograph from the previous day depicting [the applicant] entering a bus, a new photograph of 25 May showing [the applicant] with the same jacket and with a plastic bag on his way home ‘ to the house in ... .[the applicant] ’ s road at Z ’, and the article from the newly constructed housing area in Æ at Z, may have led to more people in the near environment becaming aware of [the applicant] ’ s identity.” 32. As to the further question whether the allegations were unlawful ( rettstridige ), Mr Justice Stang Lund observed inter alia the following with regard to the concrete circumstances of the case: “(76) It is self-evident that the rapes and killings in Baneheia on Friday, 19 May 2000 were of great public interest. The news media had a duty to report, and the public had a right to receive, information about the misdeed, the investigation and the progress in the case. It is clearly a matter of public interest that previously convicted felons are in the police ’ s searchlight, and that interrogations and other police work is taking place to check witnesses out of the case or to charge them. In the near environment it may be of public interest to be informed about the fact that a previously convicted killer in the area in respect of whom a case concerning prolongation of security measures was pending, has been brought in by the police for questioning. (77) This must however be weighed against the interest of privacy and the protection of reputation, when the media circles in and identifies one or a few previously convicted persons being under investigation. At this stage the public normally has no legitimate interest to receive detailed information about previously convicted persons and their identity, hereunder descriptions of the criminal offences for which they have been convicted. However, in this very special case people living in the vicinity had a particular interest in knowing that a person who had previously been found guilty of murder and of violent assault and who had been sentenced to security detention, was living in the area, so that they could protect their own and their children ’ s interests. (78) The character of the allegation and, in particular, its seriousness is an important factor in the balancing exercise to be carried out when determining whether the interests of protection of personal life justify an interference with the freedom of expression, see Norwegian case-law reports ( Norsk Retstidende ( Rt. )) 2002 p. 764 on pp 774- 775. In accordance with the case-law of the European Court and the Norwegian Supreme Court a distinction ought to be made between statements of fact and value judgments, because only statements of fact may be susceptible to proof. Normally statements which may be understood to mean that a person is or may be suspected of a criminal offence must be considered to be statements of facts which need to be proven. (79) The respondents have argued that the impugned statement only concerns whether the unnamed 42 year-old ‘ is probably the most interesting among several previously convicted felons whose movements are now being checked by the police ’. The leader of the investigation has later confirmed that the applicant was the most interesting person on whom efforts were deployed at the beginning of the investigation. The statement is alleged to have been correct, and its publication is claimed not to be unlawful. (80) When one, as I do, has reached the conclusion that the newspaper ’ s reports and articles considered as a whole left the impression that [ the applicant ] could be a suspect in the case, the evidence must concern whether he has committed the crime he has been accused of. It is not sufficient that the newspaper gave an accurate description of the factual circumstances adduced to show that there was a basis for suspicion. As an exception to this general rule case law has accepted the publication of charges. Here the evidence is acceptable when it is proven that the reporting of the charge in itself is correct, see Rt. 199 9 p. 1742 ( Landåssaken ). There is no corresponding exception for reporting on suspicion. (81) In this case Fædrelandsvennen has not rendered a suspicion stated by others. The newspaper coverage and the articles mainly consist of reporting on the judgment from 1988, the relevant preventive supervision case [ sikringssak ] and the statements made by leaders of the investigation. It appears clearly that the applicant has been interrogated as a witness and that neither he nor anyone else is under investigation as a suspect. The most direct statement indicating suspicion is attenuated in its form in that [the applicant] according to the newspaper is ‘ probably the most interesting of several criminally convicted persons whose movements are now being checked by the police ’. His statements in an interview published on 24 May 2000 about his being completely innocent, has been published in the head line on top of the front page. (82) In balancing the competing interests in the concrete case I have with some doubt found that it was not unlawful for Fædrelandsvennen on 24 and 25 May 2000 to publish that [the applicant] was the most interesting of several convicted persons investigated by the police, even though this in the context may be perceived to mean that he was or could be a suspect. The monstrous sexual offences and consequent killings in Baneheia were of particularly great public interest throughout the country, especially in Kristiansand and in the Agder counties. The people in the vicinity around Baneheia and in the vicinity where [the applicant] lived, had a particular interest in receiving continuous and concrete information about the investigation. (83) In my opinion the journalist and the editor have not been negligent. The intense and extensive interest shown by the national news media directed against [the applicant] before Fædrelandsvennen ’ s own publishing, his own statements to the media and the public interest justified the publication of the information about [his] workplace and place of residence and the use of anonymous photos of his person. When considering the question of negligence, I also emphasize that the coverage and articles were balanced, that their main content consisted of reporting true factual information, and that the police underlined that no one was under suspicion and that the [applicant] ’ s view was presented clearly. I add that since this case presented itself at the early stage of the investigation, the newspaper had no cause to investigate further if [the applicant] could be the perpetrator. ... ” 33. Mrs Justice Coward, whose opinion was endorsed in the main by the other judge of the minority, stated, amongst other: “(93) There was obviously public interest attached to the investigation in the Baneheia case. The nation was shocked, and it was a task for the media to inform of the crimes and the work of the police. In the High Court it was agreed that it must be allowed to impart an information that a previously convicted felon was in the police ’ s search light and had been subjected to a long interrogation - even though the reporting would make it possible to understand who this was for those who had special knowledge or for those who carried out investigations on their own. I too agree with that. The disagreement in the High Court concerned whether the further identification provided by Fædrelandsvennen - in particular by revealing the workplace and residence was justified. (94) In assessing the character of the allegation it is a point that this constituted an affirmation of suspicion, which when considering the seriousness is different from an accusation of being the perpetrator. But, on the other hand, the suspicion was related to particularly heinous crimes. The crimes aroused strong feelings of abhorrence and hatred in the population, and it is difficult not to think that it must have been awful to have been exposed to suspicion for having committed them. I agree with the High Court minority when it states that ‘ strong reasons for protecting the privacy militate for protecting the identity of an individual who for different reasons has come in the search light of the police in the investigation of criminal cases. This consideration is, not the least, important in serious criminal cases where great public interests are attached to clearing up the case ’. And precisely a person like [the applicant], who with his background more easily than others would be suspected, had a special need for the protection offered by the presumption of innocence. (95) I cannot see that it betters things, as stated by Fædrelandsvennen, that [the applicant] was given the opportunity to declare his innocence on the front page of the newspaper ’ s issue of 24 May 2000 : ‘ Convicted murderer : I am completely innocent ’. It emerges from this report that none of ‘ a not insignificant number of people ’ being checked in the case were under suspicion. However, neither this was likely to weaken the suspicion towards [the applicant] as the likely perpetrator. I agree with the High Court - all three justices - when it states: ‘ Not in the least the High Court finds that the total search light directed against [the applicant] is important. He represents both the starting point and most of the reporting done by Fædrelandsvennen covering the Baneheia -case those days. Given the reluctance the press in accordance with the ethics of journalism usually show by not identifying individuals being in the police ’ s search light, this to a large extent must strengthen the ordinary reader ’ s impression of [the applicant] as being the most possible perpetrator. ’ (96) I cannot see that the total reporting by Fædrelandsvennen should be considered balanced, even though the factual information taken apart had not been incorrect, [the applicant] had been given the opportunity to claiming his innocence and the police ’ s statement that no one was to be suspected had been referred to. When it comes to heinous crimes of such gravity as here, in my opinion the press should not be allowed to publish untrue suspicions against identifiable individuals, even though the coverage should otherwise be characterized as being balanced. (97) I add that [the applicant] was persecuted by assertive media people against whom he found it difficult to protect himself. That he at no point accepted to be identified, must be obvious. (98) The difference of opinion between the majority and the minority of the High Court was related to the significance of other media identifying [the applicant]. In the evening of 24 May 2000 TV2 showed a report where he was filmed from behind and somewhat from the side. On 25 May 2000 Dagbladet informed that he worked in a protected workplace in Kristiansand and lived in his brother ’ s cabin in Y at Z. The newspaper also showed a photo of him taken from behind. Fædrelandsvennen went the furthest in publishing identifying information about [the applicant] - in particular by revealing his workplace and residence, but besides this the articles in this most important district newspaper must have made it possible for more people to identify him than those who watch TV2 or read Dagbladet. (99) The High Court minority point to an important consideration in emphasising at the end stating the need for the individual to be protected from collective media pressure: ‘ The minority also attaches considerable weight to the fact that the coverage in Faedrelandsvennen appeared as an extensive and independent contribution from the newspaper and that the damaging effect for [the applicant] and the problems caused for him must have been caused by the total pressure from the media coverage during a short and concentrated period of time where Fædrelandsvennen ’ s contribution was of particular significance. The minority is inclined to accept that [the applicant] had become ‘ free game ’ as a result of the fact that some media had identified him. Such a solution is not adequate for protecting each individual against libellous reporting in mass media and does not coincide with the independent responsibility each newspaper has in circumstances where judicial and ethical press norms may be under challenge due to a situation of competitiveness. ’ (100) I concur with this, and conclude - in accordance with the vocabulary used by European Court - that a pressing need existed for interfering with the freedom of expression in the way of a reaction to the coverage by Fædrelandsvennen. (101) The conditions for compensation in accordance with section 3-6 of the Damage Compensation Act have been fulfilled. Since I am aware that I represent a minority, I see no reason to go into detail with regard to the amount of compensation. However, in view of Fædrelandsvennen ’ s pleadings I point to the fact the harm caused by the offence to a large extent must be objectified : Also people who are socially marginalised must enjoy effective protection against libellous allegations. Like the minority in the High Court, I vote for compensating [the applicant] with NOK 150, 00 0 from the newspaper and NOK 25, 000 from the editor. The contribution from the journalist was more peripheral, and she should not be ordered to pay compensation. ... ” D. Defamation proceedings brought by the applicant against TV2 34. In October 2003 the applicant brought defamation proceedings against TV2 AS (Ltd.) before the Kristiansand City Court claiming compensation with regard to TV2 ’ s news coverage on 23 and 24 May 2000 of the Baneheia case. The City Court found for TV2 and rejected the applicant ’ s claims. On an appeal by the applicant, on 8 December 2006 the Agder High Court upheld the applicant ’ s claim that the news coverage constituted unlawful defamation and ordered the defendants to pay him NOK 250,000 in compensation for non-pecuniary damage and discontinued the case with regard to his claim for pecuniary damage. As regards the contents of the disputed broadcasts and their defamatory effect, the Agder High Court made similar findings in the TV2 case as made by the appellate courts in the present case. In finding the defamation unlawful it had regard to several factors, notably TV2 ’ s national as opposed to local media role, unlike that of Fædrelandsvennen, the potency of the televised medium, the rule of caution applicable to the press with regard to identification of person regarding coverage of early stages of criminal investigations and the fact that, although aware of an autopsy report made available on 24 May 2000 revealing that the murders had involved rape, TV2 had in the evening news of that date continued to focus on the applicant notwithstanding the fact that his 1988 criminal conviction had not concerned sexual offences. TV2 had also been the first medium to insinuate suspicion against the applicant and to identify him in its broadcasts and had taken the lead in this regard. On 19 February 2007 the Appeals Leave Committee of the Supreme Court refused TV2 leave to appeal. III. RECOMMENDATION BY THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE 37. The Appendix to the Recommendation Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings (Adopted by the Committee of Ministers on 10 July 2003 at the 848th meeting of the Ministers ’ Deputies) contains the following principle of particular interest to the present case: “ Principle 8 - Protection of privacy in the context of on-going criminal proceedings The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.” | This case concerned the applicant’s complaint about the unfavourable outcome of a defamation suit he had brought against a newspaper, following their publication of news coverage about the preliminary investigations into the rape and murder of two young girls (the so-called Baneheia case) in 2000 and which implicated him. The applicant was questioned about the murders but released after 10 hours; two other men were subsequently convicted of the crimes. |
586 | Expulsion or extradition cases | 2. The applicant was born in 1974 and lives in Yerevan. The applicant was represented by Mr T. Yegoryan and Mr N. Baghdasaryan, lawyers practising in Yerevan. 3. The Government were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, Representative of the Republic of Armenia to the European Court of Human Rights. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant, who is ethnic Armenian, lived and worked in Russia prior to his return to Armenia on an unspecified date in June 2015. He was first deputy director of one of the State budgetary establishments of the City of Moscow. Criminal proceedings against the applicant in Russia 6. On 27 May 2015 the investigative department of the north administrative district of Moscow instituted criminal proceedings against the applicant on suspicion of attempted bribe-taking. 7. On 1 June 2015 the applicant undertook to appear when summoned by the investigative authority and to inform the investigator immediately of any change of place of residence or registration. 8. On 10 June 2015 the applicant was charged with attempted bribe-taking. 9. On the same date the applicant was admitted to accident and emergency in a hospital in Moscow with transient cerebral ischaemia. He was discharged on 14 June 2015. 10. On 16 June 2015 the investigator declared the applicant a fugitive, including him in the federal wanted list. 11. On 8 July 2015 the applicant was declared an international fugitive. 12. On 14 July 2015 the Savelevskiy District Court of Moscow allowed the investigator’s application seeking the applicant’s detention. In doing so, it dismissed the applicant’s lawyer’s arguments concerning the applicant’s poor state of health and the fact that that he had received inpatient medical treatment in Yerevan of which the investigator had been informed. The court found, inter alia, that the applicant had knowingly chosen not to receive medical treatment in Russia and had left the country despite the criminal proceedings pending against him. Extradition proceedings in Armenia and the applicant’s state of health 13. On 11 April 2017 the applicant was arrested in Yerevan. He was then detained pending determination of the question of his extradition to Russia. 14. On 14 April 2017 the Office of the Prosecutor General of Armenia submitted an application to the Kentron and Nork-Marash District Court of Yerevan (“the District Court”) seeking to detain the applicant for a period of forty days pending determination of the question of his extradition to Russia. 15. On the same date the District Court authorised the applicant’s detention for a period of forty days counting from 11 April 2017. 16. On 19 April 2017 the applicant lodged an appeal against the District Court’s decision of 14 April 2017, arguing that he should be considered an Armenian citizen, which would be legal grounds preventing his extradition. The applicant submitted a number of documents such as his birth certificate, old passports, documents concerning his military conscription in Armenia, and so forth to substantiate that he satisfied the requirements of section 10 of the Nationality Act and he should therefore be recognised an Armenian citizen. 17. On 30 May 2017 the Criminal Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal. In particular, having examined the documents submitted by the prosecution in support of the argument that the applicant had received Russian nationality before 13 July 1995, the date of entry into force of the Constitution – one of the requirements of section 10 of the Nationality Act – the Court of Appeal found that the applicant’s detention for the purpose of his extradition to a foreign country would be in breach of his rights since the question of his nationality was disputed. At the same time, the Court of Appeal found that the applicant’s detention pending receipt of the criminal case against him for the purpose of his prosecution in Armenia was lawful under Articles 478.2 and 478.3 of the Code of Criminal Procedure. 18. On 12 May 2017 the Prosecutor General of Russia requested the applicant’s extradition under the 1993 Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters. That request also stated that the applicant would not be subjected to torture, inhuman and degrading treatment or punishment. 19. On 14 May 2017 the Office of the Prosecutor General of Armenia lodged an application with the District Court, seeking the applicant’s detention for two months for the purpose of carrying out his extradition. 20. On 19 May 2017 the District Court authorised the applicant’s detention for a period of two months. 21. On 16 June 2017 the applicant was transferred from the Nubarashen detention facility to the Central Prison Hospital with the following diagnosis: “Heart ischaemic disease; arterial hypertension progressing to a critical state”. 22. In a decision of 23 June 2017 the Prosecutor General of Armenia granted the extradition request, instructing the police and the Central Prison Hospital, where the applicant was detained, to ensure his extradition to Russia after the decision had become final. It was stated in the decision that according to the documents provided by the Office of the Prosecutor General of Russia the applicant had received Russian nationality on 26 July 1994 and that he was still a Russian citizen. Hence, there were no legal impediments to his extradition. 23. On 3 July 2017 the deputy head of the Central Prison Hospital issued a certificate in respect of the applicant’s state of health. It stated that he was suffering from a post-stroke condition with severe vestibulopathy and eye ‑ movement impairment; remnants of the stroke in the area of the left middle artery of the brain with right-sided reflector hemiparesis; walking difficulty as a result of hemiparesis; 2nd degree atherosclerotic encephalopathy; 1st degree arterial hypertension; a 15% risk of developing cardiovascular complications. 24. On 6 July 2017 the applicant appealed against the extradition decision of 23 June 2017 to the Court of Appeal. He argued that, considering his state of health, his transfer to Russia could cause irreparable harm to his health or put his life in danger. In support of his appeal, the applicant relied on the medical certificate of 3 July 2017. 25. In a letter of 12 July 2017 the Office of the Prosecutor General of Russia asked the Office of the Prosecutor General of Armenia to inform it of the planned date for the applicant’s transfer, guaranteeing that during the applicant’s detention and, in the event of his conviction, during the serving of his sentence the staff of the Armenian consulate in Russia would have access to him. In addition, during the same periods, in case of necessity, the applicant would be provided with the requisite medical assistance. 26. On the same date the chief neurologist of the Ministry of Health of Armenia issued a medical certificate which stated that the applicant was suffering from the consequences of an ischaemic stroke indicating severe disorders of the cardiovascular and nervous systems. Considering those risks, it could not be ruled out that the applicant’s transfer to Russia by air or land could result in a further stroke or a heart attack. 27. By further letter of 14 July 2017 the Office of the Prosecutor General of Russia gave assurances that a doctor with the relevant specialisation would travel with a special convoy to provide the applicant with medical assistance if necessary during his transfer. 28. On 19 July 2017 the Court of Appeal rejected the applicant’s appeal. It referred to the assurances provided by the Office of the Prosecutor General of Russia regarding the presence of a medical specialist during the applicant’s transfer to Russia and during his detention and, if convicted, while serving his sentence. 29. On 26 July 2017 the applicant lodged an appeal on points of law against the decision of 19 July 2017, arguing that the translator appointed for him had failed to appear at the hearing and that a copy in Russian of the judgment had not been provided to him. In addition, the applicant had not been able to effectively participate in the proceedings since he had neither been properly given a chance to make arguments nor had he been informed of his rights. Lastly, the applicant argued that the Court of Appeal had failed to verify his state of health as far as the risks during his transfer were concerned. 30. In the certificate of 28 July 2017 Dr A.K., the head of the neurological department of a hospital in Yerevan, confirmed the applicant’s diagnosis as set out in the medical certificate of 12 July 2017 (see paragraph 26 above). It was further noted that the applicant had developed cephalic disorder accompanied with photophobia and phonophobia, which required treatment and preferably supervision by a neurologist. On the basis of those conditions and risk factors, it was concluded that the applicant should not be allowed to be transferred by air or land as that might cause further heart and brain problems. 31. Between 14 August and 1 September 2017 the applicant underwent inpatient medical examination and treatment in a civilian hospital. His discharge diagnosis stated the following: “Arterial hypertension, progressing to a critical state, high risk with chronic insufficiency of blood circulation and frequent transient ischaemic attacks in vertebra-basilar pool. Discirculatory angio-encephalopathy of the 3rd degree with ischaemic strokes in the vertebra-basilar pool and the pool of the left-middle cerebral artery accompanied with post-stroke cysts in the midbrain, the bridge and the brainstem; with leukoaraiosis with stable residual phenomena in the form of the right-sided moderate hemiparesis; vestibulopathy; moderate disorder of walking function; hypertensive syndrome manifested with frequent cephalgia. Ischaemic heart disease, stable angina pectoris ... ” 32. On 21 August 2017 the Court of Cassation quashed the decision of 19 July 2017 and remitted the case for a new examination on the grounds that the Court of Appeal had failed to ensure that the applicant had understood the language of the proceedings and that he had been aware of his rights. 33. On 13 September 2017 Dr A.K. provided a further medical opinion concerning the applicant’s state of health based on his discharge diagnosis (see paragraph 31 above). She stated, in particular, the following: “[T]he applicant’s [condition] is serious and unpredictable, considering the strong probability of future attacks in the form of hypertonic crises and transient ischaemic attacks, the two previous ischaemic strokes in the vertebra-basilar pool and the pool of the left-middle cerebral artery. A person suffering from those conditions cannot participate in court hearings, because any emotional tension might lead to the development of new potential complications.” 34. At the hearing of 25 October 2017 during the fresh examination of the applicant’s appeal against the extradition decision of 23 June 2017, his lawyer lodged an application with the Court of Appeal, seeking the appointment of an expert to assess his state of health. The prosecutor objected to the application, stating that there were insufficient grounds to conclude that the applicant’s transfer to Russia would pose any risks to his health or life. She reasoned that during the examination of the request for the applicant’s extradition the Prosecutor General of Armenia had not been in possession of any medical documents concerning the applicant’s health. Moreover, the prosecutor expressed doubts about the applicant’s medical condition, referring to a letter from the detention facility dated 13 July 2017 which stated that he was fit to participate in court proceedings. 35. On the same date the Court of Appeal rejected the applicant’s appeal finding that there were no circumstances preventing the applicant’s extradition. In particular, the applicant was a Russian national and assurances about securing his rights within the framework of the criminal proceedings against him had been provided by the Russian authorities. The Court of Appeal affirmed the decision of the Prosecutor General of Armenia on extraditing the applicant to Russia, relying on the supplementary assurances of the Russian authorities that the applicant’s medical supervision during and after his transfer to Russia would be ensured. In the meantime, it also rejected the applicant’s request to appoint a forensic medical expert on the grounds that the assignment of a forensic medical examination during extradition proceedings was not prescribed under domestic law. 36. The applicant lodged an appeal on points of law complaining of lack of a public hearing and adversarial trial before the Court of Appeal. He also reiterated his arguments about the medical risks of his transfer. 37. On 23 November 2017 the Court of Cassation declared the appeal inadmissible for lack of merit. Accordingly, the decision of the Prosecutor General of Armenia to extradite the applicant to Russia became final. 38. On 30 November 2017 the decision of 23 November 2017 was served on the applicant’s lawyer. Indication of an interim measure under Rule 39 of the Rules of Court 39. On 18 August 2017 the applicant asked the Court, under Rule 39 of the Rules of the Court, to indicate to the Government to stay his extradition to Russia until the Court had examined the merits of his complaints. 40. On 30 November 2017 the applicant informed the Court that the domestic courts had reached a final decision to extradite him to Russia. 41. On the same date the Court (the duty judge) decided to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited until further notice. In the meantime, the Court (duty judge) decided, under Rule 54 § 2 (a) of the Rules of Court, to ask the Government to respond to the following questions by 15 December 2017: “1. What practical steps, if any, have been taken for the applicant’s effective transfer to the Russian Federation? 2. If steps have been taken, when and how will the applicant be transferred (by air, land)? 3. Will the applicant be provided with medical assistance during the journey? If so, please provide details. 4. Is there a medical protocol for handing over the applicant to the Russian authorities upon arrival?” 42. In their reply the Government submitted that the applicant had speculatively tried to hinder his extradition first by providing misleading information to substantiate that he was an Armenian national and then by producing medical documents about a drastic deterioration of his state of health. Furthermore, the applicant had already been suffering from the diseases mentioned in the medical note of 12 July 2017 when he had travelled to Armenia by plane in June 2015. The Government relied on the letters of 12 and 14 July (see paragraphs 26 and 27 above) and 14 December 2017 (see paragraph 49 below) which contained assurances by the Russian authorities that the applicant would be provided with the requisite medical assistance during his transfer to Russia and, if convicted, while serving his sentence. They submitted that according to the established practice, a person’s extradition from Armenia was performed only if a medical document proving his or her fitness to be transferred had been issued by the Central Prison Hospital. 43. In reply to the Government’s submissions, the applicant maintained that he had had health issues since at least 1994, when he had been exempted from mandatory military service on health grounds. However, it had only been since 2015 that his health had sharply deteriorated as a result of the stress and anxiety caused by his prosecution. Owing to his poor state of health he had been kept in the Central Prison Hospital during his detention and transferred to civilian hospitals by the authorities to receive specialist care. Furthermore, the Government had never ordered an assessment of his state of his health in order to verify whether he had been fit to be extradited. In addition, the Court of Appeal had dismissed his application to be examined by a forensic medical expert. The applicant argued that the general assurances obtained from the Russian authorities were insufficient for the discontinuation of the measure indicated by the Court, considering the seriousness of his illnesses as attested to by various medical professionals. He also relied on the medical advice that he should not be transferred to Russia either by air or land given the potential risks of such transfer indicated by doctors. 44. On 6 February 2018 the Court (the duty judge) decided to maintain the interim measure indicated on 30 November 2017. Parallel and subsequent developments 45. On 27 September 2017 the applicant submitted a request for asylum to the State Migration Service. 46. In a decision of 14 November 2017 the State Migration Service refused the applicant’s request for asylum. 47. On 11 December 2017 the applicant was released from detention as the maximum period of his detention pending extradition had expired. 48. On the same date he was admitted to the neurology department of a civilian hospital for examination and treatment. 49. By letter of 14 December 2017 the Office of the Prosecutor General of Russia, with reference to a letter from the Russian Federal Service for Execution of Sentences, informed the Prosecutor General of Armenia that the special convoy accompanying the applicant would include a medical specialist ready to provide medical assistance to him in accordance with his state of health. Furthermore, the medication and medical equipment necessary to provide assistance in the event of cardiovascular problems would be at the disposal of the doctor accompanying the applicant during his transfer. The letter also stressed that, before signing the applicant’s act of transfer, it would be necessary for the accompanying doctor to examine his medical records with a view to verifying the absence of contraindications for his transfer by air transport. Lastly, it was stated that the applicant would undergo medical examinations and consultations upon arrival at the detention facility with a view to planning outpatient supervision of his chronic illnesses. 50. On 18 December 2017 the applicant lodged a claim with the Administrative Court seeking judicial review of the decision of the State Migration Service dated 14 November 2017 (see paragraph 46 above). 51. On 21 December 2017 the Administrative Court admitted the applicant’s claim for examination. The outcome of those proceedings was not communicated to the Court. 52. On 26 December 2017 the applicant qualified for disability. 53. On 28 December 2017 the applicant was discharged from hospital with the following diagnosis: “Arterial hypertension, progressing to a critical state, high risk with chronic insufficiency of blood circulation and frequent transient ischaemic attacks in the vertebra-basilar pool. Third degree discirculatory angio-encephalopathy with ischaemic strokes in the vertebra-basilar pool and the pool of the left-middle cerebral artery with the existence of post ‑ stroke cysts in the midbrain, the bridge and the brainstem, with leukoaraiosis with stable residual phenomena in the form of the right–sided moderate hemiparesis, vestibulopathy, moderate disorder of walking function, with hypertensive syndrome, and frequent cephalgia. Ischaemic heart disease, angina pectoris class 2, class 1 heart failure (NYHA classification). Multi-level degenerative-dystrophic changes of the spine, osteochondrosis of the 4th degree with hernias at C4-C5, C5-C6, C6-C7 levels, hydromyelia. Recommendation: constant supervision by a neurologist. At the moment, he is not fit to travel. Constant administration of hypotensive and antiplatelet medication”. Events after NOTICE of the application being given to the respondent Government 54. On 9 January 2019 the Government informed the Court that they had ordered an additional impartial medical evaluation of the potential risks associated with the applicant’s transfer to Russia based on the evidence presented by the applicant regarding his state of health. 55. On 11 January 2019 a neurologist examined the applicant and confirmed the diagnoses set out in the conclusion of 28 December 2017 (see paragraph 53 above). In addition, the neurologist noted the following: “... at the moment, transfer by air or land is contraindicative, as any change in pressure (take-off, landing, being in a confined space for a long time, oxygen scarcity, motion sickness, any sudden and quick movements) can worsen the state of the disease, which threatens not only the patient’s health, but also his life.” 56. In a letter of 31 January 2019 the Government Agent asked the Minister of Health to form a medical panel which would provide professional medical opinion on the following questions: “Considering [the applicant’s] diagnosis as stated in the medical documents submitted to the [European Court of Human Rights], would his transfer to the Russian Federation by air or land expose him to risks to his life and physical well-being? If [the applicant’s] transfer exposed him to risks to his life and physical well-being, would the presence of an accompanying doctor (specifically with what type of specialisation) during the transfer eliminate or minimise such risks?” 57. On 12 February 2019 the Minister of Health submitted the opinion of the medical panel which had been convened on 11 February 2019. The medical panel answered the questions as formulated in the Government Agent’s letter of 31 January 2019 (see paragraph 56 above) as follows: “Question 1: Yes, the high risks associated with [the applicant’s] transfer to the Russian Federation by air or land are linked to the chronic diseases reflected in ... his medical documents and their possible unpredictable aggravation. Question 2: No, since in the event of aggravation [of the chronic diseases] emergency medical care in a specialist medical institution may become necessary.” 58. The opinion of the medical panel convened on 11 February 2019 was provided to the Court on 2 May 2019 by the applicant, who had received it in response to an enquiry sent to the Ministry of Health in April 2019. 59. The parties have not provided any further information with regard to developments in the applicant’s state of health. | This case concerned the Armenian authorities’ decision to extradite the applicant to Russia, where criminal proceedings for attempted bribe-taking were pending against him. The applicant, who suffered from the effects of a past stroke, claimed that his medical condition did not render him fit for being transferred either by air or land. |
1,052 | Work during detention | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1938 and lives in Vienna. He has spent about twenty-eight years of his life in prison. During his prison terms he worked for lengthy periods in the prison kitchen or the prison bakery. As a working prisoner the applicant was not affiliated to the old-age pension system under the General Social Security Act. However, from 1 January 1994 he was affiliated to the unemployment insurance scheme in respect of periods worked in prison. 9. On 8 February 1999 the applicant filed an application for an early retirement pension with the Workers’ Pension Insurance Office ( Pensionsversicherungsanstalt der Arbeiter – “the Pension Office”). 10. By a decision of 8 March 1999, the Pension Office dismissed the application on the ground that the applicant had failed to accumulate 240 insurance months, the required minimum for an early retirement pension. A list of the applicant’s insurance periods, running from October 1953 to February 1999, was appended to the decision. According to the list, the applicant had accumulated only 117 insurance months. The list shows lengthy periods during which no contributions were made, in particular from May 1963 to May 1964, from July 1965 to September 1968, from June 1969 to January 1974, from April 1974 to March 1984, from June 1984 to May 1986 and from February 1987 to April 1994. Between May 1994 and February 1999 a number of months, during which the applicant received unemployment benefits or emergency relief payments under the Unemployment Insurance Act, were counted as substitute periods. 11. Subsequently, the applicant brought an action against the Pension Office before the Vienna Labour and Social Court ( Arbeits- und Sozialgericht ). He submitted that he had been working for twenty-eight years in prison and that the number of months worked during that time should be counted as insurance months for the purpose of assessing his pension rights. 12. On 4 April 2001 the Labour and Social Court dismissed the applicant’s claim. It confirmed that the applicant had not completed the required minimum number of insurance months. Referring to section 4(2) of the General Social Security Act, the court noted that prisoners performing obligatory work while serving their sentence were not affiliated to the compulsory social insurance scheme. According to the Supreme Court’s established case-law (judgment no. 10 ObS 66/90 of 27 February 1990 and judgment no. 10 ObS 52/99s of 16 March 1999), their work, corresponding to a legal obligation, differed from work performed by employees on the basis of an employment contract. The difference in treatment under social security law did not disclose any appearance of discrimination. 13. The applicant, now assisted by counsel, appealed. He argued in particular that the wording of section 4(2) of the General Social Security Act did not distinguish between work on the basis of a legal obligation and work based on a contract. Moreover, he argued that the distinction was not objectively justified. Since 1993, prisoners who worked had been affiliated to the unemployment insurance scheme. In the applicant’s view, there was no reason not to affiliate them to the old-age pension system. 14. On 24 October 2001 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant’s appeal. It held that the Labour and Social Court had correctly applied the law. According to the Supreme Court’s established case-law, prisoners performing obligatory work were not to be treated as employees within the meaning of section 4(2) of the General Social Security Act and were therefore not affiliated to the compulsory social insurance scheme. The fact that, since the 1993 amendment to the Unemployment Insurance Act, prisoners were affiliated to the unemployment insurance scheme was not conclusive as regards the question of their affiliation to the old-age pension system. In essence, the applicant raised a question of legal or social policy. However, it was not for the courts but for the legislature to decide whether or not to change the provisions relating to the social insurance of prisoners. In that connection, the Court of Appeal noted that it did not share the applicant’s doubts regarding the possible unconstitutionality of working prisoners’ non-affiliation to the old-age pension scheme. 15. On 12 February 2002 the Supreme Court ( Oberster Gerichtshof ) dismissed an appeal on points of law by the applicant. Its judgment was served on the applicant on 6 May 2002. 16. On 29 January 2004 the applicant completed his last prison term. Subsequently, he received unemployment benefits until 29 October 2004 and, upon their expiry, emergency relief payments ( Notstandshilfe ). According to his counsel’s submissions at the hearing, the applicant currently receives some 720 euros (EUR) per month (composed of EUR 15.77 per day plus EUR 167 per month in emergency relief payments and EUR 87 as an allowance towards his rent expenses). | The applicant, who spent some twenty-eight years of his life in prison, argued in particular that European standards had changed to such an extent that prison work without affiliation to the old-age pension system could no longer be regarded as “work required to be done in the ordinary course of detention”, which was exempt from the term “slavery and forced labour” prohibited under Article 4 of the Convention. |
492 | Immigration rules | 10. The applicants are lawfully and permanently settled in the United Kingdom. In accordance with the immigration rules in force at the material time, Mr. Abdulaziz, Mr. Cabales and Mr. Balkandali were refused permission to remain with or join them in that country as their husbands. The applicants maintained that, on this account, they had been victims of a practice of discrimination on the grounds of sex, race and also, in the case of Mrs. Balkandali, birth, and that there had been violations of Article 3 (art. 3) of the Convention and of Article 8 (art. 8), taken alone or in conjunction with Article 14 (art. 14+8). They further alleged that, contrary to Article 13 (art. 13), no effective domestic remedy existed for the aforesaid claims. II. THE PARTICULAR CIRCUMSTANCES OF THE CASE A. Mrs. Abdulaziz 39. Mrs. Nargis Abdulaziz is permanently and lawfully resident in the United Kingdom with the right to remain indefinitely. She was born in Malawi in 1948 and brought up in that country. Her parents were also born there. According to her, she was a citizen of Malawi at birth but, being of Indian origin, was subsequently deprived of that citizenship and is now stateless. She holds a Malawian travel document. This applicant went to the United Kingdom on 23 December 1977. She was given leave, as a "non-patrial" (see paragraphs 13-15 above), to enter as a visitor, leave which was subsequently extended on three occasions. Since special vouchers had been allocated to members of her family enabling them to settle in the United Kingdom, an application was made on her behalf for indefinite leave to remain. On 16 May 1979 as an act of discretion outside the immigration rules (see paragraph 19 above), she was given such leave, essentially on the ground that she was an unmarried woman with little prospect of marriage who formed part of a close family, including her father and mother, settled in the United Kingdom. 40. Mr. Ibramobai Abdulaziz is a Portuguese national who was born in Daman, a former Portuguese territory in India, in 1951. He emigrated to Portugal in 1978. On 4 October 1979, he was admitted, as a "non-patrial", to the United Kingdom for six months as a visitor. He met the applicant six days later and they became engaged to be married on 27 November. They were married on 8 December 1979 and, during the following week, Mrs. Abdulaziz applied for leave for her husband to remain permanently in the United Kingdom. Shortly afterwards, the Joint Council for the Welfare of Immigrants also applied for leave for him to remain, for a period of twelve months. 41. After Mr. and Mrs. Abdulaziz had been interviewed at the Home Office on 6 June 1980, her application was refused, on 1 July, on the ground that she was not a citizen of the United Kingdom and Colonies who, or one of whose parents, had been born in the United Kingdom (paragraph 117 of the 1980 Rules; see paragraph 24 (a) (i) above). Mr. Abdulaziz appealed to an adjudicator (see paragraphs 34-36 above) against this decision but the appeal was dismissed on 6 October 1981 as he did not qualify for leave to remain under the 1980 Rules. The adjudicator pointed out that, had the application been made before 14 November 1979 or the decision taken before 1 March 1980, Mr. Abdulaziz would have been admitted, under the previous rules (see paragraphs 20 and 21 above). Leave to appeal to the Immigration Appeal Tribunal was refused by the Tribunal on 9 December 1981 on the ground that the determination of the appeal did not turn on any arguable point of law and that leave to appeal was not otherwise merited (see paragraph 37 above). 42. Subsequently Mr. Abdulaziz remained, and still remains, in the United Kingdom, without leave. He is currently employed as a chef in a restaurant; his wife does not work. A son was born to the couple in October 1982. Representations through Members of Parliament to the Home Office have been rejected, basically on the ground that the couple could live together in Portugal and that the circumstances of the case were not such as to warrant exceptional treatment. In a letter of 24 February 1982 to one Member, the Minister of State at the Home Office indicated that the authorities would shortly be advising Mr. Abdulaziz to depart without delay, adding that if he did not, "consideration will have to be given to enforcing his departure"; however, a letter of 29 November 1982 to another Member stated that "[the Minister did] not propose for the time being to take any action regarding [Mr. Abdulaziz's] removal". In fact, the authorities have not to date instituted any criminal or deportation proceedings (see paragraph 33 above) against him; their decision, according to the Government, was taken in the light of all the circumstances, including the Commission's decision on the admissibility of Mrs. Abdulaziz's application (see paragraph 55 below). The couple's situation has not until now been changed by the 1982 or the 1983 Rules since Mrs. Abdulaziz, although settled in the United Kingdom, is not a British citizen (see paragraphs 27-32 above). She has, however, applied, on 16 August 1984, for naturalisation as such a citizen, under section 6 of the British Nationality Act 1981 (see paragraph 26 (d) above). 43. At the Home Office interview, Mr. Abdulaziz said that his wife could not be expected to live in Portugal because she had always been close to her family and because her sick father - who in fact died in September 1980 - needed her company. Before the Commission and the Court, she claimed that her health was under strain because of her husband's settlement problems and that humanitarian considerations prevented her going to Portugal, a country where she had no family and whose language she did not speak. The Government maintain that there is no obstacle whatever to her going with her husband to live in Portugal. B. Mrs. Cabales 44. Mrs. Arcely Cabales is permanently and lawfully resident in the United Kingdom with the right to remain indefinitely. She was born in the Philippines in 1939 and was brought up there, and is of Asian origin. She had the nationality of that country until 1984 (see paragraph 47 below). Her parents were born and live in the Philippines. This applicant went to the United Kingdom in 1967 with a work permit for employment as a nursing assistant and was admitted, as a "non-patrial" (see paragraphs 13-15 above), for twelve months. She remained in approved work thereafter and, on 10 June 1971, the conditions attached to her stay were removed and she was allowed to remain in the United Kingdom indefinitely. She is now employed, and has an established career, as a State-enrolled nurse. 45. Mr. Ludovico Cabales is a citizen of the Philippines, born in that country in 1937. He met the applicant in Manila in 1977 when she was on holiday and again in 1979 when she was there for one or two months. During the latter period, the couple became engaged. On 23 April 1980, they went through a ceremony of marriage in the Philippines. The applicant returned to the United Kingdom shortly afterwards to take up her job again. In May 1980, she informed the Home Office of the marriage and applied for leave for Mr. Cabales to enter the United Kingdom, a request which she repeated in August. On 27 November, he, being a "non-patrial", applied to the British Embassy in Manila for a visa to join his wife for settlement in the United Kingdom. 46. After Mrs. Cabales had supplied certain further information requested by it, the Home Office wrote to her on 23 February 1981 to advise her that the visa application had been refused on the ground that she was not a citizen of the United Kingdom and Colonies who, or one of whose parents, had been born in the United Kingdom (paragraph 50 of the 1980 Rules; see paragraph 23 (a) (ii) above). Notice of the decision was not handed to Mr. Cabales until 12 November 1981 as he had failed to respond to an invitation of March 1981 to attend at the Manila Embassy for that purpose. On 20 August 1981, the Joint Council for the Welfare of Immigrants wrote to the Home Office Immigration and Nationality Department, seeking a review of this decision. However, on 13 January 1982, the Department, having considered the circumstances, informed the Council of its decision to maintain the refusal. Mr. Cabales had on 8 December 1981 lodged an appeal with an adjudicator (see paragraphs 34-36 above) against the decision but the appeal was dismissed on 25 July 1983 on the ground that the visa officer's decision was in accordance with the law and the immigration rules. The adjudicator, who noted that Mrs. Cabales had not taken legal advice but had thought at the time of the marriage ceremony that a forthcoming change in the law would allow Mr. Cabales to be admitted, expressed the hope that the authorities would look at the case sympathetically. This was not initially recognised by the authorities as a recommendation, but the Home Secretary subsequently concluded that there were not sufficient grounds for acting outside the immigration rules. There is no record of an application for leave to appeal to the Immigration Appeal Tribunal. Representations to the Home Office were also rejected, basically on the ground that the couple could live together in the Philippines and that there were not sufficient reasons for the Home Secretary to exercise his extra-statutory discretion. 47. Between April 1980 and December 1984, Mr. Cabales continued to live in the Philippines and the couple were separated, apart from a short period in 1983 when Mrs. Cabales visited that country. However, following an application made by her in November 1982 under section 6 of the British Nationality Act 1981 (see paragraph 26 (d) above), Mrs. Cabales obtained naturalisation as a British citizen with effect from 18 April 1984; she thereby lost her Philippine citizenship. On 10 July 1984, Mr. Cabales applied for entry clearance for permanent settlement as the husband of a British citizen, under paragraph 54 of the 1983 Rules (see paragraphs 30-31 above). For the reasons and in the circumstances indicated in the following paragraph, this application was refused on 1 October 1984 but, on the following day, Mr. Cabales applied for and was granted a visa entitling him to enter the United Kingdom for three months for the purposes of marriage. He arrived in that country on 19 December 1984 and the parties were married there on 26 January 1985. On 4 February, he was granted leave to remain as a husband for the next twelve months; on the expiry of that period, he will be eligible to apply for indefinite leave. 48. In a memorial filed with the Court on 27 July 1984, the Government questioned the validity of the 1980 marriage (see paragraph 45 above). Under Articles 53 and 80 of the Philippine Civil Code, a marriage solemnised without a licence was to be considered void, save in the case of a "marriage of exceptional character", that is one between persons who have lived together as husband and wife for at least five years (Article 76). The Cabales marriage contract recited that the ceremony the couple went through in 1980 had been performed, without a licence, under Article 76. The parties had stated in a contemporaneous affidavit that they had previously cohabited for at least five years, but according to Mrs. Cabales'version of the facts this could not be so since she had not met Mr. Cabales until 1977 (see paragraph 45 above). According to the Government, the requirements of Article 76 were therefore not satisfied and the marriage thus had to be considered void. At the hearings on 25 September 1984, the applicant's counsel expressed the view that, assuming a defect existed, it was purely formal and the status of Mr. and Mrs. Cabales could be regarded as akin to that of the parties to a common-law marriage. Her representative subsequently filed with the Court details of the advice he had received from Philippine lawyers, to the effect that under the law of that country the marriage was to be presumed valid unless and until it was declared void by a court. The Government replied that they had been advised that the marriage was void ab initio and that no judicial decree was necessary to establish its invalidity. This opinion was contradicted in further advice obtained on behalf of Mrs. Cabales. Mr. and Mrs. Cabales were interviewed by the United Kingdom authorities in August and September 1984. They adduced no evidence to alter the Government's conclusion that the marriage was void. However, Mrs. Cabales stated that if Mr. Cabales were admitted to the United Kingdom, the couple would go through a ceremony of marriage in that country. It was in these circumstances that in October 1984 Mr. Cabales was refused leave to settle as a husband but was regarded as eligible, under the 1983 Rules, for leave to enter the United Kingdom temporarily as the fiancé of a British citizen. 49. Before the Commission and the Court, Mrs. Cabales submitted that there would have been real obstacles to her returning to live in the Philippines : she was too old, her qualifications were not recognised there and, by working in the United Kingdom, she was able to support financially her parents and other members of her family. These claims were contested by the Government, in particular on the ground that it was unrealistic to suppose that her nursing skills could not be put to good use in the Philippines. C. Mrs. Balkandali 50. Mrs. Sohair Balkandali is permanently and lawfully resident in the United Kingdom with the right to remain indefinitely. She was born in Egypt in 1946 or 1948. Her parents were born and live in that country. This applicant first went to the United Kingdom in November 1973 and was given leave, as a "non-patrial" (see paragraphs 13-15 above), to enter as a visitor for one month. Subsequently, she obtained several further leaves to remain, as a visitor or a student, the last being until August 1976. She has a high level of university education. In 1978, she married a Mr. Corbett, a citizen of the United Kingdom and Colonies, and, five days later, was given indefinite leave to remain in the United Kingdom, by virtue of her marriage, under the provisions then in force. On 26 October 1979, again by virtue of her marriage, she obtained registration as a citizen of the United Kingdom and Colonies under the British Nationality Act 1948, as a result of which she became a "patrial" (see paragraphs 11 in fine and 14 (a) above). At that time, she was already separated from Mr. Corbett and the marriage was dissolved in October 1980. 51. Mr. Bekir Balkandali is a Turkish national born in Turkey on 9 April 1946. In January 1979, he was granted leave, as a "non-patrial", to enter the United Kingdom, apparently as a visitor, for one month. Subsequently, he obtained leave to remain as a student until 31 March 1980. His application of 2 April for an extension of this leave was refused on 23 September 1980 because he had not attended his course of studies and the Home Secretary was not satisfied that he was a genuine student who intended to leave the country on their conclusion. Since his application for an extension had been made after his leave had expired, he had no right of appeal under the 1971 Act (see paragraph 35 above); he was advised to leave the United Kingdom and warned of the risk of criminal or deportation proceedings (see paragraph 33 above) if he did not. 52. Since the autumn of 1979, the applicant had been living with Mr. Balkandali. In April 1980 they had a son, who has the right of abode in the United Kingdom. On 14 October 1980, an application was made by the Joint Council for the Welfare of Immigrants for leave for Mr. Balkandali to remain in the United Kingdom until he married his fiancée, the applicant. They were interviewed together by Home Office officials on 30 March 1981 and produced evidence of their marriage, which had been celebrated in January 1981. The application was therefore treated as one to remain as the husband of a woman settled in the United Kingdom. Leave was refused on 14 May 1981 on the ground that Mrs. Balkandali was not a citizen of the United Kingdom and Colonies who, or one of whose parents, had been born in the United Kingdom (paragraph 117 of the 1980 Rules; see paragraph 24 (a) (i) above). There was no right of appeal against this decision as Mr. Balkandali had no current leave to remain at the time when his application was made (see paragraph 35 above). Representations through a Member of Parliament to the Home Office were rejected, basically on the ground that the couple could live together in Turkey and that there were not sufficient compelling compassionate circumstances to warrant exceptional treatment outside the immigration rules. In a letter of 18 December 1981 to the Member, the Minister of State at the Home Office wrote that "Mr. Balkandali should now make arrangements to leave the United Kingdom forthwith, otherwise arrangements will be made to enforce his departure"; however, a letter of 3 December 1982 to the Member stated that "[the Minister did] not propose for the time being to take any action against [Mr. Balkandali]". In fact, the authorities did not at any time institute criminal or deportation proceedings (see paragraph 33 above) against him; their decision, according to the Government, was taken in the light of all the circumstances, including the Commission's decision on the admissibility of Mrs. Balkandali's application (see paragraph 55 below). 53. On 20 January 1983, as the husband of a British citizen, Mr. Balkandali was given twelve months'leave to remain in the United Kingdom in accordance with paragraph 126 of the 1982 Rules (see paragraph 28 (a) above); this was possible because, on 1 January 1983, Mrs. Balkandali had automatically acquired British citizenship by virtue of the British Nationality Act 1981 (see paragraph 26 (b) above). Mr. Balkandali subsequently applied for indefinite leave to remain and this was granted on 18 January 1984 under paragraph 177 of the 1983 Rules (see paragraph 31 above). In September 1984, he was working in the catering business and planned shortly to open a restaurant; his wife was working two days a week in a creche. 54. Before the Commission and the Court, Mrs. Balkandali submitted that there would have been real obstacles to her going with her husband to live in Turkey: she cited her strong ties to the United Kingdom and alleged that as an educated woman and the mother of an illegitimate child she would have been treated as a social outcast in Turkey. The Government maintain that there were no real obstacles. | The applicants were lawfully and permanently settled in the United Kingdom. In accordance with the immigration rules in force at the material time, their husbands had been refused permission to remain with or join them in that country as their husbands. The applicants maintained in particular that, on this account, they had been victims of a practice of discrimination on the grounds of sex and race. |
239 | The definition of idem | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1969 and lives in Sarajevo. A. Conviction of a minor offence 6. On 13 February 2003 the Kakanj police lodged a request for minor-offences proceedings to be instituted against the applicant in the Kakanj Minor Offences Court (“the Minor Offences Court”). 7. In a decision of 16 August 2004 the Minor Offences Court found that, at about 6.40 p.m. on 12 February 2003, the applicant had physically attacked his former wife, M.P., at her flat in Kakanj. The applicant hit M.P. in the head several times and proceeded to punch her about the body in the presence of their minor children. He was found guilty of a minor offence against public order (affray ) under section 3(1)(2 ) of the Public Order Act 2000, for which he was fined 150 convertible marks (BAM) [1]. The relevant part of the decision reads: “Defendant Muslija Adnan ... is guilty in that at about 6.40 p.m. on 12 February 2003, in Rudi Čajevac street in Kakanj, entering uninvited the hallway of the flat [ of his former wife ] ... he grabbed M. by the throat ... and then, in the presence of their minor children ... slapped M. ’ s face several times and continued to punch her about the body while threatening to take the children away from her. ” 8. On 19 October 2004 the Zenica Cantonal Minor Offences Court upheld that decision and it became final. 9. On 3 August 2006 the applicant paid the fine. B. Conviction of a criminal offence 10. On 18 September 2003 the Cantonal Prosecutor lodged an indictment against the applicant with the Kakanj Municipal Court (“the Municipal Court”) for causing grievous bodily harm to M.P. 11. On 9 January 2008 the Municipal Court found the applicant guilty of the criminal offence of grievous bodily harm under Article 177 §§ 1 and 2 of the Criminal Code 1998, and sentenced him to three months ’ imprisonment. In passing the sentence, the court took into account various mitigating circumstances, such as the lapse of time and the fact that the applicant had not reoffended, that he was the father of three minor children, had no previous convictions, and was unemployed. The court regarded the fact that the incident took place in the presence of the applicant ’ s and M.P. ’ s minor children as an aggravating circumstance. The relevant part of the decision reads: “Defendant Muslija Adnan ... is guilty because at about 7 p.m. on 12 February 2003 in Rudi Čajevac street, Kakanj, he entered the flat of his former wife, M.P. ... and grabbed her by the throat, hit her with his fist several times in the head, stomach and face, thereby causing her grievous bodily harm: a fractured lower jaw ... and a number of lighter injuries ... ” 12. On 7 April 2008 the Zenica Cantonal Court upheld that judgment. 13. At the applicant ’ s request, the prison sentence was subsequently converted to a fine in the amount of BAM 9,000. On 22 March 2011 the applicant paid the fine. C. Proceedings before the Constitutional Court 14. On 4 June 2008 the applicant lodged a constitutional appeal complaining that the ne bis in idem principle had been breached. 15. On 11 January 2011 the Constitutional Court of Bosnia and Herzegovina rejected his appeal. It held that the applicant had been found guilty of a minor offence against public order (affray ) in the minor-offences proceedings, whereas he had been convicted of the criminal offence of grievous bodily harm in the criminal proceedings. Although both decisions were based on the same incident, the offences were different in nature and purpose. | In August 2004, a Minor Offences Court convicted the applicant of affray, finding that at about 6.40pm on 12 February 2003 he entered the flat of his former wife, slapped her in the face and punched her in the body. He was ordered to pay a fine of 150 convertible marks (BAM). In January 2008 a Municipal Court found the applicant guilty of grievous bodily harm, finding that at about 7pm on 12 February 2003 he entered the flat of his former wife, grabbed her by the throat and hit her several times. He was given a prison sentence, but this was later converted into a fine of BAM 9,000. The applicant unsuccessfully appealed to the Constitutional Court about his two convictions. He complained that he had been tried and punished twice in respect of the same incident. |
346 | Rape and sexual abuse | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1987 and lives in Chisinau. 6. The applicant and O.P. were in a relationship for over one year. They did not live together but often used to spend the night over each other ’ s house. Towards the end of their relationship they started to have disputes because O.P. became very jealous. According to the applicant he also became violent. 7. On the evening of 10 May 2010 O.P. became upset with the applicant because she was not at home for several hours and did not answer his telephone calls. He waited for her in front of her home and when she arrived he assaulted her and forced into his car. The applicant ’ s attempts to escape were countered by O.P. ’ s violent behaviour and threats with violence and death. According to the applicant, he punched her, pulled her hair and threatened her every time she wanted to leave the car. O.P. denied the applicant ’ s allegations concerning the acts of violence and only admitted having slapped her face several times before entering the car. He submitted that she did not object to their going to his home. 8. At midnight the applicant and O.P. arrived at the latter ’ s house in a village near Chişinău. According to the applicant, O.P. locked her inside the house and left her alone for approximately forty-five minutes. The applicant attempted to escape but was not able to and there was no telephone in the house. She also submitted that she did not have money and that her clothes were torn and dirty with blood. After O.P. ’ s return he ordered the applicant to undress and to lie with him on the bed. As a result of the applicant ’ s refusal they clashed but O.P. broke her resistance by violently assaulting and threatening her after which he raped her. In the morning, when the applicant attempted to leave O.P. ’ s house, a new dispute broke out between them. After assaulting her, O.P. forcefully sodomised her against her will and only after that he called a taxi for her. 9. On 11 May 2010 the applicant lodged a criminal complaint against O.P. and underwent a forensic medical investigation. A medical report issued on the same date found multiple bruises on the applicant ’ s face, lips, neck and thorax. Some of the bruises were as large as 5x4 centimetres. Traces of semen were found only in her vagina. 10. On 14 May 2010 O.P. underwent a forensic medical investigation as a result of an order issued by a prosecutor. A medical report found scratches produced by nails on his neck. The medical report recorded that O.P. had not denied having had sexual intercourse with the applicant; however, he had insisted that both partners had consented. The report concluded that the injuries on his body resembled those frequently inflicted by rape victims. 11. In his statements to the prosecutor, O.P. denied having had sexual intercourse with the applicant both on the evening of 10 May and in the morning of 11 May 2010. He also denied having forced the applicant into his car and having taken her by force to his house and claimed that she had consented to come with him. He admitted having slapped her face twice on the evening of 10 May 2010 as a result of which she had riposted by scratching his neck. O.P. could not explain the presence of bruises outside her face, the presence of traces of semen in her vagina and the conclusion of the forensic doctors that the injuries on his body appeared to be inflicted by a rape victim. He only submitted that he disagreed with the conclusions of the medical report which reached the above conclusion. 12. On 6 August 2010 the Chisinau Prosecutor ’ s Office refused to initiate criminal proceedings. When describing the facts of the case in his decision, the prosecutor relied solely on O.P. ’ s version of the facts according to which the applicant used to date and to engage in sexual activity with him for one year before the events. On the evening of 10 May 2010 O.P. came to her house but did not find her at home. He waited for the applicant and when she returned, they engaged in an argument and he hit her while she scratched his neck. After that, both calmed down and went to O.P. ’ s home where they spent the night. In spite of O.P. ’ s statements to the effect that he and the applicant had not had sex on that night, the prosecutor recorded in his decision that according to O.P., he and the applicant had had consensual sexual intercourse that night. The prosecutor mentioned the findings of the forensic doctors to the effect that the scratches on O.P. ’ s neck resembled injuries provoked by a rape victim. Nevertheless, he dismissed the applicant ’ s version of the events on the ground that she used to date O.P. and have sex with him and because she could have resisted had she really wanted to. The prosecutor also concluded that the applicant consented to go to O.P. ’ s house and, the latter ’ s parents who lived with him, would have heard had she really resisted. 13. On 6 August 2010 the Chisinau Prosecutor ’ s Office initiated administrative proceedings against O.P. for the offence of assaulting the applicant. 14. The applicant appealed against the prosecutor ’ s decision not to initiate criminal proceedings against O.P. She argued, inter alia, that her neighbours had witnessed how O.P. assaulted and forced her into his car on the evening of 10 May 2010. Her unsuccessful attempt to run away from him had also been witnessed by employees of a petrol station where O.P. had stopped the car. She also argued that she had lost consciousness for a while as a result of one of the blows to her head and that the next day she went to a hospital where she was diagnosed with concussion. She argued that the prosecutor had failed to check that information with the hospital, despite her asking him to. 15. The appeal was dismissed on 9 December 2010 by a superior prosecutor from the Chisinau Prosecutor ’ s Office without any further investigation into the circumstances of the case. The applicant appealed to an investigation judge. 16. On 7 February 2011 an investigation judge from the Rascani District Court upheld the applicant ’ s appeal and ordered a fresh examination of the case. He found that the investigation had been superficial and incomplete and no witnesses had been heard. The judge also quashed the prosecutor ’ s decision of 6 August 2010 to initiate administrative proceedings against O.P. for assaulting the applicant (see paragraph 13 above). 17. In the reopened investigation, the Prosecutor ’ s Office ordered and obtained two new forensic medical reports. According to one of them, the injuries on O.P. ’ s neck could have been produced either as a result of a rape or as a result of a fight. Another report concluded that the injuries on the applicant ’ s body could have been produced by an assault committed by O.P. and that they were not characteristic of rape. As to the traces of semen in her vagina, the report concluded that it was not possible to determine whether they dated from 11 May 2010 or from previous intercourse. In his new statements, O.P. submitted that he had had unprotected sex with the applicant between 7 and 9 May 2010 but not on 10 or 11 May 2010. He also admitted having slapped her face several times on the evening of 10 May 2010. A witness who was O.P. ’ s friend stated that he had seen O.P. and the applicant on the evening of 10 May 2010 at approximately 10 p.m. O.P. came out of the car and talked to him for several minutes while the applicant waited calmly in the car. O.P. ’ s parents were heard and they stated that they lived in the vicinity of their son. In particular, their house was several metres away from his house. They knew that their son was dating the applicant and had seen her on several occasions; however, they had not seen her on 10 or 11 May 2010 and did not hear any noise from their son ’ s house. 18. On 18 April 2011 a prosecutor from the Chisinau Prosecutor ’ s Office dismissed again the applicant ’ s complaint concerning rape. He concluded that even if O.P. and the applicant had had sex on 10 or 11 May 2010, it must have been consensual since no injuries characteristic of rape had been discovered on her body. Moreover, the applicant willingly came to O.P. ’ s house and did not leave when presented with an opportunity. She also could have resisted rape had she wanted to. The prosecutor considered that O.P. had committed a minor offence when assaulting the applicant; however, he could not be held responsible for it because it was time barred. Moreover, O.P. ’ s violent reaction had been provoked by the applicant ’ s immoral behaviour as she had gone for a walk with another person, had not replied to O.P. ’ s telephone calls and had come back late letting him wait for a long time. 19. The applicant ’ s appeals were rejected on 22 August 2011 by a hierarchically superior prosecutor and on 23 November 2011 by an investigation judge from the Rascani District Court. | The applicant alleged that she had been raped by a man whom she had been dating for over one year. She submitted in particular that the Moldovan authorities had failed to investigate her allegations of rape effectively and that she had had no effective criminal-law or civil remedies available for her allegation of rape or for the ensuing inadequacy of the investigation. |
1,090 | Order to repay mistakenly paid unemployment benefits | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1954 and lives in Rijeka. 6. On 10 December 1995 the applicant ’ s employment as an unqualified worker was terminated as a result of her employer becoming insolvent. At that time she had twenty - four years and ten months of service ( radni staž ) recorded in her “ employment book ” ( radna knjižica ). 7. The medical documentation submitted by the applicant shows that since 1993 she has been suffering from a psychiatric condition – depression and neurosis. The medical documents from various dates show her continuous incapacity of working. A. Administrative proceedings 8. On 5 November 1996 the Regional Office of the Croatian Employment Bureau in Rijeka ( Hrvatski zavod za zapošljavanje, Područna služba u Rijeci, hereinafter “the Rijeka Employment Bureau”) granted the applicant unemployment benefits in the amount of 410. 89 Croatian kunas (HRK – about 55 euros (EUR)) for 468 days, starting from 11 December 1995. There was no appeal, so that decision became final. 9. On 17 June 1997 the applicant lodged an application with the Rijeka Employment Bureau for the extension of the duration of unemployment benefits due to her ongoing temporary inability to work. She submitted a medical certificate that she had been ill and thus temporarily incapable of working. 10. On 27 June 1997 the Rijeka Employment Bureau, relying on section 25( 1 ) (2) of the Employment Act, renewed her entitlement to unemployment benefits until further notice. She was to receive HRK 4 41 (about EUR 5 9) per month. This entitlement was to continue unless any legally prescribed conditions for withholding the payments occurred before the entitlement period expired, or until her right to compensation ceased to exist. 11. In December 1997 two additional pensionable years of service ( staž osiguranja ) were entered into the applicant ’ s employment book. However, that did not mean that the applicant was actually employed, but only that contributions for her pension and invalidity insurance had been paid. Such contributions are regularly paid by employers. However, since the applicant was not employed, these contributions were paid by the Croatian Employment Bureau. 12. On 2 6 May 1999 the Rijeka Employment Bureau provided the applicant with an “employment benefit card” ( kartica korisnika novčane naknade ). 13. On 27 March 2001 the Rijeka Employment Bureau terminated the applicant ’ s entitlement to unemployment benefits with effect from 10 June 1998. It held that the deadline prescribed in section 25( 1 ) (2) of the Employment Act had expired on 9 June 1998. 14. On 3 April 2001 the Rijeka Employment Bureau established that the applicant was to repay it the amount of HRK 19,451.69 (about EUR 2,600). 15. The applicant lodged appeals against both decisions with the Central Office of the Croatian Employment Bureau ( Hrvatski zavod za zapošljavanje, Središnja služba, hereinafter “the Central Employment Bureau”). She argued that she had the right to unemployment benefits until she retired. She also relied on her family circumstances and submitted that she was married and that her husband ’ s pension was HRK 1400 (about EUR 188), and that they had a child of school age and an older son who was employed. However, that body dismissed both her appeals as unfounded on 11 May 2001 and 15 May 20 0 1. It held that she had been entitled to unemployment benefits for as long as she had been unable to work, but subject to a limit of twelve months. 16. On 25 July 2001 the applicant then lodged two administrative actions with the Administrative Court, seeking the annulment of the Central Employment Bureau ’ s decisions of 11 and 15 May 2001. She claimed that she had twenty-seven years of service, and as such was entitled to unemployment benefits until she was next employed or until she retired. 17. On 22 September 2004 the Administrative Court dismissed the claim concerning the decision of 11 May 2001 upholding the decision of 27 March 2001 ( see paragraph 10 above) as ill- founded, endorsing the arguments and conclusions of the lower bodies. 18. In a separate judgment of the same day the Administrative Court quashed the decision of 15 May 2001 which upheld the decision of 3 April 2001 by which the applicant had been ordered to repay the sum of HRK 19,451.69 ( see paragraph 1 4 above). It instructed the parties to seek relief in civil proceedings before a competent municipal court. 19. On 25 March 2005 the Rijeka Employment Bureau contacted the applicant by letter, proposing to reach an out-of-court settlement within fifteen days regarding the repayment of the unemployment benefits which she had received between 9 June 1998 and 27 March 2001, in total HRK 19,451.69. She was cautioned that the Rijeka Employment Bureau would otherwise be compelled to institute civil proceedings against her for repayment of the amount claimed. 20. The applicant replied that she was in poor health, unemployed and without any income, and that in these circumstances she could not accept the obligation to repay the money sought. 21. On 14 April 2009 the applicant lodged an application with the Rijeka Employment Bureau, seeking to overturn its 27 March 2001 decision to terminate her entitlement to unemployment benefits. It was dismissed on 29 June 2009 and this decision was upheld on appeal on 10 July 2009 as well as by the High Administrative Court on 5 July 2012. 22. A subsequent constitutional complaint by the applicant was declared inadmissible on 19 December 2012. B. Civil proceedings 23. On 3 August 2005 the Rijeka Employment Bureau brought a civil action against the applicant for unjust enrichment, seeking repayment of HRK 19,451.69, together with statutory interest, on the basis of the unemployment benefits she had received between 10 June 1998 and 27 March 2001. 24. On 16 November 2005 the applicant responded to the civil action, alleging, inter alia, that the Rijeka Employment Bureau ’ s actions violated her human rights. She also submitted medical documentation demonstrating her fragile state of health, numerous health problems caused by her difficult personal situation due to long-term unemployment, the poverty in which she and her family lived, and her inability to work. She also brought a counterclaim against the Rijeka Employment Bureau, seeking payment of unemployment benefits from 31 January 2011 to the date of her future retirement, in the amount of HRK 55,680.15. 25. On 26 June 2006 the Rijeka Municipal Court ( Općinski sud u Rijeci ) dismissed the Rijeka Employment Bureau ’ s claim as unfounded, relying on section 55 of the Employment Mediation and Unemployment Rights Act ( see paragraph 36 below). It held that the applicant could not be held responsible for the bureau ’ s errors and negligence, particularly bearing in mind that she had not concealed any fact or misled it. The same court also rejected the applicant ’ s counterclaim, given that a final and binding decision on her entitlement to unemployment benefits had already been adopted in the administrative proceedings, and that such a decision could not be contested in the context of civil proceedings. 26. Both the applicant and the Rijeka Employment Bureau lodged appeals against the first ‑ instance judgment. 27. On 25 February 2009 the Rijeka County Court ( Županijski sud u Rijeci ) dismissed the applicant ’ s appeal and upheld the first-instance judgment with regard to her counterclaim. It also allowed the Rijeka Employment Bureau ’ s appeal and, relying on section 210 of the Civil Obligations Act, reversed the first-instance judgment in respect of the unjust enrichment claim, and ordered the applicant to pay HRK 19,451.69 plus statutory interest running form 3 August 2005 (the date of lodging the claim against the applicant) to the Rijeka Employment Bureau. It held that the applicant was obliged to return the amount in dispute in view of the fact that a legal basis for the unemployment benefits had ceased to exist on 10 June 1998. 28. The applicant then lodged both an appeal on points of law and a constitutional complaint. 29. On 28 April 2010 the Supreme Court declared her appeal on points of law inadmissible. The applicant then lodged a constitutional complaint against that decision. 30. On 14 March 2013 the Constitutional Court dismissed both of her constitutional complaints as unfounded. It served its decision on the applicant ’ s representative on 27 March 2013. 31. Meanwhile, on 5 December 2012 the applicant had replied to the Rijeka Employment Bureau ’ s letter offering her an out-of-court settlement for the amount owed to be reimbursed in sixty instalments. She had stated that she was not able to repay the amount due because she was unemployed, in ill health and had no income. She asked the Rijeka Employment Bureau for debt relief. C. Enforcement proceedings 32. On 2 2 April 20 13, before the Rijeka Municipal Court, the Rijeka Employment Bureau lodged an application to enforce the Rijeka County Court ’ s judgment of 25 February 2009 against the applicant. 33. On 20 June 2013 the Rijeka Municipal Court issued a writ of execution in respect of the applicant ’ s bank account(s). 34. On 26 June 2013 the first-instance court ordered the applicant to pay court fees in the amount of HRK 540 (about EUR 72), on account of the enforcement application and the writ of execution. 35. By a letter of 14 August 2013 the Financial Agency (FINA) informed the first-instance court that there were no records of the applicant ’ s active bank accounts. 36. By a conclusion ( zaključak ) of 30 September 2013 the Rijeka Municipal Court informed the Rijeka Employment Bureau about the Financial Agency ’ s letter and ordered it to give the court information about the applicant ’ s bank account or make a further proposal. 37. On 22 October 2013 the Rijeka Employment Bureau lodged an application to change the object of the enforcement ( prijedlog za promjenu predmeta i sredstva ovrhe ), and requested enforcement in relation to the applicant ’ s movable property, given that she was unemployed and had no income, real property or motor vehicle. 38. By a decision taken on 8 December 2014 the Rijeka Municipal Court declared the application of 22 October 2013 inadmissible on the basis that it was premature, since changing the object of enforcement is not possible before a writ of execution becomes final. 39. The enforcement proceedings are still ongoing. | This case concerned the applicant’s complaint that she had been ordered to repay unemployment benefits after the employment office made a mistake in authorising the payments. The applicant alleged in particular that ordering her to repay the benefits had resulted in her being deprived of her possessions. |
222 | Absence of an interpreter during police questioning | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1949 and lives in Van. A. First set of criminal proceedings against the applicant 6. On 30 April 2001 the applicant went to Muş prison during visiting hours to see her brother, who was being held there in connection with a case related to the PKK, an illegal armed organisation. 7. The staff responsible for body searches found on the applicant “close to the left side of her abdomen”, a piece of paper that had been folded several times and wrapped in tape. It was an unsigned letter dated 24 April 2001, written by a member of the PKK and addressed to another member. 8. The applicant was taken into police custody on the same day and questioned in Turkish by the gendarmes the following day. During the interview she stated that she had picked up the object in question in Van at the bus stop where she was waiting for the bus to Muş. She had thought that the object might have some value and had intended to remove the wrapping once she was alone. 9. On 1 May 2001 she gave a statement to the same effect before the public prosecutor and then before the District Court. As she was illiterate, she signed the statements with her fingerprint. 10. She was remanded in custody after being examined and was released on 5 July 2001. 11. On 27 September 2001 the State Security Court of Van acquitted the applicant, considering her version of events to be credible. B. Second set of criminal proceedings against the applicant 12. On 17 December 2001 the applicant visited her brother again in Muş prison during a religious festival. After the visit she was taken into police custody. 13. The police report drawn up that same day stated that the staff responsible for body searches had discovered, hidden in the lining of the applicant ’ s dress, a sixteen-page document consisting of rolled-up onionskin paper protected by adhesive tape. According to the report, the document contained, in particular, information about the PKK ’ s strategy and its activities in prisons, about the conduct to be adopted vis-à-vis the prison authorities and about prison staff. 14. She was questioned in Turkish by two gendarmes on 18 December 2001. The report stated that she had been reminded of her right to the assistance of a lawyer but had waived that right. As to the facts, she had stated that she had seen a wrapped object in the prison waiting room and had picked it up out of mere curiosity, placing it in her bra. She added that, during the search, the prison officers had discovered the object and had unwrapped it. She had noticed pieces of paper covered in writing. During her visit to her brother she had told him about the incident but he had not said anything about it. The gendarmes had then arrested her as she was leaving the prison. 15. In response to a question about her personal status, she replied that she was married to G.I. on the basis of a religious marriage, not a civil one, and that they had had five children together. Her husband had another partner with whom he had had six children. 16. When asked whether she worked for the PKK, she replied in the negative. She added that, on the first occasion, she had picked up the object thinking it might contain gold and that it was with the same thought in mind that she had taken the paper in the waiting room. 17. In response to a question about ten pieces of gold discovered on her during the search, she stated that half of them belonged to her daughter and the other half were hers. 18. After she had been questioned, the public prosecutor called for her to be remanded in custody. As a result she was brought before the District Court judge. 19. Finding that she did not speak Turkish with sufficient fluency, the judge asked a member of the applicant ’ s family who was waiting in the corridor outside the courtroom to act as interpreter. The relative accepted. 20. The applicant stated once again that she had found the document in question in the waiting room. Immediately afterwards, she claimed that this statement, and the one previously taken by the gendarmes, concerned events that had occurred seven months earlier; that no document had been discovered on her person when she last visited the prison; that she had thought the gendarmes were questioning her about earlier events; and that, not being able to read or write, she had signed the police report with her fingerprint without knowing what it said. When she was informed of the report ’ s content she disputed its veracity. 21. On 18 December 2001, after the hearing, the applicant was remanded in custody and criminal proceedings were brought against her before the State Security Court of Van for membership of an illegal armed organisation and, in the alternative, for aiding and abetting such an organisation. 22. At the various hearings before that court the applicant was assisted by a lawyer and an interpreter. 23. In the course of the proceedings, the defence disputed the prison officers ’ version of events. Counsel argued that no document had been found on the applicant, adding that, according to her, a document had certainly been found on a female visitor during the search carried out on entering the premises and that person had nevertheless been authorised to visit on the grounds that it was a public holiday. The prison officers had failed to arrest her when she left the prison on account of the large number of visitors that day. Having realised that the visitor in question had evaded their control, the officers had decided to arrest the applicant instead, because they knew that a similar accusation had already been made against her. In addition, the defence stated that in her statement to the gendarmes the applicant had said that the impugned object had been found in her bra, whereas the record of the incident indicated that it had been found in the lining of her dress. 24. On 12 May 2002 two female prison officers were interviewed on the basis of a warrant. The first, C.A., stated that she had personally found the impugned document in the lining of the applicant ’ s dress during the body search. The second, F.A., confirmed this version and stated that she had been called immediately by her colleague after the discovery. 25. Testimony was also taken from a number of defence witnesses. Two women who were visiting the prison on the day of the incident stated that they did not know if the applicant had been searched on entering the prison. Another testified that she had entered the prison at the same time as the applicant but not had seen her being searched. One of the applicant ’ s brothers testified that he had arrived at the prison with her but that they had become separated during the body search before coming together again to visit their brother. In their conversation with the latter, the applicant had never mentioned any incident during her body search. 26. On 29 May 2002 the applicant was given a prison sentence of three years and nine months for aiding and abetting an illegal armed organisation. In its reasoning, the State Security Court observed that, in the first case, the applicant had claimed to have found the impugned document at a bus stop in Van, and that, in the second, she had stated during the investigation that she had found the document in the prison waiting room. It noted that the applicant had reiterated this statement to a district judge before claiming that she had been talking about the first case and that no document had in fact been found on her during the body search of 17 December 2001. The court took the view that there were some serious inconsistencies in the applicant ’ s explanations. It noted that if she had really believed that the questioning by the gendarmes and the district judge concerned the events of 30 April 2001 she should logically have stated that she had found the impugned document not in the waiting room of Muş prison but in Van. It concluded that the version of events given by the applicant and the defence witnesses was not credible, and it accepted the testimony of the two prison officers, which confirmed the findings in the relevant police report. The court thus found the applicant guilty as charged. 27. On 7 October 2002 the Court of Cassation quashed that judgment on a procedural ground. 28. On 18 April 2003 the State Security Court convicted the applicant again and handed down the same sentence. Moreover, taking into account the time she had already served, it ordered her release. 29. That judgment was quashed on 19 January 2004 on an appeal on points of law by the applicant. The Court of Cassation took the view that the offence with which she was charged had been incomplete and had remained at the attempt stage. It dismissed the applicant ’ s other grounds of appeal on points of law, including the question of the absence of an interpreter in police custody. 30. On 3 May 2004 the State Security Court sentenced the applicant to one year and three months ’ imprisonment for attempting to aid and abet an illegal armed organisation. It adopted the same reasoning as that of its previous judgments. 31. On 6 June 2005 the Court of Cassation referred the case back to the first-instance court stating that, in accordance with Law no. 5252, setting out the rules and procedures for the application of the new Criminal Code which had recently entered into force, the case had to be re-examined in the light of that new code to determine whether the applicant could be granted the benefit of a more lenient provision. 32. On 19 September 2005 the Van Assize Court (formerly the State Security Court) convicted the applicant once again, adopting the same reasoning as that of its previous judgments, and specifying that the provisions of the former code were more lenient. 33. The applicant appealed on points of law against that judgment, submitting in particular that she had not been assisted by an interpreter while in police custody. 34. Her appeal was dismissed on 31 October 2006. | This case concerned the questioning in police custody, without the assistance of an interpreter, of an individual who did not have a sufficient command of the national language. |
83 | Parental authority, child custody and access rights | I. THE CIRCUMSTANCES OF THE CASE A. Background to the case 6. The applicant was born in 1986. Her current address is unknown to the Court (see paragraphs 14 and 105 in fine below). 7. The applicant lived with D.K. On 19 February 2004 a daughter was born to the couple, who were not married. 8. On 19 March 2008 the Vilnius City First District Court approved a settlement agreement between the applicant and D.K., who by that time had been living separately, in which it was agreed that the daughter would live with D.K. The first - instance court ’ s decision was upheld by the Vilnius Regional Court on 29 May 2008, which dismissed the applicant ’ s appeal. The applicant retained the right to see her daughter and would periodically take her to her home. 9. On 30 November 2008, on the basis of an application by D.K., the authorities started a pre-trial investigation on suspicion that the girl had been sexually molested (Article 153 of the Criminal Code, see paragraph 85 below ) by a certain A. Ū. (also see paragraphs 26 - 28 below). D.K. alleged that the crime had taken place in the applicant ’ s rented apartment in Kaunas, and in her presence. B. D.K. ’ s application to restrict the applicant ’ s parental rights and the applicant ’ s contact with her daughter until December 2009 10. On 22 December 2008 D.K. lodged an application with the Kaunas City District Court to restrict the applicant ’ s parental rights. He argued that, pursuant to the settlement agreement, the applicant had been communicating with their daughter and taking her to her home. According to D.K., when the girl had returned to him having visited her mother between 21 and 23 November 2008, she had started telling him about how her mother and some men who had come to her mother ’ s home had been behaving with her. D.K. noted having already lodged an application with the police regarding his daughter ’ s molestation, and that a criminal investigation had been opened (see paragraph 9 above). D.K. then asked the court to apply temporary protective measures in order to restrict the applicant ’ s ability to see her daughter until the civil case for the restriction of her parental rights had been resolved. 11. By a ruling of 23 December 2008 the Kaunas City District Court granted D.K. ’ s request for temporary protective measures, prohibiting the applicant from seeing her daughter until the civil case for the temporary restriction of her parental rights had been terminated. The court noted that a pre - trial investigation had been opened concerning the alleged sexual molestation. Accordingly, there was sufficient basis to apply temporary protective measures. The court also cited Article 3.65 § 2 (7) of the Civil Code as the legal basis for the measures (see paragraph 79 below). 12. However, following an appeal by the applicant, by a ruling of 27 April 2009 made in written proceedings the Vilnius Regional Court varied the temporary protective measure by allowing the applicant to see her daughter in the presence of a representative from the Kaunas city childcare authorities. The Regional Court pointed out that any suspicions against the applicant had not yet been proven, therefore to completely forbid the child from seeing her mother could be detrimental to the child ’ s best interests. 13. On 8 July 2009 the Kaunas City District Court amended the contact order between the applicant and her daughter: they were to meet twice a week between 9 and 11 a.m. at the premises of the Kaunas city childcare authorities, in the presence of their representative. D.K. was responsible for taking his daughter to those meetings. The court also suspended the examination of the civil case concerning the restriction of the applicant ’ s parental rights until the pre-trial investigation in the criminal case about the girl ’ s sexual molestation had been terminated. The applicant and her lawyer took part in that hearing. 14. By a final ruling of 15 December 2009 the Vilnius Regional Court examined an appeal lodged by the applicant and essentially left the District Court ’ s decision of 8 July 2009 unchanged, with the exception that D.K. ’ s sister N.V. had become responsible for taking the girl to the meetings, which were to take place in a secure location designated by the Lithuanian witness protection authorities, and in the presence of a representative from the childcare authorities. The reason for that was a change in circumstances – there had been an incident on 5 October 2009 in which two people had been shot (see paragraphs 16 and 17 below), and State protection had been instituted in respect of both the applicant and her daughter. When upholding the temporary protective measure as set out earlier, the Regional Court highlighted the principle that priority had to be given to the interests of the child. It relied on Article 3.3 § 1 of the Civil Code and Article 4 § 1 (1) of the Law on the Fundamentals of Protection of Children ’ s Rights ( see paragraphs 77 and 79 below ). The Regional Court also considered that the District Court had properly assessed the situation, having taken into account the opinion of the Kaunas childcare authorities, which had been the institution providing a conclusion in the case. Lastly, it pointed out that the applicant had herself limited contact with her daughter in the past period, although it did not elaborate further. 15. According to the Government, who have not been contradicted on these points by the applicant, from 5 October 2009 onwards the meetings between the girl and the applicant did not take place based on reasons that lay with the latter. Specifically, on 27 October 2009 the applicant asked the childcare authorities to postpone her meetings with her daughter. She resumed the meetings on 17 December 2009. Despite being informed in writing, the applicant also failed to appear at a review meeting concerning the drafting of a temporary guardianship plan for her daughter, which had been organised by the childcare authorities to take place on 21 October 2009. C. Events leading to the decision to establish temporary guardianship for the applicant ’ s daughter 16. On 5 October 2009 two people were gunned down in Kaunas. One of them was a judge of the Kaunas Regional Court, J.F., the other was the applicant ’ s sister, V.N. It was suspected that D.K. had committed that crime. He fled from the law enforcement authorities and, in rather unclear circumstances, was found dead on 17 April 2010, the day which the court later pronounced as his date of death. On the basis of expert reports, including from the Swedish National Forensic Service ( Rättsmedicinalverket ), the Lithuanian authorities found that D.K. had actually died from alcohol and drug poisoning, and that he had choked on the contents of his own stomach. 17. On 8 October 2009 the director of the Kaunas Municipal Administration, on the basis of Articles 3.261 and 3.265 of the Civil Code (see paragraph 79 below), issued a temporary guardianship in respect of the applicant ’ s daughter, effective as of 5 October 2009. She was supposed to reside at the child development centre at the Vilnius University Hospital. Afterwards, on 12 October 2009 the director of the Kaunas Municipal Administration, on the basis of Article 3.264 of the Civil Code (see paragraph 79 below), appointed N.V., who was D.K. ’ s sister and a judge at the Kaunas Regional Court, as the temporary guardian of the child who should live with N. V. at her home in the township of Garliava, in Kaunas district. The decision stipulated that it could be appealed against under the rules set out in the Law on Administrative Proceedings (see paragraph 86 below ). No such appeal was lodged. D. Criminal proceedings 1. Termination of the criminal proceedings against the applicant 18. During the pre-trial investigation regarding the sexual molestation of the applicant ’ s daughter (see paragraph 9 above), the prosecutor questioned a number of individuals, including the applicant, D.K ., A. Ū. (the main suspect) and J.F. At a certain point additional charges of sexual assault under Article 150 § 4 of the Criminal Code were brought in respect of the applicant, her sister V.N., as well as A. Ū. and J.F. 19. In the course of the pre-trial investigation the authorities questioned the applicant ’ s daughter as a victim on four occasions: on 17 and 30 December 2008, and on 9 June and 23 October 2009. Her testimony varied: during the first two interviews she said that acts of molestation had been performed on her by the suspect A. Ū ., and also testified that her mother had been present. Later, however, her account of what had happened became more and more detailed. According to the submissions of D.K. and his relatives, and, partly, the interviews with the applicant ’ s daughter, she started remembering more and more details of her sexual abuse: that besides the main suspect, A. Ū ., there were two other men who had molested and sexually assaulted her on a number of occasions and in the presence of the applicant and the applicant ’ s sister V.N.; this had taken place at the applicant ’ s home, V.N. ’ s home and a hotel. 20. In the course of the criminal proceedings the girl was assessed by the psychologist I. Č., whose conclusion of 12 August 2009 stated that the girl had been capable of talking about events that had happened in the past. That said, it was not possible to ascertain whether the girl ’ s experience had been direct, that is, whether the acts of sexual molestation had been performed on her, or whether that experience had been indirect, that is, whether she had watched the sexual acts of others, seen pornographic films, or heard adult conversations and questions on the topic. It was also not possible to ascertain whether those actions actually had been performed with the girl because later on she had been too often and improperly questioned about the alleged sexual abuse. The psychologist also addressed, as a separate matter, the video material provided by D.K. with the girl ’ s accounts of sexual abuse. The psychologist pointed out that the very clear and specific description of A.Ū. provided by the girl in the video-recordings, that her father had given to the authorities, had differed from how she had described him in her interview with the authorities of 17 December 2008. The psychologist concluded that the father had influenced the girl ’ s real experience by constantly talking with his daughter about that topic and giving her leading questions. 21. The State Forensic Psychiatry Service ’ s specialist report no. 92TPK ‑ 1 of 25 November 2009, based on the psychological assessment of the girl, also supported the conclusions of psychologist I. Č. According to this report, the girl ’ s age and individual experience, as well as the fact that from the start of the talks about sexual violence she had been living with her father, could have had an impact on her testimony. In general, the information which the girl had obtained from the adults, and the adult conversations and opinions expressed in her presence, had influenced the child ’ s understanding about those events and the way she had described them. For children of her age, recognition and positive evaluation by adults, especially those who were important to them and had authority, was important. Accordingly, in order to please, children would adjust their statements and answer as asked. 22. On 26 January 2010 a prosecutor at the Vilnius Regional Prosecutor ’ s Office discontinued the criminal investigation in respect of the applicant and the two people who had been shot, V.N., and J.F. (see paragraph 16 above), holding that they had not committed the crimes of sexual assault and sexual molestation (Articles 150 § 4 and 153 of the Criminal Code). Among other evidence, the prosecutor relied on the conclusion by the forensic psychiatrists, which had evaluated the applicant ’ s daughter ’ s testimony as not entirely credible, given that she had been questioned while she had already been living with her father and his family members, who could have indirectly influenced her perceptions (see paragraphs 20 and 21 above ). Moreover, in none of her interviews or occasions when her behaviour had been observed had the specialists noticed any behaviour to show that she had experienced long - term sexual abuse. The girl ’ s testimony had not been sufficiently precise and consistent. In so far as the suspect A. Ū. was concerned, the suspicions against him were changed to sexual molestation, and he was charged with that crime on 23 February 2010. The prosecutor informed the girl ’ s representative N.V. about the right to challenge this decision via a higher prosecutor. 23. N.V. then challenged the prosecutor ’ s decision. Having examined the material in the pre-trial investigation file, on 23 February 2010 a higher prosecutor dismissed the appeal, upholding the decision of 26 January 2010 as reasonable and sound. 24. By a final and unappealable ruling of 3 November 2010 the Panevėžys Regional Court upheld the prosecutors ’ conclusions as well ‑ founded. The court observed that when considering the girl ’ s testimony, the circumstances in which the testimony about sustained sexual abuse had been given had been particularly important. The same importance should have been attributed to the specialists ’ conclusions. Those circumstances had been examined in this case – the girls ’ family members had been questioned and the prosecutors had stated their opinions about the credibility of that testimony. The Regional Court also stressed that, as established by the prosecutors, the dispute between the applicant and D.K. over their daughter had started in 2006, and their relationship had become hostile. Moreover, as pointed out by the prosecutor in the decision of 23 February 2010, the video recordings which D.K. had made of the girl clearly showed that on more than one occasion it had been talked at length with the girl about sexual actions and sexual violence, and in this way her understanding of sexual experience and her subsequent statements had been influenced ( see also paragraphs 20 and 23 above ). The Regional Court noted that the prosecutor ’ s assessment had been based on the experts ’ opinion and specialists ’ conclusions, as well as D.K. ’ s own admission that the video - recordings had started to be made in December 2008, that is, from the very beginning of the pre-trial investigation ( see paragraph 9 above ). It also pointed to the conclusions by the psychologist I. Č. and the report no. 92TPK-1 (see paragraphs 20 and 21 above ). 25. As to the applicant, the Regional Court noted that the prosecutor ’ s decision to discontinue the pre-trial investigation had been based on the gathered material, which had been carefully and thoroughly examined. Although N.V. and her family members had claimed that the applicant ’ s involvement in her daughter ’ s sexual abuse and molestation had been proven by the girl ’ s testimony, the Regional Court considered that testimony to be inconclusive. It upheld the prosecutor ’ s conclusions that the vague and inconsistent data could not form a basis for holding that the applicant had been involved in the girl ’ s molestation. 2. A.Ū. ’ s death and posthumous acquittal 26. As to the main suspect in the case, A. Ū ., on 23 February 2010 a bill of indictment on charges of sexual molestation of a minor (Article 153 of the Criminal Code) was drawn up and the criminal case was transferred to the court for examination. 27. However, on 13 June 2010 A. Ū. was found dead. By a decision of 17 November 2010 the District Court discontinued the criminal case against A.Ū. on the grounds that the accused had died. It was later reopened at the request of A. Ū. ’ s relatives, who sought to clear his name. 28. By a judgment of 30 November 2012 the Vilnius City Second District Court acquitted A. Ū. in respect of the charges of sexual molestation, under Article 153 of the Criminal Code. That judgment was upheld by the Vilnius Regional Court on 10 April 2013, which held that the charges had not been proven. In its reasoning the Regional Court also extensively relied on the psychologists ’ conclusions (see paragraphs 20 and 21 above). 3. Pre-trial investigation against D.K. on account of the disclosure of information about his daughter ’ s private life to the public 29. On an unspecified date in 2009 the authorities started a pre-trial investigation in respect of D.K. on the grounds that he, by sending to the media and other individuals filmed recordings of his daughter recounting the sexual acts possibly performed against her, had not only made public the material of a criminal investigation, but had also made public information about his minor daughter ’ s private life, it being degrading to her honour and dignity. The criminal investigation against D.K. was based on allegations of abuse of parental rights and duties ( Article 163 of the Criminal Code, see paragraph 85 below). It was discontinued on 3 May 2010, upon D.K. ’ s death (see paragraph 16 above). E. Civil proceedings for the child ’ s return to the applicant 1. The applicant ’ s request that her daughter be returned to her care, and the applicant ’ s contact with her daughter until December 2011 30. On 23 December 2009 the applicant applied to the Kėdainiai District Court for a permanent residence order in respect of her daughter. She submitted that she could take care of her daughter and that there had been no reason to prevent her and her daughter communicating. She also pointed out that her parental rights had not been restricted. 31. Within those proceedings N.V. lodged a counterclaim, applying for residence in respect of the child and asking that the applicant ’ s parental rights in respect of her daughter be permanently restricted. 32. In the spring of 2010 the applicant asked the courts to lift the temporary protective measure, on the grounds that by a decision of 26 January 2010 the prosecutor had dropped the criminal charges against her (see paragraph 22 above ). However, by a ruling of 4 June 2010 the Panevėžys Regional Court dismissed her request, noting that the contact schedule for the applicant and her daughter, as set out by the Vilnius Regional Court on 15 December 2009 (see paragraph 14 above), was sufficient for them to maintain contact and implement her parental rights. The court also noted that in order to annul or change the temporary protective measure a factual basis was necessary. In the present case, such a basis could be the child ’ s suffering when living with the guardian or her interest in communicating with her mother. However, according to the court, the applicant had not provided any factual proof that her and her daughter ’ s relationship could break up because of the contact schedule set by the court on 15 December 2009, or that the existing contact order would be detrimental to the child ’ s interests, such as her not having proper conditions to grow and develop. The court also relied on the fact that an appeal against the prosecutor ’ s decision to discontinue the criminal proceedings against the applicant and her co-accused had been pending (see paragraphs 23 and 24 above ). 33. According to the report of 14 December 2009 of the Psychological Support and Counselling Centre (a public institution), the temporary guardian N.V. and the girl had attended the centre on 16 November 2009 and psychological support had been provided to the girl once a week. The employees of the centre noted that the girl and N.V. had established a relationship of trust. They proposed that psychological support be continued. In the report of the centre of 17 February 2010 it was noted that N.V. had taken part in a training programme for guardians. 34. In January and February 2011, both the applicant and N.V. had asked the Kėdainiai District Court to order a number of examinations. In particular, the applicant asked if the experts could ascertain whether her daughter could objectively understand her surroundings and objectively express her wishes as regards her place of living, whether she could be influenced by the fact that she lived with her temporary guardian and in her home, and whether she could objectively answer the question whether she wished to live with her mother. For her part, N.V. asked if the experts could ascertain how the child ’ s psychological state would be affected should she have to change her place of residence, leave N.V. ’ s home and be transferred to the applicant ’ s care. 35. By a ruling of 8 February 2011 the Kėdainiai District Court approved those questions and ordered the experts at the State Forensic Psychiatry Centre to conduct the examination. 36. In the meantime, on 18 August 2011 the Kėdainiai District Court granted a request by the applicant regarding the times when she could see her daughter. As per the applicant ’ s wishes, the court changed the time for the meetings to 3 to 5 p.m. on Mondays and Thursdays, to adapt to the girl ’ s school attendance times. 37. Having assessed the girl, in October 2011 the psychiatrists issued report no. 103MS-143. They found that because of her age, emotional development and state of mind the girl could not fully grasp her situation and could not form an independent opinion as to where she preferred to live. As a result, they recommended that the girl should not be questioned in court. Even though the girl had stated that she wished to live with her temporary guardian N.V., she could not explain why. Furthermore, the child ’ s view was predetermined by objective facts, namely that she could not remember the time when she had lived with her mother and that she was currently residing with N.V. ’ s family, who had a negative attitude towards the applicant. The psychologists also pointed out that both her mother and the temporary guardian were emotionally important persons for the child; she therefore avoided talking not only about them but also about the matter of where she should reside. The psychologists observed having noticed no difference in the child ’ s communication with her mother and N.V. – that she felt a strong connection and had a sense of security with both of them, who could both properly take care of the girl. Lastly, the psychologists noted that the natural and essential need of every child was to live with their parents – the mother in this case and that the child ’ s transfer to her mother would not have negative impact on her psychological state. Mutual goodwill between the applicant and N.V. and the latter ’ s family members could ease the girl ’ s adaptation to a new place of residence. 2. The Kėdainiai District Court ’ s decision of 16 December 2011 38. On 16 December 2011, at a closed hearing in the presence of the applicant, her lawyer, N.V. and the childcare authorities, the Kėdainiai District Court held that the applicant could exercise her parental rights unrestrictedly. It ruled that the girl should reside with her mother. A counterclaim by N.V. that the girl should stay with her was dismissed. The court ruled out that there would be any danger for the girl if she was returned to her mother. Relying on the Court ’ s judgment in Schaal v. Luxembourg (no. 51773/99, § § 48 and 49, 18 February 2003), the District Court emphasised that any criminal charges against the applicant had been dropped as unfounded by a final court ruling of 3 November 2010 (see paragraphs 24 and 25 above). It followed that it was necessary to reunite the applicant with her daughter as soon as possible. In that context the District Court also held that accusations which N.V. had flaunted against the applicant – that she had assisted in her daughter ’ s molestation – had been nothing more than a continuation of D.K. ’ s earlier efforts to have residence and to completely prohibit the mother from seeing her daughter. 39. The District Court relied on the Court ’ s case-law in Olsson v. Sweden (no. 1) (24 March 1988, § 72, Series A no. 130 ) and Eriksson v. Sweden ( 22 June 1989, § 58, Series A no. 156), to the effect that taking a child into care meant a very serious interference with the right to respect for family life. Separation of a biological family had to be supported by sufficiently sound and weighty considerations in the interests of the child. For the Lithuanian court, no such circumstances existed as concerned the continued separation of the girl and her mother. Firstly, there was no proof that the applicant had failed to properly take care of her daughter while they had lived together in 2006, or after their separation in 2008, when they had had supervised contact. Similarly, although N. V. had relied on the settlement agreement of 1 9 March 2008 in which the applicant had agreed that her daughter would reside with D.K. (see paragraph 8 above), the District Court considered that such a settlement agreement could not be treated as the applicant ’ s refusal of the child. The court considered that the applicant had convincingly explained that she had signed that agreement envisaging that her daughter would only be living temporarily with the father, also because at that time she had been studying and could only see her daughter on weekends. It was only after concluding the agreement that she had realised that she had been deceived, and had therefore immediately appealed against it. The court also pointed to the fact that the applicant had consistently fought for her right to live with her daughter. There were no circumstances in the case allowing for the conclusion that the applicant had ever failed to use her parental powers in respect of her daughter or that she had acted against the interests of her child. 40. Similarly, after J.F. ’ s and V.N. ’ s murder a search had been announced for D.K., the applicant had been placed under State protection and her right to communicate with her daughter had been restricted (see paragraphs 16 and 17 above). Separating them obviously affected their relationship, which became weaker. However, this fact could not be held against the applicant. In this connection the court relied on childcare specialists ’ explanations and reports, according to which a negative attitude was being formed about the applicant at N.V. ’ s home, what had as a consequence that the applicant ’ s daughter had become introverted and had refrained from talking about her mother not only at home, but also with the kindergarten teachers or childcare authorities. The court also took notice of the forensic experts ’ explanations in report no. 103MS-143 that although the girl had stated that she wanted to live with N.V., she could not explain that choice (see paragraph 37 above). For the court, one could only conclude that, not having been able to freely communicate with her mother as of May 200 8, when D.K. had taken her (see paragraph 8 above), and having been transferred to N.V. ’ s care in October 2009 (see paragraph 17 above), the girl had become attached to N.V. because the latter had been the only familiar and close person whom she could trust. It was also probable that the girl, having no other choice and not understanding her mother ’ s situation (where and how she had lived), had hidden her feelings towards her mother (as confirmed by the testimony of the psychologists and kindergarten teachers). Accordingly, when assessing the girl ’ s emotional connection with her guardian, as explained by the experts, it was of paramount importance to understand that such feelings were not entirely natural, but based on a sense of “security”. Furthermore, the girl ’ s contact with her mother, in the present circumstances – twice a week and in the presence of others – could not be seen as free and uninterrupted. Such a lack of uninterrupted and regular communication could only lead to a further weakening of their relationship. That being so, the District Court also took note that since January 2010 the applicant had received regular assistance from a psychologist before her meetings with her daughter, so that they would run easier, which had had a positive effect on their communication. The psychological experts confirmed (report No. 103MS-143, see paragraph 37 above) that the girl ’ s relationship with her mother was strong, emotionally adequate and a “ safe haven ”. 41. The court acknowledged N.V. ’ s arguments that a close connection had been established between her and the applicant ’ s daughter, and that she loved the child and had the complete ability to take care of her. Even so, that was not sufficient to limit the applicant ’ s parental rights towards the child. On this point the District Court relied on the Court ’ s case-law to the effect that in such cases the child ’ s best interests were of paramount concern. This had two aspects: on the one hand, it was necessary to ensure that the child grew in a safe environment, and that in no circumstances could a mother have recourse to measures which could harm the child ’ s health and development (the court relied on Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III ). On the other hand, it was also obvious that the best interests of the child were to grow with his family, unless it was proven that the family was inappropriate, because to do otherwise would mean separating the child from his roots. Moreover, even though the national authorities had wide discretion when deciding whether to give the child to his or her biological parents, the family connection could be restricted only in “particularly special circumstances” and everything had to be done in order to safeguard the personal connection and, if and when possible, “restore the family” (the court cited Amanalachioai v. Romania, no. 4023/04, § 81, 26 May 2009 ). 42. The District Court also highlighted that the instant case did not concern a dispute between persons who were competing for the right to have the child in their care, where the main principle was the best interests of the child. In contrast, this was a dispute between the child ’ s mother and a temporary guardian, in which completely different criteria, defining the relationship between the child and the mother, applied. Given that no grounds to limit the mother ’ s rights had been established, priority had to be given to the right, acquired by the child at birth, to live in a family with her mother. In that context it was also noteworthy that N.V. had possibly failed to properly execute her duties as a guardian. In this respect, the Ombudsperson for the Protection of Children ’ s Rights ’ report of 10 December 2010 criticised the actions of N.V., such as providing the media with information about the girl ’ s inner emotional state, thereby breaching the child ’ s interests. The Ombudsperson then recommended that the Kaunas childcare authorities guarantee the girl ’ s rights and pointed N.V. ’ s attention to the fact that information of a private nature should not be disseminated. The fact that N.V. ’ s negative attitude towards the applicant had affected the girl, as well as her failure to ensure that information related to the child would not be made public, had been noted also by the psychologists. For the court, such circumstances had to be evaluated as being counter to the aims of temporary guardianship, which, as a concept, in any case had the purpose of returning the child to the family, whenever the circumstances allowed. The need to reunite natural parents and a child had also been emphasised by the Court (the District Court relied on Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 169, ECHR 2000 ‑ VIII). For the District Court, the conclusions of the forensic experts and childcare services had completely ruled out the need to limit the applicant ’ s rights as a mother, as demanded by N.V. 43. The District Court further emphasised that the girl would suffer irreparable harm if she was left to reside with N.V.: “The court considers that the girl ’ s interests would be seriously harmed if she stayed in the family of N.V., because that would mean that the girl ’ s inherent rights to family ties, to be brought up and live with her biological family, would be restricted without any lawful grounds. As it has been established by forensic experts, even without any particular influence, the girl has picked up the negative attitude of N.V. and her family towards [the applicant]. Therefore, if the girl continued living with N.V., and taking into account N.V. ’ s particularly negative attitude towards [ the applicant ], there is a big risk that [ the applicant ] and her daughter ’ s relationship will become weaker or will be completely disrupted. The court considers that N.V. ’ s negative influence would obstruct [ the applicant ] in preserving a relationship with her daughter, which would clearly and seriously breach the interests of the child. ” 44. The District Court also referred to the Court ’ s case-law on the issue of prolonged access restriction. It quoted Dolhamre v. Sweden (no. 67/04, § 120, 8 June 2010) to the effect that following any removal into care, stricter scrutiny was called for in respect of any further limitations by the authorities, for example on parental rights or access, as such further restrictions entailed the danger that the family relations between the parents and a young child were effectively curtailed. The District Court emphasised that the applicant and her daughter had been separated for almost three years. During that time they could communicate only minimally, which had undoubtedly negatively affected their relationship. It was unlikely that continuous separation of the mother from her child would make their relationship stronger. For the District Court, it was of paramount importance that decisions determining family relations were not adopted merely because of a lapse of time or by simply upholding de facto situations. Accordingly, considering that the passage of time in the instant case was unacceptable because it could have irreparable consequences for the relationship between the child and her mother, with whom the former did not live, the court considered that its decision to return the girl to her mother had to be executed swiftly (Article 283 § 1 ( 4 ) of the Code of Civil Procedure, see paragraph 83 below ). Given that the two had lived apart for a long time, the court set a term of fourteen days for the child to be returned to the applicant. During those fourteen days the applicant was to meet with her daughter daily, in the presence of child psychologists, and the duration of those meetings was to be increased by one hour until the meetings lasted six hours. If the childcare authorities decided that the girl was ready to move in with her mother earlier, she was to be returned in advance of the set deadline. 45. The District Court ordered N.V. to transfer the girl to the applicant within fourteen days, that is, by 30 December 2011. It quashed the temporary protective measures (see paragraphs 12, 14 and 36 above). The part of the court decision regarding the girl ’ s place of residence, the obligation on N.V. to transfer the girl and the lifting of the temporary protective measures were to be executed immediately, in accordance with Article 283 §§ 1 (4) of the Code of Civil Procedure (see paragraph 83 below). 46. As later established by another court, on the date the decision of 16 December 2011 was adopted N.V. took the girl out of school and started home schooling (see also paragraph 58 below). From that time onwards, crowds dissatisfied with the Kėdainiai District Court ’ s decision of 16 December 2011 would maintain a constant vigil around N.V. ’ s home in Garliava to “ protect ” the girl from being taken away. 47. Afterwards, N.V. lodged an appeal challenging the part of the Kėdainiai District Court ’ s decision ordering the girl to be returned to her mother within fourteen days. By a ruling of 28 December 2011 the Panevėžys Regional Court refused to accept the appeal for examination on the merits, on the grounds that N.V. had failed to follow the rules of civil procedure. 48. By rulings of 28 December 2011 and 3 and 6 January 2012 the Panevėžys Regional Court again refused, on procedural grounds, to accept N.V. ’ s appeals in respect of the decision ordering the applicant ’ s daughter to be returned to the applicant by 30 December 2011. 49. By a ruling of 18 April 2012 the Klaipėda Regional Court dismissed N.V. ’ s appeal against the Kėdainiai District Court ’ s decision of 16 December 2011 and left it unchanged. 3. The course of the girl ’ s transfer to the applicant after the Kėdainiai District Court ’ s decision of 16 December 2011 (a) The applicant ’ s contact with the girl 50. The Government stated that the applicant had been provided with psychological consultations to strengthen her relationship with her daughter. She had attended a special training course for developing positive parental skills and received individual psychological consultations, as suggested and arranged by the Kaunas childcare authorities. The Government also submitted that, according to the childcare authorities, the applicant ’ s use of psychological support had been rather passive, and she had been encouraged to attend psychological consultations more than once. 51. Given that the Kėdainiai District Court ’ s decision had obliged the Kaunas childcare authorities to organise the meetings between the applicant and her daughter, they had initially drafted a schedule for the meetings in a neutral location for the period of execution of that decision and until 30 December 2011. The childcare authorities had obtained N.V. ’ s signature to comply with that schedule and had also arranged for a psychologist to be present during those meetings; they had also arranged psychological support for the applicant, her daughter and N.V. Both parties had been offered the possibility of mediation, however, they had both refused that option. 52. According to the Government, after the decision of 16 December 2011 N.V. refused to take the girl to the meetings with the applicant in a neutral location, on the pretext that the girl did not want to leave the house. With the efforts of the childcare authorities, the applicant could then see her daughter at N. V. ’ s house, and their meetings took place on 20, 23, 24 and 27 December 2011, and on 19 February 2012, the girl ’ s birthday. 53. The Government submitted that on 16 March 2012 the applicant had asked the childcare authorities to organise meetings with the girl in a neutral location. Since the authorities had been aware of the girl ’ s refusal to leave the house, those meetings had taken place on 19, 21, 22 and 23 March 2012 at N.V. ’ s house, with the participation of childcare specialists and a psychologist on the last two dates (22 and 23 March 2012). 54. The Government specified that following the unsuccessful handover of the girl on 23 March 2012 (see paragraph 62 below ), the childcare authorities had taken steps to deal with the possible psychological consequences suffered by the child. Various means of psychological support had been proposed, including art therapy. 55. The Government also submitted that on 6 April 2012 an opinion concerning the emotional state of the girl had been received from a public institution, the Psychological Support and Counselling Centre. Accordingly, taking the girl ’ s state into account, a meeting with the mother, irrespective of location, would cause the child grave additional stress, and the relationship between the girl and the mother should be strengthened gradually. Therefore, the Kaunas childcare authorities suggested to the applicant that she should write letters to the girl, which they would read to her. The applicant actually wrote several such letters, and the girl responded. (b) Writ of execution, bailiff ’ s actions and imposition of a fine on N.V. for failure to execute the District Court ’ s decision of 16 December 2011 56. On 16 December 2011 the Kėdainiai District Court also issued a writ of execution under which N.V. was obliged to transfer the child to the applicant. The bailiff instructed N.V., under signature, to return the child to the applicant on 30 December at the secondary school in Kaunas district, which the girl had attended. However, even though the bailiff as well as child psychologists and childcare specialists were present at the school on the specific date and time, N.V. did not show up and did not bring the girl. She did not answer her telephone either. The bailiff afterwards requested the childcare authorities to provide assistance with the execution of the court decision for the girl ’ s transfer, and they recommended that the transfer take place in a neutral environment. The childcare specialists noted that although the meetings between the girl and the applicant had been aimed at making the eventual transfer easier, during those meetings it had been concluded that N.V. had not been preparing the girl for her return to her mother. The bailiff then attempted to have the girl returned to the applicant on 11 January 2012 at the premises of Kaunas police headquarters in the presence of childcare authorities and a psychologist, but on that day N.V. again failed to show up and bring the girl. The following day N.V. wrote to the bailiff, alleging that she had been executing the court decision, but that the girl did not wish to meet her mother and live with her. 57. On 5 January 2012 the applicant asked the bailiff to fine N.V. for failing to execute the court decision, and the bailiff in turn requested the Kėdainiai District Court to impose a fine of 1,000 Lithuanian litas (LTL ) ( approximately 390 euros (EUR) ) for each day the court decision remained unexecuted, which was the maximum amount under Article 771 § 5 of the Code of Civil Procedure (see paragraph 82 below). By a ruling of 29 March 2012 the court granted the bailiff ’ s request, but reduced the fine to LTL 200 (EUR 60) per day. As specified by the Government, on that basis N.V. paid a sum of LTL 28,000 (EUR 8,100) to the applicant. 58. By a ruling of 8 June 2012 the Šiauliai Regional Court dismissed an appeal of N.V. against the court ’ s decision to impose a fine on her (see paragraph 57 above). The court noted that after the pronouncement of the Kėdainiai District Court decision of 16 December 2011 the girl had been immediately taken out of school and then home schooled at N.V. ’ s home. In doing so N.V. had not only failed to prepare the girl for the transfer to her mother, but had also isolated her from the environment which she had been familiar with, and, without objective grounds, had restricted her ability to communicate with other children of her age, as well as her mother. This was confirmed by the Kaunas childcare authorities ’ reports to the effect that when asked about the girl, N.V. had stated that it had been in the best interests of the child to stay at her home. According to those reports, N.V. had confirmed refusing to take the girl to the meetings with her mother. The appellate court also noted that on 1 1 January 2012 N.V. had not only not shown up, either alone or with the child, at the meeting which the authorities had set for the girl ’ s transfer (see paragraph 56 above), but had also not informed the other participants of that meeting about not coming, “in this manner obviously ignoring the execution of the court decision and efforts by several State authorities to execute that decision with as little trauma to the child as possible”. The appellate court also noted that since the Kėdainiai District Court decision of 16 December 2011 “the girl was not being taken to the meetings with her mother in a neutral environment, and that in the environment in which the girl lived [D.K. ’ s] family members would constantly and publicly express negative views towards the applicant”. This allowed for the conclusion that the girl ’ s opinion as to communication and living with the mother was being shaped “exclusively” by N.V. and the persons close to her. For the appellate court, it was clear that N.V. ’ s actions and inaction were purposefully targeted at obstructing the execution of the court decision of 16 December 2011. Moreover, the sole fact that the girl was eight years old was not sufficient to claim that she could independently and publicly express her opinions about her place of residence or her connection with her mother, as suggested by N.V. 59. Lastly, the Šiauliai Regional Court pointed out that N.V., being obliged under Article 18 of the Code of Civil Procedure (see paragraph 81 below) to execute the court decision and because of her education clearly understanding the consequences of failure to execute the court decision, had the ability to choose whether to execute the court decision or to risk paying the fine. (c) The operation for the girl ’ s forcible transfer to the applicant 60. On 16 January 2012 the bailiff applied to the Kėdainiai District Court, requesting permission to forcibly take the child from N.V. On 22 March 2012 the Kėdainiai District Court granted the bailiff ’ s request, however emphasising that force could only be used for removing the obstacles for execution of the court decision but not against the child herself. 61. In the meantime, the bailiff cooperated with the psychologists who had been working with the girl, and the childcare authorities. A number of opinions and recommendations from various institutions concerning the execution of the court decision were received. The bailiff also systematically organised meetings between the different authorities concerning the enforcement. As a result, a number of proposals were given to the applicant and N.V. ; the latter was also warned a number of times of the obligation to act in the interests of the child. 62. On 23 March 2012, more than three months after the Kėdainiai District Court had ordered the transfer of the child to the applicant and one day after the same court gave its permission for the forcible taking of the girl, the bailiff issued a warrant requiring the child to be urgently handed over to the applicant. The bailiff arrived at the house of her grandparents, the parents of N.V., where the applicant ’ s meeting with the girl was taking place. However, because of the crowds surrounding N.V. ’ s house and “guarding” the applicant ’ s daughter against the enforcement of the Kėdainiai District Court ’ s decision of 16 December 2011 (see paragraph 46 above) and active physical resistance on the part of the girl ’ s grandparents, the bailiff ’ s attempt to enforce the court decision was unsuccessful and the girl was not taken. 63. Subsequently, the childcare authorities organised special training for their specialists in order to prepare adequately for the next attempt at execution of the court ’ s decision and handing over the child. 64. On 16 April 2012 the bailiff drafted two plans for enforcement of the decision and submitted them to the Lithuanian Association of Psychologists and a child and juvenile psychiatrist for assessment. After receiving their comments the bailiff made the relevant amendments and obtained the approval of the institutions participating in the transfer procedure. 65. According to the Government, on 18 April 2012 the bailiff issued N.V. with the warrant requiring her to execute the court decision and hand over the child in goodwill. She refused. 66. Between 24 April and 3 May 2012 the bailiff, having coordinated with the heads of all the institutions participating in the execution proceedings, including the Kaunas police headquarters, prepared a general plan for the girl ’ s transfer. The documents drafted by the bailiff set out the responsibilities of each of the institutions, and were given to all the participating parties (with the exception of N.V.), who signed them. 67. On 17 May 2012 the bailiff, the applicant, a childcare specialist and a psychologist arrived at N.V. ’ s house. They were accompanied by a police force of at least 100 officers, who removed any obstacles – the crowd which had gathered around N.V. ’ s home – hindering the execution of the court decision. The childcare specialist took the child from N.V. and handed her over to the applicant. The Government stated that afterwards competent specialists, including a psychologist, were monitoring the girl ’ s condition, and gave her the necessary support. ( d ) Measures taken with regard to persons who obstructed the execution of the court decision, as noted by the Government in their observations and not contested by the applicant 68. On 23 March 2012, after the unsuccessful attempt to enforce the Kėdainiai District Court ’ s decision (see paragraph 62 above), the Prosecutor General, on his own initiative, opened a pre-trial investigation with regard to the elements of a crime under Article 245 of the Criminal Code, namely failure to comply with a court decision not associated with a penalty ( see paragraph 85 below). 69. The bailiff also applied to the prosecutor on 27 March 2012, requesting that a pre-trial investigation be opened under Article 231 of the Criminal Code, namely hindering the activities of a bailiff ( see paragraph 85 below) with regard to the actions of N.V. ’ s relatives during the unsuccessful attempt to execute the court decision on 23 March 2012 (see paragraph 62 above). The prosecutor opened a pre-trial investigation of that charge and also likewise of the charge that a civil servant had been threatened (Article 287 § 1 of the Criminal Code). ( e ) Proceedings against N.V. 70. On 23 May 2012 the Prosecutor General addressed the Seimas requesting to lift the immunity of N.V., who was a judge. The prosecutor considered that the material gathered allowed for the conclusion that N.V. could have committed several criminal acts. The Government also noted that N.V. ’ s actions had been subject to examination in disciplinary proceedings before the Judges ’ Court of Honour. 71. In June 2012 N.V. resigned her judgeship after the Seimas voted to remove her legal immunity. N.V. then became the face of a new political party “The Way of Courage ( Drąsos Kelias )”, which alluded to her brother D.K. ’ s name. 72. In October 2012 N.V. was elected to the Seimas. 73. In spring 2013 the Prosecutor General asked the Seimas to lift N.V. ’ s immunity on the grounds that she had been suspected of a number of crimes contained in the Criminal Code, namely, contempt of court (Article 232 ), failure to comply with a court decision not associated with a penalty (Article 245 ), resistance against a civil servant or a person performing the functions of public administration (Article 286 ), abuse of the rights or duties of a guardian (Article 163 ), hindering the activities of a bailiff (Article 231 ) and causing negligible bodily harm (Article 140). 74. On 9 April 2013, on the basis of a proposal by the Prosecutor General, the Seimas agreed that N.V. ’ s immunity, as that of a member of the Parliament, be lifted, so that she could be prosecuted and detained. 75. Afterwards, N.V. fled from Lithuania. She was impeached for having failed to attend the plenary meetings of the Seimas, and proceedings regarding her extradition from the United States of America are currently pending. | This case concerned complaints by the applicant about care decisions related to her daughter and the fact that her daughter was not returned to her even though the criminal investigation against her (her former partner had accused her of being complicit in the sexual molestation of their daughter) had been discontinued. She also complained about the delays in the actual return of her daughter after the court order in her favour. |
152 | Medically-assisted procreation | I. THE CIRCUMSTANCES OF THE CASE 9. The applicants were born in 1972 and 1958 respectively. The first applicant is in prison and the second applicant lives in Hull. 10. In 1994 the first applicant was convicted of murder (kicking a drunken man to death) and sentenced to life imprisonment with a tariff of fifteen years. His earliest expected release date is 2009. He has no children. 11. In 1999 he met the second applicant, while she was also imprisoned, through a prison pen- pal network. She has since been released. In 2001 the applicants married. The second applicant already had three children from other relationships. 12. Since the applicants wished to have a child, in October 2001 the first applicant applied for facilities for artificial insemination. In December 2002 the second applicant joined this application. They relied on the length of their relationship and the fact that, given the first applicant ’ s earliest release date and the second applicant ’ s age, it was unlikely that they would be able to have a child together without the use of artificial insemination facilities. 13. In a letter dated 28 May 2003 the Secretary of State refused their application. He first set out his general policy (“the Policy”): “Requests for artificial insemination by prisoners are carefully considered on individual merit and will only be granted in exceptional circumstances. In reaching decisions particular attention is given to the following general considerations: – whether the provision of artificial insemination facilities is the only means by which conception is likely to occur – whether the prisoner ’ s expected day of release is neither so near that delay would not be excessive nor so distant that he/she would be unable to assume the responsibilities of a parent – whether both parties want the procedure and the medical authorities both inside and outside the prison are satisfied that the couple are medically fit to proceed with artificial insemination – whether the couple were in a well established and stable relationship prior to imprisonment which is likely to subsist after the prisoner ’ s release – whether there is any evidence to suggest that the couple ’ s domestic circumstances and the arrangements for the welfare of the child are satisfactory, including the length of time for which the child might expect to be without a father or mother – whether having regard to the prisoner ’ s history, antecedents and other relevant factors there is evidence to suggest that it would not be in the public interest to provide artificial insemination facilities in a particular case.” He then gave his reasons for refusal in the present case : “ ... the Home Secretary has had particular regard to the likely age of your wife at the time that you will become eligible for release. Your wife will be 51 years of age at the earliest possible date of release and therefore the likelihood of her being able to conceive naturally is small. It is noted that Mrs Dickson has three children from an earlier relationship. In the light of your wife ’ s age, the Minister has looked with very great care at both you and your wife ’ s circumstances, ... The Minister has noted that you and your wife are in full agreement about your wish to conceive artificially. He also recognises the commitment which you and your wife have shown to one another. However, he notes that your relationship was established while you were in prison and has therefore yet to be tested in the normal environment of daily life. A reasoned and objective assessment cannot be made as to whether your relationship will subsist after your release. Further he is concerned that there seems to be insufficient provision in place to provide independently for the material welfare of any child which may be conceived. In addition, there seems to be little in the way of an immediate support network in place for the mother and any child which may be conceived. It also remains a matter of deep concern that any child which might be conceived would be without the presence of a father for an important part of his or her childhood years. While recognising the progress which you have made in addressing your offending behaviour, the constructive use that you have made of your time in prison in preparation for your release and your good prison behaviour, the Minister nevertheless notes the violent circumstances of the crime for which you were sentenced to life imprisonment. It is considered that there would be legitimate public concern that the punitive and deterrent elements of your sentence of imprisonment were being circumvented if you were allowed to father a child by artificial insemination while in prison. ” 14. The applicants sought leave to apply for judicial review of the Secretary of State ’ s decision. On 29 July 2003 the High Court refused leave on the papers. The applicants renewed their application and on 5 September 2003 leave was again refused after an oral hearing. On 13 October 2003 the applicants introduced an application to this Court and it was declared inadmissible on 15 December 2003 on the basis that they had failed to exhaust domestic remedies ( application no. 34127/03). The applicants then applied to the Court of Appeal for leave to appeal. 15. On 30 September 2004 their application was unanimously rejected by the Court of Appeal. Auld LJ relied in principle on the judgment of the Court of Appeal in R (Mellor) v. Secretary of State for the Home Department [2001] 3 WLR 533. He pointed to the similarity of the arguments put by the applicants in the present case and in the Mellor case. Auld LJ relied on the conclusion of Lord Phillips, Master of the Rolls, in the Mellor case (see paragraphs 23-26 below) and commented: “... Lord Phillips clearly had in mind, and he set it out in the course of his judgment, the provisions of Article 8.2 of the Convention setting out various matters that may justify interference with the right to respect for private and family life, including the protection of health or morals and the protection of the rights and freedom of others. It seems to me that concern, not only for the public attitude to the exercise by prisoners of certain rights in prison which they would take for granted outside, and concern for the rights of a putative child in the upbringing it would receive depending on the circumstances and the length of the imprisonment involved, are highly relevant circumstances for the purposes of Article 8.2 ... Accordingly, in my view, it is not open to [the applicants] to seek to re-open the validity of the Secretary of State ’ s policy which this court has held in Mellor is rational and otherwise lawful. As Lord Phillips made clear in his judgment in that case, although the starting point of the policy is that deprivation of facilities for artificial insemination may prevent conception altogether, the finishing point is whether there are exceptional circumstances for not applying the policy ...” He then noted that on occasions the Secretary of State had “dis-applied” the Policy when the circumstances had merited it: he referred to a letter from the Treasury Solicitor to the applicants which apparently demonstrated this fact and pointed out that counsel for the Secretary of State had informed the court that there had been other such instances. 16. Auld LJ then applied the Policy to the present case: “To the extent that [the applicants have] suggested that [the] Secretary of State has irrationally misapplied his own policy to the circumstances, or has otherwise acted disproportionately in applying it, I would reject the suggestion. There is no basis for saying that the Secretary of State ’ s approach can be equated, as [the applicants] suggested, with the extinction of a fundamental right. It was a weighing of the starting point of the policy against the other considerations for which the policy itself provided, an exercise of discretion and proportionality in respect of which, in my view, the Secretary of State cannot be faulted on the circumstances as presented to him.” 17. The other judges also relied on the judgment in Mellor. Mance LJ said the following: “The case of Mellor is also clear authority that considerations and potential consequences of public interest over and above a narrow view of the requirements of good order and security in prison can play a role in a decision whether or not to permit such artificial insemination ... I note that, in addition to the European authorities specifically mentioned in paragraph 42 by Lord Phillips, the Commission, in its decision in Draper v. the United Kingdom [no. 8186/78, Commission ’ s report of 10 July 1980, DR 24, pp. 81-82, §§ 61- 62 ], also recognised the potential relevance of more general considerations of public interest.” 18. On 19 December 2006 the first applicant was transferred to the open side of another prison as a Category D prisoner. In principle, he was eligible for unescorted home leave after six months should he retain his Category D status (Rule 9 of the Prison Rules 1999, as implemented by Chapter 4.3 – “Temporary Release for Life Sentence Prisoners” – of Prison Service Order 6300). | The applicant, a prisoner with a minimum 15-year sentence to serve for murder, was refused access to artificial insemination facilities to enable him to have a child with his wife, who, born in 1958, had little chance of conceiving after his release. |
780 | Medical negligence and liability of health professionals | 5. The present application was introduced by Mrs Patricia Reynolds, a British national born in 1935 who lived in Hebden Bridge. Following the introduction of the application, Mrs Reynolds died and Ms Catherine King (her daughter) continued the case on her behalf. The Court has referred below to Mrs Reynolds as the applicant. 6. The applicant’s son, David Reynolds, was born in 1969 and he died on 16 March 2005. The present application relates to his death. A. The circumstances of the case 7. The facts of the case, as submitted by the applicant, may be summarised as follows. 1. Mr Reynolds’ illness and death 8. Mr Reynolds was diagnosed with schizophrenia in 1998. He was treated by a mental health team which was operated by the National Health Service Trust (“the NHS Trust”) and which assigned Mr Stephens as Mr Reynold’s Care Co-ordinator. On 16 March 2005 Mr Reynolds contacted the applicant and Mr Stephens: he was hearing voices ordering him to kill himself. The applicant and Mr Stephens went to Mr Reynolds’s home. 9. Mr Stephens contacted the Crisis Resolution Home Treatment Team (“CRHTT”) informing it that Mr Reynolds might need to be hospitalised. The CRHTT is a community-based team of mental health professionals operated by the NHS Trust from the psychiatric unit of Calderdale Royal Hospital (“the Hospital”). Mr Stephens was told that no beds were available but that Mr Reynolds could have a crisis bed at the Intensive Support Moving On Scheme Unit (“the ISMOS Unit”). The local Council is responsible for the Unit and it is located in a building of which the Council is the occupier for the purposes of the Occupiers Liability Act 1957 (“the 1957 Act”). It is staffed by social workers experienced in the care of mental health patients and it provides an alternative to in-patient care where the risk assessment renders this appropriate. ISMOS Unit patients are not subjected to formal monitoring but staff regularly check on them and have custody of their medication. While patients are voluntary, cameras monitor the outside of the building so that the ISMOS Unit is alerted if a patient leaves. 10. On the way to the ISMOS Unit Mr Reynolds told Mr Stephens that he found the ‘voices’ so distressing that he felt like killing himself. Mr Stephens therefore took Mr Reynolds to the Hospital (run by the Trust) for a clinical assessment. This was carried out by a psychiatrist of the CRHTT assisted by a psychiatric nurse and Mr Stephens. Mr Reynolds was assessed to be a low suicide risk. He had once again reduced his medication in order to drink and socialise at the weekend. His psychotic symptoms had therefore returned but he had stabilised rapidly as he had already re-taken his medication that morning. The voices had diminished and were not troubling him any more although he was terrified of their returning. During the assessment, he confirmed that he did not want to kill himself. He had no history of self-harm/attempted suicide, he had not acted on his earlier hallucinations and, even when having hallucinations, he had sought help. 11. Since it was agreed that Mr Reynolds needed a safe and supported environment, he was admitted to the ISMOS Unit as a voluntary in-patient. He was allocated one of the crisis rooms across from the staff room on the sixth floor. During dinner he seemed withdrawn and unwell. Later that evening, he was found wandering outside the building but he returned with staff to his room. At 22.00 there was a change of shift, the new staff were briefed and Mr Reynolds appeared more relaxed and spoke with them. 12. Mr Reynolds was due his medication at 22.45. At around 22.30 he broke a window in his room and fell from the sixth floor to his death. 2. The internal investigation 13. On 26 May 2005 an internal investigation into Mr Reynolds’ death was completed by the NHS. The resulting Report recommended, inter alia, that the bedroom windows in the crisis rooms at the ISMOS Unit be reinforced. On 20 May 2005 the applicant’s daughter wrote a letter of complaint to the Trust. On 20 June 2005 the Trust responded stating that it had reviewed the information available on the relevant date but that there had been no indication that Mr Reynolds would harm himself. 3. The Inquest 14. The applicant could not afford legal representation for the Inquest. She considered applying to the Legal Services Commission for legal aid and, following receipt of the Coroner’s views as regards the two criteria applied by the Commission in deciding on a grant of legal aid, the applicant decided not to pursue a claim. 15. On 22 March 2005 the Inquest was opened and adjourned by the Coroner. It resumed on 21 July 2005. The applicant attended with two daughters including Ms King. The Coroner sat without a jury. He explained that the Inquest was to find the answers to four limited factual questions: who was the deceased and how, where and when did the death come about. “How” was limited to “how the cause of death arose” since an Inquest was not an opportunity to examine the broad circumstances in which the death occurred so that all questions touching thereon would be excluded as would any question of civil or criminal liability. 16. Oral evidence was given by, inter alia, the psychiatrist and the psychiatric nurse who assessed Mr Reynolds; by the relevant four members of staff at the ISMOS Unit; by the eye witness who saw him step through the broken window; and by the team leader of the CRHTT. The applicant gave evidence: she considered that her son had not attempted to commit suicide but rather had wished to go home and had not realised he was on the sixth floor. The applicant submitted questions to the Coroner prior to the Inquest and she and her daughters put questions to witnesses during the Inquest. 17. The Inquisition Form recorded that Mr Reynolds had been placed in the crisis room for a few days for monitoring; that just a few hours later he broke a window, climbed through it and walked off the window sill; and that he sustained fatal injuries as a result of the fall and was pronounced dead that day. The Coroner’s conclusion as to death was an “Open verdict”, he explaining that, while those with schizophrenia presented a high incidence of suicide, there was insufficient evidence that Mr Reynolds intended to kill himself. 18. Since the Coroner was concerned about a psychiatric facility on a sixth floor, in July 2005 he reported the incident to the NHS Trust under Rule 43 of the Coroners Rules 1984. By letter of 11 October 2005 the NHS Trust informed the Coroner that, since an ISMOS Unit was used when the risk was low, its location on the sixth floor was not unusual. However, the windows had been reinforced and, in the longer term, there were plans to re-locate the ISMOS Unit to a two storey dwelling. 4. The applicant’s claim for compensation 19. The applicant obtained legal aid and issued an action for damages under section 7 of the Human Rights Act 1998 (HRA”) against the NHS Trust and the Council, arguing that they had failed to adequately discharge their duties to Mr Reynolds in breach of Articles 2, 3 and 8 of the Convention in that they had failed to ensure his appropriate placement, failed to ensure that the ISMOS Unit was safe and failed adequately to assess the suicide risk or to admit him for in-patient care. An expert report obtained by the applicant from a consultant psychiatrist for the proceedings (although not served since the action was later struck out, see below) considered that the care of Mr Reynolds fell below the required standard. 20. On 21 December 2006, the High Court decided the case of Savage ν South Essex Partnership NHS Foundation Trust ([2006] EWHC 3562, paragraphs 33-37 below). 21. The NHS Trust and the Council served defences in March 2007. The Trust accepted that it owed a common law duty to take reasonable steps to try to prevent Mr Reynolds from taking his own life. The Council accepted that it owed a common law duty of care not to expose Mr Reynolds to a reasonably foreseeable risk of injury or harm on the premises as well as a common duty of care under the 1957 Act. However, both defendants argued that the applicant had no cause of action and that the case should be struck out since the High Court judgment in the Savage case had provided that one had to establish gross negligence of a kind sufficient to sustain a charge of manslaughter in order to establish a breach of Article 2 of the Convention. The applicant requested that her action be adjourned pending the appeals in the Savage case. 22. On 13 July 2007 the County Court delivered its judgment striking out the applicant’s case pursuant to Rule 3.4 of the Civil Procedure Rules holding that there were no reasonable grounds for bringing the claim. The County Court noted that the High Court in the Savage case had accepted that, where the allegations were of clinical negligence, the measure of the duty owed to both voluntary and involuntary patients was as outlined in Powell v. the United Kingdom ((dec.), no. 45305/99, ECHR 2000 ‑ V) and in R (Takoushis) v. Inner North London Coroner and Another ([2006] 1WLR 46) namely, that there had to be at least gross negligence of a kind sufficient to sustain a charge of manslaughter. The applicant had not made any such allegations: “It is thus clear that there is strong authority which would make it highly unlikely that any decision on appeal in the case of Savage would render [the Trust and the Council] liable under the provisions of Article 2.” 23. In refusing the applicant’s request for an adjournment, the County Court did not accept that the law relating to the treatment of voluntary mental health patients was uncertain or in a state of development which was likely to lead to a change in the law which would enable the applicant’s claim to succeed. It was not persuaded that the prospect of the appeal in the case of Savage raised a sufficient prospect of an outcome favourable to the applicant as to justify refusing the orders sought by the defendants. 24. Two barristers, experienced in clinical negligence, human rights cases and Inquest law, advised the applicant that an appeal had no realistic prospect of success. One of these opinions was submitted to the Legal Services Commission which withdrew legal aid in August 2007. B. Relevant domestic law and practice 1. Human Rights Act 1998 (“HRA”) 25. Section 6 of the HRA makes it unlawful for a public authority to act incompatibly with Convention rights, unless it is not possible to act differently by virtue of primary legislation. A successful claim under Article 6 renders the relevant public authority liable under section 7 of the HRA and a judge has the power to award damages under section 8 of the HRA. 2. Coroners and Inquests 26. Section 8(1) of the Coroners Act 1988 (“the 1988 Act”) requires a Coroner to hold an Inquest in circumstances where there are grounds to suspect that the person (a) has died a violent or an unnatural death or (b) has died a sudden death of which the cause is unknown. 27. As to the scope of an Inquest (including a resumed one), section 11(5)(b) of the 1988 Act outlines the content of the Inquisition Form (a document completed by the Inquest jury at the end of the evidence). It must set out, so far as such particulars have been proved (i) who the deceased was; and (ii) how, when and where the deceased came by his death. Rule 36 of the Coroners Rules 1984 (“the 1984 Rules”) requires that proceedings be directed solely to ascertaining: (a) who the deceased was; (b) how when and where he came by his death; and (c) the particulars required by the Registration Act to be registered concerning the death. Rule 36(2) specifically provides that neither the Coroner nor the jury shall express any opinions on any other matters. Rule 42 provides that no verdict shall appear to determine any question of criminal or civil liability on the part of a named person. 28. On 11 March 2004 the House of Lords decided ( R. (Middleton) ν West Somerset Coroner [2004] 2 A.C. 182; and R. (Sacker) v. West Yorkshire Coroner [2004] 1 W.L.R. 796) that the limited scope of Inquests to date was incompatible with the procedural requirements of Article 2. Using the interpretation mechanism of section 3 of the HRA, the House of Lords extended the Inquest regime so that “how” (section 11(5)(b)(ii) of the 1988 Act and Rule 36(l)(b) of the Coroners Rules 1984) was to be interpreted as meaning “by what means and in what circumstances” the deceased came by his death. Lord Bingham clarified that, however the jury’s extended factual conclusions were to be conveyed, Rule 42 was not to be infringed so that there could be no finding of criminal or civil liability. While acts or omissions could be recorded, expressions suggestive of civil liability, in particular neglect, carelessness and related expressions were to be avoided. 3. Proceedings for injury and death caused by negligence 29. A person who suffers injury, physical or psychiatric, in consequence of the negligence of another may bring an action for damages for that injury. Upset and injury to feelings resulting from negligence in the absence of physical or psychiatric damage or exacerbation do not entitle a plaintiff to damages. Any personal-injury action maintainable by a living person survives for the benefit of his estate and may be pursued after his death. 30. Claims arising from a death caused by negligence are brought under the Fatal Accidents Act 1976 (“the 1976 Act”) or the Law Reform (Miscellaneous Provisions) Act 1934 (“the 1934 Act”). The 1976 Act enables those who were financially dependent on the deceased to recover damages for the loss of support: the scheme is compensatory and, save for the sum of currently 10,000 pounds sterling for bereavement awarded to the spouse of a deceased or parent of a deceased child under 18 at the time of death, damages are awarded to reflect the loss of support. The 1934 Act enables damages to be recovered on behalf of the deceased’s estate and may include any right of action vested in the deceased at the time of death together with funeral expenses. 4. Relevant domestic case-law (a) R (Takoushis) v. Inner North London Coroner and Another [2006] 1WLR 46. 31. Mr Takoushis, diagnosed with schizophrenia, left a hospital where he was a voluntary patient and committed suicide. His wife challenged certain rulings of the Coroner. The Court of Appeal, following the approach of the High Court, examined, in the first place, whether those rulings were justified on the assumption that Article 2 was not engaged. The Court of Appeal did not uphold the Coroner’s rulings and ordered a new Inquest. 32. The Court of Appeal went on to examine the applicability and scope of the protection of Article 2 in such cases partly because the point was evidently of some potential importance for the new Inquest which was now to be held. It accepted that simple negligence in the care of a patient resulting in his or her death was not sufficient to amount to a breach of the State’s obligation under Article 2 to protect life, although the position might be different where gross negligence or manslaughter had been alleged (relying, inter alia, on R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931 (Admin), itself based on Powell v. the United Kingdom ((dec.), no. 45305/99, ECHR 2000 ‑ V). The Court of Appeal concluded by rejecting the argument that the deceased should be considered an involuntary patient as he would have been detained had he been seen leaving the hospital: the court found that the deceased was clearly a voluntary patient and that there was an important difference between the principles applicable to those who were detained and those who were not. (b) Savage ν South Essex Partnership NHS Foundation Trust, [2006] EWHC 3562, [2007] EWCA Civ 1375 and [2008] UKHL 74 33. The deceased was an involuntary mental health patient who left an open acute psychiatric ward and committed suicide. 34. The Trust contended before the High Court that the extent of the obligations of health authorities to protect a patient’s life was to be found in Powell v. the United Kingdom ((dec.), no. 45305/99, ECHR 2000 ‑ V) namely, that the treatment alleged amounted either to gross negligence or to manslaughter. The claimant argued, citing Osman v. the United Kingdom (28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII), that a duty to take steps to prevent a particular patient from committing suicide arose if the authorities knew or ought to have known that there was a real and immediate risk of her doing so. The claimant sought to distinguish her son’s position (an involuntary patient) from that of a voluntary patient arguing that the test for Article 2 liability in Powell did not apply to her son and equating the duty of care owed by the State to an involuntary patient with that owed to a prisoner in the criminal justice system. The High Court expressly rejected that distinction, finding that the proper test applicable to a breach of the substantive obligation under Article 2, in respect of both voluntary and involuntary patients where the relevant allegations were of clinical negligence, was the Powell test namely, that of gross negligence of a kind sufficient to sustain a charge of manslaughter (the High Court relied on the above-cited Takoushis judgment). The High Court struck out Ms Savage’s action. In December 2007 the Court of Appeal allowed Ms Savage’s appeal. 35. The appeal to the House of Lords was rejected by judgment dated 10 December 2008. Lord Rodger, giving the main judgment of the House of Lords, noted that the fundamental error in the approach of the Trust was to conceive of the Powell decision and the Osman judgment as laying down two mutually exclusive approaches whereas the Court’s case-law did not contain a hint of such an approach. The principles represented by those cases related to different aspects of the Article 2 obligations of health authorities and Lord Rodger summarised the relevant obligations of the health authorities under Article 2 as follows: “In terms of article 2, health authorities are under an over-arching obligation to protect the lives of patients in their hospitals. In order to fulfil that obligation, and depending on the circumstances, they may require to fulfil a number of complementary obligations. In the first place, the duty to protect the lives of patients requires health authorities to ensure that the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients. Failure to perform these general obligations may result in a violation of article 2. If, for example, a health authority fails to ensure that a hospital puts in place a proper system for supervising mentally ill patients and, as a result, a patient is able to commit suicide, the health authority will have violated the patient’s right to life under article 2. Even though a health authority employed competent staff and ensured that they were trained to a high professional standard, a doctor, for example, might still treat a patient negligently and the patient might die as a result. In that situation, there would be no violation of article 2 since the health authority would have done all that the article required of it to protect the patient’s life. Nevertheless, the doctor would be personally liable in damages for the death and the health authority would be vicariously liable for her negligence. This is the situation envisaged by Powell. The same approach would apply if a mental hospital had established an appropriate system for supervising patients and all that happened was that, on a particular occasion, a nurse negligently left his post and a patient took the opportunity to commit suicide. There would be no violation of any obligation under article 2, since the health authority would have done all that the article required of it. But, again, the nurse would be personally liable in damages for the death and the health authority would be vicariously liable too. Again, this is just an application of Powell. Finally, article 2 imposes a further “operational” obligation on health authorities and their hospital staff. This obligation is distinct from, and additional to, the authorities’ more general obligations. The operational obligation arises only if members of staff know or ought to know that a particular patient presents a “real and immediate” risk of suicide. In these circumstances article 2 requires them to do all that can reasonably be expected to prevent the patient from committing suicide. If they fail to do this, not only will they and the health authorities be liable in negligence, but there will also be a violation of the operational obligation under article 2 to protect the patient’s life. This is comparable to the position in Osman and Keenan. As the present case shows, if no other remedy is available, proceedings for an alleged breach of the obligation can be taken under the Human Rights Act 1998.” 36. Lord Rodger noted that it was relevant to the authorities’ obligations under Article 2 that the deceased was a detained patient and he continued: “Any auction in the comparative vulnerability of prisoners, voluntary patients, and detained patients would be as unedifying as it is unnecessary. Plainly, patients, who have been detained because their health or safety demands that they should receive treatment in the hospital, are vulnerable ... not only by reason of their illness which may affect their ability to look after themselves, but also because they are under the control of the hospital authorities. Like anyone else in detention, they are vulnerable to exploitation, abuse, bullying and all the other potential dangers of a closed institution. Mutatis mutandis, the principles in the case law which the European court has developed for prisoners and administrative detainees must apply to patients who are detained. ...... The hospital authorities are accordingly responsible for the health and well being of their detained patients. Their obligations under Article 2 include an obligation to protect those patients from self-harm and suicide.” 37. Baroness Hale noted the special position of detained patients and that it was not necessary to address in that case the extent of the State’s operational duty to protect non-detained patients. Lord Walker and Lord Neuberger agreed with both Lord Rodger and Baroness Hale. (c) Rabone v. Pennine Care NHS Trust 38. The deceased was a voluntary patient who committed suicide once released on home leave. Her parents brought a claim under the HRA and the 1934 Act, in their own right and on behalf of their child’s estate. The claim under the 1934 Act on behalf of the estate for negligent care was settled by the Trust: 5,000 pounds sterling (GBP) in general damages and GBP 2,500 in funeral expenses, plus legal costs. 39. The High Court ([2009] EWHC 1827 (QB)) and the Court of Appeal (2010] EWCA Civ 698) held that there was no operational duty under Article 2 on the hospital authorities to take reasonable steps to protect the deceased against the risk of suicide because she was a voluntary patient and the remedy for allegations of clinical negligence as regards voluntary patients was an action in negligence. In any event, the parents were no longer victims for the purposes of the HRA given their settlement of the 1934 Act proceedings. The parents appealed. 40. On 8 February 2012 the Supreme Court ([2012] UKSC 2) allowed the appeal, Lord Dyson giving the main judgment. He found that the difference between voluntary and involuntary psychiatric patients was more apparent than real, noting that a voluntary patient who was a suicide risk was taking medication which would compromise his/her ability to make an informed decision, was likely to be detained if he/she attempted to leave and, indeed, may have consented to be a patient to avoid detention. An informal psychiatric patient’s position was therefore more analogous to that of the child at risk of abuse ( Z and Others v. the United Kingdom [GC], no. 29392/95, ECHR 2001 ‑ V). Accordingly, he was in no doubt that the NHS Trust owed to the deceased patient an operational duty to take reasonable steps to protect her from a real and immediate risk of suicide. On the facts, that obligation had not been fulfilled since the decision to allow her home on leave was one that no reasonable practitioner would have made. 41. Moreover, by settling the 1934 negligence claim on behalf of the estate, the parents could not be said to have renounced their own Article 2 claim for non-pecuniary damages for bereavement to which damages they were entitled. However, negligence proceedings had not been open to them (section 1A of the Fatal Accidents Act 1976, the deceased not being a minor on death). Lord Dyson awarded each parent GBP 5,000 under Article 2 of the Convention. Lady Hale, Lord Brown, and Lord Mance delivered concurring judgments and Lord Walker agreed with the main judgment and with the added comments of the remaining judges. | This case concerned the death of the applicant’s son, a psychiatric patient diagnosed with schizophrenia, in 2005 following his fall from the sixth floor of a public care unit. The applicant complained that no effective mechanism had been available to her whereby civil liability could be determined for the alleged negligent care of her son and by which she could have obtained compensation for her loss. |
662 | Private persons | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1948 and lives in Tartu. A. Historical background 6. Estonia lost its independence as a result of the Treaty of Non-Aggression between Germany and the Union of Soviet Socialist Republics (also known as “Molotov-Ribbentrop Pact”), concluded on 23 August 1939, and the secret additional protocols to it. Following an ultimatum to set up Soviet military bases in Estonia in 1939, a large-scale entry of the Soviet army into Estonia took place in June 1940. The lawful government of the country was overthrown and Soviet rule was imposed by force. Interrupted by the German occupation in 1941-1944, Estonia remained occupied by the Soviet Union until its restoration of independence in 1991 (see Kolk and Kislyiy v. Estonia (dec.), nos. 23052/04 and 24018/04, ECHR 2006 ‑ I, and Penart v. Estonia (dec.), no. 14685/04, 24 January 2006 ). After the independence of the Republic of Estonia was restored on 20 August 1991, Soviet troops remained in the country. Following the dissolution of the Soviet Union, the Russian Federation assumed jurisdiction over the Soviet armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonia and the conditions under which they could reside temporarily in Estonia. Under the terms of the treaty, the Russian Federation undertook to withdraw from Estonia, by 31 August 1994, all military personnel who were in active service with the Russian armed forces (see Nagula v. Estonia (dec.), no. 39203/02, ECHR 2005 ‑ XII (extracts); Mikolenko v. Estonia (dec.), no. 16944/03, 5 January 2006; and Dorochenko v. Estonia (dec.), no. 10507/03, 5 January 2006). 7. After the regaining of independence Estonia carried out comprehensive legislative reforms for transition from a totalitarian regime to a democratic system and for rectifying injustices. On 28 June 1992 the Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) and the Constitution of the Republic of Estonia Implementation Act ( Eesti Vabariigi põhiseaduse rakendamise seadus ) were adopted by a referendum. The Constitution Implementation Act provided that until 31 December 2000, persons standing in elections or seeking certain high positions, such as those of ministers or judges, or any other elected or appointed position in an agency of the national government or a local authority, had to take a written oath of conscience ( süümevanne ) affirming that they had not been in the service or agents of security, intelligence or counterintelligence services of countries which had occupied Estonia. On 8 July 1992 the Riigikogu (the Estonian Parliament) adopted the Procedure for Taking Oath of Conscience Act ( Seadus süümevande andmise korra kohta ). 8. In order to ensure national security of the Republic of Estonia, persons having been in the service of or having collaborated with the security, intelligence or counterintelligence services of the countries which had occupied Estonia, had to be ascertained. Such a security authority was first and foremost the Committee for State Security of the USSR and its local arm, the Estonian SSR Committee for State Security (also known as “the KGB”). However, the most sensitive of the KGB materials were removed from Estonia and the government committee set up by the Estonian authorities to liquidate the KGB managed to get hold of documents of mainly historical value. 9. On 10 March 1994 the Riigikogu adopted the Procedure for the Collection, Recording, Preservation and Use of the Materials of Other States ’ Security and Intelligence Authorities which Have Operated in Estonia Act ( Eestis tegutsenud teiste riikide julgeoleku- ja luureorganite materjalide kogumise, arvelevõtmise, säilitamise ja kasutamise korra seadus ) which established the obligation to hand over for preservation to the Estonian National Archives the materials in question. 10. On 1 June 1994 the Riigikogu Temporary Committee for the Investigation of the Activities of the Security and Intelligence Authorities of the USSR and Other States in Estonia submitted to the Riigikogu a draft decision proposing the Government to initiate, by 15 September 1994 at the latest, a Draft Act on the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia. On 28 June 1994 the Riigikogu adopted the proposed decision. 11. As the Government did not submit the Draft Act by the time requested by the Committee, on 5 December 1994 the Riigikogu Temporary Committee itself decided to initiate the Draft Act in issue. 12. On 6 February 1995 the Riigikogu passed the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act ( Eestit okupeerinud riikide julgeolekuorganite või relvajõudude luure- või vastuluureorganite teenistuses olnud või nendega koostööd teinud isikute arvelevõtmise ja avalikustamise korra seadus ) (“the Diclosure Act”). According to the Disclosure Act, the persons in question were to be registered by the Estonian Internal Security Service ( Kaitsepolitseiamet ). Information about such persons ’ service or co-operation was to be made public unless they themselves made a pertinent confession about that to the Estonian Internal Security Service within one year from the entry into force of the Disclosure Act. The Disclosure Act entered into force on 28 March 1995. 13. According to the information provided by the Government, 1,153 persons submitted a confession under the Disclosure Act by 1 April 1996. For the first time, names of the persons subject to disclosure were published in Riigi Teataja Lisa (Appendix to the State Gazette) on 30 January 1997. From 1997 until 2009, on thirteen occasions, the names of a total of 647 persons were published in Riigi Teataja Lisa. Among them there were 42 drivers, of whom at least seven had advanced to higher positions during their career in the KGB. 14. On 18 June 2002 the Riigikogu made a statement declaring the Soviet communist regime which in its view committed crimes – including genocide, war crimes and crimes against humanity – during the occupation, as well as the bodies of the Soviet Union, such as NKVD, NKGB, KGB and others, which forcefully executed the regime, and their activities to be criminal. The statement emphasised that this did “not mean collective liability of their members and employees. Each individual ’ s liability [was determined by] his or her specific activities, an ethical assessment of which should be made first and foremost by each person himself or herself”. Riigikogu also noted that the threat of the repetition of such crimes had not disappeared and that the regimes relying on extremist ideologies threatened the World peace and free development of the people until their criminal nature was fully disclosed and condemned. 15. On 17 December 2003 the Riigikogu passed the Persons Repressed by Occupying Powers Act ( Okupatsioonirežiimide poolt represseeritud isiku seadus ) aimed at alleviating the injustices committed against persons who were unlawfully repressed by the States that occupied Estonia between 16 June 1940 and 20 August 1991. Certain pension rights and other benefits were foreseen to the persons who fell under the Act in question. B. Publication of information about the applicant ’ s employment by the KGB 16. From 1980 to 1991 the applicant was employed as a driver by the Committee for State Security. 17. On 27 February 2004 the applicant was invited to the Estonian Internal Security Service and presented with a notice according to which he had been registered pursuant to the Disclosure Act. It was stated in the notice that a pertinent announcement would be published in Riigi Teataja Lisa and the text of the announcement was set out. Furthermore, it was mentioned in it that the person concerned had the right, within one month of the receipt of the notice, to have access to the documents proving his or her links to the security, intelligence of counterintelligence organisations, and to contest the information contained in the notice before the Estonian Internal Security Service or a court. The applicant signed a document stating that he had received the notice. 18. According to the applicant his request to be shown the material gathered in respect of him was not met whereas he was told that he could lodge a complaint against the notice with an administrative court within one month. According to the Government the applicant ’ s argument, that he could not examine the documents on which the notice had been based, was declaratory, unproved and wrong. 19. On 16 June 2004 an announcement was published both in the paper and Internet version of Riigi Teataja Lisa. It read as follows: “ANNOUNCEMENTS OF THE ESTONIAN INTERNAL SECURITY SERVICEabout persons who have served in or co-operated with security organisations or intelligence or counterintelligence organisations of armed forces of States which have occupied Estonia Hereby the Estonian Internal Security Service announces that pursuant to section 5(1) of the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act the Estonian Internal Security Service has registered the following persons. ... Announcement no. 695 of 27.02.2004 MIHHAIL SÕRO (born on 12.12.1948, Estonia, Põlva County, Värska rural municipality) – AS Tarbus bus driver 1. Committee for State Security of the Estonian SSR[,] Tartu department – driver[,] 12.08.1980 – 1989 2. Committee for State Security of the Estonian SSR[,] Põlva branch – driver[,] 1989 – 05.11.1991” 20. In the Internet version, which had legal force equal to that of the paper version, the announcements of the Estonian Internal Security Service were published under the following section title: “Copies of announcements of the Estonian Internal Security Service about persons who have served in intelligence or counterintelligence organisations of the former USSR to be published in Riigi Teataja Lisa .” 21. The applicant raised the issue with the Chancellor of Justice ( Õiguskantsler ) who, having analysed the matter and sought additional information from the Estonian Internal Security Service, addressed the Riigikogu with a report, dated 12 July 2005, where he concluded that the Disclosure Act was unconstitutional in so far as all employees of the security and intelligence organisations were made public with no exception made in respect of the personnel who merely performed technical tasks not related to the main functions of the organisations. He further found that the Disclosure Act was unconstitutional in that the person ’ s place of employment at the time of the publication of the announcement was also made public. 22. The Constitutional Law Committee of the Riigikogu disagreed with the assessment of the Chancellor of Justice. 23. After the applicant had again addressed the Chancellor of Justice, the latter replied by a letter of 31 January 2006 that he had not deemed necessary to initiate constitutional review proceedings in respect of the Disclosure Act. The Chancellor of Justice had in the meantime been briefed by the Estonian Internal Security Service about the practice according to which the persons who had performed merely technical tasks were not being made public. C. Court proceedings initiated by the applicant 24. On 20 June 2006 the applicant lodged a complaint with the Tallinn Administrative Court. He asked that the court declare the text published in Riigi Teataja Lisa unlawful and oblige the Estonian Internal Security Service delete the word okupant (occupier, invader) and add the word endine (former). In that way the information that he had been a foreign invader occupying Estonia from 1980-1991 could be disproved. He noted that he had never been accused of or provided with any evidence showing that he had participated in the forceful occupation of the Estonian territory as a member of the armed forces of a foreign country or participated in the exercise of the occupation powers. He disagreed having been associated with the crimes committed by the employees of security organisations of the Nazi Germany and the Stalinist regime and argued that a person could only be held individually accountable for his own acts but that principle was ignored by the Disclosure Act. He asserted that he had only worked for the Committee for State Security as a driver and knew nothing about gathering information. As a result of the publication of the announcement the applicant had lost his work and he had been a victim of groundless accusations by third parties. He was being called an occupier ( okupant ) and an informant ( koputaja ) and it was being said that “he [was] not a proper man” if the Estonian Internal Security Service dealt with him. 25. At the Tallinn Administrative Court hearing on 15 January 2007 the applicant submitted, inter alia, that he had in the meantime changed his employment but was, at the time of the court hearing, back in the bus company where he had previously worked. 26. By a judgment of 29 January 2007 the Tallinn Administrative Court dismissed the applicant ’ s complaint. It noted that the applicant had failed to contest the notice which he had been presented with by the Estonian Internal Security Service on 27 February 2004. Accordingly, the notice had been made public pursuant to the Disclosure Act. The Administrative Court concluded that the publication of the announcement had become possible because of the applicant ’ s inaction as he had failed to contest the notice and disprove the information it contained. The information contained in the published announcement corresponded to the information which the applicant had previously been presented with. 27. The Administrative Court further verified that in the Internet version of Riigi Teataja Lisa the announcements of the Estonian Internal Security Service were published under the section title “Copies of announcements of the Estonian Internal Security Service about persons who have served in intelligence or counterintelligence organisations of the former USSR to be published in Riigi Teataja Lisa ” and, thus, the notion “former” ( endine ) also applied to the announcement concerning the applicant. Furthermore, the word “occupier” ( okupant ) had not been used in respect of the applicant. The Administrative Court did not establish that the publication of the announcement was unlawful or violated the applicant ’ s rights. 28. The Administrative Court found that the applicant ’ s request for the review of the constitutionality of the Disclosure Act would have been pertinent in case he would have contested the notice issued on 27 February 2004. The applicant had been informed that pursuant to the Disclosure Act he had the right, within a month, to familiarise himself with the documents and contest the information contained in the notice before the Estonian Internal Security Service or a court. Thus, the law had given him a possibility to immediately counter the information gathered. If a court then would have reviewed the issue of the constitutionality of the Disclosure Act, the Estonian Internal Security Service would have been obliged to proceed with the publishing or to refrain from it, depending on the results of the review. In the circumstances at hand, however, the announcement had been published and the notice no. 695 of 27 February 2004, which it had been based on, was lawful. 29. The Administrative Court also noted that the applicant had not produced any evidence to disprove the information published. The applicant himself had confirmed that he had worked as a driver of the former Committee for State Security of the Estonian SSR. 30. The applicant appealed arguing that after the publication of the announcement he had become a victim of groundless mocking and had to quit his work. He had sustained substantial pecuniary and non-pecuniary damage. He pointed out that the notice of 27 February 2004 had not caused him any negative results. Rather, what had been of importance was the publication of the announcement in Riigi Teataja Lisa on 16 June 2004. He maintained that in the published announcement he had been depicted as an occupier of the Estonian State. It remained unclear, however, which acts he had committed against Estonia and in what way these acts had been criminal. His work as a driver of the Committee for State Security had been of a merely technical nature and had in fact not been directed against the Estonian State. 31. By a judgment of 22 November 2007 the Tallinn Court of Appeal dismissed the appeal. The Court of Appeal considered that the fact that a person did not contest the initial notice before its publication did not deprive him of a right to lodge a complaint against the publication of the announcement in Riigi Teataja Lisa. It also considered that the implementation of the Disclosure Act could in some circumstances involve indirect interference with a person ’ s fundamental rights caused by the acts of third parties as the person ’ s reputation could be damaged as a result of the disclosure of his relations with the Soviet security organisations. However, in the case in question the interference was in conformity with the Constitution. 32. The Court of Appeal found as follows: “10. ... The Chancellor of Justice established in his proceedings that according to the defendant ’ s administrative practice information about the merely technical employees was not, by way of exception, disclosed. According to the assessment of the Court of Appeal, the [applicant] cannot demand an exception to be made in respect of him. According to the assessment of the defendant, drivers of the security and intelligence organisations were related to the performance of the organisations ’ substantial tasks ... The court has no ground to take a different position in this question relating to the security risks. The Estonian State cannot establish decades later with absolute certainty whether a specific driver performed merely technical or also substantial tasks. Thus, one has to proceed from the possibility that a KGB driver may also pose a potential security risk and the disclosure of the information about him may be in the public interests. Therefore, it is proportionate to apply the [Disclosure Act] in respect of the persons who worked as drivers in the security or intelligence organisations. Thereby account must be taken of the fact that the publication of the announcement and the indirect interferences caused by that were not inevitably foreseen by law; the [applicant] could have prevented these consequences by making a confession pursuant to ... the [Disclosure Act].” 33. In respect of the applicant ’ s complaint about the use of the language in the text of the announcement the Court of Appeal noted that the word “to occupy” had not referred to the applicant but rather to a State (former Soviet Union). Nor had the applicant been treated as a person co-operating with the Committee for State Security (an informant or a sneak) but rather as its staff member. In the announcement the period of the applicant ’ s employment had also been indicated. There was nothing to imply that he was accused of continuous contact with an intelligence or security organisation of a foreign country. The defendant was not responsible for arbitrary conclusions that third parties may have drawn from the announcement. Lastly, the Court of Appeal considered that it was proportionate to publish the current places of work of the persons concerned, inter alia, in order to avoid confusion in the public that might otherwise arise in respect of persons with identical or similar names. 34. On 14 February 2008 the Supreme Court declined to hear an appeal lodged by the applicant. i. demilitarisation, to ensure that the militarisation of essentially civilian institutions, such as the existence of military prison administration or troops of the Ministry of the Interior, which is typical of communist totalitarian systems, comes to an end; ii. decentralisation, especially at local and regional levels and within state institutions; iii. demonopolisation and privatisation, which are central to the construction of some kind of a market economy and of a pluralist society; iv. debureaucratisation, which should reduce communist totalitarian over-regulation and transfer the power from the bureaucrats back to the citizens. 6. This process must include a transformation of mentalities (a transformation of hearts and minds) whose main goal should be to eliminate the fear of responsibility, and to eliminate as well the disrespect for diversity, extreme nationalism, intolerance, racism and xenophobia, which are part of the heritage of the old regimes. All of these should be replaced by democratic values such as tolerance, respect for diversity, subsidiarity and accountability for one ’ s actions. 7. The Assembly also recommends that criminal acts committed by individuals during the communist totalitarian regime be prosecuted and punished under the standard criminal code. If the criminal code provides for a statute of limitations for some crimes, this can be extended, since it is only a procedural, not a substantive matter. Passing and applying retroactive criminal laws is, however, not permitted. On the other hand, the trial and punishment of any person for any act or omission which at the time when it was committed did not constitute a criminal offence according to national law, but which was considered criminal according to the general principles of law recognised by civilised nations, is permitted. Moreover, where a person clearly acted in violation of human rights, the claim of having acted under orders excludes neither illegality nor individual guilt. 8. The Assembly recommends that the prosecution of individual crimes go hand-in-hand with the rehabilitation of people convicted of "crimes" which in a civilised society do not constitute criminal acts, and of those who were unjustly sentenced. Material compensation should also be awarded to these victims of totalitarian justice, and should not be (much) lower than the compensation accorded to those unjustly sentenced for crimes under the standard penal code in force. 9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services. ... 11. Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or decommunisation laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now. 12. The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy. 13. The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process ... ” 42. On 25 January 2006 the PACE adopted Resolution 1481 (2006) on the need for international condemnation of crimes of totalitarian communist regimes. It reads, in so far as relevant, as follows: “ 2. The totalitarian communist regimes which ruled in central and eastern Europe in the last century, and which are still in power in several countries in the world, have been, without exception, characterised by massive violations of human rights. The violations have differed depending on the culture, country and the historical period and have included individual and collective assassinations and executions, death in concentration camps, starvation, deportations, torture, slave labour and other forms of mass physical terror, persecution on ethnic or religious grounds, violation of freedom of conscience, thought and expression, of freedom of the press, and also lack of political pluralism. 3. The crimes were justified in the name of the class struggle theory and the principle of dictatorship of the proletariat. The interpretation of both principles legitimised the “elimination” of people who were considered harmful to the construction of a new society and, as such, enemies of the totalitarian communist regimes. A vast number of victims in every country concerned were its own nationals. It was the case particularly of the peoples of the former USSR who by far outnumbered other peoples in terms of the number of victims. ... 5. The fall of totalitarian communist regimes in central and eastern Europe has not been followed in all cases by an international investigation of the crimes committed by them. Moreover, the authors of these crimes have not been brought to trial by the international community, as was the case with the horrible crimes committed by National Socialism (Nazism). 6. Consequently, public awareness of crimes committed by totalitarian communist regimes is very poor. Communist parties are legal and active in some countries, even if in some cases they have not distanced themselves from the crimes committed by totalitarian communist regimes in the past. 7. The Assembly is convinced that the awareness of history is one of the preconditions for avoiding similar crimes in the future. Furthermore, moral assessment and condemnation of crimes committed play an important role in the education of young generations. The clear position of the international community on the past may be a reference for their future actions. 8. Moreover, the Assembly believes that those victims of crimes committed by totalitarian communist regimes who are still alive or their families, deserve sympathy, understanding and recognition for their sufferings. ... 12. Therefore, the Assembly strongly condemns the massive human rights violations committed by the totalitarian communist regimes and expresses sympathy, understanding and recognition to the victims of these crimes. 13. Furthermore, it calls on all communist or post-communist parties in its member states which have not yet done so to reassess the history of communism and their own past, clearly distance themselves from the crimes committed by totalitarian communist regimes and condemn them without any ambiguity. 14. The Assembly believes that this clear position of the international community will pave the way to further reconciliation. Furthermore, it will hopefully encourage historians throughout the world to continue their research aimed at the determination and objective verification of what took place.” I. whereas from the outset European integration has been a response to the suffering inflicted by two world wars and the Nazi tyranny that led to the Holocaust and to the expansion of totalitarian and undemocratic Communist regimes in Central and Eastern Europe, as well as a way of overcoming deep divisions and hostility in Europe through cooperation and integration and of ending war and securing democracy in Europe, J. whereas the process of European integration has been successful and has now led to a European Union that encompasses the countries of Central and Eastern Europe which lived under Communist regimes from the end of World War II until the early 1990s, and whereas the earlier accessions of Greece, Spain and Portugal, which suffered under long ‑ lasting fascist regimes, helped secure democracy in the south of Europe, K. whereas Europe will not be united unless it is able to form a common view of its history, recognises Nazism, Stalinism and fascist and Communist regimes as a common legacy and brings about an honest and thorough debate on their crimes in the past century, ... 3. Underlines the importance of keeping the memories of the past alive, because there can be no reconciliation without truth and remembrance; reconfirms its united stand against all totalitarian rule from whatever ideological background; 4. Recalls that the most recent crimes against humanity and acts of genocide in Europe were still taking place in July 1995 and that constant vigilance is needed to fight undemocratic, xenophobic, authoritarian and totalitarian ideas and tendencies; 5. Underlines that, in order to strengthen European awareness of crimes committed by totalitarian and undemocratic regimes, documentation of, and accounts testifying to, Europe ’ s troubled past must be supported, as there can be no reconciliation without remembrance; 6. Regrets that, 20 years after the collapse of the Communist dictatorships in Central and Eastern Europe, access to documents that are of personal relevance or needed for scientific research is still unduly restricted in some Member States; calls for a genuine effort in all Member States towards opening up archives, including those of the former internal security services, secret police and intelligence agencies, although steps must be taken to ensure that this process is not abused for political purposes; ... 9. Calls on the Commission and the Member States to make further efforts to strengthen the teaching of European history and to underline the historic achievement of European integration and the stark contrast between the tragic past and the peaceful and democratic social order in today ’ s European Union; 10. Believes that appropriate preservation of historical memory, a comprehensive reassessment of European history and Europe-wide recognition of all historical aspects of modern Europe will strengthen European integration; ... 13. Calls for the establishment of a Platform of European Memory and Conscience to provide support for networking and cooperation among national research institutes specialising in the subject of totalitarian history, and for the creation of a pan-European documentation centre/memorial for the victims of all totalitarian regimes; ... 15. Calls for the proclamation of 23 August as a Europe-wide Day of Remembrance for the victims of all totalitarian and authoritarian regimes, to be commemorated with dignity and impartiality; 16. Is convinced that the ultimate goal of disclosure and assessment of the crimes committed by the Communist totalitarian regimes is reconciliation, which can be achieved by admitting responsibility, asking for forgiveness and fostering moral renewal ... ” | This case concerned the applicant’s complaint about the fact that information about his employment during the Soviet era as a driver for the Committee for State Security of the USSR (the KGB) had been published in the Estonian State Gazette in 2004. |
330 | Freedom of assembly (Article 11) | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1970 and lives in Istanbul. 5. On 22 April 2000 the applicant, a lawyer and member of the administrative board of the Istanbul Human Rights Association, organised a demonstration in Sultanahmet Square in Istanbul, in the form of a march followed by a statement to the press, to protest against plans for “F-type” prisons. 6. At about 12 noon a group of forty to fifty persons brandishing placards and signs gathered in the square, under the leadership of the applicant and Eren Keskin, a lawyer and President of the Istanbul Human Rights Association. The police asked the group to disperse and to end the gathering, and informed them via a loudspeaker that the demonstration, for which advance notice had not been submitted, was unlawful and was likely to cause public-order problems at a busy time of day. 7. The demonstrators refused to obey and attempted to continue marching towards the police, who dispersed the group using a kind of tear gas known as “pepper spray”. The police arrested thirty-nine demonstrators, including the applicant, and took them to a police station. 8. After an identity check, and in view of her profession, the applicant was released at 12. 45 p. m. 9. On 26 April 2000 the applicant lodged a criminal complaint with the Beyoğlu prosecutor ’ s office against the head of the Istanbul security police and the police officers concerned, alleging that she had been ill-treated through the use of pepper spray, unlawfully arrested and prevented from making the public statement scheduled for the end of the demonstration. 10. On 29 June 2000 the public prosecutor ’ s office discontinued the proceedings on the ground that no offence had been committed. 11. On 25 July 2000 the applicant applied to the Beyoğlu Assize Court seeking to have that decision set aside. 12. On 25 September 2000 the Assize Court upheld the decision that there was no case to answer. | In April 2000 the applicant, a lawyer and a member of the supervisory board of the Human Rights Association, organised a demonstration in Istanbul to protest against plans for “F-type” prisons. The demonstration took the form of a march followed by a statement to the press. The applicant complained in particular of an infringement of her right to freedom of expression and of assembly, in that the demonstration and the reading of the press statement, scheduled for the end of the event, had been prohibited by the police. |
747 | Freedom of expression / Freedom to receive and impart information (Article 10 of the Convention) | 2. The applicant was born in 1961 and lives in Baku. He was represented by Mr R. Hajili and Mrs Z. Sadigova, lawyers based in Strasbourg and Baku respectively. 3. The Government were represented by their Agent, Mr Ç. Əsgərov. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Relevant background 5. The applicant was a journalist and editor of the newspaper Azadlıq. 6. Gabala Radar Station, which first became operational in 1985, was a Soviet military early warning radar located in the Gabala region of Azerbaijan. It had a range of about 6,000 km and was designed to detect missile launches from as far away as the Indian Ocean. After the dissolution of the Soviet Union, the station became the property of Azerbaijan, but was operated by Russia under a lease agreement until 2012. In 2012, after the events of the present case, the station was closed and all equipment was transported to Russia. 7. By an order of 26 February 2001 the President of Azerbaijan appointed the Azerbaijani side of a joint Azerbaijani-Russian commission (“the Commission”) for the purpose of assessing the station’s impact on the environment and public health. The Minister of Healthcare was appointed as Chairman of the Commission. By an order of 20 June 2003 the President appointed the Azerbaijani side of a joint commission on monitoring public health and the environment in connection with the station’s activity, with the Minister of Healthcare as the chairman but with the rest of the commission’s composition different from that created by the order of 26 February 2001. 8. According to the applicant, independent studies showed that the station caused serious public-health problems in the Gabala District and nearby districts. Application no. 19925/12 9. On 27 July 2010 the applicant wrote, on his own behalf, to the Ministry of Healthcare, specifying that he was the editor of Azadlıq and, with reference to the Law on access to information of 30 September 2005 (“the Law on Access to Information”), requesting the following “information and documents”: “– Is the State commission created for the purpose of assessing the Gabala Radar Station’s impact on the environment and public health ... still active? – What reports ... have been drawn up and published by relevant State commissions created to date? (we request you to provide us with copies of those reports).” 10. The applicant also noted that the requested information was needed for analysis and discussion of the issues concerning the Gabala Radar Station’s environmental and public-health impact. 11. By a letter of 6 August 2010, the Ministry of Healthcare responded that a report prepared by the Commission pursuant to the presidential order of 26 February 2001 had been transmitted to the Cabinet of Ministers. 12. Considering that he had not been provided with the requested information and that the Ministry of Healthcare’s reply was in breach of the requirements of the Law on Access to Information, the applicant lodged an action with the Nasimi District Court, seeking a decision ordering the Ministry of Healthcare to provide a copy of the report. 13. In its submissions made before the court, the representative of the Ministry of Healthcare noted that it had no longer been in possession of the report at the time the applicant had made the request and argued that, in the circumstances, it had given a comprehensive reply to the request. 14. By a judgment of 3 February 2011 the Nasimi District Court dismissed the applicant’s claim. Referring to, inter alia, Article 27 of the Law on Access to Information, it noted that the Ministry of Healthcare was no longer in possession of the report and found that, by having informed the applicant of this fact and “having responded to the other questions”, it had fully complied with its obligation to disclose information under the Law on Access to Information. 15. Following an appeal by the applicant, on 2 May 2011 the Baku Court of Appeal upheld the first-instance court’s judgment, essentially reiterating its reasoning. In addition, referring to Article 17.2 of the Law on Access to Information, it noted that, as an “information owner” which had not been in possession of the requested information, the Ministry of Healthcare had assisted the applicant in locating the information in question, by informing him that the report had been transmitted to the Cabinet of Ministers. 16. Following a further appeal, on 5 September 2011 the Supreme Court upheld the lower courts’ judgments, essentially reiterating their reasoning. Application no. 47532/13 17. In the meantime, on 6 December 2010 the applicant wrote to the Cabinet of Ministers, providing the same information concerning himself and the purpose of the request as that submitted to the Ministry of Healthcare, and requesting specifically to be provided with a copy of the report prepared by the Commission pursuant to the presidential order of 26 February 2001. 18. The Cabinet of Ministers received but did not respond to the applicant’s request. 19. In February 2011 the applicant lodged an action against the Cabinet of Ministers with Baku Administrative Economic Court No. 1, arguing that the Cabinet of Ministers’ failure to respond was in breach of his rights under the Law on Access to Information and Article 10 of the Convention and seeking a decision ordering the Cabinet of Ministers to “execute the information request in accordance with the law”. 20. It appears that, while the first-instance proceedings were pending, in April 2011 the applicant repeatedly applied with the same request to the Cabinet of Ministers (no copy of this application is available in the file), but again received no response. 21. During the first-instance proceedings, as well as during the subsequent proceedings before the higher courts, the Cabinet of Ministers did not send any representatives to any of the court hearings and did not submit any written pleadings. 22. On 23 December 2011 Baku Administrative Economic Court No. 1 dismissed the applicant’s claim, reasoning as follows: “The court notes that Article 29.1 of the [Law on Access to Information] does not provide for an obligation of an information owner to disclose reports of commissions created for a specific purpose. Therefore, the court considers that [the applicant’s] claim ... cannot be considered as well-founded.” 23. The applicant appealed, arguing that the first-instance court’s interpretation of Article 29.1 of the Law on Access to Information was incorrect. He submitted that that provision did not limit the scope of obligations of “information owners” to disclose information, but merely provided for a list of types of information that must be publicly disclosed by “information owners” of their own accord, in order to reduce the number of information requests from the public concerning those types of information. Any information which was not mentioned in that provision was required to be disclosed on the basis of an information request, unless access to it was lawfully restricted. The applicant argued that the report requested from the Cabinet of Ministers did not constitute restricted information in accordance with the Law on Access to Information and, therefore, should have been made available to him as information of public interest which he needed for professional reasons as a journalist in order to exercise his right to receive and impart information. 24. On 15 March 2012 the Baku Court of Appeal upheld the first ‑ instance judgment, reiterating the first-instance court’s reasoning and finding it lawful. Following a further appeal by the applicant, on 11 July 2012 the Supreme Court upheld the lower courts’ judgments, reiterating the same reasoning. | The applicant, a journalist, complained, in particular, of the authorities’ refusal to give him access to information of public interest on the environmental and health impact of a former Soviet military radar station. He submitted that the court judgments in this connection had not been adequately reasoned. |
325 | Obligation on States to protect the victims | 2. The applicants were born in 1994 and 1992 respectively and live in Middlesex and London. The applicant in application no. 77587/12 (hereinafter, “the first applicant”), who had been granted legal aid, was represented by Ms Philippa Southwell of Birds Solicitors, a law firm based in London. The applicant in application no. 74603/12 (hereinafter, “the second applicant”) was represented by the AIRE Centre, a legal charity based in London, and by Professor P. Chandran, a Barrister based in London at 1 Pump Court Chambers. 3. The Government were represented by their Agent, Mr J. Gaughan of the Foreign and Commonwealth Office. 4. The facts of the cases, as submitted by the parties, may be summarised as follows. The first applicant’s Conviction and sentencing 5. On 6 May 2009 the first applicant was discovered by police at an address in Cambridge during the execution of a drug warrant. The address was a four ‑ bedroomed house which had been converted into a sophisticated cannabis factory containing 420 cannabis plants with a street value in excess of GBP 130,000. The first applicant was found alone in the property, in possession of a mobile telephone, with credit, and GBP 100 in cash. 6. Following his discovery, the first applicant was interviewed in the company of a legal representative and appropriate adult. He claimed that he was fifteen years old (a fact which the Government now accept to be correct), that he had been smuggled into the United Kingdom by his adoptive father, that upon arrival he had encountered two Vietnamese nationals who took him to the address in Cambridge, and that while he realised cannabis was being grown there, he hadn’t known that it was illegal. He was charged with being concerned in the production of a controlled drug. 7. Social services assessed the first applicant’s age and concluded that he would turn eighteen in January 2010. A district judge in the Magistrate’s Court subsequently found as a matter of fact that he was at least seventeen years old. 8. At a preliminary hearing before the Crown Court on 21 May 2009, the case was adjourned for a plea and case management hearing. A few days later Refugee and Migrant Justice, a legal advice and representation charity, informed the first applicant’s then representative of concerns that he may have been the victim of human trafficking, and that the point had been “flagged up” by social services. They further indicated that social services might raise discontinuance with the Crown Prosecution Service (hereinafter, “the CPS”) but if not the matter ought to be taken up at court. 9. On 13 August 2009 the first applicant had a conference with counsel. There was no record of any exploration of the trafficking issue. The first applicant initially gave “not guilty” instructions and indicated that he was scared, but on receiving counsel’s advice he confirmed that he intended to plead “guilty”. 10. On 20 August 2009, following the conference with counsel, the first applicant pleaded guilty to the production of a Class B drug. 11. On 4 September 2009, at a conference at which the first applicant was not assisted by an appropriate adult, different counsel advised him that he could apply for leave to vacate his guilty plea on the ground that he had been trafficked and subjected to forced labour. However, the first applicant instructed counsel that he was not in fear of the alleged traffickers. Nevertheless, sentencing was adjourned to await receipt of a report from social services on whether he was deemed to be the victim of trafficking. 12. On 14 October 2009 the CPS reviewed their decision to prosecute and concluded that there was no credible evidence that the first applicant had been trafficked. The following day, however, the CPS received a letter from the United Kingdom Border Agency (hereinafter, “UKBA”) indicating that the circumstances of the first applicant’s case had been considered by one of the two Competent Authorities (see paragraph 75-76 below) which concluded that there were reasonable grounds for believing that he had been trafficked. He was therefore granted a forty-five day “reflection period” and his case was adjourned on the basis that this was in his best interests. 13. On 27 November 2009 UKBA sent a letter to the first applicant’s representative. It noted that the trafficking-related criminal investigation was still on-going but found that the first applicant’s circumstances raised the following trafficking indicators: he had been found at a cannabis factory highlighting criminality involving adults; he was not enrolled in school; and he was not allowed to leave the property. It further stated that in light of his “credible account” – which had remained consistent in the various meetings he had had with social services – it was considered that he had been trafficked to the United Kingdom. 14. On 8 December 2009 the case was reviewed by the CPS lawyer but the Chief Crown Prosecutor subsequently confirmed that it should be prosecuted. Although no official reasons were given for this decision, in a letter to a Member of Parliament of 10 December the then Director of Public Prosecutions explained that the prosecution had not been discontinued because the offences were extremely serious, there was no defence of duress and no clear evidence of trafficking. 15. At a hearing on 14 December 2009 the CPS argued that to be a victim of trafficking was not a defence; rather, the decision to prosecute was taken in light of information they had and had to be kept under review. To apply to vacate would be pointless as duress was not a viable defence. The judge, however, indicated that an application to vacate was well-founded and set a timetable for listing in early 2010 if the application was to be made. In the cells afterwards the first applicant indicated that he wished to change his plea. 16. On 16 December 2009 defence counsel indicated to the first applicant’s solicitors that social services were “outrageous” in advocating a change of plea. He reiterated his view that the fact that the first applicant was not frightened and was looking after the plants in return for help in finding his family made the issue irrelevant. 17. At a hearing on 19 January 2010 the first applicant maintained his plea. It appears that this decision followed a meeting with his solicitors in which he was advised that the finding that he had been trafficked had not been definitively confirmed; that in any case the CPS were not required – and did not intend – to withdraw the prosecution; and that although the decision to prosecute could be challenged in the High Court, it was a lengthy process which had little prospect of success. In the Crown’s submission, the evidence suggested that the first applicant was not a trafficked person. Counsel for the Crown went through the facts in detail, noting in particular that he was found in an ordinary house with a mobile phone, credit and money; in the trafficking assessment he had indicated that his family in Vietnam was not under threat; there were no debts owed to anyone in Vietnam; and he had not been abused prior to his arrest. They therefore found “no reason whatever” to revise their initial assessment that the first applicant should be prosecuted in the public interest. The first applicant was sentenced to twenty months detention in a young offenders’ institution. The second applicant’s conviction and sentencing 18. On 21 April 2009 police officers attended a residential premises in London following reports of a suspected burglary. They had been informed that a large body of men had been seen in the gardens to the rear of the premises, forcing their way in. When they got there, they discovered a very sophisticated cannabis factory. The second applicant, together with a number of other Vietnamese nationals, was found close to the premises, hiding from the marauders. They were all arrested. 19. Upon his arrest, GBP 70 was found on the second applicant. With the assistance of an interpreter, he was interviewed at a police station. As he initially gave his year of birth as 1972, he was treated as an adult (it was later accepted that his actual year of birth was 1992). 20. During the police interview he indicated that upon leaving Vietnam he had travelled to the United Kingdom via the Czech Republic. Soon after his arrival, he met some Vietnamese people, including a man (“H”) who gave him accommodation, clothes and food for a week. While he was staying at the house he was told that it was “best for him not to go out”; however, when asked if he was held there against his will, he said no. After a week, he was taken to the cannabis factory in a vehicle which was “covered up”. According to the second applicant, the windows of the factory were bricked up, the only door was locked from the outside and he believed that the factory was guarded. His work included watering the plants and cooking. He slept, ate and worked in the factory, and he was not paid for his work. 21. The second applicant claimed that in the beginning he did not know that the plants in the factory were illegal. However, he became suspicious and wished to leave as he was frightened. In or around this time H allowed him to leave the factory with some others for a few days, but when he told H, in the course of a telephone call, that he did not wish to return, H told him that he might be killed if he stopped working. He and the others were then picked up and returned to the factory. 22. Following the interviews the applicant was charged with being concerned in the production of a controlled drug of Class B, namely cannabis. 23. At a hearing before the Magistrates’ Court on 30 April 2009 the second applicant gave his year of birth as 1992. The case was thereafter approached on the basis that he was seventeen years old. 24. The prosecution conducted a file review on 1 June 2009. They appear to have considered that the second applicant had been smuggled into the United Kingdom, since his parents had funded his journey to what was hoped would be a life with better prospects. 25. The second applicant was granted legal aid. There is a note in the instructions to his counsel indicating that he had been “trafficked into the UK”, although the source of that entry was not traced and the applicant later accepted that he had not used that term. 26. Counsel saw the second applicant in conference on 1 July 2009, taking instructions directly from him with the assistance of a translator. He told counsel that he had fled his home in Vietnam and come to the United Kingdom illegally via the Czech Republic. Upon arrival he contacted a cousin in London. While looking for work, some Vietnamese people had introduced him to H, who provided him with accommodation, food and money. He was then taken to work in the factory, which he initially thought was producing herbal medicine. He was mainly locked in the factory and was unable to go out. After approximately ten days he discovered that the plants were cannabis and asked to leave. He was threatened that if he left he could or would be killed. Although on one occasion he went with some co-workers to the home of one of their relatives, H contacted them there and as a result of further threats they returned to the factory. 27. As the second applicant accepted that he could have run away from the house of his co-worker’s relative, counsel did not believe that a plea of duress would be likely to succeed. The second applicant pleaded guilty in July 2009. 28. Following his “guilty” plea, a pre-sentence report was prepared by a member of the Youth Offending Team. The report indicated that the second applicant regretted his decision to accept the offer to work in the factory. He accepted that his motivation had been “financial gain”, which was neither acceptable nor justifiable. He accepted responsibility for his decision to act and displayed a level of remorse. 29. On 25 September 2009 the second applicant was sentenced to an eighteen-month detention and training order. He was given credit for his guilty plea, and account was taken of his young age, the fact that he left Vietnam to make a better life for himself and his “excellent progress” in custody. Subsequent findings regarding the second applicant’s status as a victim of trafficking 30. In April 2010 the second applicant’s new solicitor referred his case to the National Society for the Prevention of Cruelty to Children National Child Trafficking Advice and Information Line (hereinafter, “NSPCC NCTAIL”). 31. In an interview with a social worker from NSPCC NCTAIL, the second applicant indicated that his family had paid for him to travel to the Czech Republic after he was assaulted by police and almost arrested during an anti-government protest in Hanoi. He flew alone to the Czech Republic, where he was met by a man who took his passport from him. He stayed in the man’s house for around two weeks, during which time he had to stay in his room unless he was washing or cleaning. Together with two women, he was then transported to London by lorry. Upon arrival a man picked the three passengers up and drove them to the women’s house. From there he called his mother to obtain the contact details of his cousin in London. He then contacted his cousin and the women he travelled with took him to meet her at a market. They told him to return to the meeting point the next day and they would arrange work for him. The second applicant stayed with his cousin for one night but as he did not know her well – and did not know her husband at all – he did not want to intrude any further. He therefore went back to the meeting point, where he met H. 32. Based on the interview, the social worker concluded that there were reasonable grounds for considering the second applicant to be a victim of child trafficking from Vietnam to the United Kingdom. In particular, she noted that: there appeared to be clear links between the people who arranged his travel out of Vietnam, those who held him in the Czech Republic and moved him to the United Kingdom, and those who exploited him for work in the cannabis factory; he was either not allowed out of or was locked in the premises where he was harboured or exploited by agents; he was not informed of the criminal nature of the work in the cannabis factory; he was locked into the cannabis factory and told he would be killed if he left; and he was forced to live in unhealthy conditions at the factory, without payment. 33. The second applicant’s case was subsequently considered by one of the two Competent Authorities (see paragraph 75-76 below). On 16 November 2010 UKBA notified him that the Competent Authority had concluded that he had been trafficked. While it considered that certain aspects of his claim to have been trafficked undermined his credibility – the fact that he was allowed to leave the agents’ supervision and stay with his cousin for one night, the fact that he had not been consistent regarding the existence of telephones in the cannabis factory, and the fact that he was allowed out of the cannabis factory – it was accepted that on the balance of probabilities there were grounds to believe that he had been trafficked into the United Kingdom. In its view, the account of the second applicant’s recruitment and movement from Vietnam to the United Kingdom satisfied the definition of trafficking under the Anti-Trafficking Convention for the purposes of labour exploitation. It also considered there to be a link between those who arranged his travel out of Vietnam, those who held him in the Czech Republic and brought him to the United Kingdom, and those who put him to work in the cannabis factory, and that he was in a position of dependency and vulnerability, which could go some way to explaining why he was allowed out of the factory and why he returned. As for the work he was doing, he was found in a place of exploitation, which was guarded and locked from the outside and the living and working conditions were consistent with those found in exploitative situations. 34. However, as he had turned eighteen and was not receiving any counselling, it was not accepted that he was a person “in need”. As such, he was no longer considered to be a victim of human trafficking and was not eligible for a residence permit. 35. The second applicant’s solicitor also instructed a psychologist, who prepared a report in March 2011. The report was based on the account that the applicant provided to the NSPCC NCTAIL interviewer. The psychologist concluded that he was suffering psychological distress as a result of multiple traumatic experiences as a minor, including an assault by the police in Vietnam and being trafficked to the United Kingdom. His symptoms met the criteria for a diagnosis of post-traumatic stress disorder (hereinafter, “PTSD”) and a major depressive disorder. In the psychologist’s opinion, his symptoms were consistent with his account of his history. Furthermore, the psychologist considered that the account given by the second applicant to the NSPCC interviewer was “broadly consistent” with the account given to the police, and the minor inconsistencies could be explained by his PTSD. In view of his history with the police in Vietnam, he would have been scared, angry and confused following his arrest. In contrast, the NSPCC NCTAIL interview was carried out in a less distressing context, by a professional experienced in dealing with child victims of human trafficking. 36. On 28 June 2011 a Special Casework Lawyer from the CPS reviewed the second applicant’s case in light of updated guidance from the CPS and the conclusions of NSPCC NCTAIL and UKBA. Having particular regard to the fact that the second applicant was a child of mature years, the inconsistencies in the accounts he had given, the fact that he had a mobile phone and could have summoned help, the fact that he was allowed to see his cousin and was not held on the factory against his will, the absence of physical injury to him or any of the other “gardeners”, the fact that he had a sum of money on him when he was recovered, and the possibility that he could have escaped from the cannabis factory, she remained firmly of the view that he was not a victim of trafficking and the public interest would require a prosecution. In reaching this conclusion she considered that the second applicant’s initial accounts (see paragraph 20 and 21 above) were probably nearest to the truth. 37. On 7 November 2011 NSPCC NCTAIL produced a supplemental report. In it, the social worker who prepared the previous report had regard to further documentation primarily related to the criminal proceedings and considered whether it was necessary to change the opinion set out in the earlier report (see paragraphs 31-32 above). She concluded that there was no new material in these documents which would cause her to change her professional opinion. In fact, she considered that the material in some of the documents combined with her increased experience in the area of child trafficking strengthened her conclusion that the second applicant was a victim of trafficking at the time of his arrest. In this regard, she pointed out that accounts given by potential child victims of trafficking to different professionals, in different contexts, were rarely entirely consistent with each other. The applicants’ appeal against conviction and sentence 38. The first applicant sought permission to appeal – out of time – against conviction and sentencing. He argued that he should have been advised to vacate his plea and an application to stay the proceedings should have been made because he was a credible victim of trafficking and, as such, should not have been prosecuted. He also complained that there was no appropriate adult present when he decided not to change his plea, and that the CPS failed to confirm why it was in the public interest to prosecute. 39. As it was one of the first cases in which the problem of child trafficking for labour exploitation was raised following the coming into force of the Council of Europe Convention on Action Against Trafficking in Human Beings (“the Anti-Trafficking Convention”), permission was granted. The court commented “...it does appear to the court that there are two matters of potential concern. First, there is an appearance that something has gone wrong when one arm of the State (the Home Office) has accepted that a person has been trafficked, but another arm of the State (CPS) has reached the opposite conclusion seemingly without knowledge of the former. It is arguable that as a matter of public law once the government, through the Home Office, has accepted that a person has been trafficked, the CPS ought to proceed on the same basis unless there is some strong reason to do otherwise. Secondly, the applicant appears not to have been given adequate advice about his position, which was an unusual one.” 40. The second applicant also sought permission to appeal out of time against his conviction and sentence. In his perfected grounds of appeal against conviction he argued, inter alia, that his conviction was unsafe because as a minor and victim of trafficking and forced labour contrary to Article 4 of the Convention he had been entitled to protection rather than prosecution. In particular, he argued that the CPS should have carried out a much greater investigation into whether he had been trafficked into the United Kingdom and exploited in a cannabis factory. He relied in part on the evidence of a Children’s Services Practitioner at NSPCC NCTAIL who, referring to guidance published by the CPS and the Association of Chief Police Officers (hereinafter, “ACPO” – see paragraph 74 below), argued that the appropriate response in the second applicant’s case would have been for the police to have made a referral to the local authority children’s services as soon as he was recovered from the cannabis factory. The police should then have shared as much information as possible to help children’s services undertake the appropriate trafficking assessment and other welfare needs should have been identified and responded to within a safeguarding and child protection context. The grounds of appeal also referred to a report by the Child Exploitation and Online Protection Command (hereinafter, “CEOP”, a National Crime Agency – see paragraphs 81-83 below) which indicated that in spite of the fact that any child identified in a cannabis factory was likely to be a victim of trafficking, there had been a trend towards prosecution rather than protection of Vietnamese children found on these factories. 41. The second applicant further argued that the common law defence of duress was unsuitable to cases concerning child trafficking victims, since a trafficked child could not in law consent to his or her own trafficking. 42. Permission was granted and his appeal was joined to that of the first applicant. 43. In a judgment handed down on 20 February 2012, the Court of Appeal found that Article 26 of the Anti-Trafficking Convention (the so ‑ called “non-punishment provision” – see paragraph 103 below) was directed at sentencing decisions as opposed to prosecutorial decisions and could not, therefore, be interpreted as creating immunity for victims of trafficking who had become involved in criminal activities; nor could it extend the defence of duress by removing the limitations inherent in it. Summarising the essential principles derived from recent case-law, it noted that the implementation of the United Kingdom’s obligations under the Anti-Trafficking Convention was “normally achieved by the proper exercise of the long established prosecutorial discretion which enables the Crown Prosecution Service, however strong the evidence may be, to decide that it would be inappropriate to proceed or to continue with the prosecution of a defendant who is unable to advance duress as a defence but who falls within the protective ambit of Article 26. This requires a judgment to be made by the CPS in the individual case in the light of all the available evidence. That responsibility is vested not in the court but in the prosecuting authority. The court may intervene in an individual case if its process is abused by using the ‘ultimate sanction’ of a stay of the proceedings. The burden of showing that the process is being or has been abused on the basis of the improper exercise of the prosecutorial discretion rests on the defendant. ... The fact that it arises for consideration in the context of the proper implementation of the United Kingdom’s Convention obligation does not involve the creation of new principles. Rather, well established principles apply in the specific context of the Article 26 obligation, no more, and no less. Apart from the specific jurisdiction to stay proceedings where the process is abused, the court may also, if it thinks appropriate in the exercise of its sentencing responsibilities implement the Article 26 obligation in the language of the article itself, by dealing with the defendant in a way which does not constitute punishment, by ordering an absolute or a conditional discharge.” 44. The court identified the principal issue in the appeals to be whether the process of the court was abused by the decision of the prosecuting authority to prosecute. However, having fully considered the facts of the applicants’ cases, the court dismissed their appeal against conviction. 45. In respect of the first applicant, the court stated that: “Opening the case for the Crown, counsel focused on the evidence which suggested that the appellant could not be described as a trafficked person. He was found with cash on him. He was provided with a mobile phone and credit for use with that phone. The house was an ordinary house, far from a make-shift prison, where the defendant said he had been left and provided with groceries at weekly intervals. The account given by the appellant in interview in which he said that he arrived seeking an adoptive father was contrasted with what he said in the Trafficking Assessment. When asked questions to identify who this adoptive father might be, he was unable to provide any comprehensible explanation. His movements about the country after his arrival, and his allegedly accidental presence in Cambridge, when he had simply bumped into two further co-nationals who offered him the opportunity of going to Cambridge was inconsistent with having been the victim of trafficking. Over the months the account had developed of some ‘mild pressure or threats’ being put to the defendant but the Trafficking Assessment itself provided information that the appellant was clear that his family in Vietnam was not under threat, that there were no debts owed to anyone in Vietnam, and that he had not been abused prior to his arrest. The Crown examined the facts in detail and had come to the conclusion that there was no ‘reason whatever to revise their initial assessment of the public interest that the appellant’ was someone who should be prosecuted. Given the meticulous care and detailed examination of all the relevant evidence made both by counsel for the Prosecution and the Crown Prosecution Service, and the fair and balanced approach taken by Judge [C] throughout these protracted proceedings, the prospects for this appeal were unpromising. In essence, the argument advanced by [counsel] proceeds on the basis that given the information available to the defence at the time when the case proceeded to sentence, an application should have been made to vacate the guilty plea. However, as he accepts, there was nothing to suggest that the plea could be considered a nullity, or that the theoretical defence of duress would have had any realistic prospect of success. Nevertheless if the application to vacate the plea had been made, and then granted, on the basis of the appellant’s youth and the findings in his favour in relation to trafficking, the judge would then have been invited to consider an application to stay the prosecution, and presumably, that [sic.] if such an application had been made, the judge would have granted it. This is all entirely speculative, and does not address the reality. Even if the judge might have been persuaded to allow the appellant to vacate his plea for the argument in support of an order for the stay of proceedings to be mounted, the inevitable outcome of any such hearing would have been that the decision to continue the prosecution was fully justified. On the facts, the decision to prosecute was amply justified. That would have been the view formed by Judge [C], and it is the unhesitating conclusion which we have reached.” 46. The Court did, however, allow the first applicant’s appeal against sentencing as it found that, given his age and guilty plea, a twelve month custodial sentence would have been sufficient. 47. With regard to the second applicant, it noted that in taking the decision to prosecute him, the CPS did not have the advantage of UKBA’s finding that he was a child victim of human trafficking. However, even if that report had been available, UKBA and the CPS exercised different responsibilities and neither could bind the other. The court made the following remarks: “In essence, the argument in support of the contention that the conviction is unsafe was, at any rate to begin with, based on the stark proposition that everyone involved in the case missed the real point, that the appellant fell squarely within the provisions of Article 26 of the Convention, and that he had been trafficked into the country. [Counsel] argued that the Crown Prosecution Service should have carried out a much greater investigation into the question whether the appellant had been trafficked into this country and exploited in the cannabis factory; that those who acted for the appellant should have alerted the Crown Prosecution Service to the same problem and invited them to conduct further investigations; and indeed at one stage that the judge herself had been remiss in failing to recognise the problem and requiring its further investigation. [Counsel] advanced sustained submissions critical of the process of which the sentence was the culmination. In part he relied on the contemporaneous Guidance and Codes of Practice which form part of the publications noted earlier in the judgment. On close analysis his submissions appeared to mean the many thousands of individuals who might, in the course of their duties, become involved in the investigation and prosecution of offences should be deemed to know and fully appreciate the ambit and potential impact of every single publication offering guidance or advice whenever an individual who may possibly fall within the Convention is arrested. This is somewhat unrealistic. Although there must, inevitably, be broad understanding of the way in which different bodies vested with these responsibilities are operating, the CPS, or ACPO, or indeed each other responsible body, cannot immediately appreciate every item of guidance or advice issued by every other body. In this particular case, for example, the Child Exploitation and On Line Protection Centre representing ACPO issued its report on the very day on which [the applicant] himself was interviewed after his arrest. In any event, it appears to us that in the initial stages after the implementation of the Convention the primary focus of attention was the distinction between those who were ‘smuggled’ into the country and those who were ‘trafficked’ into it. But, more important, the criticisms ignore the facts, and in particular the impact of the appellant’s accounts in interview, to his lawyers, and the writer of the Pre-sentence Report about the circumstances in which he became an immigrant into this country and worked in the cannabis factory. These accounts were, it must be emphasised, the instructions and the explanations provided by the appellant himself. The evidence available to those who were acting for him, that he had been ‘smuggled’ as a volunteer, was unanswerable. Moreover it appeared that he made the choice to start working with [H] rather than find work at or near the safe home provided by his cousin, and that he chose to work, at first without apparent difficulty. Thereafter the appellant’s period of work in the cannabis factory before his arrest was very short lived. It had been interrupted by a not insignificant break. He was in possession of cash. After his arrest he had continued in communication with his family in Vietnam and his cousin in England, without suggesting that he had made any complaint or expressed any concern. Despite [Counsel’s] efforts to persuade us to the contrary view, at this date there was no evidence before the Crown Court, or for that matter the CPS or indeed the defence, which suggested that the appellant had been trafficked into this country, or that he fell within the protective ambit of Article 26. Rather the effect of the evidence was that he was a volunteer, ‘smuggled’ into this country to make a better life for himself and that he had a home with a family member to which he could have gone and where he would have been welcome. The essential point in mitigation, correctly taken on the basis of the appellant’s instructions, was that he was very young, and in a vulnerable position as an illegal immigrant, and that in his short time working in the cannabis factory, like his co-defendants, he had been exploited by others. That provided real mitigation, but in the light of the facts as they appeared to be, and on the basis of the Guidance to Prosecutors then current, the decision to prosecute rather than to conduct further investigations did not involve any misapplication of the prosecutorial discretion sufficient to justify the conclusion that this prosecution constituted an abuse of process on the basis of a breach of Article 26 of the Convention.” 48. The court also expressed doubts about the value of the expert evidence which came to light following the second applicant’s conviction and sentence (see paragraphs 30-37 above). This was not to impugn the good faith of the experts, but rather an acknowledgment of the fact that their conclusions were dependent on the second applicant’s account of events. In addition, the new material did not support the contention that he was a victim of forced labour. On the contrary, it suggested that he chose to work in the cannabis factory when he had available to him a safe home with a family member, and the evidence suggesting that he was “compelled” to work in those conditions was at best “nebulous”. Consequently, his conviction could not be said to be unsafe. 49. However, in view of the second applicant’s young age, his guilty plea and the extremely short period he was working in the cannabis factory, the court indicated that it should have reduced his sentence to a four month detention and training order. 50. In conclusion, the Court stated that: “Just because the issues in cases which involve Article 26 of the Convention are often extremely sensitive, we have examined a vast bundle of post-conviction evidence, much of which is, on analysis, repetitive. We have also examined numerous publications and considered all the expert evidence. In the context of fresh evidence we shall identify a series of considerations of broad general effect. ... d) It has been made plain in numerous decisions of this court, that a defendant is provided with one opportunity to give his or her instructions to his legal advisors. His defence is then considered and advanced and he is advised about his plea in the light of those instructions. It is only in the most exceptional cases that the court would consider it appropriate to allow a defendant to advance what in effect would amount to fresh instructions about the facts for the purposes of an appeal against conviction. There is no special category of exceptionality which arises in the context of Article 26.” 51. Both applicants applied for leave to appeal to the Supreme Court. The first applicant asked that the following points of law be certified: whether the exercise of discretion by the CPS as to whether to prosecute a child found by the Competent Authority to be the victim of trafficking exhausted the United Kingdom’s obligations under domestic and international law for that child; and on what standard of proof the CPS had to find the child a credible victim of trafficking for the child not to be prosecuted. The second applicant invoked Article 4 of the Convention and submitted that the facts of the case raised a question concerning the extent to which the CPS should give weight to the positive findings of those given the responsibility for determining the status of a child who may have been trafficked. 52. The applications for permission to appeal to the Supreme Court were refused. Subsequent proceedingsReconsideration of the first applicant’s Conclusive Decision Reconsideration of the first applicant’s Conclusive Decision Reconsideration of the first applicant’s Conclusive Decision 53. On 22 January 2014 the Treasury Solicitors asked that the first applicant’s Conclusive Decision (see paragraph 13 above) be reconsidered based on the information contained in the CPS file and the comments made by the judge in sentencing him. 54. In a decision dated 31 July 2014 the Competent Authority indicated that the Conclusive Decision would be maintained. In its opinion, the information provided did not change the key points of the case which were that the first applicant was found inside a cannabis factory when he was a minor. According to the Palermo Protocol and the Anti-Trafficking Convention, in order to be considered a victim of human trafficking three constituent elements usually had to be present: the person had to be subject to the act of recruitment, transportation, transfer, harbouring or receipt (action); by means of threat of force or other form of coercion (means); for the purpose of exploitation, including, inter alia, forced labour or services (purpose). However, the “means” element was not required where the individual was a child as they could not give informed consent. In the first applicant’s case, he worked for other people as a gardener so he was recruited. In addition, he was locked in the property which was considered to constitute harbouring. Finally, the work that he did was illegal, therefore the benefits that he received for doing it were not proportionate to the work that he was required to do. Therefore, in the view of the Competent Authority it was very clear that the first applicant had been trafficked. Insofar as the judge at his criminal trial had doubted that he was trafficked, his findings relating to credibility related to peripheral issues that did not go to the core of the elements that made up the definition of trafficking. The first applicant’s further appeal 55. On 13 December 2013 the first applicant sought a review of his conviction based on new evidence and new legal arguments. The former constituted fresh medical evidence indicating that the first applicant had, on the balance of probabilities, Asperger’s Syndrome together with symptoms of PTSD and, as a consequence, was likely to have been socially naïve and vulnerable to exploitation. In respect of the latter, the first applicant argued that the Prosecution’s failure to conduct a trafficking investigation was in breach of Article 4 of the Convention and rendered the decision to prosecute unlawful. Furthermore, the Prosecution had failed to give any proper consideration to the fact that the first applicant was a minor who had been assessed by both UKBA and social services as having been trafficked. 56. On 14 April 2016 the Criminal Cases Review Commission (hereinafter, “the CCRC”) decided to refer the first applicant’s case back to the Court of Appeal on the following grounds: there was new evidence available to show that he should have been recognised by the CPS as a credible child victim of trafficking and was compelled to commit a criminal offence as a direct consequence of his trafficked situation; that there was a real possibility that the Court of Appeal would vacate his guilty plea and find that it was an abuse of process to prosecute him without due regard to the United Kingdom’s obligations under Article 26 of the Anti-Trafficking Convention; and that there was therefore a real possibility that his conviction would be quashed. It noted, in addition, that the 2009 CPS guidance appeared to be defective; while it made reference to the degree of duress or coercion to which child victims may be subject, it failed to underline that compulsion to commit an offence was not required. 57. The first applicant’s appeal was heard together with five other appeals in which convicted defendants argued that they should not have been prosecuted as there was a nexus between their crimes and their status as victims of trafficking. 58. The first applicant’s grounds of appeal were (i) that if the information which subsequently came to light had been known by the CPS prior to the decision to prosecute, and had the Article 26 guidance been applied to those facts, the CPS and/or the Court of Appeal would not have concluded that it was in the public interest to prosecute him; (ii) that the Crown misdirected itself by importing the requirement of force/coercion into the question of whether he was a trafficked child within the meaning of Article 26; (iii) that the Crown, in assessing whether he was an exploited child, took into account immaterial considerations and failed to take into account material considerations; (iv) that the Crown failed to grasp the central relevance of whether he had been trafficked to the public interest in his prosecution; and (v) that the decision to prosecute him and to preclude the application of Article 26 was rendered unlawful by the failure to prompt a criminal investigation into whether he was trafficked or not – as required by Article 4 of the Convention – which would have informed the public interest decision. 59. Prior to the hearing the first applicant’s representatives prepared a note on Competent Authorities to assist the Court of Appeal in considering the interplay between the Competent Authority’s identification of a potential victim under the National Referral Mechanism and how this fitted within the criminal justice framework. It noted that there was a procedural obligation on the State – which constituted a procedural obligation under Article 4 of the Convention – to investigate situations of potential trafficking. Both the Competent Authority and the Local Authority had assessed and identified the first applicant as a trafficked child. This information had triggered a positive obligation on the police and the Crown to conduct an Article 4 compliant investigation into the allegation of child trafficking. They both had a number of opportunities to discharge that obligation but failed to do so. Both the Competent Authority and the Local Authority had, however, acted in accordance with their responsibilities. The Crown should not, as a result, be able to pray in aid their Article 4 failings, and those of the police, to undermine the assessments of the Competent Authority and the Local Authority. 60. Before the Court of Appeal Anti-Slavery International submitted, as interveners, that in order to comply with international conventions the court should develop the law of duress so that persons who could not avail themselves of section 45 of the Modern Slavery Act 2015 (which reflected the “non-punishment provision” in the Anti-Trafficking Convention – see paragraph 103 below) because it was not in force at the relevant time would be in the same position as those who could rely on it. 61. Judgment was handed down on 9 February 2017. The Court of Appeal took the view that even prior to the coming into force of the Modern Slavery Act 2015 the law operated in practice in a way entirely consistent with the United Kingdom’s international obligations. It therefore rejected any suggestion that the current approach – particularly in respect of the defence of duress – should be revised for cases not covered by the 2015 Act. In the case of minors, the court reiterated that once it was established that a child was the victim of trafficking for the purposes of exploitation, the relevant question was whether there was a sufficient nexus between the trafficking and the offence; it was not necessary to show there was compulsion to commit the offence (as would be required in the case of an adult). Although the court accepted that this was not clear from the 2009 CPS guidance, both the 2011 and the 2015 guidance were more explicit. 62. With regard to the relationship between the Competent Authority (see paragraphs 75-76 below) and the CPS, the court noted that the latter was not bound by a decision of the former. It continued: “Where there is an issue as to whether a person is a victim of trafficking for the purposes of exploitation whilst a prosecution is being considered or is in progress, the CPS and police are able to refer to the Competent Authority the case of a person in respect of whom there may be evidence of that person being a victim of trafficking. Provision is made in the Guidance to the Competent Authority for cooperation with the police and CPS in all cases before the conclusion of the prosecution. We were told that the cooperation has been developed so that during the procedures for considering prosecution every effort is made to reach a common view on whether the evidence points to the person being a victim of trafficking. That is plainly of the greatest importance, as the cogency of the evidence which may be relied on by the Competent Authority must be subject to thorough forensic examination when the CPS is considering the question of nexus and whether it is in the public interest to prosecute. However, in respect of a person claiming after conviction to be a victim of trafficking, there is no clear guidance on or process in respect of co-operation with the CPS or in obtaining court documents. These appeals have shown that it would [be] desirable for much clearer guidance and processes to be developed between the CPS and the Competent Authorities in cases where the claim to be a victim of trafficking is made after conviction. It is important to appreciate a court will bear the Competent Authority’s conclusion very much in mind but will examine the question of the cogency of the evidence on which the Competent Authority relied and subject the evidence to thorough forensic examination. It does not follow from the fact than an individual ‘fits the profile’ of a victim of trafficking that they are necessarily the victim of trafficking. A careful analysis of the facts is required including close examination of the individual’s account and proper focus on the evidence on the nexus between the trafficking and the offence with which they are charged.” 63. In the first applicant’s case, the Court of Appeal was satisfied that his criminality or culpability had not been extinguished or significantly reduced to such a level that he should not have been prosecuted in the public interest. It said: “This same ground of appeal albeit differently expressed was at the heart of the appeal on the last occasion in 2012. As we have set out, the court held that the decision to prosecute was amply justified. This is not a case therefore where the court or a defendant’s lawyers have missed the opportunity to review an offender’s status as a possible victim of trafficking and the nexus with the offence. This was an issue explored with great care and in great detail at the Crown Court and by this court. It would require a compelling piece of fresh evidence or line of argument to persuade us to re-tread well-trodden ground. In the appellant’s case, there is in truth very little by the way of fresh evidence or fresh argument. The Home Office’s determination that the appellant has been trafficked was before the Crown Court and the Court of Appeal. The only "fresh evidence" is the medical report that the appellant is on the Asperger’s spectrum and is socially naïve. The submissions to us have made what can be made of that evidence, but we bear in mind the observations of this court in the earlier appeal ... as to the limited assistance given by expert reports that rely so heavily on the account given by the applicant where it differed from earlier accounts. In our judgement, neither the medical report nor its support for the Home Office’s conclusion is enough to undermine the appellant’s plea of guilty or the court’s conclusions on the last occasion that the decision to prosecute in the public interest was amply justified. The appellant, who was very nearly an adult, stayed in a house as a gardener of cannabis plants. He was not a prisoner, he had a significant quantity of cash (for no obvious reason) and he had access to a telephone. His explanation of his presence at the house was unsatisfactory and his account of how he got there far from consistent. On those facts, it was open to the Crown to decide that the prosecution should continue as the relevant nexus in the case of a child victim of trafficking had not been established. We reject the assertion that the Court on the last occasion applied the wrong test as to the compulsion required in the case of a child. The judgment begins with a clear statement of all the relevant principles in relation to trafficking including the relevant principles as far as child victims are concerned. The court did not proceed on the basis the appellant had to establish compulsion before his plea could be vacated. ... [T]he paragraph in which reference is made to compulsion and which is the subject of criticism did not relate to this appellant. In paragraph 90 of its judgment on the earlier appeal the court was addressing a particular issue in relation to the co-accused as we have explained. The Crown and this court on the last appeal considered the nexus between the trafficking and the offence on the correct basis; it did not suggest that there had to be evidence of compulsion.” 64. The first applicant applied to the Court of Appeal for a certificate that points of law of general public importance were involved in the decision of 9 February 2017 which ought to be considered by the Supreme Court. Those points concerned how the prosecuting authorities and the courts should approach the decision as to whether it is in the public interest for a prosecution to proceed where it is alleged that the suspect is a victim of trafficking; whether the CPS and the criminal court should be bound by a finding of the Competent Authority unless it would be unreasonable on the facts for them to be so bound; and whether the requirement of “compulsion” should be omitted in the case of child victims of trafficking. 65. That application was refused on 21 March 2017. | This case concerned two Vietnamese men who, while still minors, were charged with – and subsequently pleaded guilty to – drug-related offences after they were discovered working as gardeners in cannabis factories in the United Kingdom. Following their convictions they were recognised as victims of trafficking by the designated Competent Authority responsible for making decisions on whether a person has been trafficked for the purpose of exploitation: this Authority identifies potential victims of modern slavery and ensures they receive the appropriate support. The applicants complained, mainly, of a failure on the part of the authorities to protect them in the aftermath of their trafficking, that the authorities had failed to conduct an adequate investigation into their trafficking, and of the fairness of their trial. |
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