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137 | Abortion | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1993 and 1974 respectively and live in Lublin. 6. On 9 April 2008 the first applicant went with a friend to the Public University Health Care Unit in Lublin. She said that she had been raped on 8 April 2008 by a boy of her own age. The medical staff told her that they could neither examine her nor provide medical assistance because she was a minor and the consent of her legal guardian was necessary. Dr E.D. reported the case to the police and notified the first applicant’s parents. 7. Later that day, after reporting that an offence of rape had been committed, the applicants attended at Public University Hospital no. 4 in Lublin, accompanied by a female police officer. The second applicant gave her consent for an examination of her daughter to be carried out. The first applicant was in a state of emotional shock. At the hospital, psychological help was offered to her. Bruises on her body were confirmed by a family doctor several days after the alleged event took place, between 9 and 14 April 2008. 8. The rape resulted in pregnancy. The applicants decided together that an abortion would be the best option, considering that the first applicant was a very young minor, that the pregnancy was the result of forced intercourse, and that she wanted to pursue her education. 9. On 19 May 2008 the first applicant was questioned by the police. Her mother and the alleged perpetrator’s defence lawyer were present during the questioning. The first applicant stated that the perpetrator had used force to hold her down and to overcome her resistance. 10. On 20 May 2008 the District Prosecutor, referring to section 4 (a) item 5 in fine of the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) (“the 1993 Act”) (see paragraph 54 below) issued a certificate stating that the first applicant’s pregnancy had resulted from unlawful sexual intercourse with a minor under 15 years of age. A. Attempts to obtain an abortion in Lublin hospitals 11. The second applicant went to the Ministry of Internal Affairs and Administration Hospital in Lublin to ask for a referral for an abortion. She was advised there to contact Dr O., the regional consultant for gynecology and obstetrics. Other doctors whom the second applicant contacted privately were also of the view that a referral from the regional consultant was necessary. 12. The second applicant also went to another public hospital in Lublin (the Jan Boży hospital) and contacted a chief physician there, Dr W.S., who suggested that the applicants meet with a Catholic priest. The second applicant refused. 13. The second applicant then contacted Dr O. He told her that he was not obliged to issue a referral and advised the second applicant to “get her daughter married”. She left his office, but returned shortly afterwards as she was afraid that without the doctor’s referral it would not be possible to obtain an abortion. He told her to report to the Jan Boży hospital. 14. On 26 May 2008 the applicants reported to that hospital. They were received by the acting chief physician. They clearly stated their intention to have the pregnancy terminated. They were told that they would have to wait until the head of the gynecological ward, Dr W.S., returned from holiday. They were told that it would be best for the first applicant to be hospitalised, with a view to blood and urine tests and an ultrasound scan being carried out. On the same day the first applicant was admitted to that hospital. 15. On 30 May 2008 Dr W.S. returned from holiday and told the applicants that she needed time to make a decision. She asked them to return on 2 June. She then called the second applicant separately to her office and asked her to sign the following statement: “ I am agreeing to the procedure of abortion and I understand that this procedure could lead to my daughter’s death .” On the same day the first applicant was discharged from the hospital for the weekend. 16. On the morning of 2 June 2008 the first applicant returned to the hospital alone as her mother was working. 17. The applicants submitted that Dr W.S. took the first applicant for a talk with a Catholic priest, K.P. The first applicant was not asked what her faith was or whether she wished to see a priest. During the conversation it transpired that the priest had already been informed about the pregnancy and about the circumstances surrounding it. 18. The Government disagreed with the above account by the applicants. They stated that the girl had wished to see the priest. 19. During the conversation the priest tried to convince the first applicant that she should carry the pregnancy to term. The first applicant told him that she could not make the decision herself and that she relied on her parents in the matter. The priest asked her to give him her mobile phone number, which she did. She was given a statement written by Dr W.S. to the effect that she wanted to continue with the pregnancy and she signed it. The applicants submitted that she had signed it as she had not wanted to be impolite to the doctor and priest. 20. When the second applicant arrived later, the priest spoke to her. She told him that it was the family’s decision to terminate the pregnancy. Dr W.S. told the second applicant that she was a bad mother. She presented her with the document signed by the first applicant and told her that the first applicant had decided to continue with the pregnancy. An argument took place between the doctor and the second applicant. The first applicant, who was present in the room, started to cry. The doctor said that she would adopt both the first applicant and the baby. 21. Subsequently, Dr W.S. told the applicants that she would not perform the abortion, that under communism when abortion had been freely available no one had made her perform abortions, and that no doctor would have given permission for an abortion to be performed. According to the applicants, she also implied that none of the other doctors in the hospital would perform an abortion. 22. The applicants left the hospital. The second applicant contacted the Federation for Women and Family Planning ( Federacja na rzecz Kobiet i Planowania Rodziny - hereinafter, “the Federation”) in Warsaw for help, as after their experience in Lublin she was afraid that no one in that town would perform an abortion. 23. On an unspecified date the Jan Boży hospital issued a press release to the effect that it would not perform an abortion in the applicants’ case. Journalists who contacted the hospital were informed of the circumstances of the case. 24. The case became national news. A number of articles were published by various local and national newspapers. It was also the subject of various publications and discussions on the internet. B. Attempts to obtain an abortion in Warsaw 25. On 3 June 2008 the applicants went to Warsaw and contacted a doctor recommended by the Federation. They were informed about the procedure and about the available options. In the afternoon the first applicant was admitted to a hospital in Warsaw. She submitted to the hospital the certificate issued by the prosecutor (see paragraph 10 above), and a medical certificate issued by the national consultant in gynecology to the effect that she had a right to a lawful abortion. She signed a consent form to undergo an abortion and her parents also gave their written consent. Shortly afterwards the deputy head of the gynecological ward informed the applicants that he had received information from the Lublin hospital that the first applicant did not wish to have an abortion. 26. On 4 June 2004 the applicants were told that the first applicant was obliged by law to wait another three days before having an abortion. On the same day the first applicant received a text message from Catholic priest K.P. that he was working on her case and that people from all over the country were praying for her. She also received numerous text messages along the same lines from a number of unknown third parties. The priest came to the Warsaw hospital later in the day together with Ms H.W., an anti ‑ abortion activist. They were allowed to see the first applicant. They talked to her in her mother’s absence and tried to persuade her to change her mind. In the evening an unidentified woman came to her room and tried to convince her to continue with the pregnancy. The first applicant was upset about this and about the fact that the hospital apparently had no control over who could approach her. 27. On the same day the first applicant’s father came to the hospital, apparently as he had been informed that his consent to the abortion was also necessary. A psychologist spoke with the first applicant’s parents and then with the applicant. She apparently prepared an opinion on the case. The first applicant’s parents were not given access to it. The doctor who had admitted the first applicant to the hospital told her that a lot of pressure had been put on the hospital with a view to discouraging it from performing the abortion, and that the hospital was receiving numerous e-mails from persons criticising the applicants for having decided to allow the first applicant to have an abortion. 28. On 5 June 2008, feeling manipulated and helpless, the applicants decided to leave the hospital. As they were leaving, they were harassed by Ms H.W. and Mr M.N.-K., anti-choice activists waiting at the hospital entrance. The mother stopped a taxi but the activists told the driver that her parental rights had been taken away and that she was trying to kidnap the first applicant. The driver refused to take them. Ms H.W. called the police. The police arrived promptly and took both applicants to the police station. C. The first applicant’s placement in a juvenile shelter 29. At the police station the applicants were questioned on the same day, from approximately 4 p.m. until 10 p.m. No food was offered to them. The officers showed the applicants the family court decision which the police had received by fax at about 7 p.m. from the Warsaw hospital. That decision, given by the Lublin Family Court, restricted the second applicant’s parental rights and ordered the first applicant to be placed in a juvenile shelter immediately (see paragraph 34 below). 30. Subsequently the police took the first applicant to a car. She was driven around Warsaw in search of a juvenile shelter that would accept her. The second applicant was not permitted to accompany her daughter. As no place was found in Warsaw, the police drove the girl to Lublin, where she was placed in a shelter at approximately 4 a.m. on 6 June 2008. She was put in a locked room and her mobile phone was taken from her. On 6 June 2008 priest K.P. visited her there and told her that he would lodge an application with the court requesting it to transfer her to a single mother’s home run by the Catholic church. 31. A psychologist and an education specialist talked to her. She summarised the conversation thus: “They wanted to know the entire story and the Assistant Principal was present. I told them again about the entire affair with the hospitals and the abortion. They said that it would be better for me to give birth. They did not ask me about my view. I stayed locked in the room all day. I felt as though I was in a correctional facility, I had bars on the window and a locked door, it was not very pleasant.” 32. Later in the morning of that day the first applicant felt pain and experienced bleeding. In the late afternoon she was taken to the Jan Boży hospital in Lublin. She was admitted to the maternity ward. A number of journalists came to see her and tried to talk to her. D. Proceedings before the Family and Custody Court 33. On 3 June 2008, acting upon a letter from the Lublin III Police Station and two letters from the headmaster of the school attended by the first applicant dated 26 and 27 May, and a note drawn up by a non ‑ identified authority, apparently a court supervisor ( kurator ), also on 3 June 2008, the Lublin Family and Custody Court instituted proceedings to divest the second applicant of her parental rights. In these letters the headmaster referred to a text message sent to a friend of the first applicant in which the first applicant had expressed serious distress and said that she could not count on her mother’s assistance as she saw abortion as the only solution, and to a conversation between the first applicant and one of her teachers in which she had said that she wished to carry the pregnancy to term. She had also been concerned about the consequences, including psychological ones, that an abortion might have. The headmaster was of the view, relying on a conversation he had had with the class teacher and with the school social pedagogue, that the first applicant might be under pressure from her family. He was concerned that the second applicant had not sought psychological assistance for her daughter, who, it had been suggested by the school, might have suicidal tendencies. The second applicant had been requested to attend at the school; she had been shown the text message and told to make an appointment with a psychologist immediately and given all the necessary information for contacting a therapist. Enclosed with the letter was a print-out of a chat between the first applicant and her friend dated 7 May 2008. It transpired therefrom that in reaction to the news about the minor’s pregnancy her father had become violent and had told her that if she wanted to keep her baby she would have to move out of the house; she also said that she did not know what to do and wanted her friend to help and the school to intervene. 34. On the same date that court, sitting in camera, ordered the first applicant’s placement in a juvenile shelter as an interim measure. In its decision the court stated that the documents referred to above demonstrated that the first applicant’s parents did not take appropriate care of their daughter. She was pregnant; she had been admitted to the Lublin Jan Boży hospital, which had refused to carry out an abortion having regard to the first applicant’s statement that she did not wish to have recourse to it. The court had regard to text messages she had sent to her friend. Doctor W.S. had informed her about the consequences of an abortion. It was reported that the first applicant had travelled to Warsaw with her mother in order to have an abortion performed there. The first applicant was under pressure from her mother and was unable to take a decision independently. Her hospital stays and the atmosphere in the family were harmful to her. She had to be separated from her family in her own interest. The court relied on Article 109 para 1 (5) of the Family Code. 35. On 6 June 2008 the second applicant appealed against that decision. On 9 June 2008 she filed with the court a written consent to her daughter’s abortion, which she also submitted to the Lublin hospital. On 10 June 2008 she submitted a declaration by the first applicant stating that she wanted to have an abortion and that she was not being coerced into it. 36. On 13 June 2008 the first applicant was questioned at the hospital by a criminal judge in the presence of a prosecutor and a psychologist, in the context of proceedings concerning allegations of coercion with a view to making her terminate her pregnancy. The first applicant testified that she had been forced into a sexual act which had resulted in pregnancy and that her mother had not forced her to make the decision to have a termination. The questioning started at 7.30 p.m. and lasted for three hours. The first applicant’s parents were not permitted to be present. The first applicant did not have legal assistance or any other adult present to represent her as a minor. Later the same day the court allowed the second applicant to take her home. On 14 June 2008 she was discharged from the hospital. 37. On 18 June 2008 the Lublin Family Court quashed its decision concerning the first applicant’s placement in the shelter. 38. On 18 February 2009 the Lublin Family and Custody Court, relying mainly on an expert opinion prepared by the Family Diagnostic and Consultation Centre, held that there were no grounds on which to divest the first applicant’s parents of their parental rights. It discontinued the proceedings. E. The applicants’ contact with the Ministry of Health 39. Between 9 and 13 June 2008 the second applicant filed a complaint with the Office for Patients’ Rights of the Ministry of Health asking them to help her daughter obtain a lawful abortion, and submitted relevant documents, in particular the prosecutor’s certificate. An official of the Ministry, K.U., informed the second applicant that her daughter’s statement consenting to an abortion would have to be witnessed by three persons. When the second applicant informed him that the statement had in fact been signed in the presence of three witnesses, he told her that the witnesses’ identification numbers were required and that the faxed copy had to be notarised. 40. On 16 June 2008 the second applicant was informed by telephone by a Ministry official that the issue had been resolved and that her daughter could undergo an abortion. She was notified that she would have to go to Gdańsk, in northern Poland, approximately 500 kilometers from their home in Lublin. 41. On 17 June 2008 the Ministry of Health sent a car for the applicants and they were driven to Gdańsk. The first applicant had an abortion in a public hospital there. The applicants submitted that the trip to Gdansk and the abortion were carried out in a clandestine manner, despite the termination being lawful. When the applicants came back home, they realised that information about their journey to Gdańsk had been put on the Internet by the Catholic Information Agency that day at 9 a.m. F. Various sets of criminal proceedings 1. Against the first applicant 42. On 1 July 2008 the Lublin District Court instituted proceedings against the first applicant on suspicion that she had committed a criminal offence punishable under Article 200 § 1 of the Criminal Code (sexual intercourse with a minor under 15 years of age). The first applicant was summoned to appear in court for questioning on 25 September 2008. 43. On 20 November 2008 the proceedings were discontinued. The court held that the first applicant could only be considered the victim of a criminal offence, not the perpetrator. 2. Against the perpetrator of the alleged rape 44. On 28 August 2008 the second applicant informed the prosecutor that her daughter had been raped. According to her submissions, she was not aware that reporting the rape to the prosecuting authorities in May was not sufficient for an investigation to be instituted. The investigation against the perpetrator of the alleged rape was ultimately discontinued on 10 June 2011. 3. Against the second applicant, the first applicant’s father and two other persons 45. On 14 July 2008 the Warsaw-Śródmieście District Prosecutor discontinued proceedings against the second applicant, the first applicant’s father, Mrs W. N., and K.K., who worked for the Federation for Women and Family Planning, concerning a suspicion that the first applicant had been coerced into having an abortion against her will. The prosecutor found that they had no case to answer and observed that it was not open to doubt, in the light of the documents submitted by the applicants to the Warsaw hospital, that she had a right to a lawful abortion. 4. Against other persons 46. A second set of proceedings, discontinued on the same date, concerned a suspicion that unknown persons, including doctors from Lublin and Warsaw, Catholic priests and members of anti-abortion organisations, had exerted pressure on the first applicant to dissuade her from having an abortion. The prosecutor found that there was no case to answer, because the criminal law did not penalise attempts to persuade a pregnant woman to carry the pregnancy to term as long as no physical violence was used. 47. The second applicant appealed against that decision. 5. Against Ms H.W. and Mr M.N.-K. 48. On 21 November 2008 the Warsaw-Śródmieście District Prosecutor discontinued proceedings that had been instituted against Ms H.W. and Mr M.N.-K., finding that they had accosted the applicants when they were leaving the hospital in Warsaw on 4 June 2008, but that they had no case to answer because no physical violence had been involved. On 19 September 2009 the Warsaw ‑ Śródmieście District Court dismissed the applicants’ appeal. 6. Against the police officers 49. On 17 September 2009 the Warsaw-Śródmieście District Court dismissed the first applicant’s appeal against a decision given on 26 May 2009 by the Warsaw-Sródmieście District Prosecutor to discontinue criminal proceedings against the police officers who had detained her at the police station on the basis of the placement order. The prosecutor and the court found that the police officers had no case to answer. 7. Against various persons on charges of disclosure of confidential information 50. On 31 October 2008 the Lublin ‑ Północ District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of unlawful disclosure of the applicants’ personal data, finding that no criminal offence against the protection of personal data had been committed. No written grounds were prepared for these decisions as the law did not make it mandatory. The applicants appealed, submitting that when the first applicant had been in the Warsaw hospital, information about her real name, condition and predicament was available and discussed on many internet fora. This caused considerable stress to the applicants. The medical data were particularly sensitive and their disclosure to the general public was unlawful. It was therefore necessary to establish the identity of the persons who had leaked the information to the public. On 31 March 2009 the Lublin Regional Court dismissed the appeal, finding that the prosecutor’s decision was lawful and correct. 51. On 12 November 2008 the Lublin ‑ Północ District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of disclosure of information protected by law, an punishable under Article 266 of the Criminal Code committed by Dr W.S., possibly also by other doctors working at that hospital, ²by the director of the hospital who had spoken to the press about the applicants’ case and by priest K.P. The applicants appealed submitting that information about the applicants’ situation had been disclosed to the general public. On 5 February 2009 the Lublin District Court dismissed the complaint, holding that the first applicant had not objected to the proposal to speak to the priest; that prior to her admission to the hospital information about her pregnancy was known in her school and to her friends and that the first applicant had not obliged the priest not to disclose information about her predicament to third parties. The court was of the view that it was well known that cases of teenage pregnancy gave rise to controversy and were normally widely discussed by third parties, social and church organisations engaged in the debate about such cases. | This case concerned the difficulties encountered by a teenage girl, who had become pregnant as a result of rape, in obtaining access to an abortion, in particular due to the lack of a clear legal framework, procrastination of medical staff and also as a result of harassment. |
628 | Doctors and health workers | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1952 and lives in Tarnów, Poland. 6. The applicant is a gynaecologist. In August 1995 he set up a company which prepared medical reports at his clients ’ request. 7. On 12 March 1996 the applicant wrote a report entitled “Civil opinion” ( opinia cywilna ) on the treatment that Mr J.M. had undergone in the Regional Hepatology Clinic in Tarnów. The opinion described, in a detailed manner, the history of Mr J.M. ’ s medical treatment since the beginning of the 1980s. The report was based on Mr J.M. ’ s medical file obtained from the clinics of hepatology and dermatology where he had received treatment. The applicant also relied on the results of a recent medical examination, a biopsy, carried out at the applicant ’ s initiative by the Cracow University Medical Academy. In his report the applicant established that the patient had been receiving treatment since 1983 at the Tarnów Clinic. However, in spite of the fact that his health had deteriorated and that he had been developing symptoms of liver damage, no specialised examination, that is, a biopsy, had been carried out. A recent liver biopsy, undertaken upon the applicant ’ s recommendation at the Cracow University Medical Academy, had shown that the patient was suffering from aggressive and chronic hepatitis and cirrhosis ( przewlekłe agresywne zapalenie wątroby z marskością wątroby ). The applicant considered that the damage to Mr J.M. ’ s health, due to both his liver condition and dermatological problems, amounted to 90% thus making him eligible to receive the highest group of invalidity allowance. With regard to the treatment received at the Tarnów Hepatology Clinic the applicant ’ s report stated: “ ... Despite [the patient ’ s] chronic suffering, of which he had complained constantly during his regular visits, and which was confirmed by examinations indicating a chronic liver condition, the employees of the Clinic had failed to take the actions [ necessary] for the health care of [ the patient ] and his diagnosis. So, despite indications, adequate diligence while diagnosing, informing and providing health care to [ the patient ] was not displayed. ” The opinion also dealt with the treatment of Mr J.M. ’ s dermatological problems at the Tarnów Dermatology Clinic and concluded that it had been proper and diligent. 8. On 2 December 1996 the Tarnów Regional Attorney for Professional Liability ( Okręgowy Rzecznik Odpowiedzialności Zawodowej ) instituted disciplinary proceedings against the applicant. He was charged with unethical conduct, reference being made to the fact that the applicant ’ s opinion had discredited the doctors who had been treating the patient. The Regional Attorney relied on Article 52 of the Polish Code of Medical Ethics ( Kodeks Etyki Lekarskiej ). Moreover, according to the Regional Attorney, in assessing a complicated therapy in which he did not specialise, the applicant had overstepped his professional competences. In his application of 10 March 1997 lodged with the Tarnów Regional Medical Court ( Okręgowy Sąd Lekarski ), in which he asked for a disciplinary punishment to be imposed on the applicant, the Attorney stated: “In the present case the Attorney established that Dr Ryszard Frankowicz, by preparing and giving the patient an opinion in which he included judgments on the professional conduct of other doctors (working in the Tarnów Hepatology Clinic), obviously violated the well-established medical society rules of proper conduct between doctors. Unfavourable arguments and analysis of professional actions expressed by one doctor in front of a patient always clearly discredit the doctor under scrutiny ... ” “The Medical Council of the Tarnów Regional Medical Chamber finds that the entirety of the public behaviour of [ the applicant] has no support in the medical profession and does not serve the rightly understood well-being of the patient. The disciplinary bodies of the Chamber will assess their attitudes in detail and draw appropriate conclusions ( wyciągną stosowne wnioski ). The Medical Council decided to take a position on the public activities of the above-mentioned doctors and the manner in which they have been exercising the medical profession given the exceptional departure from recognised and generally accepted rules and given the possibility of their manipulating the perceptions and the behaviour of the local community.” 9. On 11 June 1997 the Tarnów Regional Medical Court ( Okręgowy Sąd Lekarski ) held a hearing. The court was composed of three members, all doctors. The applicant, his wife, their representative and a representative of the Office of the Regional Attorney of Professional Liability were present at the hearing. However, soon after the opening of the hearing the applicant decided to leave the courtroom, objecting to the fact that the disciplinary court had allegedly violated a time-limit for examination of a case. The hearing continued in the applicant ’ s absence as he had not decided to return and the court regarded his absence as unjustified. 10. On 17 June 1997 the Regional Medical Court found the applicant guilty of unethical conduct. The Court considered that the applicant, in his report, had expressed negative opinions of the professional conduct of doctors concerned and that he had conveyed these directly to the patient. In so doing, he had discredited the doctors in the eyes of the patient. His behaviour was therefore contrary to the principle of professional solidarity and, consequently, to the provisions of Article 52 of the Code of Medical Ethics. The court did not examine the truthfulness of the opinion at issue as it found that the question of whether it “reflected the reality” was “of no importance” for finding a violation of this provision of the Code. The disciplinary court also found that the applicant had violated Article 10 of the Code, as he had written an opinion concerning a branch of medicine in which he was not a specialist. The court found him guilty as charged and sentenced him to a reprimand ( skazuje na karę nagany ). 11. On 17 June 1997 the applicant challenged all members of the court, complaining that they had not been impartial. The applicant submitted that the independence and impartiality of the members of the disciplinary court had been open to doubt because it was possible that the Tarnów Governor could have put pressure on them. In addition the applicant complained about the way the hearing had been conducted, submitting that the President of the court had prevented him from putting all his questions and had dismissed his motions. On 20 June 1997 the Tarnów Regional Medical Court, sitting in a different composition, dismissed the applicant ’ s challenge as manifestly ill-founded. 12. The applicant appealed on 30 June 1997. He argued that a doctor had a right to express freely his own opinion in conformity with his medical knowledge and his conscience and to inform his patient if he believed that the latter had been incorrectly treated or wrongly diagnosed. The purpose of a doctor ’ s work was the well-being of the patient and not professional solidarity with other doctors. The applicant further complained that his challenge to the members of the Regional Medical Court, and application to transfer the case to another town, had been dismissed. He submitted that two of the three members of the court were senior managers of the hospitals thus susceptible to pressure from the Tarnów Governor ’ s office, the latter often being criticised by the applicant ’ s association. 13. On 29 May 1998 the Supreme Medical Court ( Naczelny Sąd Lekarski ), upheld the first-instance court ’ s decision. The court considered that the applicant ’ s actions were highly reprehensible and harmful not only to the medical profession but also to the patient, as the opinion gave him to believe, groundlessly, that he had been the victim of an injustice. The court also firmly rejected the applicant ’ s suggestion that his conviction had been the result of political pressure. A copy of that decision was served on the applicant on 30 July 1999. | The applicant was a gynaecologist and the President of the Association for the Protection of the Rights of Patients in Poland. He complained about disciplinary proceedings brought against him for a report he had prepared on the treatment of a patient in which he was critical of another doctor, following which he had been sanctioned by the Medical Court and given a reprimand. |
691 | Incitement to religious intolerance | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1960 and lives in France. 5. He is the proprietor and managing director of Berfin, a publishing house which in November 1993 published a novel by Abdullah Rıza Ergüven entitled “ Yasak Tümceler ” (“The forbidden phrases”). The book conveyed the author's views on philosophical and theological issues in a novelistic style. Two thousand copies of it were printed in a single run. 6. In an indictment of 18 April 1994, the Istanbul public prosecutor (“the public prosecutor”) charged the applicant under the third and fourth paragraphs of Article 175 of the Criminal Code with blasphemy against “God, the Religion, the Prophet and the Holy Book” through the publication of the book in question. 7. The public prosecutor's indictment was based on an expert report drawn up at the request of the press section of the Istanbul public prosecutor's office by Professor Salih Tuğ, dean of the theology faculty of Marmara University at the material time. In his report of 25 February 1994 the expert observed: “ ... the author arbitrarily uses theories about the physical substance of the universe, creation and the existence of natural laws to sway readers'minds towards the conclusions he wishes to be drawn from the book. In particular, in the passages on theology he imprisons readers within the limits of his own views, which are devoid of all academic rigour. ... He criticises the beliefs, ideas, traditions and way of life of Anatolian Turkish society by adopting the independent and nonconformist viewpoint of the leaders, thinkers and scientists of the Renaissance in order to enlighten and advise our people as he sees fit. ... This way of thinking, based on materialism and positivism, leads to atheism in that it renounces faith and divine revelation ... Although these passages may be regarded as a polemic in support of the author's philosophical views, it may be observed that they also contain statements that imply a certain element of humiliation, scorn and discredit vis-à-vis religion, the Prophet and belief in God according to Islam ... In the author's view, religious beliefs and opinions are mere obscurities, and ideas based on nature and reason are described as clear-sighted. The author describes religious faith as a'desert mirage', a'primitive idea'and'desert ecstasy', and religious practices as'the primitivism of desert life'. ...” 8. In his report the expert quoted numerous passages from the book under review, in particular: “... just think about it, ... all beliefs and all religions are essentially no more than performances. The actors played their roles without knowing what it was all about. Everyone has been led blindly along that path. The imaginary god, to whom people have become symbolically attached, has never appeared on stage. He has always been made to speak through the curtain. The people have been taken over by pathological imaginary projections. They have been brainwashed by fanciful stories ... ... this divests the imams of all thought and capacity to think and reduces them to the state of a pile of grass ... [ regarding the story of the Prophet Abraham's sacrifice ] it is clear that we are being duped here ... is God a sadist? ... so the God of Abraham is just as murderous as the God of Muhammad ...” The expert concluded his report as follows: “The passages which I have quoted from the book form the actus reus of the offence provided for in Article 175 of the Criminal Code. As regards the mens rea, my analysis shows that it has been made out, especially since the author entitled his book'The forbidden phrases'.” 9. In a letter of 28 June 1994 to the Istanbul Court of First Instance, the applicant contested the expert report. He requested a second opinion, arguing that the book was a novel and should have been analysed by literary specialists, and questioned the expert's impartiality. 10. On 2 November 1995 a committee of experts, composed of Professors Kayıhan İçel, Adem Sözüer and Burhan Kuzu, submitted its report. 11. In a letter of 19 April 1996 to the Court of First Instance, the applicant disputed the accuracy of the second expert report and argued that it was a copy of the first report. 12. On 24 April 1996 the applicant submitted before the Court of First Instance that the book was neither blasphemous nor insulting within the meaning of the third paragraph of Article 175 of the Criminal Code and merely conveyed its author's philosophical views. 13. In a judgment of 28 May 1996, the Court of First Instance convicted the applicant and sentenced him to two years'imprisonment and a fine. It commuted the prison sentence to a fine, so that the applicant was ultimately ordered to pay a total fine of 3,291,000 Turkish liras (equivalent at the time to 16 United States dollars). In its reasoning the court referred to the second expert report and cited the following passage from the book: “Look at the triangle of fear, inequality and inconsistency in the Koran; it reminds me of an earthworm. God says that all the words are those of his messenger. Some of these words, moreover, were inspired in a surge of exultation, in Aisha's arms. ... God's messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual relations with a dead person or a live animal.” 14. On 3 September 1996 the applicant appealed to the Court of Cassation. In his grounds of appeal he submitted that in the book in question the author had merely expressed his views, and challenged the content of the expert reports. 15. On 6 October 1997 the Court of Cassation upheld the impugned judgment. 16. The applicant was notified of the final judgment by means of a payment order postmarked 2 December 1997. | The applicant, the owner and managing director of a publishing company, published 2,000 copies of a book which addressed theological and philosophical issues in a novelistic style. The Istanbul public prosecutor charged the applicant with insulting “God, the Religion, the Prophet and the Holy Book” through the publication. The court of first instance sentenced the applicant to two years’ imprisonment and payment of a fine, and immediately commuted the prison sentence to a small fine. The applicant appealed to the Court of Cassation, which upheld the judgment. The applicant alleged that his conviction and sentence had infringed his right to freedom of expression. |
588 | Expulsion or extradition cases | I. THE CIRCUMSTANCES OF THE CASE A. Personal circumstances 9. The applicant is an Iranian citizen, born in 1966, and lives in Viborg, Denmark. 10. In 1986 the applicant commenced his military training in Iran. It is not clear whether he participated directly in the war between Iran and Iraq. On 25 April 1987 he deserted and fled to Turkey, where he arrived on 5 May 1987. It appears that the applicant stayed for some time in Turkey and then in Greece. 11. He arrived in Denmark on 20 August 1989 and applied for asylum. Pursuant to the practice of the Danish immigration authorities at that time, all asylum-seekers from Iran who, due to desertion from the army, had left their home country before the armistice between Iran and Iraq in the summer of 1988 were granted a residence permit. Accordingly, on 12 October 1990 the applicant was granted a residence and work permit. On 25 August 1994 the residence permit became permanent. 12. In 1992 the applicant met a Danish woman, A, with whom he cohabited. A daughter was born out of the relationship on 16 October 1996. The applicant and A got married on 23 September 1997 and had another child, a son, born on 20 April 2001. A also has a daughter born in 1989 from a previous relationship, who lives with A and the applicant, and with whom the applicant has a very close relationship. All three children have been raised pursuant to Danish traditions. 13. It appears that the applicant's family broke off all relations with him in 1987 due to his desertion from the army. 14. In Denmark the applicant had been making a living as the owner of a pizzeria until the end of 1996. Since May 2000 he had been receiving welfare benefits and was at the same time assigned job training by the municipality with the possibility of continuing employment. A works at a retirement home. B. Proceedings before the domestic authorities 15. On 17 December 1996 the applicant was arrested and detained on remand, charged with drug trafficking allegedly committed during 1996. By judgment of 1 October 1997 the City Court of Hobro ( retten i Hobro ) found him guilty, inter alia, of drug trafficking with regard to at least 450 grams of heroine contrary to Article 191 of the Criminal Code. He was sentenced to three years' imprisonment and, pursuant to sections 22 and 26 of the Aliens Act, was expelled from Denmark with a life-long ban on his return. The applicant appealed against the judgment but withdrew the appeal in November 1997, whereupon the City Court judgment acquired legal force. 16. On 14 July 1998, pursuant to section 50 of the Aliens Act, the applicant instituted proceedings in the City Court of Hobro claiming that material changes in his circumstances had occurred on account of which he requested the court to review the expulsion order. He referred to his family situation and alleged, with reference to information obtained from Amnesty International, that it could not be ruled out that he would risk severe punishment in Iran for having deserted from the army and also perhaps receive a life sentence for the narcotics crimes committed in Denmark. On 11 September 1998 the City Court rejected the applicant's request, as it did not find that the applicant's situation had changed to such an extent that there was any reason to revoke the expulsion order. This decision was upheld by the High Court of Western Denmark ( Vestre Landsret ) on 9 October 1998. 17. On 17 December 1998 the applicant had served two-thirds of his sentence and was due to be released on parole. Since he did not consent to the deportation and refused to leave the country voluntarily, he was detained as from that date in accordance with the Aliens Act with a view to being repatriated. Also in accordance with the Aliens Act, the applicant availed himself of the possibility, prior to the enforcement of a deportation, to bring before the immigration authorities ( Udlændingestyrelsen ) the question whether he could be returned to Iran, since, pursuant to the Aliens Act, an alien must not be returned to a country in which he or she will risk persecution on the grounds set out in Article 1 A of the Convention of 28 July 1951 concerning the Status of Refugees. The immigration authorities found, on 13 January 1999, that the applicant would not risk persecution in Iran of a kind which could constitute a basis for his remaining in Denmark. The applicant appealed against this decision to the Refugee Board ( Flygtningenævnet ), which on 16 April 1999 requested the Ministry of Foreign Affairs to provide more information on the situation in Iran. Having obtained information from several different authorities, on 4 January 2000 the Refugee Board confirmed the immigration authorities' decision. 18. Subsequently, relying on section 50 of the Aliens Act for the second time, and claiming that material changes in his circumstances had occurred, the applicant requested the City Court of Hobro to reconsider the expulsion decision. The court had the same material at its disposal as the Refugee Board and a number of statements from doctors concerning the applicant's state of health. In addition, A was heard stating inter alia that her daughter from a previous relationship, refuses to move to Iran. By judgment of 14 February 2000 the City Court revoked the decision to expel the applicant. On 3 March 2000 the High Court of Western Denmark quashed the above decision and dismissed the applicant's request for reconsideration of the expulsion order since, pursuant to section 50 of the Aliens Act, an expelled alien is entitled to only one judicial review of the question of expulsion. The applicant's application for leave to appeal against this decision was granted by the Leave to Appeal Board (Procesbevillingsnævnet) on 5 May 2000. The applicant was released from his detention on 11 May 2000. On 7 September 2000 the Supreme Court upheld the High Court's decision of 3 March 2000 as it agreed that a request for a review of an expulsion order pursuant to section 50 of the Aliens Act could only be examined once by the courts. | The applicant alleged that his deportation to Iran would sever his family relationship with his Danish wife, two children and daughter-in-law, since they could not be expected to follow him to that country. |
1 | Right to life | 2. The applicants, who had been granted legal aid, were represented by Ms S. Bezbradica Jelavić, a lawyer practising in Zagreb. 3. The Government were represented by their Agent, Ms S. Stažnik. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case 5. The applicants are an Afghan family of fourteen. The second applicant is the father of the family. The first and third applicants are his wives. The remaining applicants are the children of the first and second applicants, and of the second and third applicants. Their details are set out in the appendix. 6. According to the applicants, in 2016 they left their home country, Afghanistan. Before coming to Croatia, they travelled through Pakistan, Iran, Turkey, Bulgaria and Serbia. Events of 21 November 2017 7. According to the applicants, on 21 November 2017 the first applicant and her six children (the ninth, tenth, twelfth, thirteenth and fourteenth applicants and MAD.H.), entered Croatia from Serbia together with one adult man named N. The other applicants remained in Serbia. The Croatian police officers approached the group while they were resting in a field. The group told the police officers that they wished to seek asylum, but the officers ignored their request, ordered them to get in the vehicle and took them to the border. At the border the police officers told them to go back to Serbia by following the train tracks. The group started walking and after several minutes a train passed and hit one of the children, MAD.H. The police officers with whom they had previously been talking had taken them to the Tovarnik railway station where a doctor established that MAD.H. had died. The group then returned to Serbia. 8. According to the Government, at around 8 p.m. on 21 November 2017 the Croatian border police officers spotted a group of migrants with a thermographic camera while they were in Serbian territory, 300 metres from the Croatian-Serbian border. They were walking along the train tracks, using them as a guide for the direction to reach Croatia. The area was under constant surveillance owing to the frequent attempts by migrants to illegally cross the border there. At that moment a train appeared, travelling from Croatia to Serbia. The police officers heard the train sounding its horn and braking. Shortly afterwards, a man and a woman came running to the border, carrying a child with visible head injuries. The police officers immediately called an ambulance and transported the woman and the child to the car park at Tovarnik railway station. The rest of the group stayed at the border without entering Croatia. The emergency medical team attempted to resuscitate the child, but at 9.10 p.m. the doctor established that she had died. The first applicant voluntarily returned to the border to the other members of the group and they all returned to Šid in Serbia. None of them sought asylum from the Croatian authorities. Criminal investigation into the death of MAD.H. 9. MAD.H.’s death was heavily covered by the national and international media. 10. On 22 December 2017 the lawyer S. Bezbradica Jelavić (hereinafter S.B.J.) lodged a criminal complaint on behalf of the first and second applicants and five of the child applicants against unidentified Croatian border police officers, on charges of causing death by negligence, abuse of office and authority, torture and other cruel, inhuman and degrading treatment and breaching the rights of the child. The complaint stated that on the night of 21 November 2017, after encountering them on Croatian territory, the Croatian police officers had denied the first applicant and her six children any possibility of seeking asylum, and had ordered them to return to Serbia by following the train tracks, after which MAD.H. had been hit by a train and died. 11. On 30 January 2018 the police reported to the Vukovar County State Attorney’s Office that the recordings of the thermographic camera by means of which the applicants had been spotted could not be submitted because the storage system had been broken at the material time. They enclosed statements of police officers on duty on 21 November 2017 and of the doctor who had attempted to resuscitate the child. According to the report submitted on 22 November 2017 by police officers A., B. and C., at around 8 p.m. the previous day, while conducting surveillance of the Croatian-Serbian border by using a thermographic camera, they had spotted a group of persons some 300 metres inside Serbian territory. After about fifteen seconds they heard a train passing in the direction of Serbia, sounding its horn and braking. A man and a woman then came running to the border carrying a child with visible head injuries. The officers immediately called an ambulance. Officers A. and B. took the woman and the child by car to Tovarnik railway station, while officer C. and the other police officers who had arrived in the meantime stayed at the border with the rest of the group. On 16 January 2018 M.E., the doctor who had attempted to resuscitate MAD.H., stated that when she arrived at Tovarnik railway station at 8.36 p.m., there had been several police officers and a police van with several migrants inside. Next to the van was a man holding a child. 12. On 23 January 2018 the Croatian Ombudswoman ( Pučka pravobraniteljica Republike Hrvatske ) sent a letter to the State Attorney of the Republic of Croatia ( Glavni državni odvjetnik Republike Hrvatske ) informing him that she had conducted an inquiry into MAD.H.’s death. She noted that the applicants and the police officers had reported differently on the sequence of events and that there had been no thermographic camera recordings of the event, as had been the situation in previous cases in which she had sought to obtain such recordings. She suggested that the contact between the applicants and the police before the train had hit MAD.H. be established by inspecting the signals from their mobile telephones and the police car GPS (see paragraph 104 below). 13. On 9 February 2018 the Vukovar County State Attorney’s Office heard police officers B. and C. They stated that once the group of migrants had come within approximately 50 metres of the border, all three police officers came to the border and made signals to the group with lights and sirens, warning them not to cross it. Seeing their signals, the group had not entered Croatian territory; they had turned back, and soon afterwards the police officers had heard the train braking. They further stated that the thermographic camera by means of which they had spotted the applicants had no capacity to store content. The only camera with storage capacity was the one installed at Tovarnik railway station, controlled by police officer D. 14. On 9 February 2018 the train driver submitted that some 100 metres after entering Serbian territory he had spotted a group of migrants walking along the train tracks in the direction of Šid. He had sounded the horn and braked, but one child had not moved from the tracks and the train had hit her. 15. On 16 February 2018 the Vukovar County State Attorney’s Office heard police officer D., who was monitoring the Croatian-Serbian border with two cameras on the date in question. Around 8 p.m. a colleague informed him that a train had stopped close to the tracks. He pointed his camera in that direction and saw a train in Serbian territory and two persons approaching the border. He did not know what exactly had happened because at that time he had not had the cameras directed towards that area. He submitted that both cameras had been broken for one year before the event, that they were still out of order, and that therefore it was not possible to view or download their recorded content. 16. On 31 March 2018 the investigating judge of the Vukovar County Court heard the first applicant. She submitted as in paragraph 7 above and added that her husband, the second applicant, had not been with them that night but had stayed in Serbia. On the same day the second applicant submitted that he had been with the group on the night in question when they had crossed the Croatian border and were returned by the Croatian police. On the same day the first and second applicants informed the investigating judge that they had signed a power of attorney in favour of the lawyer S.B.J., while they were in Serbia. 17. On 14 April 2018 S.B.J., on behalf of the applicants, asked the Vukovar County State Attorney’s Office about the progress of the investigation. She proposed investigating the “loss” of recordings by the thermographic cameras, which could have helped establish whether the applicants had entered Croatian territory. On 19 April 2018 the State Attorney’s Office refused to provide any information to the lawyer on the grounds that she had no valid power of attorney to represent the applicants. On 24 April 2018 S.B.J. submitted that her power of attorney was valid, and that on 31 March 2018 the first and second applicants had confirmed to the investigating judge that they had signed the power of attorney in her favour (see paragraph 16 above). 18. On 17 May 2018 the Vukovar Criminal Police forwarded to the Vukovar County State Attorney’s Office documents obtained from Interpol Belgrade in relation to the events of 21 November 2017. According to a note drawn up by the Serbian police on 22 November 2017 at 1.30 a.m., RA.H., the thirteenth applicant, submitted that on 21 November 2017 he and his family had entered Croatian territory. They had been walking for several hours when the police had stopped them, made them board a van, transported them to the border and told them to return to Serbia by following the train tracks. According to the documents concerning the on-site inspection, the train accident occurred some 200 metres from the border with Croatia. 19. On 1 June 2018 the Office for the Suppression of Corruption and Organised Crime ( Ured za suzbijanje korupcije i organiziranog kriminala – “the OSCOC”) rejected the applicants’ criminal complaint against police officers A., B. and C. The decision was served on S.B.J. as the applicants’ representative. The relevant part of the decision reads: “The information gathered indicated that on the critical occasion the suspects – the police officers of the Tovarnik border police station ... – were [on duty] at surveillance point no. 2 on the Tovarnik-Šid railway line. With the help of a manual thermographic camera – which, as transpires from the information gathered, did not have the technical facility for storing content – they spotted a group of persons by the train tracks in Serbian territory. The group did not enter Croatian territory, nor did the suspects have any direct contact with them prior to the train hitting the child MAD.H. ... In the present case, during the incident in question the suspects were conducting surveillance of the State border, which includes controlling and protecting the State border. The suspects were conducting those tasks in accordance with the law and international standards. Relying on the results of the proceedings, and having regard in particular to the statements of presumed witnesses – the police officers who were on duty on the critical occasion – who gave concurring statements, whereas the statements of the witnesses [the first, second and thirteenth applicants] differed as regards crucial facts and contradicted the other information gathered, it does not transpire that the suspects conducted actions in their service in respect of [the applicants] and the late MAD.H., or failed to conduct any due action, which would have had the consequence of violating any of their rights, that is to say of having had any consequences detrimental to the [applicants] and MAD.H. ...” 20. On 14 June 2018 the applicants took over the prosecution and asked the investigating judge of the Osijek County Court ( Županijski sud u Osijeku ) to conduct an investigation. They submitted that the OSCOC had not explained why their statements had been contradictory. They proposed obtaining recordings of the thermographic cameras, an expert report on their functioning, whether they had recorded the events of 21 November 2017 and whether their recorded content had been deleted, the GPS location of the suspects and the applicants, Croatian police instructions on practice in dealing with illegal migrants, and reports of national and international organisations on Croatian police practice vis-à-vis asylum-seekers. Lastly, they submitted that the Serbian authorities had established that the Croatian authorities had forcefully returned the first applicant and her children to Serbia on 21 November 2017 in breach of the readmission agreement between the two countries. 21. On 22 August 2018 the investigating judge dismissed the applicants’ request on the grounds that the allegations against the three police officers had not been supported by evidence. The evidence gathered showed that the group had never crossed the border and entered Croatia, talked to the Croatian police officers or sought asylum. The police officers had lawfully deterred the applicants from crossing the border by signalling to them with lights and lamps not to enter and their conduct had been unrelated to the train hitting the child. The first and second applicants’ statements had been contradictory as regards the relevant facts, since the second applicant had stated that he had been with the group at the material time, whereas according to the first applicant and the Serbian police reports, the second applicant had stayed in Serbia. 22. On 30 August 2018 the applicants lodged an appeal with the Osijek County Court appeal panel. 23. Meanwhile, on 6 April 2018, they had lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), complaining, inter alia, of the lack of an effective investigation into the death of MAD.H. 24. On 18 December 2018 the Constitutional Court examined the complaint under the procedural limb of Article 2 of the Convention and found that the investigation into the death of MAD.H. had been effective. The competent authorities made inquiries into the applicants’ criminal complaint of December 2017, examined all possible leads and established that there was no reasonable suspicion that the Croatian police officers had committed criminal offences in respect of the applicants or the late MAD.H. The applicants’ criminal complaint had been rejected within the statutory time-limit, after which they had taken over the prosecution. The applicants had an effective remedy for their complaint concerning the alleged ineffectiveness of the investigation; they could have sought information from the competent State Attorney about the actions undertaken in relation to their criminal complaint, and they were also able to lodge a constitutional complaint, which was examined. 25. Three Constitutional Court judges appended a separate opinion to that decision, stating that the examination of the effectiveness of the investigation into the death of a child should not have been reduced to mere procedural formalism. The authorities had not considered the possibility that the discrepancy between the first and second applicants’ statements had been the result of a translation error. In the three judges’ view, it was not credible that a group of migrants would simply turn around and give up on their plan to cross the border owing to the mere presence of police officers, without trying to communicate with them in any manner or express their wish to seek asylum, as usually happened at that border crossing point. The three judges further noted that the investigating authorities had ignored the fact that the Ministry of the Interior of the Republic of Serbia had publicly stated that “the Croatian police did not comply with the readmission agreement when forcefully returning the family of ... MAD.H., who died in a train accident ... immediately after the Croatian police officers had forcefully tried to return her to Serbia” and that “at the meeting held concerning the event, the representatives of the [Serbian] Border Police Administration had informed the Croatian [authorities] of their point of view, namely that the family of the late child had been transferred to Serbia from Croatia contrary to the agreement between the two countries”. The three judges noted that the latter statement had been in the case file, but that the investigating authorities had not referred to it in their decisions. Finally, the investigating authorities had not explored whether the impugned events had been recorded by any kind of recording device. It did not transpire from the case file whether they had tried to verify the location of the applicants and the police officers by using their mobile telephone signals, which had been a common and easy investigative method. The Croatian Ombudswoman had pointed to the same deficiencies in the investigation in question, as well as to deficiencies in other cases concerning asylum-seekers in Croatia (see paragraphs 12 above and 104 below). 26. On 20 December 2018 the Osijek County Court appeal panel dismissed the applicants’ appeal (see paragraph 22 above). It held that the case file did not contain any information to support the accusations against the three police officers. 27. On 4 March 2021 the Constitutional Court dismissed a subsequent constitutional complaint lodged by the applicants against the Osijek County Court’s decision. It reiterated that the investigation into MAD.H.’s death had complied with the procedural requirements of Article 2 of the Convention. In particular, the fact that the recordings from the thermographic cameras had not been obtained had not affected the thoroughness of the investigation, as even without the recordings it was clear that MAD.H. had been hit by a train in the territory of Serbia, not Croatia. Even though there had been some delay in the applicants’ ability to contact their lawyer upon entering Croatia (see paragraphs 56-66 below), the applicants had been able to participate effectively in the investigation. The Constitutional Court also found no breach of Article 2 of the Convention in its substantive aspect in that it had not been proven that the State authorities had been responsible for the death of MAD.H. The applicants’ entry to Croatia oN 21 March 2018 28. On 21 March 2018 the Croatian police caught the applicants clandestinely crossing the Serbian-Croatian border and took them to Vrbanja Police Station ( Policijska uprava Vukovarsko-srijemska, Policijska postaja Vrbanja ). They were examined by a doctor and found to be in good health. The doctor noted, inter alia, that the fourth applicant was seventeen years old. The applicants did not have any identification documents with them. They signed a statement on their personal identification information and expressed a wish to seek international protection. the applicants’ placement in the Tovarnik Centre 29. On 21 March 2018 the police issued decisions in respect of the first to fourth applicants, restricting their freedom of movement and placing them and the applicant children in a transit immigration centre in Tovarnik ( Tranzitni prihvatni centar za strance Tovarnik – hereafter “the Tovarnik Centre”) for an initial period of three months. The decisions stated that on 21 March 2018 the applicants, Afghan citizens, had expressed an intention to seek international protection in Croatia. They had not had any identification documents and their freedom had been restricted under section 54 of the International and Temporary Protection Act ( Zakon o međunarodnoj i privremenoj zaštiti; see paragraph 78 below), in order to verify their identities. On the same day the applicants were placed in the Tovarnik Centre. 30. On 26 March 2018 the second applicant contacted the Are You Syrious NGO via Facebook. He stated that the family was in a bad situation, locked up in their rooms without any information, and asked for help. 31. On 3 April 2018 the fourth applicant sent several voice messages to L.H., an employee of the Centre for Peace Studies NGO. She stated that they were being kept in prison-like conditions. They were placed in three rooms without any opportunity to see each other except during meals. They had been told that they had no lawyer in Croatia, even though the first applicant had confirmed to the officials that she had signed a paper with a lawyer in Serbia. 32. On 28 March and 6 April 2018, a psychologist visited the applicants in the Tovarnik Centre. The fourth applicant, who spoke some English, translated for the others. The psychologist noted that the applicants were mourning the death of MAD.H. and that they had been experiencing fear of uncertainty. He recommended providing them with further psychological support and organising activities to occupy the children’s time. He visited them again on 13, 18 and 27 April and 2, 8, 11, 23 and 25 May 2018. 33. On 6 April 2018 the Croatian Ombudswoman sent a letter to the Minister of the Interior ( Ministar unutarnjih poslova Republike Hrvatske ) and the Head of Police ( Glavni ravnatelj policije ) concerning the applicants’ restriction of freedom of movement. She asked about the action taken to verify the applicants’ identity, which had been the reason for their placement in the Tovarnik Centre (see paragraph 105 below). 34. On 10 April 2018 the authorities took the applicants’ fingerprints and transmitted them to the Central Unit of Eurodac (the European Union (EU) fingerprint database for identifying asylum-seekers). The Eurodac search system identified that the applicants had entered Bulgaria on 22 August 2016. On the same day the authorities sought information from Interpol Sofia and Interpol Belgrade on the applicants’ stay in those countries, with a view to checking their identities. On 23 April 2018 Interpol Sofia informed the Croatian authorities that the applicants had applied for asylum in Bulgaria and that their applications had been rejected in February and March 2017. The applicants’ names as registered in the Bulgarian system differed from those registered in the Croatian system, mostly in the suffix of their last name. In the Bulgarian system the fourth applicant was registered as being born on 16 April 2000. On 30 April 2018 the Serbian authorities informed the Croatian authorities that the applicants had expressed an intention to seek international protection in Serbia, but that they had left that country on 21 March 2018. 35. Meanwhile, on 19 April 2018 the lawyer I.C. asked the Osijek Administrative Court ( Upravni sud u Osijeku ) to restore the proceedings concerning restrictions on the applicants’ freedom of movement to the status quo ante ( prijedlog za povrat u prijašnje stanje ) and to authorise the applicants to lodge administrative actions against them. She submitted that on 30 March 2018 she had been appointed as the applicants’ legal aid lawyer in the proceedings concerning their application for international protection (see paragraph 51 below). On 3 April 2018 she had inspected the case file and discovered the decisions of 21 March 2018 restricting the applicants’ freedom of movement. On 12 April 2018 she visited the applicants in the Tovarnik Centre, who told her that they had not been served with the decisions and could not understand them. She inspected the case file again and learned that the disputed decisions and the document informing the applicants of their right to legal aid issued in the Croatian language had not been served on them with the help of an interpreter for Pashto or Farsi, which languages the applicants could understand. I.C. further submitted that the applicants had not hidden their identity and had given their fingerprints to the authorities and that placing the applicants in a closed-type immigration centre had been in breach of Article 3 of the Convention. 36. On 10 May 2018 Vrbanja Police Station replied to the applicants’ administrative actions. The mere submission of their personal identification information and fingerprinting had been insufficient to establish their identities. They had not been registered in the Schengen or Eurodac systems. The applicants said to the Croatian authorities that they had not sought asylum in other countries, whereas it had emerged that they had applied for asylum in Bulgaria and Serbia. Vrbanja Police Station deemed that restricting the applicants’ freedom of movement had also been justified by a flight risk pursuant to section 54(2)(1) of the International and Temporary Protection Act, in that it was possible that the applicants would leave Croatia for other countries. 37. By decisions of 11 and 14 May 2018, the Osijek Administrative Court allowed the applicants’ administrative actions as having been brought in due time. It found that even though the case file indicated that the decisions restricting the applicants’ freedom of movement had been served on them on the day they had been issued, there was no evidence that the applicants had been apprised of the decisions in a language they could understand. 38. On 17 May 2018 the lawyer S.B.J. informed the Osijek Administrative Court that she was taking over as the applicants’ representative in the proceedings. She submitted that as a result of the Court’s intervention on 7 May 2018 she had finally been allowed to meet the applicants (see paragraph 66 below). She also submitted a copy of the citizenship certificate issued to the first and second applicants and explained that the differences in the applicants’ names had been the result of the transliteration and translation of Afghan names into different languages, a common problem as regards Afghan names (see paragraph 116 below). 39. On 18 May 2018 the Osijek Administrative Court heard the first, second, third and fourth applicants individually. They submitted that the family had been placed in three rooms in the Tovarnik Centre and that they had been kept locked up except during meals. As of recent the rooms had been locked only during the night, but they were still not allowed to leave. The children, traumatised by all the border crossings, encounters with the police and their sister’s death, were suffering. The psychologist who had visited them did not speak English, Farsi or Pashto. They had not been served the decisions restricting their freedom of movement and had not known of their existence until I.C. informed them about thereof. The fourth applicant submitted that she did not know her exact date of birth, but that she had probably turned eighteen one month earlier. 40. On 22 May 2018 the Osijek Administrative Court partly allowed the third applicant’s administrative action and ordered that she and her two children (the seventh and eight applicants) be released from the Tovarnik Centre the following day. The third applicant asked not to be transferred from the Centre without the rest of her family. The relevant part of that judgment read as follows: “... this court finds that at the time of the disputed decision the plaintiffs’ restriction of freedom of movement was justified ... However, even with all the conditions mentioned [by the State], this court cannot disregard the fact that [the Tovarnik Centre] is a prison-type facility which in the longer term is not an environment suitable for children ..., aged one and three. If the most severe type of measure is not to be arbitrary, it must be closely and consistently related to the purpose for which it had been ordered, and the duration of application of such measures must not exceed the time logically necessary for obtaining the desired aim ... Thus, if the defendant suspects any kind of abuse of the international protection system, based on the lack of kinship between the children and the adults, the defendant is obliged to obtain such data urgently. In the present case the identity and kinship of the child born on 1 January 2017 was easily accessible because she was born in Bulgaria, an EU Member State ... During these proceedings the court was not presented with any evidence that the third applicant is not the mother of [the two children]. The court heard the third applicant ... and concluded that she was illiterate and uneducated and unable to understand her current life circumstances. Furthermore, under section 52, subsection 3(8), of the International and Temporary Protection Act, persons seeking international protection are required to stay in Croatia during the proceedings. The case file contains a decision of 28 March 2018 dismissing the third applicant’s application for international protection...The court therefore no longer finds justified the existence of the reasons set out in section 54(2)(1) of the Act (and the related flight risk). The very fact that the request was already dismissed means that the other grounds from section 54(2)(2) of the Act relating to the establishing of identity and citizenship is also not founded ... ... keeping persons in an immigration centre solely on the basis of their irregular entry into Croatia is not legally justified, and the defendant did not submit to the court any kind of evidence in support of the allegation that the measure entailing restriction of freedom of moment by placing the [third applicant and her two children] in the Tovarnik Centre is still necessary ...” 41. On 24 and 25 May 2018, in different formations, the Osijek Administrative Court dismissed the remaining applicants’ administrative actions as unfounded. The court deemed that the restriction of their freedom of movement was still justified because it had not yet been possible to establish their identity. They were not registered in the Schengen or the Eurodac systems and they had used different identities in their applications for international protection in other countries. The flight risk could be established on the basis of the first applicant’s statement of 23 March 2018 that the family had spent around a year in Serbia without seeking international protection because there were no job opportunities there, which was untrue because they had sought asylum both in Serbia and Bulgaria and had repeatedly illegally crossed the Croatian border. Additionally, the applicants had instituted proceedings for international protection and were required to stay in Croatia until the end of those proceedings. The court further stated that the Tovarnik Centre had met the minimum requirements for short-term placement of a family with children. The child applicants were accompanied by their parents and the Centre had been accommodating only one other family with small children. From the photographs submitted it concluded that the Centre had facilities and activities capable of keeping the children occupied, and that the applicants had been provided with the necessary clothing, medications, access to hygiene products, fresh air and medical assistance. The overall conditions in the applicants’ case were Article 3 compliant, given that they had left their home country almost two years previously and that during the long journey the children had undoubtedly been exposed to numerous stressful factors owing to the presence of the police. Even though the death of MAD.H. had undoubtedly caused them immense pain, that had nothing to do with the conditions of their placement in the Tovarnik Centre. 42. The first, second and fourth applicants lodged appeals with the High Administrative Court ( Visoki upravni sud Republike Hrvatske ), which were dismissed on 3 October, 14 November and 12 December 2018, respectively. 43. Meanwhile, on 6 April 2018, the applicants had also lodged a constitutional complaint in which they complained, inter alia, of the unlawfulness, disproportionality and inadequate conditions of their placement in the Tovarnik Centre, under Article 3, Article 5 § 1 and Article 8 of the Convention; their inability to contact their lawyer S.B.J., and their refoulement by the Croatian police, who had denied them the opportunity to seek asylum contrary to Article 4 of Protocol No. 4. 44. On 7 December 2018 the applicants made further submissions to the Constitutional Court, complaining, inter alia, of a breach of Article 5 § 4 of the Convention in that they had not been able to challenge their placement in the Tovarnik Centre until 19 April 2018, and that the Osijek Administrative Court had decided on their case only after they had already spent two months in detention. 45. On 18 December 2018 the Constitutional Court examined the applicants’ constitutional complaint concerning their placement in the Tovarnik Centre. It found that even though the Centre was a closed-type facility, it was equipped with all the requisite amenities for accommodating children with parents. The children were able to play and spend time in the open air from 8 a.m. to 10 p.m. and had access to a psychologist and a social worker. The Constitutional Court further found that the length of the children’s placement in the Centre (two months and fourteen days) had been lawful because under domestic law, the maximum period allowed was three months, and that it had been justified by the need to verify their identities and kinship with the adult applicants and the need to prevent the criminal offence of human trafficking. Although it appeared that the child applicants had suffered stress which could affect their development, the Constitutional Court did not find that their placement in the Tovarnik Centre had caused any additional stress with traumatic consequences, given that at that time the children had already been travelling for around two years through different countries. It held that the situation did not attain the requisite threshold of severity under Article 3 of the Convention. As regards the adult applicants, the Constitutional Court deemed that their placement in the Centre could have caused a sense of helplessness, panic and frustration, but that the fact that they had not been separated from their children had had a soothing effect, and that therefore the threshold of severity under Article 3 of the Convention had not been attained. The Constitutional Court noted that on their placement in the Tovarnik Centre all the adult applicants had been informed of their right to legal aid and had chosen I.C. to represent them. The lack of contact between the applicants and their lawyer S.B.J. from 21 March to 7 May 2018 had not been unreasonably long in view of the number of applicants and the need to accommodate them in the immigration centre, as well as of the availability of an interpreter and other staff. That circumstance had not affected the applicants’ right of access to effective legal assistance concerning their placement in the Tovarnik Centre. Lastly, the conditions of the applicants’ placement in the Tovarnik Centre did not fall within the scope of Article 5 § 1 (f) of the Convention and the facts of the case did not indicate any possible violation of Article 4 of Protocol No. 4. 46. On 11 July 2019 the Constitutional Court examined the first, second and fourth applicants’ constitutional complaints lodged against the High Administrative Court’s decisions of 3 October, 14 November and 12 December 2018 (see paragraph 42 above). The Constitutional Court held that the conditions of their placement in the Tovarnik Centre had not been in breach of Article 3 of the Convention. The Centre had been equipped for accommodating families; the applicants had been provided with clothes, toiletries and food; the children had not been separated from their parents; they had been able to play in the open air; the rooms in which they had been placed had not been locked; and they had been visited by a psychologist and a social worker. Even though the applicants had suffered as a result of certain stressful events, their placement in the Centre could not have caused them additional stress with particularly traumatic consequences. The Constitutional Court further held that there had been no breach of Article 5 §§ 1 (f), 2 and 4 of the Convention. In particular, it held that the applicants had been deprived of their liberty in accordance with Article 5 § 1 (f) of the Convention, having regard that there were proceedings deciding on the lawfulness of their entry into the country and on their deportation. Their detention had been based on section 54(6) of the International and Temporary Protection Act, because their identity and citizenship and the circumstances on which they had based their application for international protection could not have otherwise been established, in particular having regard to the risk of flight. The applicants had been informed about the reasons for their deprivation of liberty and had been represented by a lawyer. The Osijek Administrative Court and the High Administrative Court had provided relevant and sufficient reasons for their decisions upholding the first, second and fourth applicants’ deprivation of liberty. 47. Meanwhile, on 4 June 2018 the applicants were transferred to an open-type centre in Kutina. Having tried to leave Croatia for Slovenia clandestinely on several occasions, they ultimately managed to do so and their subsequent whereabouts are unknown. Proceedings concerning international protection 48. On 23 March 2018 the applicants submitted applications for international protection. 49. On the same day the Ministry of the Interior heard the first, second and third applicants individually in the presence of a Farsi interpreter. The applicants submitted that they had left Afghanistan in 2016 owing to their fear of the Taliban. Prior to coming to Croatia, they had spent about nine months in Bulgaria and then a year in Serbia in different migrant camps. They had not sought asylum in those countries. Even though they considered Serbia a safe country, they had not wished to stay there because, in their view, Serbia was in Asia and there were no job opportunities there. They wanted to live in Europe so that the children could go to school and have a good life. The first applicant stated that the signature on the power of attorney of 18 December 2017 under which she had allegedly authorised S.B.J. to represent her had not been hers. She had been in Serbia at that time and three persons from Croatia had approached her and talked to her about their daughter’s death and then she had signed something. 50. On 28 March 2018 the Ministry of the Interior declared the applicants’ applications for international protection inadmissible on the grounds that they should be returned to Serbia, which was considered a safe third country. 51. The decisions were served on the applicants on 30 March 2018 when the applicants were informed of their right to free legal aid and given a list of legal aid lawyers. The applicants appointed the lawyer I.C. to represent them; I.C. visited them in the Tovarnik Centre on 2 April 2018. 52. On 9 April 2018 the applicants lodged administrative actions with the Osijek Administrative Court against the decisions dismissing their applications for international protection. 53. On 11 June 2018 the Osijek Administrative Court heard the first, second and third applicants. The first applicant submitted that when lodging her application for international protection on 23 March 2018 she had been scared owing to the presence of the police. She was illiterate and had never gone to school. She had told the interviewers that she had a lawyer who had represented her deceased daughter MAD.H. She had asked that her lawyer be called to the Tovarnik Centre, but she had been called a liar and told that she did not have a lawyer in Croatia, only in Serbia. 54. On 18 June and 2 July 2018, the Osijek Administrative Court dismissed the applicants’ administrative actions. The High Administrative Court dismissed their further appeals. 55. On 4 March 2021 the Constitutional Court upheld the applicants’ constitutional complaint, quashed the judgments of the High Administrative Court and the Osijek Administrative Court and remitted the case to the Osijek Administrative Court. It found that the authorities had failed to properly examine whether Serbia could be considered a safe third country. Contact between the applicants and THEIR lawyer 56. On 21 March 2018, after being informed by two NGOs that the applicants were in the Vrbanja Police Station, the lawyer S.B.J. submitted a power of attorney which the first and second applicants had signed in her favour in December 2017 in Serbia in the presence of the Centre for Peace Studies NGO. She asked the police to inform the applicants that she was trying to contact them. The following day S.B.J. submitted the power of attorney to the Asylum Department of the Ministry of the Interior and requested leave to represent the applicants. 57. On 28 March 2018 the Ministry of the Interior informed S.B.J. that she could not represent the applicants in the international protection proceedings since the power of attorney she had submitted was invalid. They added that on 23 March 2018 the first applicant had stated that the signature on the power of attorney was not hers and that she had been in Serbia at the time. 58. On 28 March 2018 an employee of the Centre for Peace Studies NGO, issued a written statement confirming that on 18 December 2017 he and two other employees of that NGO, together with A.C., a doctor from Médecins sans Frontières, had met the first, second and fourth applicants in Serbia and explained to them the legal procedures in Croatia. They suggested that S.B.J. represent them in all proceedings before the Croatian authorities. The first applicant had then signed the power of attorney. 59. On the same day three employees of the Centre for Peace Studies NGO asked to visit the applicants in the Tovarnik Centre in order to provide them with legal assistance and to clarify the circumstances of their signing of the power of attorney, which they had witnessed. The Ministry of the Interior denied them access to the applicants on security grounds. 60. On 29 March 2019 S.B.J. again asked the Ministry of the Interior to be allowed to meet the applicants and represent them in the international protection proceedings. 61. On 3 April 2018 the fourth applicant contacted S.B.J. via Viber. S.B.J. replied that she had been helping the fourth applicant’s family with their asylum claims, and that she was requesting an interim measure from the Court and lodging a constitutional complaint. 62. Meanwhile, the police and the Vukovar Municipal State Attorney’s Office ( Općinsko državno odvjetništvo u Vukovaru ) initiated an inquiry into the power of attorney which the first and second applicants had signed in favour of S.B.J., on suspicion that the signatures had been forged. On 31 March 2018 the investigating judge of the Vukovar County Court heard the first and second applicants, who stated that they had signed the impugned power of attorney while they were in Serbia. On 3 April 2018 the Vukovar Municipal State Attorney informed the police that, having regard to the applicants’ statement, there had been no reasonable suspicion that a criminal offence had been committed and that therefore she would not request a graphological expert assessment. On 4 April 2018 a meeting was held between the Vukovar Municipal State Attorney and two police officers, during which it was agreed that a graphological expert assessment would be commissioned and that the officers would obtain the original copy of the power of attorney from S.B.J. for that purpose. On 5 April 2018 an officer from the Vukovar Criminal Police arrived at S.B.J.’s law firm and asked her to hand over the original of the power of attorney signed in her favour by the first applicant. On 11 April 2018 the forensics department of the Ministry of the Interior reported that the first and second applicants had probably not signed the power of attorney in question. On 12 April 2018 an officer from the Vukovar Police Department interviewed S.B.J. and two other lawyers from her law firm as regards the first and second applicants’ signing of the power of attorney. On 18 April 2018 he also interviewed a trainee from that law firm. On 23 April 2018 S.B.J. obtained an expert report from a permanent court expert in graphology, who concluded that it could not be ruled out that the first applicant had signed the power of attorney and that the second applicant had probably signed the power of attorney. There is no information about the subsequent steps undertaken in the investigation. 63. On 6 and 9 April 2018 S.B.J. again asked the Ministry of the Interior to be allowed to contact the applicants, but to no avail. The Centar za mirovne studije NGO also asked to be allowed to contact the applicants, no more successfully. 64. On 19 April 2018 the Croatian Bar Association ( Hrvatska odvjetnička komora ) sent a letter to the Head of Police stating that the police actions against S.B.J. had been in breach of the Lawyers Act ( Zakon o odvjetništvu ) and had impeded the independence of the legal profession as guaranteed by the Constitution. Restricting contact between the lawyer and her clients was contrary to the Convention and the International and Temporary Protection Act. The Croatian Bar Association invited the police to immediately allow S.B.J. to contact the applicants. 65. On 2 May 2018 the Croatian Children’s Ombudswoman, an independent and impartial human rights officer, visited the applicants in the Tovarnik Centre in order to ascertain the circumstances of their legal representation and the case pending before the Court. The applicants had expressly confirmed to her that they were familiar with the fact that S.B.J. had instituted proceedings before the Court on their behalf, and that they wished to meet her and be represented by her. 66. On 7 May 2018 S.B.J. met the applicants in the Tovarnik Centre and they signed a new power of attorney in her favour. They also signed a statement confirming that in December 2017 they had signed a power of attorney in her favour for the purposes of lodging a criminal complaint concerning the death of their daughter, as well as for other proceedings. Requests for interim measures under Rule 39 of the Rules of Court 67. On 4 April 2018 S.B.J. submitted a request under Rule 39 of the Rules of Court, asking the Court to allow the applicants to contact her, to order their release from the Tovarnik Centre and to prevent their removal to Serbia. 68. On 6 April 2018 the Court temporarily granted the interim measure under Rule 39 until 27 April 2018, and indicated to the Government that the applicants should be placed “in such an environment which complies with requirements of Article 3 of the Convention, taking into account the presence of minors (see especially Popov v. France, nos. 39472/07 and 39474/07, 19 January 2012)”. The Court asked the Government to submit, inter alia, whether the Tovarnik Centre was adapted to the accommodation needs of families with small children, and whether, having regard to the Court’s case-law, they had taken all necessary measures to ensure that the environment where the applicants were placed complied with the requirements of Article 3 of the Convention. The Court adjourned the decision on the interim measure in respect of the lack of access to their lawyer and the risk they would face if expelled to Serbia and requested factual information from the parties on, inter alia, whether practical arrangements had been made in order to allow the applicants to contact representatives, if they so wished, to seek legal advice and initiate legal proceedings, and whether the authorities had allowed S.B.J. and/or the Centre for Peace Studies NGO, to contact the applicants. 69. On 16 April 2018 the Government submitted numerous photographs of the Tovarnik Centre and information concerning the applicants’ placement there. They explained that the applicants had appointed I.C. as their legal aid lawyer, that the domestic authorities did not consider that S.B.J. had a valid power of attorney to represent them and that they were awaiting the outcome of the criminal investigation in that regard. 70. On 16 and 23 April 2018 S.B.J. submitted that she had unsuccessfully been trying to contact the applicants and that the domestic authorities were conducting a criminal investigation against her, even though the first and second applicants had confirmed to the investigating judge that they had signed the impugned power of attorney. 71. On 24 April 2018 the Government submitted that the applicants’ identities had still not been confirmed and that their placement in the Tovarnik Centre was still necessary. They further submitted that S.B.J. had not been present when the applicants had allegedly signed the power of attorney and that she had never met the applicants in person. 72. On 25 April 2018 the Court prolonged the interim measure concerning the applicants’ placement in an Article 3 compliant environment until 11 May 2018. It also asked the Government to provide information on whether the applicants had been informed that S.B.J. had instituted proceedings before the Court on their behalf and whether they had accepted her legal representation for that purpose, as well as whether practical arrangements had been made to enable the applicants to meet S.B.J. 73. On 4 May 2018 the Government informed the Court that the applicants had confirmed that they were aware that S.B.J. had instituted proceedings before the Court on their behalf, and that they wished to be represented by her and to meet her. 74. On 11 May 2018 the Court prolonged the interim measure concerning the applicants’ placement in an Article 3 compliant environment until further notice. It rejected the Rule 39 request as regards the issue of the applicants’ legal representation to the extent that the matter had been resolved, as well as the Rule 39 request concerning the risk the applicants would face if expelled to Serbia, inasmuch as that issue was premature. 75. On 3 July 2018 the Court granted an interim measure indicating to the Government that the applicants should not be removed to Serbia. 76. On 14 March 2019 the Court lifted the two interim measures because the applicants had left Croatia and thus the circumstances for which the measures had been granted had ceased to exist (see paragraph 47 above). | The applicants were a family of 14 Afghan citizens (a man, his two wives, and their 11 children). The case concerned the death of the first and second applicants’ six-year-old daughter, who was hit by a train after allegedly having been denied the opportunity to seek asylum by the Croatian authorities and ordered to return to Serbia via the tracks. It also concerned the applicants’ detention while seeking international protection. |
790 | Death of a deaf and mute person in police custody | I. THE CIRCUMSTANCES OF THE CASE A. Events leading to the death of the applicant's son 5. The applicant was born in 1933 and lives in Balvi. He is the father of Mr Valdis Jasinskis (“the applicant's son”), a Latvian national who was born in 1962 and who died on 28 February 2005. 6. On 26 February 2005 the applicant's son (who had been deaf and mute since birth ) and several of his friends were drinking beer in a bar in Balvi. Witness statements differ somewhat as to how much alcohol the applicant's son consumed that night. After the applicant's son's death, a forensic expert took into the account witness testimonies and used Widmark's equation to arrive at the estimate that, after finishing his last drink, the alcohol concentration in the applicant's son's blood would have been 4.52 ‰, which meant that all traces of alcohol would have left his body approximately thirty hours later. The expert, however, noted that this figure was approximate. The applicant disagreed with the estimate, noting that such a concentration of alcohol would be deadly. 7. After leaving the bar, the applicant's son and his friends walked to a nearby school where a party was taking place. In front of the school entrance M.I. – a minor – pushed the applicant's son, who fell backwards down the stairs in front of the school, hit his head against the ground and lost consciousness for several minutes. The persons present then tried to attract the attention of the security guards, who were inside the school, by knocking on the locked doors. In the process a glass pane of the entrance doors was cracked. It appears from the subsequent investigation that the glass was broken by one of the students of the school. 8. The security guards came outside and saw the applicant's son lying unconscious on the ground. They called an ambulance and the police. After the applicant's son had regained consciousness, the security guards sat him down on the stairs of the school. 9. The police arrived on the scene at 1. 40 a.m. They later reported that the applicant's son had been unable to stand up on his own and had been flailing his arms. Upon their arrival the officers were informed that the applicant's son was deaf and mute and that he had fallen down the stairs. They were also told that he was probably responsible for breaking the glass of the entrance doors. 10. The policemen decided not to wait for the ambulance that had been called and took the applicant's son to the Balvi District Police station in order to initiate administrative proceedings for petty hooliganism and public drunkenness. The policemen alleged that in the car on the way to the police station the applicant's son had behaved aggressively and had been flailing his arms and kicking. 11. The record of the administrative detention of the applicant's son indicates that the reason for the detention was to “sober up” the detainee. The only injury that was noted was a graze on his face. The same record also notes that at 5. 50 p.m. on the following day the applicant's son was released from detention because he had “sobered up” (but see paragraph 16 below). 12. The policemen alleged that on the premises of the police station the applicant's son had continued to behave aggressively by flailing his arms. The applicant submits that it is probable that his son was trying to communicate with the policemen by using gestures, because they had taken away the notebook he normally used to communicate with persons who did not understand sign language. 13. Shortly afterwards the ambulance crew contacted the police station. The officer on duty informed them that no medical aid was necessary, since the applicant's son was merely intoxicated. He was then placed in the sobering-up room. For a while he kept knocking on the doors and walls but stopped doing so after a while and went to sleep. 14. At 8. 40 a.m. in the morning the duty officers tried to wake the applicant's son but he only opened his eyes and, according to the conclusions of the internal investigation of the police, “ did not want to wake up”. 15. Approximately fourteen hours after the applicant'son had been brought to the police station (at approximately 3. 30 p.m. ) one of the policemen considered that he had been “sleeping for too long” and called an ambulance. The doctors apparently refused to take Valdis Jasinskis to a hospital (during the internal investigation the officers reported that the ambulance crew had indicated that he was “faking” and was healthy). The Government dispute that fact, observing that it had not been mentioned in the report on the quality of medical care provided to the applicant's son (see below, paragraph 18). Nevertheless, the fact of the ambulance crew's initial refusal is confirmed by the statements of the police officers who were present at the police station at the time, which have been recounted in several documents, such as the conclusions of the internal inquiry of 4 April 2005 (see below, paragraph 19), the report of the additional internal inquiry of 5 August 2005 (see below, paragraph 22), the 2 November 2005 decision to terminate the criminal proceedings (see below, paragraph 23) and others. 16. The applicant's son was taken to hospital only after repeated requests from his father, who had at that time been informed of his son's arrest and had arrived at the police station. From the reports of the internal investigation it appears that the transfer took place at 5. 30 p.m. on 27 February 2005. Upon arrival at the hospital it was noted that the applicant's son was conscious but “non- communicative ”. His condition was characterised as “serious” and he was diagnosed with severe intoxication with unknown alcohol surrogates. At 9. 10 p.m. the applicant's son lost consciousness and his condition was described as “very serious”. At 11. 30 p.m. the medical report was updated to note that the presence of an intracranial haematoma could not be excluded but that because of his condition the patient could not be transported for a CT scan (which was only available at a hospital in Rēzekne, some eighty kilometres from Balvi ). The applicant's son died at 2. 00 a.m. on 28 February 2005. 17. A post-mortem examination of the applicant's son's body was carried out on 28 February 2005. It disclosed fractures of the frontal, parietal and occipital bones of the applicant's son's cranium, oedema in the brain as well as multiple other injuries to the head and brain. The expert concluded that those injuries had been the cause of death. It was further established that neither the blood nor the urine of the applicant's son contained any traces of alcohol. B. Investigation 1. Concerning medical care 18. On 9 May 2005 an expert of the Inspectorate of Quality Control for Medical Care and Working Capability (“MADEKKI”) issued a report on the quality of medical aid provided to the applicant's son before his death. The report noted several shortcomings in the treatment of the applicant's son at the police station. In particular, it was noted that no information was available concerning the health condition of the applicant's son during the time spent in the police station or when he was placed in the sobering -up room. It was further concluded that the ambulance had been called to the police station belatedly. The final conclusion of the report was that the death of the applicant's son was not attributable to any lack of professionalism on behalf of the doctor who had treated him in the hospital but rather to the severity of his injuries. 2. Concerning criminal responsibility 19. After the death of the applicant's son the Balvi District Police Department launched an internal inquiry. On 4 April 2005 the final report of the inquiry was approved by the head of that department. The report concluded that the policemen present at the police station during the night in question had acted in accordance with the internal guidelines and the legislation governing police work. The report further referred to an article in the local newspaper in which a surgeon had expressed the opinion that injuries such as the ones sustained by the applicant's son were difficult to detect, in particular if the injured person was intoxicated. The final conclusion was that the staff of the department had committed no infractions. 20. On 26 May 2005 an investigator of the Balvi District Police Department adopted a decision to terminate the criminal proceedings against M.I., which had been initiated on 2 March 2005. In this decision several witness testimonies were recounted and some of them seemed to indicate that the security guards who had been on duty during the party at the school had hit the applicant's son in the head with a rubber truncheon. It was also found that upon the applicant's son's arrival at the police station the policemen had noted that he did not have any visible injuries and that he was heavily intoxicated. The decision further remarked that at 5. 30 p.m. at the police station a doctor had observed that the applicant's son was conscious and had no traces of having been hit on his body or head. There was some dried blood in one of his nostrils. However, considering that the applicant's son was deaf and mute and thus unable to communicate orally any complaints about his health, he had been diagnosed as being intoxicated with alcohol surrogates and taken to the Balvi hospital. It was further noted that the internal inquiry of the Balvi District Police Department had established that the policemen in charge had not committed any offence. Lastly it was established that M.I.'s actions did not constitute corpus delicti. Therefore, the criminal proceedings concerning the death of the applicant's son were terminated. 21. On 17 June 2005 the Balvi District Public Prosecutor's Office decided to quash the decision of 26 May and remitted the case for additional investigation. Among other things, the public prosecutor indicated that it was necessary to determine whether it would have been possible to correctly diagnose the applicant's son's injuries had he been taken to hospital earlier than he was, whether the police had adequately taken into account the fact that he was deaf and mute, and whether there were any visible external signs of the injuries that eventually caused his death. 22. On 5 August 2005 the head of the Balvi District Police Department approved a report drawn up in the context of an additional internal inquiry that had been prompted by the decision of 17 June. Once again no wrongdoings on the part of the police officers were established. In particular, it was noted that even though an internal police instruction concerning sobering -up rooms prohibited the placement therein of persons with visible physical injuries, the applicant's son did not fall within that category. The report confirmed that his injuries had not been obvious, in that regard referring to the visit of the ambulance crew to the police station at 3. 50 p.m. on 27 February 2005, during which no injuries had been noted. 23. On 2 November 2005 the Balvi District Police Department terminated the criminal proceedings for the second time. The decision pointed out, inter alia, that even if the applicant's son had been taken to hospital sooner, it was not certain that he would have received the correct diagnosis due to the absence of a CT scanner and a specialist neurologist at Balvi hospital. It was also established that since the applicant's son's injuries were not visible, the police officers in question had not breached the law. 24. On 8 November 2005 the Balvi District Public Prosecutor's Office decided to quash the decision of 2 November 2005 on the ground that the evidence had not been examined. 25. On 10 November 2005 the Balvi District Police Department decided to terminate the criminal proceedings. The text of the decision was practically identical to that of 2 November 2005. 26. As of 19 September 2006 the applicant was represented by a lawyer. Pursuant to a request by the applicant's representative, on 1 November 2006 a prosecutor of the Office of the Prosecutor General quashed the decision of 10 November 2005 and sent the case to the Bureau of Internal Security of the State Police ( Valsts policijas Iekšējās drošības birojs ) for continued investigation. The decision of 19 September focused, inter alia, on the actions of the policemen before and after the applicant's son's arrest as well as on the legality and permissibility of his detention as such. It was suggested that the question of the potential liability of the policemen of the Balvi District Police Department for criminal inaction (section 319(2) of the Criminal Law, see below, paragraph 34 ) needed to be resolved. 27. On 18 January 2007 that Bureau decided to split the criminal proceedings into two parts, one regarding the actions of M.I. and the other concerning the inaction of the Balvi District policemen. The first part was transferred back to the Balvi District Police Department and the second remained with the Bureau of Internal Security. 28. On 7 March 2007 the Balvi District Police Department decided to terminate the criminal proceedings against M.I. due to lack of corpus delicti. The applicant did not appeal against that decision. 29. On 23 August 2007 the Bureau of Internal Security of the State Police decided to terminate the criminal proceedings against the officers of the Balvi District Police Department for want of corpus delicti. During the course of the investigation statements were taken from all five officers who had been present at the police station during the night of the applicant's son's arrest and the following day. The officers who had arrested the applicant's son confirmed that the security guards at the school had informed them that he had fallen backwards down the stairs but they had not waited for the ambulance that had been called because he had behaved in a way that was typical of an intoxicated person and had had no visible injuries. The officers who had been on duty on 27 February 2005 pointed out that they had tried to wake up the applicant's son on several occasions without success, but that after they had eventually succeeded, the applicant's son had gotten up without any help and walked to the reception area of the police station where he had been seen by a doctor who had arrived in an ambulance. The doctor had then allegedly proclaimed that the applicant's son was “faking” and was still drunk. He had only been taken to hospital after the applicant had persuaded the doctor to do so. The decision also pointed out that it was “obvious” that a mistake had been made by the doctors, who had failed to correctly diagnose the applicant's son's injuries before his death. 30. On 26 September 2007 a public prosecutor of the Balvi District Public Prosecutor's Office dismissed the applicant's representative's appeal against the decision of 23 August 2007. 31. On 24 October 2007 a senior prosecutor of the same office rejected the applicant's representative's appeal against the decision of 26 September 2007. In addition to upholding the conclusions of the decision of 23 August 2007, it was pointed out that no causal link existed between the decision of the officers present at the scene to transport the applicant's son to the police station without waiting for the ambulance and the applicant's son's death, since the death had occurred despite the fact that the applicant's son had eventually been placed under medical supervision. 32. In a final decision of 31 January 2008 a senior prosecutor of the Public Prosecutor's Office attached to the Latgale Regional Court dismissed the applicant's complaint about the decision of 24 October 2007. | The applicant complained about the death in police custody of his deaf and mute son. The latter had sustained serious head injuries in a fall down some stairs, had been taken to the local police station and placed in a sobering-up cell for 14 hours as the police officers believed him to be drunk. The applicant also complained about the ineffectiveness of the ensuing investigation into his son’s death. |
625 | Employees | 2. The applicant was born in 1967 and lives in Warsaw. He was granted legal aid and was represented by Ms A. Bzdyń, a lawyer practising in Warsaw. 3. The Government were represented by their Agent, Ms J. Chrzanowska and, subsequently, by Mr J. Sobczak, of the Ministry of Foreign Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background 5. Between 1997 and 2008, the applicant, who is an art historian, was employed by the Museum of Hunting and Equestrianism ( Muzeum Łowiectwa i Jeździectwa ) (“the museum”). In the last four years of his employment, he worked as the manager of the nature and hunting department. The applicant’s alleged actions in respect of the museum 6. On 28 November 2007 and on 10 March 2008 letters, signed: “Staff of the Museum of Hunting and Equestrianism”, were sent to the Tax Office ( Izba Skarbowa ), Supreme Audit Office ( Najwyższa Izba Kontroli ), Regional Prosecutor ( Prokuratura Okręgowa ), and the President’s Office ( Kancelaria Prezydenta ). 7. The applicant denied being the author of the above-mentioned letters. 8. The letters contained allegations about the mismanagement of public funds, labour law infringements, flaws in the organisation of the workplace and accounting, the hiring of staff through the back door ( po znajomości ) and irregularities in awarding financial bonuses. It was also stated in the letters that the museum’s director, P.Ś., was incompetent, lacked adequate knowledge and organisational skills, and that he had entered into unprofitable tender contracts, had used the museum’s funds for private purposes, had resorted to bullying, and had acted in his own private interest. 9. As established by the domestic courts in the proceedings described below, the letters contained the following statements. “[D]uring renovation works, exhibits sustain damage – they are constantly moved [and] stored in unsuitable places, but Ś. [P.Ś.’s full last name] is not interested in this – he is interested in how to steal more money” ( w czasie remontów niszczą się eksponaty, ciagle przenoszone, przechowywane w miejscach do tego nie przystosowaych, ale to Ś. nie interesuje, on jest zainteresowany, aby jak najwięcej ukraść pieniędzy ). “[He] clearly cannot organise work at the museum. He resorts to bullying and improvised decision-making ( rażąco nie umie organizować pracy w muzeum. Stosuje mobbing i ręczne sterowanie ).” “[He] uses words [which are] commonly considered offensive ..., [and] is driven only by his own self-interest and gain. He does not have any capacity to make decisions, does not know how to make a decision, [and] messes up the organisation of work at the museum ( Używa słów powszechnie uznanych za obraźliwe ... kieruje się jedynie własnym dobrem i korzyścią. Nie ma żadnych predyspozycji do podejmowania decyzji, nie umie podjąć decyzji, dezorganizuje pracę w muzeum.) ” “Ś. [P.Ś.’s full last name] organises, using public funds, exhibitions for private individuals ( Ś... robi za publiczne pieniądze wystawy osobom prywatnym ).” 10. The letters also contained the following statement below about P.Ś. “[P.Ś] has a persecution complex. He follows and eavesdrops on employees. He uses telephones [and] the Internet to monitor employees, and now cameras are to be installed ... Ś. taps employees’ telephones. ( Ma manię prześladowczą. Śledzi i podsłuchuje pracowników. Do monitoringu pracowników wykorzystuje telefony, internet, i obecnie mają być montowane kamery ... Ś. podsłuchuje telefony pracowników ).” 11. P.Ś. had not been a party to the impugned criminal proceedings (described below). Moreover, he had also never instituted any civil action against the applicant. The museum’s audits 12. In 2008 a series of management and tax audits were carried out by various public institutions at the museum. 13. The domestic courts established that at least one audit – that undertaken by the Supreme Audit Office – had been carried out of its own initiative. They further established that the audit undertaken by the Ministry of Culture had been carried out in relation to the applicant’s letters. 14. The contents of the post-audit reports are unknown to the Court. The applicant submitted that the Supreme Audit Office had confirmed that the storage and the public display of the museum’s artefacts had been marked by irregularities. The domestic court established (during the criminal proceedings described below) that the said audits had not revealed any shortcomings in the running of the museum. The preliminary criminal inquiry that had been opened following the audits, had ultimately been discontinued. 15. The domestic court also established that the audits had temporarily disturbed the work of the museum. Moreover, in 2008 the museum had received 50% less funding from public sources than in the previous years. The applicant contested that finding in his appeal to the domestic court (see paragraph 27 below). Criminal proceedings against the applicant 16. On 25 September 2008 the museum filed a private bill of indictment against the applicant, accusing him of disseminating, between 21 December 2007 and 16 July 2008, untrue information about the activities of the museum’s management. 17. The case was registered with the Warsaw District Court, which held ten hearings. 18. On 26 July 2012 the Warsaw District Court convicted the applicant of libel of the museum and its management on account of the applicant’s sending four anonymous letters – on 28 November 2007, to the Tax Office, the Supreme Audit Office, and the Regional Prosecutor and, on 10 March 2008, to the President of Poland’s Office – that contained defamatory statements, and by doing so, putting the museum at risk of losing the public trust necessary for its social, cultural and educational activities. 19. The court imposed on the applicant a fine ( grzywna ) in the amount of 2,500 Polish zlotys (PLN – approximately 625 euros (EUR)). The applicant was also ordered to bear various costs of the proceedings in the total amount of PLN 1,596 (approximately EUR 400). 20. The Warsaw District Court considered it established that the envelopes that had contained the impugned letters bore handwriting which, without any doubt, was that of the applicant. 21. The Warsaw District Court based its findings of fact, as described above, on the testimony of five witnesses, including the museum’s director; two reports issued by a court-appointed expert in the forensic examination of documents; a copy of the Warsaw District Prosecutor’s decision declining to open a criminal investigation; the post-audit report of the Supreme Audit Office; a copy of the Warsaw District Court’s judgment of 3 November 2009 delivered in the applicant’s related case no. IV W 325/09; a psychiatric report; letters from the President’s Office, the Tax Office, and Minister of Culture and Science (original typed letters which had been sent to the above-mentioned relevant institutions, together with hand-addressed envelopes); various reports concerning the museum; and the post-audit report of the Ministry of Culture, and various other pieces of evidence. 22. Before the Warsaw District Court the applicant stated that he had not written or sent the impugned letters. He also argued that the case had been mounted against him in revenge for his unbiased work as a court-appointed expert in a certain high-profile case concerning another museum. The applicant stated that P.Ś. had attempted to pressure him into drafting a report which would be favourable to the director of that museum, who was P.Ś.’s friend. When the applicant refused, attempts were made to have him discredited: the applicant was accused of stealing an exhibit and of libelling the museum and, ultimately, his employment contract was terminated with three months’ notice. The applicant recalled instances when, in his opinion, P.Ś. had placed himself in a situation in which he had faced a conflict of interests or had disregarded the applicant’s warning that exhibits had been inappropriately handled. On the other hand, he said that he had not had access to the financial documents of the museum and he did not know of incidents involving mismanagement, irregularities in accounting, bullying or inappropriate activity on the part of other employees. 23. The court, which heard P.Ś. and other witnesses in respect of the above allegations made by the applicant, found that the museum’s director had not been biased against the applicant. 24. Furthermore, the Warsaw District Court found that the impugned libel did not concern P.Ś., as a private person, but rather the museum, as an institution, and its management. For the court, denunciations of a wrongful conduct should rely on facts and not only on bare value judgments of the person making such denunciations. Defamation could take the form of the accusation of a specific factual conduct or of the voicing of a general opinion about the actions or the features of an injured party. 25. On the facts, the Warsaw District Court found that the applicant’s statements contained untrue allegations which had shed a bad light on the museum and its director. Irrespective of whether the applicant’s statements had resulted in the audits or had had any other negative consequences for the museum, they had clearly put the museum at risk of losing its good reputation. The applicant had not acted in good faith – that is to say, in defence of the museum’s interests. He had acted with direct intent to damage the reputation of the museum and its management by making allegations which had not been objectively confirmed. Having worked long years at the museum, the applicant had been perfectly aware of the untrue nature of his statements. 26. As for the fine, the Warsaw District Court observed that it was proportionate, on the one hand, to the harm caused by the applicant’s actions and, on the other hand, to the applicant’s income. To that end, the court established that the applicant made PLN 3,000 per month and had no dependent persons. 27. The applicant appealed, arguing that the first-instance court had erred in finding him to be the author of the letters in question and that, by convicting him, it had “violated his human rights”. On 25 January 2013 the Warsaw Regional Court ( Sąd Okręgowy ) upheld that judgment. The judgment was served on the applicant’s lawyer on 20 April 2013. 28. On an unspecified date, the Prosecutor General declined to grant the applicant’s request and to lodge a cassation appeal as in his view there were no grounds for it. Civil proceedings against the applicant 29. According to the applicant, in 2015 the museum had also brought a civil claim against him, seeking compensation for defamation. 30. The applicant further submitted that a civil court, which was bound by the findings of the criminal court in the proceedings against him, partly allowed that claim and ordered the applicant to pay approximately PLN 9,000 (EUR 2,250) in compensation and court fees. | This case concerned the conviction of the applicant, who was employed by the Museum of Hunting and Horse-riding, for libel against the museum for four anonymous letters allegedly sent by him which were critical of the museum’s management. The applicant submitted that his criminal conviction had been disproportionate and unjustified. |
331 | Demonstrators | I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1967, 1979, 1971, 1963, 1979, 1973 and 1972 respectively and live in Istanbul. 5. Upon receipt of intelligence reports that on 5 August 2000 a group of demonstrators would gather in the İstiklal Street in Istanbul to read a press declaration and block the tram line to protest against F-type prisons, police officers and members of the “Rapid Intervention Force” ( çevik kuvvet ) were deployed in the area. At noon, the applicants, together with thirty-nine others, gathered in İstiklal Street to make a press declaration to protest against F-type prisons. The police asked the group to disperse and to end the gathering and informed them that the demonstration was unlawful since no advance notice had been submitted to the authorities. The demonstrators refused to obey and attempted to march along İstiklal Street, chanting slogans and reading out a press declaration. Subsequently, at about 12.30 p.m. the police dispersed the group, allegedly by using truncheons and tear-gas. The applicants were arrested along with thirty-nine other persons. The applicants Sema Gül and Semiha Kırkoç were subsequently taken to the Taksim Hospital. 6. The doctor who examined Sema Gül noted the following: “There are bruises on both arms and a swelling on the left foot.” As regards Semiha Kırkoç, the doctor noted the following: “There is a 4 cm long laceration on the left parietal region...” 7. There were no medical reports in respect of the remaining applicants. 8. The incident report dated 5 August 2000 stated that the security forces had to use force to disperse the group as they refused to obey the warnings. It was further indicated that one police officer was wounded during the incident. 9. The applicants were subsequently taken to Beyoğlu central police directorate and Karaköy police station, where they were kept for one day. 10. The next day, they were released upon the order of the Beyoğlu public prosecutor. 11. On an unspecified date, the applicants filed a petition with the Beyoğlu public prosecutor against the police officers who had carried out the arrest. In their petition, they complained, inter alia, of the unlawfulness of their arrest and the excessive use of force by the police officers during and after the arrest. 12. On 5 January 2001 the Beyoğlu public prosecutor issued a decision of non-prosecution in respect of the police officers who had been on duty at the relevant time. In his decision, the public prosecutor considered that the force used by the security forces was in line with Article 16 of the Law No. 2559 on the Duties and Powers of the Police and had not been excessive. In the public prosecutor's opinion, the injuries sustained by the complainants had been caused by the use of force which was proportionate. 13. The applicants filed an objection against the public prosecutor's decision. 14. On 25 June 2001 the Istanbul Assize Court dismissed the applicants'objection. 15. Meanwhile, on 14 August 2000, the Beyoğlu public prosecutor filed a bill of indictment with the Beyoğlu Criminal Court. The public prosecutor accused the applicants under Article 28 § 1 of Law no. 2911 of taking part in an illegal demonstration without prior authorisation and not dispersing despite the police officers'warning. 16. On 19 September 2005 the Beyoğlu Criminal Court acquitted the applicants. The court held that making a press statement was a constitutional right and that prior authorisation was not needed to use this right. The court further observed that it was not certain that the warning given to the accused to disperse could be heard by all the demonstrators. It concluded that the accused had used their constitutional rights and, consequently, had not committed any offence. | In August 2000, the seven applicants gathered in Istanbul together with 39 others to make a declaration to the press in which they protested against “F-type” prisons (designed to provide living spaces for two to three persons instead of dormitories). The demonstrators were informed by the police that their march was unlawful: no advance notice had been submitted to the authorities and it would disrupt public order. They were ordered to disperse. The group did not comply with those orders and attempted to continue its march. The applicants complained in particular about their arrest during the demonstration. |
1,044 | Military, political and economic influence | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant is a Moldovan national belonging to the German ethnic minority. He was born in 1978 and lived in Tiraspol until 2010. Since 2011 he has been an asylum-seeker in Switzerland. 9. The Moldovan Government submitted that despite all their efforts they had been unable to verify most of the facts of the present case owing to a lack of cooperation on the part of the authorities of the self-proclaimed “Moldavian Republic of Transdniestria” (the “MRT”). They had therefore proceeded, broadly speaking, on the basis of the facts as submitted by the applicant. 10. The Russian Government did not make any submissions in respect of the facts of the case. 11. The facts of the case, as submitted by the applicant and as may be determined from the documents in the case file, are summarised below. 12. The background to the case, including the Transdniestrian armed conflict of 1991-92 and the subsequent events, is set out in Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 28-185, ECHR 2004 ‑ VII ) and Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04 and 2 others, §§ 8-42, ECHR 2012). A. The applicant ’ s arrest, detention and release 13. On 24 November 2008 the applicant was detained on suspicion of defrauding the company he worked for and another company belonging to the same group. The companies allegedly claimed initially that the damage had been 40,000 United States dollars (USD) and then increased that amount to USD 85,000. The applicant was asked to confess to the crime, which he claims he did not commit. He signed various confessions, allegedly following threats to him and his relatives. He claimed to have first been detained by his company ’ s security personnel and subjected to threats if he did not confess to the crime, before being handed over to the investigating authority. 14. On 26 November 2008 the “Tiraspol People ’ s Court” remanded the applicant in custody for an undetermined period. 15. On 5 December 2008 the “MRT Supreme Court” rejected an appeal by the applicant ’ s lawyer as unfounded. Neither the applicant nor his lawyer was present at the hearing. 16. On 20 March 2009 the “Tiraspol People ’ s Court” extended the applicant ’ s detention for up to five months from the date of his arrest. 17. On 21 May 2009 the “Tiraspol People ’ s Court” extended the applicant ’ s detention for up to eight months from the date of his arrest. That decision was upheld by the “MRT Supreme Court” on 29 May 2009. Neither the applicant nor his lawyer was present at the hearing. 18. On 22 July 2009 the “Tiraspol People ’ s Court” extended the applicant ’ s detention until 24 September 2009. 19. On 22 September 2009 the “Tiraspol People ’ s Court” extended the applicant ’ s detention until 24 November 2009. That decision was upheld by the “MRT Supreme Court” on 2 October 2009. The applicant ’ s lawyer was present at the hearing. 20. On 4 November 2009 the applicant ’ s criminal case was submitted to the trial court. 21. On 21 April 2010 the applicant ’ s detention was extended again until 4 August 2010. 22. On 1 July 2010 the “Tiraspol People ’ s Court” convicted the applicant under Article 158-1 of the “MRT Criminal Code” of defrauding two companies, and sentenced him to seven years ’ imprisonment, suspended for five years. It ordered the confiscation of the money in his and his girlfriend ’ s bank accounts and of his personal car, which totalled the equivalent of approximately USD 16,000, and additionally ordered him to pay the two companies the equivalent of approximately USD 26,400. It also released him subject to an undertaking not to leave the city. No appeal was lodged against that decision. According to the applicant, in order to pay a part of the damages his parents sold his flat and paid USD 40,000 to the companies. 23. On an unknown date shortly after 1 July 2010 the applicant left for treatment in Chișinău. In 2011 he arrived in Switzerland. 24. On 25 January 2013 the “Tiraspol People ’ s Court” amended the judgment in the light of certain changes to the “MRT Criminal Code” providing for a more lenient punishment for the crime of which the applicant had been convicted. He was thus sentenced to six years and six months ’ imprisonment, suspended for a period of five years. 25. By a final decision of 15 February 2013, the same court replaced the suspended sentence owing to the applicant ’ s failure to appear before the probation authorities, and ordered that the prison sentence be served in full. 26. Following a request from the applicant ’ s lawyer of 12 October 2012, on 22 January 2013 the Supreme Court of Justice of the Republic of Moldova quashed the judgment of the “Tiraspol People ’ s Court” of 1 July 2010. With reference to Articles 114 and 115 of the Constitution and section 1 of the Law on the status of judges (see paragraphs 69 - 70 below), the court found that the courts established in the “MRT” had not been created in accordance with the Moldovan legislation and could not therefore lawfully convict the applicant. It ordered the materials in the criminal file to be forwarded to the prosecutor ’ s office with a view to prosecuting the persons responsible for the applicant ’ s detention and also to determining whether the applicant had breached the rights of other persons. 27. On 31 May 2013 the Prosecutor General ’ s Office of the Republic of Moldova informed the applicant ’ s lawyer that it had initiated a criminal investigation into his unlawful detention. Within that investigation, “all possible procedural measures and actions [were] planned and carried out”. No further progress could be achieved owing to the impossibility of carrying out procedural steps on the territory of the self-proclaimed “MRT”. B. The applicant ’ s conditions of detention and medical treatment 28. The applicant ’ s medical condition (bronchial asthma, an illness which he has had since childhood) worsened while in prison, and he suffered several asthma attacks. He was often moved from one temporary detention facility (IVS) to another (such as the IVS at Tiraspol police headquarters and the IVS in Slobozia, as well as colony no. 3 in Tiraspol and the IVS in Hlinaia), all of which allegedly provided inadequate conditions of detention. 29. The applicant described the conditions at Tiraspol police headquarters as follows. There was high humidity, no working ventilation and a lack of access to natural light (since the detention facility was in the basement of the building), while the windows were covered with metal sheets with small holes in them. The cell was overcrowded (he was held in a 15 sq. m cell together with twelve other people). They had to take turns to sleep on the single large wooden platform, which was not covered. The applicant was allowed fifteen minutes of exercise daily, spending the remainder of the time in the cell. Many of the detainees smoked in the cell, which contributed to his asthma attacks. The metal truck he was transported in when being brought before the investigator was suffocating, and he was placed in a cell without a toilet for hours on end (while waiting to be interviewed by the investigator) and suffered numerous asthma attacks. Laundry could only be done in the cells, where wet clothes would also be hung out to dry. The food was scarce and inedible. The cells were full of parasites. There were no hygiene products except for those brought in by detainees ’ relatives. For several months the applicant was detained in a cell which became very hot in summer, causing him to suffer more asthma attacks. 30. The applicant described in a similar manner the conditions of his detention in the Slobozia detention facility, where there were no hygiene products at all, he was transported in a crammed and unventilated truck, and was fully reliant on his parents for any sort of medication. 31. As for colony no. 3 in Tiraspol, the applicant again noted the insufficient medical treatment, overcrowding (with one hour ’ s exercise per day, the remaining time being spent in the cell) and a lack of ventilation coupled with the heavy smoking of his cellmates. The food was inedible, full of worms and made from rotten produce. In the winter the heating was on for only a few hours a day and, as at the Tiraspol police headquarters, the detainees were allowed to shower only once a week (all the detainees in his cell had a combined total of twenty minutes in which to take a shower with cold water). 32. In the IVS in Hlinaia the applicant was again placed in an overcrowded cell and received virtually no medical assistance. 33. During his detention the applicant often complained about his medical condition and asked for medical assistance. His parents requested on many occasions that their son be seen by a lung specialist. On 12 March 2009 he was eventually seen and various tests were carried out. He was diagnosed with unstable bronchial asthma and prescribed treatment. 34. In May 2009 the applicant was transferred to the Medical Assistance and Social Rehabilitation Centre of the “MRT Ministry of Justice” (“the Centre”). Doctors there confirmed his previous diagnosis and the fact that he suffered frequent asthma attacks and had second and third degree respiratory insufficiency, and that his medical condition was continuing to get worse. On 7 May 2009 the Centre informed the applicant ’ s relatives that it had neither a lung specialist nor the required laboratory equipment to treat the applicant properly. The doctors added that he needed to be transferred to the respiratory medicine department of the Republican Clinical Hospital, but that this would be impossible to arrange because the hospital was short ‑ staffed and had no one to guard the applicant during his stay. 35. On an unknown date in 2009 the applicant ’ s mother asked for the applicant to be transferred to a specialist hospital, as bronchial asthma was one of the illnesses listed by the “MRT Ministry of the Interior” as a reason warranting a transfer to hospital. In its reply of 1 June 2009, the “MRT Ministry of the Interior” informed her that only convicted prisoners could be transferred to hospital on those grounds. 36. On 21 September 2009 the Centre informed the applicant ’ s parents that since May 2009 their son had continued to be treated on an in-patient basis, but that his medical condition was continuing to get worse, with no visible improvement as a result of treatment. 37. On 15 February 2010 a medical panel composed of four senior “MRT” doctors established as follows. “Despite the repeated treatment given, the respiratory dysfunction continues to increase and treatment is having no noticeable effect. A continuing downward trend is observed, with an increase in the frequency of asthma attacks and difficulty in stopping them.” In addition to the initial diagnosis of bronchial asthma and respiratory insufficiency, the panel found that the applicant had second degree post ‑ traumatic encephalopathy. It concluded that “[t]he [applicant ’ s] life expectancy/prognosis is not favourable. His continued detention in the conditions of [pre-trial detention centres] appears problematic owing to the absence of laboratory equipment and specially qualified medical staff at [the Centre] for the purposes of carrying out the required treatment and its monitoring.” 38. Despite the panel ’ s findings, the applicant was transferred on the same day to the IVS in Hlinaia, which, as stated by the applicant and not contradicted by the respondent Governments, was less well equipped than the Centre. On 16 February 2010 the applicant ’ s mother was allowed to see him. He told her about his poor conditions of detention (lack of ventilation, heavy smoking by detainees, overcrowding) and said that he had already had two asthma attacks that day. The applicant ’ s mother was told by the prison staff that she had to bring her son the medication he required since there was none available in the prison. 39. On 18 February 2010 the applicant ’ s mother asked the “MRT President” for the applicant to be transferred as a matter of urgency to a specialist hospital and for his release from detention pending trial in order to obtain the treatment he required. On 20 February 2010 she received a reply saying that her complaint had not disclosed any breach of the law. 40. On an unknown date after 18 February 2010, the applicant was transferred to Prison no. 1 in Tiraspol. On 17 March 2010 he was again admitted to the Centre for in-patient treatment. 41. In a letter to the applicant ’ s lawyer of 11 June 2010, the Centre ’ s director stated that, in addition to the applicant ’ s main diagnosis of asthma, he was also found to have terminal respiratory insufficiency, symptoms of a head injury with localised areas of brain damage, the first signs of hypertonic disease, an allergy in his lungs making treatment and the ability to stop his asthma attacks more difficult, post-traumatic encephalopathy, arterial hypertension, toxoplasmosis, giardiasis (a parasite), chronic gastroduodenitis, pancreatitis and pyelonephritis. His prognosis was worsening. 42. In a number of replies to complaints by the applicant ’ s parents, the “MRT” authorities informed them that the applicant was seen regularly by various doctors. After his transfer from the Centre to the IVS in Hlinaia on 15 February 2010, his state of health had deteriorated and on 17 March 2010 he had been immediately transferred to the Centre for treatment. 43. According to the applicant, his state of health improved after his release and the treatment he received in Chișinău. However, because he feared re-arrest by “MRT militia”, he fled to Switzerland and applied for asylum there (see paragraph 23 above). C. The applicant ’ s visits with his parents and his pastor 44. From November 2008 until May 2009 the applicant was not allowed to see his parents, despite repeated requests (for instance on 5 March and 13, 16 and 30 April 2009). The first authorised visit took place six months after the applicant ’ s arrest, on 4 May 2009. On 9 December 2009 a judge of the “Tiraspol People ’ s Court” refused to allow a further visit because examination of the case was pending. Another request for a visit was refused on 15 February 2010. On 16 February 2010 a visit was authorised, but the applicant and his mother had to talk to each other in the presence of a prison guard. They were not allowed to speak their own language (German) and were made to speak Russian or risk the guard calling off the visit. 45. In June and September 2009 pastor Per Bergene Holm from Norway attempted to visit the applicant at the latter ’ s request in order to provide him with religious services, including “listening to [the applicant ’ s] confession and giving him the sacraments”. He was denied access to the applicant, a refusal which he subsequently confirmed in a letter to the Court dated 29 September 2010. On 30 September 2009 an “MRT presidential adviser” acknowledged that there was no reason to refuse the pastor access and that such a refusal was incompatible with the “MRT Constitution and laws”. The pastor was finally allowed to see the applicant on 1 February 2010. As stated by the applicant and not disputed by the Governments, a guard remained in the room throughout the visit. D. Complaints to various authorities 46. The applicant ’ s parents made several complaints to the Moldovan authorities and the Russian embassy in Moldova concerning their son ’ s situation. 47. On 12 October 2009 the Centre for Human Rights of Moldova (the Moldovan Ombudsman) replied that it had no means of monitoring the applicant ’ s case. 48. On 3 November 2009 the Moldovan Prosecutor General ’ s Office informed the applicant ’ s parents that it could not intervene owing to the political situation in the Transdniestrian region since 1992. It also referred to Moldova ’ s reservations in respect of its ability to ensure observance of the Convention in the eastern regions of Moldova. 49. A complaint made on an unknown date to the Russian embassy in Moldova was forwarded to the “MRT prosecutor ’ s office”. The latter replied on 1 February 2010, saying that the applicant ’ s case was pending before the “MRT courts”, which alone were competent to deal with any complaints after the case had been submitted to the trial court. On 10 February 2010 the Russian embassy forwarded that reply to the applicant ’ s mother. 50. The applicant also complained to the Joint Control Commission, a trilateral peacekeeping force operating in a demilitarised buffer zone on the border between Moldova and Transdniestria known as the “Security Area”. For further details, see Ilaşcu and Others (cited above, § 90). It is unclear whether he obtained any response. 51. After notice of the present application had been given to the respondent Governments, the Moldovan Deputy Prime Minister wrote on 9 March 2010 to the Russian, Ukrainian and US ambassadors to Moldova, as well as to the Council of Europe, the European Union and the Organization for Security and Co-operation in Europe (OSCE), asking them to assist in securing the applicant ’ s rights. 52. On 16 July 2010 the applicant asked the Moldovan Prosecutor General ’ s Office to provide witness protection to him and his parents, since the “MRT militia” had been looking for him at his home in Tiraspol while he was in hospital in Chișinău. On the same day the applicant was officially recognised as a victim. However, on 19 July 2010 the Bender prosecutor ’ s office refused his request to be provided with witness protection, since it had not been established that his life or health were at risk. 53. On 6 August 2010, following a complaint by the applicant, the investigating judge of the Bender District Court in Moldova set aside the decision of 19 July 2010 on the grounds that the applicant had been unlawfully arrested and convicted and had had his property taken away from him. He ordered the Bender prosecutor ’ s office to provide witness protection to the applicant and his family. The parties did not inform the Court of any further developments in this regard. E. Information concerning alleged Russian support for the “MRT” 54. The applicant submitted reports from various “MRT” media outlets. According to an article dated 13 April 2007 from Regnum, one of the leading Russian online news agencies at the relevant time, the Russian ambassador to Moldova had given a speech in Tiraspol the previous day in which he declared that Russia would continue its support for the “MRT” and would never give up its interests there. The diplomat added that “Russia has been here for more than a century. Our ancestors ’ remains are buried here. A major part of our history is situated here”. 55. On 20 April 2007 the same news agency informed the public of a decision by the Russian Ministry of Finance to give the “MRT” USD 50 million in non-reimbursable aid, as well as USD 150 million in loans secured on “MRT” property. 56. In a news report dated 23 November 2006, the Regnum news agency reported a statement by the “MRT President” to the effect that each “MRT Ministry” was working on harmonising the legislation of the “MRT” with that of Russia, and that a group of representatives of “MRT Ministries” was to travel to Moscow within the next few days to discuss the matter. 57. According to the Moldovan Government, “the last and non-significant” withdrawal of armaments from the “MRT” to Russia took place on 25 March 2004. Almost twenty thousand tonnes of ammunition and military equipment are purportedly still stored on the territory controlled by the “MRT”. On 26 January 2011 Russian and Ukrainian officials were able to visit the Colbasna arms depot, while Moldovan officials were neither informed of nor invited to participate in the visit. 58. In February 2011 the Russian ambassador to Moldova declared, inter alia, in public speeches that since 2003, when Moldova had refused to sign a settlement agreement with the “MRT” (the so-called “Kozak Memorandum”), Russia had no longer been able to withdraw arms from the “MRT” owing to the latter ’ s resistance. 59. According to the Moldovan Government, Tiraspol Airport, which was officially closed down by the Russian authorities on 1 December 2005, continues to serve “MRT” military and civilian helicopters and aircraft. Russian military planes and helicopters are still parked there. Between 2004 and 2009, over eighty flights from that airport which were not authorised by the Moldovan authorities were recorded, some of which appear to have been bound for Russia. 60. According to the Moldovan Government, the “MRT” received a total of USD 20.64 million in Russian aid in 2011, in the form of either the waiving of debts for natural gas consumed or of non-refundable loans. During 2010 the “MRT” consumed natural gas from Russia to a value of USD 505 million. It paid the Russian company Gazprom USD 20 million, about 4% of the price for that gas. At the same time, the local population paid the “MRT” authorities approximately USD 163 million for gas in 2010, a sum which remained largely at the disposal of the “MRT”. | This case concerned the detention of a man suspected of fraud, as ordered by the courts of the self-proclaimed “Moldavian Republic of Transdniestria” (the “MRT”). The applicant complained in particular that he had been arrested and detained unlawfully by the “MRT authorities” and that he had been absent from some of the hearings concerning his detention pending trial. He further maintained that he had not been given the medical assistance required by his condition and that he had been held in inhuman conditions of detention. Moreover, he complained that he had been prevented from seeing his parents and his pastor. He finally complained that he did not have an effective remedy in respect of these complaints. The applicant maintained that his complaints fell within the jurisdiction of both Moldova and Russia. |
523 | Criminalisation of homosexual relations in general | 7. The applicant is a homosexual who is currently involved in a sexual relationship with another male adult. He is the President of the "Liberation Movement of Homosexuals in Cyprus ". He states that he suffers great strain, apprehension and fear of prosecution by reason of the legal provisions which criminalise certain homosexual acts. A. Criminal Code 8. Sections 171, 172 and 173 of the Criminal Code of Cyprus, which predates the Constitution, provide as follows: "171. Any person who - (a) has carnal knowledge of any person against the order of nature; or (b) permits a male person to have carnal knowledge of him against the order of nature, is guilty of a felony and is liable to imprisonment for five years. 172. Any person who with violence commits either of the offences specified in the last preceding Section is guilty of a felony and liable to imprisonment for fourteen years. 173. Any person who attempts to commit either of the offences specified in Section 171 is guilty of a felony and is liable to imprisonment for three years, and if the attempt is accompanied with violence he is liable to imprisonment for seven years." 9. Various Ministers of Justice had indicated in statements to newspapers dated 11 May 1986, 16 June 1988 and 29 July 1990, that they were not in favour of introducing legislation to amend the law relating to homosexuality. In a statement to a newspaper on 25 October 1992 the Minister of the Interior stated, inter alia, that although the law was not being enforced he did not support its abolition. B. Constitutional provisions 10. The relevant provisions of the Constitution of the Republic of Cyprus, which came into force on 16 August 1960, read as follows: Article 15 "1. Every person has the right to respect for his private and family life. 2. There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person." Article 169 "1. ... 2. ... 3. Treaties, conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have, as from their publication in the Official Gazette of the Republic, superior force to any municipal law on condition that such treaties, conventions and agreements are applied by the other party thereto." Article 179 "1. This Constitution shall be the supreme law of the Republic. 2. No law or decision of the House of Representatives or of any of the Communal Chambers and no act or decision of any organ, authority or person in the Republic exercising executive power or any administrative function shall in any way be repugnant to, or inconsistent with, any of the provisions of this Constitution." Article 188 "1. Subject to the provisions of this Constitution and to the following provisions of this Article, all laws in force on the date of the coming into operation of this Constitution shall, until amended, whether by way of variation, addition or repeal, by any law or communal law, as the case may be, made under this Constitution, continue in force on or after that date, and shall, as from that date be construed and applied with such modification as may be necessary to bring them into conformity with this Constitution. 2. ... 3. ... 4. Any court in the Republic applying the provisions of any such law which continues in force under paragraph 1 of this Article, shall apply it in relation to any such period, with such modification as may be necessary to bring it into accord with the provisions of the Constitution including the Transitional Provisions thereof. 5. In this Article - ‘ law ’ includes any public instrument made before the date of the coming into operation of this Constitution by virtue of such law; ‘ modification ’ includes amendment, adaptation and repeal." C. Case-law 11. In the case of Costa v. The Republic (2 Cyprus Law Reports, pp. 120-133 [1982]) the accused - a 19 year-old soldier - was convicted of the offence of permitting another male person to have carnal knowledge of him contrary to section 171(b) of the Criminal Code. The offence was committed in a tent within the sight of another soldier using the same tent. The accused had contended that section 171(b) was contrary to Article 15 of the Constitution and/or Article 8 (art. 8) of the European Convention on Human Rights. In its judgment of 8 June 1982 the Supreme Court noted that, since the offence was not committed in private and since the accused was a soldier who was 19 years of age at the time, the constitutional and legal issues raised by the case fell outside the ambit of the construction given to Article 8 (art. 8) by the European Court of Human Rights in its Dudgeon v. the United Kingdom judgment of 22 October 1981 (Series A no. 45). The Supreme Court, nevertheless, added that it could not follow the majority view of the Court in the Dudgeon case and adopted the dissenting opinion of Judge Zekia. The court stated as follows: "By adopting the dissenting opinion of Judge Zekia this Court should not be taken as departing from its declared attitude that, for the interpretation of provisions of the Convention, domestic tribunals should turn to the interpretation given by the international organs entrusted with the supervision of its application, namely, the European Court and the European Commission of Human Rights ... In ascertaining the nature and scope of morals and the degree of the necessity commensurate to their protection, the jurisprudence of the European Court and the European Commission of Human Rights has already held that the conception of morals changes from time to time and from place to place, and that there is no uniform European conception of morals; that, furthermore, it has been held that state authorities of each country are in a better position than an international judge to give an opinion as to the prevailing standards of morals in their country; in view of these principles this Court has decided not to follow the majority view in the Dudgeon case, but to adopt the dissenting opinion of Judge Zekia, because it is convinced that it is entitled to apply the Convention and interpret the corresponding provisions of the Constitution in the light of its assessment of the present social and moral standards in this country; therefore, in the light of the aforesaid principles and viewing the Cypriot realities, this Court is not prepared to come to the conclusion that Section 171(b) of our Criminal Code, as it stands, violates either the Convention or the Constitution, and that it is unnecessary for the protection of morals in our country." D. The prosecution policy of the Attorney-General 12. There had been prosecutions and convictions in Cyprus for homosexual conduct in private between consenting adults up until the 1981 judgment of the European Court in the Dudgeon case (loc. cit.). When this case was pending before the European Court the Attorney-General requested the police not to continue with a prosecution under section 171 because of apparent conflict between that provision and Article 8 (art. 8) of the Convention. Since that date the Attorney-General ’ s office has not allowed or instituted any prosecution which conflicts with either Article 8 (art. 8) of the Convention or Article 15 of the Constitution, in so far as they relate to homosexual behaviour in private between consenting adults. Under Article 113 of the Constitution of Cyprus the Attorney-General is vested with competence to institute and discontinue criminal proceedings in the public interest. Although he could not prevent a private prosecution from being brought he can intervene to discontinue it. | The applicant was a homosexual in a relationship with another male adult. He was the President of the “Liberation Movement of Homosexuals in Cyprus”. He stated that he had suffered great strain, apprehension and fear of prosecution by reason of the legal provisions which criminalised certain homosexual acts. |
744 | Urban development | I. THE CIRCUMSTANCES OF THE CASE 8. The applicants were born in 1921 and 1953 respectively and live in Munich. The first applicant is the second applicant’s mother. 9. The applicants own real property in the south-eastern part of the Greek island of Tinos, where they spend part of their time. The first applicant is the co -owner of a house and a plot of land on the Ayia Kiriaki-Apokofto peninsula, which is adjacent to a swamp by the coast of Ayios Yiannis. A. Proceedings before the Supreme Administrative Court concerning the redrawing of the boundaries of various settlements in south-east Tinos 10. On 4 December 1985 the prefect ( νομάρχης ) of Cyclades redrew the boundaries of the settlement ( οικισμός ) of Ayios Yiannis in the municipality of Dio Horia and of the settlements of Ayia Varvara, Ayios Sostis and Lautaris in the municipality of Triandaru (decision no. 9468/1985). On 6 May 1988 the prefect again redrew the boundaries of the settlements of Ayios Yiannis and Ayios Sostis (decision no. 2400/1988). 11. On 18 March 1993 the town-planning authority of Syros issued building permit no. 620 on the basis of the prefect’s decision no. 9468/1985. Another permit (no. 298) had been issued on the same basis by the same authority in 1992. 12. On 21 July 1993 the applicants and the Greek Society for the Protection of the Environment and Cultural Heritage lodged an application for judicial review of the prefect’s decisions nos. 9468/1985 and 2400/1988 and of building permit no. 620/1993 with the Supreme Administrative Court. On the same date a second application was lodged by the same persons for judicial review of the prefect’s two decisions and of building permit no. 298/1992. The basic argument of the applicants before the Supreme Administrative Court was that the prefect’s decisions, and consequently the building permits, were illegal because in the area concerned there was a swamp and Article 24 of the Greek Constitution, which protects the environment, provided that no settlement should be built in such a place. 13. On 10 July 1995 the Supreme Administrative Court considered that the applicants had locus standi because they owned property in the area concerned. The court held that it could not review the prefect’s decision no. 9468/1985 directly because the application had not been lodged within the time-limit prescribed by law. However, it could review the two building permits issued on the basis of that decision and, in the context of this review, the court was obliged to examine the constitutionality of the prefect’s decision. The decision was found to have violated Article 24 of the Constitution, which protects the environment, because the redrawing of the boundaries of the settlements put in jeopardy the swamp in Ayios Yiannis, an important natural habitat for various protected species (such as birds, fishes and sea-turtles). It followed that the building permits were also unlawful and had to be quashed. Moreover, the court quashed the prefect’s decision no. 2400/1988 because it had not been published in the Official Gazette in the manner prescribed by law (decisions nos. 3955/1995 and 3956/1995). 14. In 1996 the prefect issued two decisions (nos. DP2315 /1996 and DP2316 /1996) which excluded the contested buildings from demolition. 15. On 21 April 1997 a special committee of the Supreme Administrative Court found that the authorities had failed to comply with the above decisions. They had not demolished the two buildings constructed on the basis of permits nos. 620/1993 and 298/1992 and had continued issuing building permits in respect of the area that had been included in the settlements further to the unlawful redrawing of the boundaries (minutes no. 6/1997). B. Civil proceedings against M. 16. On 31 January 1991 the first applicant and others instituted civil proceedings against a neighbour, M., in the Syros Court of First Instance ( Πολυμελές Πρωτοδικείο ). They claimed that he had unlawfully taken over part of their land in Ayios Yiannis. On 14 February 1992 the court found in favour of the plaintiffs. 17. On 30 March 1992 M. entered a caveat against this judgment ( ανακοπή ερημοδικίας ), which had been given in his absence. His application was rejected on 23 November 1992 (decision no. 138/1992). On 28 January 1993 M. appealed against that decision. The Aegean Court of Appeal ( Εφετείο ) reversed decision no. 138/1992 and sent the case back to the first-instance court (decision no. 120/1993). 18. A hearing took place on 14 January 1994. In a preliminary decision of 31 March 1994, the first-instance court ordered investigative measures. Witnesses were heard on 13 April 1995, 4 July 1995, 10 October 1995, 12 December 1995, 12 February 1996 and 2 April 1996. 19. Following an application by the first applicant on 15 March 1998, a hearing was set down for 11 December 1998. The hearing was finally held on 28 May 1999. On 21 June 1999 the first-instance court found in favour of the first applicant (decision no. 98ΤΠ /1999). 20. On 7 December 1999 M. appealed against that decision. The proceedings are currently pending before the Aegean Court of Appeal. The parties have not yet applied for a hearing to be fixed. C. Threatened demolition of the applicants’ house 21. On 23 June 1993 the applicants received a notice to the effect that their house in Ayia Kiriaki-Apokofto had been built without authorisation and should be demolished. The applicants appealed to the competent administrative board. Their appeal was rejected on 28 September 1994. 22. On 6 October 1994 they applied to the Supreme Administrative Court for judicial review of the decision of the administrative board. On a request by the applicants, the Supreme Administrative Court decided to suspend the demolition of the applicants’ house (decision no. 790/1994). 23. At first, the hearing was set down for 28 November 1995 but it was repeatedly postponed. 24. In 1999 a new law (no. 2721/1999) changed the rules of jurisdiction and the case was referred to the Piraeus Court of Appeal, which heard the case on 27 June 2000. The proceedings are still pending. | The applicants owned property in the south-eastern part of the Greek island of Tinos, including a swamp by the coast. They submitted in particular that urban development had led to the destruction of their physical environment and had negatively affected their private life. They also complained about the authorities’ failure to enforce the Council of State’s decisions annulling two permits for the construction of buildings near their property. |
179 | Obligation on authorities to provide adequate protection against domestic violence | 2. The applicant was born in 1957 and lives in Zagreb. He was represented before the Court by Ms T. Milanković Podbrežnički, a lawyer practising in Zagreb. 3. The Croatian Government were represented by their Agent, Ms Š. Stažnik. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 4 July 2007 the Zagreb Municipal Court ( Općinski sud u Zagrebu ) found the applicant guilty in criminal proceedings concerning domestic violence and neglect and abuse of a minor child for the period between March 2002 and the end of February 2005. He was sentenced to two years’ imprisonment suspended for a period of five years. That judgment was upheld on appeal and the suspended sentence was subsequently revoked (see paragraph 33 below). The minor-offence proceedings 6. Meanwhile, on 6 October 2006 the Zagreb Minor Offences Court ( Prekršajni sud u Zagrebu ) found the applicant guilty of a minor offence of domestic violence under section 4 of the Protection against Domestic Violence Act (see paragraph 68 below) against his minor daughter Z.G., committed on 5 October 2006. He was sentenced to fifty days’ imprisonment suspended for one year. 7. On 2 February 2007 the Zagreb Minor Offences Court found the applicant guilty of a minor offence of domestic violence against his wife Mi.G. and his son H.G committed on 30 January 2007. He was sentenced to ten days’ imprisonment, whereas his previous suspended sentence had been revoked (see paragraph 6 above) and he was sentenced to a total of fifty ‑ nine days’ imprisonment. 8. On 3 April 2007 the same court found the applicant guilty of a minor offence of domestic violence against his wife Mi.G., his son H.G. and his minor daughter Z.G. committed earlier that same day. He was sentenced to forty days’ imprisonment suspended for ten months. 9. On 16 January 2008 the Zagreb Minor Offences Court found the applicant guilty of a minor offence of domestic violence, in that on 10 January 2008 he had verbally insulted his daughters Z.G. and M.G. and his wife Mi.G. The applicant was given a suspended sentence of seventy-six days’ imprisonment, taking into account a previously imposed suspended sentence (see paragraph 8 above), with a one-year probation period. That judgment was upheld on appeal. 10. On 4 November 2008 the Kutina Social Welfare Centre received a complaint from Mi.G. She alleged that on 3 November 2008 the applicant had behaved violently in their family home, had blamed her for the loss of his job and had been threatening to kill her since 2005. She produced medical documentation of the same day, indicating that she had sustained injuries to her head. The Kutina Social Welfare Centre lodged a criminal complaint with the police. 11. On 4 November 2008 the police instituted minor-offence proceedings against the applicant before the Zagreb Minor Offences Court for the minor offence of domestic violence under section 4 and section 18(3) of the Protection against Domestic Violence Act committed on 3 November 2008 against Mi.G. – who by that time was his former spouse – and his daughter M.G. 12. On the same day the applicant was arrested and placed in detention. 13. On 17 November 2008 the Zagreb Minor Offences Court found the applicant guilty of violent behaviour within the family towards Mi.G. and his older daughter M.G. and sentenced him to thirty days’ imprisonment. At the same time it revoked the applicant’s previous suspended sentence (see paragraphs 8 and 9 above), and imposed a sentence of 112 days’ imprisonment in total. The relevant part of that judgment read as follows: “The accused, Miljenko Galović, ... is guilty in that on 3 and 4 November 2008 at 10.02 a.m. in [his] family house in ... while being under the influence of alcohol, he behaved violently within [his] family, in that on 3 November 2008 at about 4 p.m. he verbally insulted his daughter M.G. and former spouse Mi.G. by saying to them ‘Whores, sluts, I have lost my job because of you!’, after which his daughter M. left the house, and after her return at about 8.30 p.m. he continued to insult her by saying ‘Slut, whore, you and your mother, I have lost my job because of you!’, after which she locked herself in a room while the accused banged at the door of her room, continuing to insult her by saying ‘Slut, whore, get out of the house, go to your lover, go away!’, and on 3 November 2008 at 5 p.m. he verbally assaulted his former spouse Mi.G. by saying ‘Whore, do you know that I got fired today because of you. I will throw you out of the house, I will kill you. Now you have no alimony, the bank will take your assets. See how stupid you are, a whore from Moslavina-Zagorje!’, after which he went to sleep and when he woke up at 6.30 p.m. he went to the room where his former spouse was and continued to verbally insult her by saying ‘Whore, I lost my job today’, after which he physically assaulted her by approaching the bed on which she was sitting, grabbing her by the hair with both hands and throwing her onto the bed. He [continued to] hold her by the hair with his left hand and with his right hand he slapped her several times on the left cheek and ear while saying to her ‘Come on, shout, shout, I will kill you before the police arrive. If you put me in prison, after two years I will find you, you are mine!’ ... The court inspected ... the record of examination of blood alcohol [of 4 November 2008].” 14. By a judgment of 28 January 2009, the High Minor Offences Court altered the legal characterisation of the offence and held that it was an offence under section 18(1) of the Protection against Domestic Violence Act, and not section 18(3) of that Act. Otherwise, it dismissed an appeal by the applicant and upheld the first-instance judgment, which thus became final. The proceedings on indictment 15. On 4 November 2008 Mi.G. lodged a criminal complaint against the applicant with the Kutina police, concerning the events of 3 November 2008. On 2 December 2008 the police supplemented Mi.G.’s criminal complaint with previous events covering the period between February 2005 and 4 November 2008 and forwarded it to the Zagreb Municipal State Attorney’s Office. 16. On 2 December 2008 the applicant was transferred from detention for minor offences to criminal detention, on suspicion of having committed criminal offences: domestic violence against his spouse, his two daughters and his son; and child neglect and abuse against his younger daughter. 17. On 3 December 2008, referring among other things to documents on the basis of which the previous minor offence proceedings had been conducted, the Zagreb Municipal State Attorney’s Office requested the investigating judge to conduct investigative activities in respect of the applicant in relation to criminal offences: four counts of domestic violence perpetrated against his former spouse, his two daughters and his son, and one count of child neglect and abuse against his younger daughter Z.G. On the same day the applicant was heard by an investigating judge of the same court, in the presence of E.H, a defence lawyer of his own choosing. He denied the charges against him. The investigating judge ordered that the applicant be detained for forty-eight hours on the grounds that there was a danger that he would suborn witnesses. 18. The applicant’s detention was subsequently extended throughout the investigation and his trial. 19. On 12 December 2008 the applicant sent his written defence to the investigating judge. 20. On 15 December 2008 the investigating judge heard evidence from: an expert witness in psychiatry who had carried out a psychiatric examination of the applicant in 2005, a lawyer from the Social Welfare Centre in charge of the applicant and his family, and the applicant’s former spouse Mi.G. Neither the applicant nor his defence lawyer was present. 21. On 20 January 2009 the investigating judge heard evidence from the applicant’s son H.G and his older daughter M.G. The applicant’s defence lawyer was present. 22. On 21 January 2009 the investigating judge heard evidence from the applicant’s younger daughter Z.G. Neither the applicant nor his defence lawyer was present. 23. On 26 January 2009 the Zagreb State Attorney’s Office indicted the applicant before the Zagreb Municipal Criminal Court ( Općinski kazneni sud u Zagrebu, hereinafter “the Municipal Court”) for criminal offences: four counts of domestic violence as defined in Article 215a of the Criminal Code, perpetrated against his former spouse, his two daughters and his son; and one count of child neglect and abuse as defined in Article 213 of the Criminal Code, committed against his minor daughter Z.G. According to the indictment, these offences were perpetrated in the period between February 2005 and 3 November 2008. 24. On 10 February 2009 the Municipal Court ordered a psychiatric assessment of the applicant. 25. On 23 February 2009 the applicant submitted an additional written defence. 26. On 10 March 2009 a psychiatrist submitted a report on the applicant, finding that at the time of the alleged offences his capacity to understand his actions had been reduced, but not significantly. 27. On 11 March 2009 the applicant submitted an additional written defence. 28. On 17 March 2009 the applicant submitted his written “closing arguments”. 29. At a hearing held before the Municipal Court on 24 March 2009, the applicant and three witnesses gave evidence. 30. On 19 May 2009 the applicant submitted an additional written defence. 31. Further hearings were held on 2 and 23 June, and on 7 and 14 July 2009. Several witnesses and an expert in psychiatry gave evidence. 32. On 15 June 2009 the applicant asked the court to allow him to consult the case file. His request was granted. 33. By a judgment of 14 July 2009, the Municipal Court found the applicant guilty of one count of child neglect and abuse in respect of his then minor daughter Z.G. and imposed a sentence of ten months’ imprisonment. He was also found guilty of four counts of domestic violence in total in respect of: his daughter Z.G., for which a prison term of six months was imposed; his daughter M.G., for which a prison term of nine months was imposed; his son H.G., for which a prison term of seven months was imposed; and his former spouse Mi.G., for which a prison term of one year was imposed. At the same time his suspended sentence of two years which had been imposed in a previous set of criminal proceedings was revoked (see paragraph 5 above), and he was sentenced cumulatively to five years’ imprisonment. A security measure of compulsory treatment for alcohol addiction was also imposed on him. The relevant part of the judgment read: “The accused, Miljenko Galović, ... is guilty in that in the period between February 2005 and 3 November 2008 in ..., in the flat where he lived in the same household with his daughter Z., a minor, ..., adult daughter M. ... and adult son H., as the common-law spouse of Mi.G., [while] frequently under the influence of alcohol in the presence of Z., a minor, even though he knew that he could put her psycho-physical development at risk, he was verbally and physically assaulting his spouse Mi. and adult children, in that he was calling his common-law spouse ugly names: ‘whore, slut’, and cursing her mother, threatening to kill and sell her, and was physically attacking her by slapping her, pulling her hair and throwing her to the ground, all this in the presence of Z., a minor, and his daughter M. and son H., and [was threatening to] throw his common-law spouse Mi. and the children out of the flat, and threatening to kill them, and on one occasion in December 2007 he took a kitchen knife and put it to the throat of his common-law spouse Mi. and told her that she had to send the agents of the [prosecuting authorities for organised crime] to search for him in bars, and he charged at [his common-law spouse] while brandishing the knife, while he insulted his daughter M. by telling her that she was a ‘whore, slut and a whore from Moslavina’, and to go to her lover, and he also insulted his son H. by telling him that he was ‘an imbecile, an idiot’, and cursed his mother, and said to him ‘give me a blowjob’, and at the same time he pushed H. This caused H. to move out of the flat at the beginning of 2007. [The accused] was frequently telling Z., a minor, that she was a ‘fat pig’, that ‘nobody would fuck her’, and that she was ‘a fat slut’. He grabbed her by the head and pushed her out of the flat, and continued to treat Z. in the same manner when she became an adult ... This behaviour culminated in [the events] on 3 November 2008 when the accused verbally assaulted his common-law spouse Mi. and daughter M. by telling them that they were ‘whores and sluts’, and when his common-law spouse Mi. stayed in the flat with him alone he verbally assaulted her again by telling her that she was a whore and that he had been fired because of her, [and] that he would throw her out of the house and kill her. He then physically assaulted her, in that he grabbed her hair, threw her onto a bed and hit her on the head, and continued to insult her by telling her that she was a ‘stupid whore from Moslavina and Zagorje’. Those blows made her ear bleed, and [the accused] threatened her by saying that if she called the police then he would kill her. When their daughter M. came home on the same day he entered her room and said to her ‘slut, whore, I lost my job because of you, get out of the house’, after which he followed her around the house and continued to insult her. This behaviour caused frequent police interventions and the accused, through his behaviour, put the proper psycho-physical development of his minor daughter Z. at risk. [Z.] is in psychiatric treatment owing to the accused’s behaviour ... while [his behaviour] caused his daughter M., son H. and common-law spouse Mi. to fear for their life and health [and] to experience anxiety [in this respect]. ... In the course of the proceedings, the court inspected ... record of examination of blood alcohol [of 4 November 2008]..., the Zagreb Minor Offences Court judgment [of 4 November 2008] ..., medical documentation concerning Mi.G. [relating to the incident of 3 November 2008]... ... In relation to the criminal offences of domestic violence from Article 215a of the Criminal Code committed against Z.G., M.G., Mi.G and H.G., the court has established that in the incriminating period the [applicant], through his extremely rude, aggressive and ruthless behaviour, put the members of his family in a humiliating position by verbally and physically endangering them, attacking, threatening, which transpires from the statements of all heard witnesses and from the material evidence in the case file. The gravity of the [applicant’s] behaviour is also visible from the fact that [his family members] have been suffering such behaviour since 1995, that his older daughter M.G. said that she thought that [his conduct] had not been punishable as long as he was not beating them, and the fact that the victims called the police only when ‘the water came to their neck’ since they are in permanent fear due to the aggressive behaviour of the [applicant]. Not even a whole series of minor offence convictions, nor a previous criminal conviction for the same criminal offences did not result in a change in the [applicant’s] behaviour, but instead it culminated on 3 November 2008 when Mi.G. left the family home in fear of her own life. ... The [above] prison penalty shall include the period [the applicant] had served on the basis of the Zagreb Minor Offences Court’s decision [of 10 January 2008] between 11 and 16 January 2008 and [on the basis of its decision of 17 November 2008] between 5 November until 2 December 2008 ...” 34. The first-instance judgment was served on the applicant’s lawyer E.H. on 13 August 2009. 35. The applicant remained in detention. 36. On 19 August 2009 the applicant appealed against the first-instance judgment and asked that a hearing be held. He complained at length about the wrongful assessment of the facts and application of the domestic law in his case. 37. By a letter of the same date, which was received by the first instance court a day later, the applicant revoked the power of attorney which had been issued to E.H., his lawyer. 38. On 24 August 2009 the applicant sent a letter to the Municipal Court stating that he needed a new defence lawyer. He submitted a list of eight lawyers and asked to be able to contact them by telephone. This letter was received by the Municipal Court on 25 August 2009. 39. By another letter of 25 August 2009, the applicant informed the Municipal Court that he had revoked the power of attorney given to E.H. and asked to be allowed to contact four other lawyers by telephone. That letter was received by the Municipal Court on 26 August 2009. The applicant made the same request in a letter of 26 August 2009. 40. On 31 August 2009 E.H. lodged an appeal against the first-instance judgment on the applicant’s behalf. 41. On 7 September 2009 the applicant asked for permission to consult part of the case file. 42. On 9 September 2009 the President of the Municipal Court appointed S.A. to act as a defence lawyer for the applicant and sent the applicant a copy of the part of the case file which he had requested to consult. 43. On 14 September the applicant informed the Municipal Court that he did not trust S.A., and he complained that a request which he had made to contact three lawyers by telephone had not been complied with properly. He explained that he had written to two lawyers and sent letters by registered mail but had not received any confirmation of receipt. As regards the third lawyer, the number on which he had been allowed to call him had been incorrect. 44. On 16 September the applicant contacted E.H. again. On the same day D.L., another lawyer, visited the applicant in prison. 45. On 23 September 2009 the presiding judge of the trial panel allowed the applicant to contact two lawyers. 46. On 27 September 2009 the applicant himself lodged an additional appeal against his conviction. 47. On 29 September 2009 the applicant contacted a lawyer J.M. 48. On 7 October 2009 two lawyers, J.M. and A.D. visited the applicant in prison. 49. On 23 October 2009 the president of the trial panel of the Municipal Court informed Zagreb County Court ( Županijski sud u Zagrebu, hereinafter “the County Court”) that the applicant had asked to consult the case file. 50. The County Court informed only the applicant’s former counsel E.H. of a session scheduled for 2 November 2009 at which the appeal was to be examined. 51. By a judgment of 2 November 2009 issued at that session, the County Court examined all appeals lodged both by the applicant and his defence lawyer E.H. It accepted in part their arguments and reduced his sentence to four years and three months’ imprisonment, without holding a hearing and in the absence of the applicant and the lawyers E.H. and S.A. The remainder of the appeals was dismissed, and in that part the first ‑ instance judgment was upheld. 52. On 19 November 2009 the applicant was taken from the detention facility to prison, where he started to serve his sentence. 53. The applicant then lodged a request for extraordinary review of a final judgment ( zahtjev za izvanredno preispitivanje pravomoćne presude ) with the Supreme Court ( Vrhovni sud Republike Hrvatske ). He argued, inter alia, that he had not been notified of the session at which the County Court had examined his appeal and issued its judgment, even though under the rules of criminal procedure an accused who demanded a hearing before a second-instance court had to be informed of such a session. Only his former counsel E.H. had been notified, even though he had no longer represented him at the time. 54. On 20 January 2010 the Supreme Court quashed the second-instance judgment and remitted the case. It held that the County Court had breached the rules of criminal procedure by informing the applicant’s former defence lawyer E.H. of the session of 2 November 2009, rather than his current defence lawyer S.A., who had been officially appointed. 55. On 5 February 2010 the applicant was transferred from prison to a detention facility in Zagreb. On the same day, the decision of the Supreme Court of 20 January 2010 was served on him. 56. On 9 February 2010 the applicant asked the County Court to be allowed to contact five lawyers by telephone. That request was registered with the County Court on 10 February 2010 and forwarded to the Municipal Court, which received it on 15 February 2015. 57. In the meantime, on 12 February 2010, the County Court had notified the applicant and his officially appointed defence lawyer S.A. that the session before that court, at which the applicant’s appeal was to be examined, was scheduled for 16 February 2010. 58. By a letter received by the County Court a day before the session, the applicant asked the court to adjourn the session for a week and to grant him leave to represent himself. He explained that he had been informed of the session only four days in advance, on the afternoon of Friday, 12 February 2010, and thus had not had enough time to prepare his defence or contact anyone. He stressed that while in prison, he had written to three lawyers. At the same time, he asked for leave to represent himself, since he had “participated in the events [in respect of which] he had been charged” and was an administrative lawyer by profession. As regards the lawyer S.A., the applicant said that he did not know him and that he had never talked to him about his case. He reiterated that he had asked to be present at the session in order to give more details about the relevant facts and his former spouse’s motives for allegedly giving false statements and manipulating their children. He also enclosed submissions on the charges against him. 59. On 16 February 2010 the presiding judge of the trial panel of the Municipal Court allowed the applicant to contact the five lawyers mentioned in his request by telephone. 60. The session of the County Court was held as scheduled on 16 February 2010. The applicant, who was still in detention at the time, was not invited and his officially appointed defence lawyer S.A. was not present. The competent State Attorney was not present at the session either. 61. After the session, the County Court issued a judgment identical to its previous judgment of 2 November 2009 – it reduced the applicant’s sentence to four years and three months’ imprisonment and dismissed the remainder of his appeal. The relevant part of that judgment reads as follows: “The presence of the accused – Miljenko Galović, who is in detention and is represented by counsel – at the session before the panel was not secured, because the panel considered that his presence had not been necessary.” 62. On 17 February 2010 the applicant himself lodged another request for extraordinary review of a final judgment with the Supreme Court, which he supplemented on 30 March and on 18 and 22 April 2010. He argued, inter alia, that: (a) he had been notified of the County Court’s session of 16 February 2010 only four days in advance, and thus had not had enough time to prepare his defence; (b) his officially appointed counsel had never contacted him and had not attended the session; (c) due to time constraints and transfers from prison to a detention facility, he had not had enough time to hire counsel of his own choosing to represent him before the County Court; (d) he had not been invited to the session before the appeal court; and (e) in view of his previous convictions for domestic violence in proceedings on indictment and in several sets of minor-offence proceedings, his criminal conviction in the impugned judgment constituted a second conviction for the same offence. 63. By a judgment of 27 April 2010, the Supreme Court dismissed the applicant’s request. It addressed only the issue of ne bis in idem in connection with the Zagreb Minor Offences Court’s judgment of 17 November 2008 (see paragraph 13 above). The relevant part of the judgment reads: “The factual background of the minor offence of which [the applicant] was found guilty by the judgment of the Minor Offences Court is not the same as the factual background of the criminal offences of which [he] had been found guilty by a final judgment of the Zagreb Municipal Criminal Court of 14 July 2009 ... Miljenko Galović has been found guilty of one criminal offence under Article 213 §§ 1 and 2 of the Criminal Code and four criminal offences under Article 215a of the Criminal Code committed in the period between February 2005 and 3 November 2008. The fact that [his] behaviour also constituted a minor offence under section 18(1) of the Protection Against Domestic Violence Act in respect of the same victims during that same period – [a minor offence] of which he had been found guilty by a judgment of the Minor Offences Court – cannot be seen as a matter which has already been judged, and there has therefore been no violation of the Criminal Code under Article 368 § 3 of the Code on Criminal Procedure.” 64. By a decision of 27 January 2011, the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared a subsequent constitutional complaint lodged by the applicant inadmissible. It held that the Supreme Court’s decision following a request for extraordinary review of a final judgment was not susceptible to constitutional review. 65. On 16 March 2012 the applicant was conditionally released from prison. | This case concerned the applicant’s convictions for domestic violence in several sets of minor-offence proceedings and in criminal proceedings on indictment. The applicant complained, in particular, that he had been tried and convicted twice of the same offence. |
129 | Regulation of marriage | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born on 22 April 1996 and 13 June 1992 respectively and live in Geneva. 6. On 17 September 2010, the applicants, who are cousins, contracted a religious marriage in Iran, where they were residing illegally. At the time, the first applicant was 14 years old and the second applicant 18 years old. Their religious marriage was not registered in Iran. 7. On 18 September 2011 the applicants applied for asylum in Switzerland, which they had entered from Italy on an unspecified date. Both applicants had been already registered as asylum seekers in Italy. 8. On 8 December 2011 and 26 March 2012 the Federal Office of Migration (the “FOM”) rejected the applicants ’ asylum request, considering that Italy was the responsible State by virtue of Regulation no. 343/2003/EC (the “Dublin Regulation”). 9. On 19 December 2011, the first applicant had a legal guardian appointed by the Guardianship Court ( Tribunal tutélaire, now Tribunal de protection de l ’ adulte et de l ’ enfant ). 10. On 20 March 2012 the Federal Administrative Court (the “FAC”) rejected the second applicant ’ s appeal against the FOM ’ s decision. The FAC noted that the applicants had failed to submit a certificate of marriage and that in any event their alleged religious marriage could not be validly recognised in Switzerland, pursuant to Article 45 of the Federal Act on Civil International Law, because it was illegal under the relevant provision of the Afghan Civil Code, which contained an absolute prohibition on marriage for women under 15 years of age, while the first applicant was 14 years old. In any case, independently of the applicable Afghan law, the applicant ’ s marriage was manifestly incompatible with Swiss ordre public, since having sexual intercourse with a child under the age of 16 was a crime under Article 187-1 of the Swiss Criminal Code. The first applicant could therefore not be qualified as a member of the second applicant ’ s family under the Dublin Regulation and the applicants could not claim any right to family life under Article 8 of the Convention. The decision against the first applicant entered into force on 5 April 2012, as the second applicant had not appealed against it. 11. On 3 May 2012 the FOM decided to reexamine the first applicant ’ s asylum request in Switzerland. Following this decision, the second applicant requested that his own asylum request be also reexamined in order to preserve the family unity. The second applicant ’ s request was rejected by the FOM on procedural grounds : as the applicant ’ s claim was deemed without prospects of success, he had been asked an advance judicial fee of 600 Swiss Francs (“CHF”), which he had failed to pay. 12. The second applicant was expelled to Italy on 4 September 2012. However, on 7 September 2012 he returned illegally to Switzerland, where he could see the first applicant “intermittently”, in the applicants ’ own words. 13. On 18 September 2012 the applicants lodged the present application before this Court. 14. On 21 December 2012 the second applicant again requested the reexamination of his asylum request, which was rejected by the FOM on 10 January 2013 because the second applicant had again failed to pay the CHF 600 advance judicial fee. 15. On 18 March 2013, the applicants requested the recognition of their religious marriage in Switzerland. The first applicant was then 16 years and 11 months old. 16. On 28 November 2013, the FAC examined the second applicant ’ s appeal against the FOM ’ s decision of 10 January 2013 and ruled in favour of the second applicant. The FAC considered that the FOM had wrongly imposed on the second applicant the payment of an advance judicial fee because by then the first applicant was 17 years old and the applicants could therefore claim to be a family within the meaning of Article 8 of the Convention as interpreted by this Court and by the Swiss Federal Tribunal. 17. On 20 February 2014, the Government requested that the application be struck out of the list of cases pursuant to Article 37 § 1 (c) of the Convention. 18. On 1 April 2014, in reply to the Government ’ s request, the applicants submitted that their application included a complaint about a past violation, not only a prospective one, namely that on 4 September 2012 the second applicant had been expelled to Italy and thus separated from the first applicant. Such forcible separation constituted a violation of the applicants ’ right to respect for their family life. 19. On 2 June 2014, the Court of First Instance of the Canton of Geneva recognised the validity of the applicants ’ religious marriage contracted in Iran. 20. On 9 January 2015 the applicants informed the Court that they had been granted asylum in Switzerland by a decision of 17 October 2014. 21. On 23 June 2015, referring to their submissions of 1 st April 2014, the applicants informed the Court that they wished to maintain their application, considering that as the alleged past violation of their right to respect for family life had neither been acknowledged nor remedied they had not lost victim status even if they had now obtained asylum in Switzerland. III. THE ITALIAN CONTEXT 26. A detailed description of the asylum procedure and the legal framework and organisation of the reception system for asylum seekers in Italy is also set out in the Tarakhel judgment ( §§ 36-50). | The applicants, who had had a religious marriage in Iran at the ages of 14 and 18, had complained of the refusal by the Swiss authorities to recognise their marriage as valid and to take it into account for their asylum application. |
413 | Deprivation of liberty / Restriction on the freedom of movement | THE APPLICANTS’ BACKGROUND AND THEIR TRAVEL TO HUNGARY 7. Both applicants are nationals of Bangladesh. According to information dating from December 2017, the first applicant, Mr Ilias Ilias, lives in Uedem, Germany, and the second applicant, Mr Ali Ahmed, in Barcelona, Spain. 8. On 15 September 2015 the applicants arrived in Hungary from Serbia and entered the Röszke transit zone, situated on Hungarian territory at the border between the two countries. Their asylum requests submitted on the same day were rejected as being inadmissible within several hours and the applicants’ expulsion was ordered. Following the applicants’ appeal, they spent 23 days in the transit zone while the proceedings unfolded. On 8 October 2015, after the final decision rejecting their applications for asylum and ordering their expulsion, they were escorted out of the transit zone and crossed the border back into Serbia. 9. The following summary of the applicants’ background is based on all their submissions to the Court. It appears that certain elements were not present in the allegations made to the Hungarian authorities or were only made in the second of the domestic sets of judicial proceedings or were presented with variations. 10. The first applicant was born in Bangladesh in 1983. At the age of eight he found himself alone in Pakistan, without his family. He lived there until the age of twenty four or twenty five (with the exception of three months at the age of fourteen when he was allegedly expelled to Afghanistan, detained there and then returned to Pakistan). As a child, he worked illegally in a restaurant and later as a fisherman and a tailor. He claims that he suffered abuse in Pakistan, including by the police, and tried to flee to Iran but was repeatedly abused there and returned to Pakistan. In 2009 or 2010 the first applicant went to Bangladesh and stayed there for a year or slightly longer, living homeless and often abused by the police because he had no documents. During this period he distributed pamphlets for the BNP, a political party, and started to receive threats from supporters of another political party. In 2010 or 2011, he was expelled by the police to India, stayed there two weeks and then crossed into Pakistan. After four months in Pakistan he went to Iran, where he lived and worked for 18 months. From there he went to Turkey, worked there for another 18 months and then paid smugglers to bring him to Greece, where he spent two and a half months. In 2015 he crossed on foot into the Former Yugoslav Republic of Macedonia and then on to Serbia by train. He was in Serbia for an unspecified but apparently very short period before entering Hungary. 11. The second applicant, born in 1980, lived in Bangladesh until 2010. He left because the floods of 2008 had destroyed his home and he had become destitute, surviving as a beggar. In 2010 he decided to go to India in search of better opportunities. His family who stayed in Bangladesh were killed in floods in 2010. The second applicant stayed in India for two months and then went to Pakistan, where he spent six months as captive of smugglers. The gang of smugglers eventually flew him to Dubai, made him work there for two years and then transferred him by boat to Iran. In Iran he worked for the same smugglers for two months before being taken by them to Turkey on foot. In Turkey, he was held captive by the smugglers for two weeks, then transferred to Greece. In Greece, the second applicant worked for two years. He there met the first applicant and they left together for the Former Yugoslav Republic of Macedonia, Serbia and Hungary. 12. Both applicants’ mother tongue is the Sylheti dialect of Bengali, the official language of Bangladesh. 13. Both applicants understand spoken Urdu and the first applicant speaks this language. It appears that the applicants declared before the Hungarian asylum authority that they also understood Turkish and English. 14. The first applicant never went to school. The second applicant finished only the first three years of school and can read and write in Sylheti and Bengali at a basic level. THE APPLICANTS’ STAY IN THE TRANSIT ZONE 15. The Röszke transit zone, as it was at the relevant time, was a compound with mobile containers and a narrow open-air area surrounded by approximately four-metre high fencing with barbed wire on the top. The entire zone was guarded by police officers and armed security guards. At the material time, applicants for asylum were held in the designated accommodation area consisting of approximately ten mobile containers (each measuring some 2.5 metres x 5.5 metres) furnished with three to five beds and an electric heater. There was a separate container for sanitary purposes and a bigger container used as a common room furnished with tables and chairs. The accommodation area was surrounded by a narrow open-air strip (approximately 2.5 metres wide and 40-50 metres long). Hot and cold running water and electricity were supplied. Three pork-free meals were available daily to the applicants in a dining-container. 16. According to the applicants, they had no access to social or medical assistance while in the zone. There was no access to television or the Internet, landline telephone or any recreational facilities. 17. According to the Government, medical care was available for two hours daily from doctors of the Hungarian Defence Force. 18. According to the Council of Europe’s Committee for the Prevention of Torture (“the CPT”), beds in the Röszke zone were fitted with clean mattresses, pillows and bedding. The accommodation containers had good access to natural light and artificial lighting. Further, there was a narrow designated area in front of the containers to which foreign nationals had unrestricted access during the day. The sanitary facilities were satisfactory and health care was provided (see paragraph 65 below). 19. The applicants could not leave the zone for the remaining territory of Hungary. It appears that they could leave it for Serbia, but the parties are in dispute as to the legal and practical consequences of such a move. THE APPLICANTS’ ASYLUM REQUESTS AND THEIR EXAMINATIONThe first decision of the asylum authority and the appeal against it The first decision of the asylum authority and the appeal against it The first decision of the asylum authority and the appeal against it 20. The applicants were interviewed by the Citizenship and Immigration Authority (“the asylum authority”) shortly after their arrival, with the assistance of an interpreter who spoke Urdu as a foreign language. The first applicant’s interview lasted two hours and the second applicant’s twenty-two minutes. During the interviews they explained the background to their departure from Bangladesh, and gave some details concerning their journey. The first applicant was provided with a two-page information leaflet in Urdu on asylum procedure. 21. According to the notes taken by the Hungarian authorities during the interviews, Hungary was the first country where both applicants had applied for asylum. In Serbia, the first applicant had not met any official or representative of the authorities, nor had he even envisaged seeking protection in that country. The second applicant had once come across police officers while in Serbia but had not submitted an asylum request. He had insisted on continuing his journey, and the Serbian police had allegedly let him go after having issued him with a document ordering him to leave the country. 22. During the interview, the first applicant was informed that he had three days to provide reasons for his decision not to request protection in Serbia and to explain why he had considered the possibility of seeking asylum in Serbia as non-existent or ineffective. The second applicant was also invited, albeit as an immediate obligation, to explain why he thought that he could not have obtained protection in Serbia. According to the notes of the interview, he answered that he had not asked for asylum there because he wanted to continue his journey. 23. By two separate decisions delivered on the same day, 15 September 2015, the asylum authority (without, in the first applicant’s case, waiting for the three-day period given to him for rebutting the presumption about Serbia as a “safe third country”) rejected both applicants’ asylum applications, declaring them inadmissible on the grounds that Serbia was to be considered a “safe third country” according to Government Decree no. 191/2015(VII.21.) and the applicants had not rebutted that presumption as they had not even considered the possibility of submitting an asylum claim in Serbia. The asylum authority ordered the applicants’ expulsion from Hungary. 24. The applicants challenged the decisions before the Szeged Administrative and Labour Court. The court listed a hearing in both the applicants’ cases for 21 September 2015. 25. The applicants, through UNHCR representatives who had access to the transit zone, authorised two lawyers of the Hungarian Helsinki Committee to represent them in the judicial review proceedings. It appears that the authorities did not allow the applicants’ lawyers to enter the transit zone to consult with their clients until the evening of 21 September 2015, that is, after the court hearing. 26. Nevertheless, on 21 September 2015, the day of the hearing, the applicants’ lawyers made written submissions, running to several pages, and also pleaded their case orally. The lawyers were present in the courtroom in Szeged, whereas the applicants communicated with the court via video link, with the help of an interpreter in Urdu. 27. Both applicants stated that they had received a document from the Serbian authorities written in Serbian, which they could not understand, and that they had been ordered to leave Serbian territory. Both applicants showed the documents which they had received from the Serbian authorities; in the first applicant’s case, that document did not comprise his name, as it had been issued for another person. At the hearing, the second applicant submitted that he had applied for asylum in Serbia, but his application had not been examined. 28. In their written and oral submissions, the applicants’ lawyers argued, in essence, that the asylum authority had violated the provisions of the Asylum Procedures Directive (Directive 2013/32/EU) by failing genuinely to examine the question whether Serbia could be considered a “safe third country” in the applicants’ particular situation. In their view, the decisions had been formalistic and lacked any individualised assessment. The applicants further complained that they had not been allowed to avail themselves of the statutory three-day time-limit to contest the application of the “safe third country” principle, as the asylum authority had adopted its decisions on the very day of the first interviews. They also argued that the decisions had not properly taken into account the relevant country information, in particular the reports of the UNHCR and a statement of the Serbian Minister of Labour and Social Affairs, dated 14 September 2015, according to which Serbia would not take back asylum-seekers from Hungary. 29. On the same day the court annulled the asylum authority’s decisions and remitted the case to it for fresh consideration. It relied on section 3(2) of the Government Decree and argued that the asylum authority should have analysed the actual situation in Serbia regarding asylum procedure more thoroughly. It should also have informed the applicants of its conclusions on that point and afforded them three days to rebut the presumption of Serbia being a “safe third country” with the assistance of legal counsel. The second decision of the asylum authority and the appeals against it 30. In the renewed procedure before the asylum authority, the applicants submitted a written opinion by a psychiatrist, who had visited them in the transit zone on 23 September 2015 and interviewed them with the assistance of an interpreter attending by telephone. The psychiatrist intervened at the request of the applicants’ lawyers and was commissioned by the Hungarian Helsinki Committee. In her opinion the psychiatrist stated that the first applicant had left Bangladesh in 2010 partly because of a flood and partly because two political parties had been trying to recruit him. He had been attacked and suffered injuries because of his refusal to do so. The psychiatrist observed that the first applicant was well-oriented, able to focus and recall memories, but showed signs of anxiety, fear and despair. He was diagnosed with post-traumatic stress disorder (“PTSD”). With regard to the second applicant, the psychiatrist noted that he had fled his country five years earlier and had worked abroad, during which time his whole family had died in a flood. He had then migrated through several countries in order to restart his life. He was found to be well oriented with no memory loss but with signs of depression, anxiety and despair. He was diagnosed with PTSD and as having an episode of depression. The psychiatrist did not mention any need for medical or psychological treatment. However, she was of the opinion that the applicants’ mental state was liable to deteriorate due to the confinement. 31. On 23 September 2015 the asylum authority informed the applicants’ legal representatives by telephone that a hearing would be held two days later. However, the representatives apparently considered that this was not a valid summons and did not attend. 32. At the hearing before the asylum authority on 25 September 2015, the applicants decided not to make any statement since their legal representatives were not present. With the assistance of an Urdu interpreter, the asylum authority informed the applicants that they had three days to rebut the safe-third-country presumption. 33. On 28 September 2015 the applicants’ legal representatives made submissions to the asylum authority protesting against the manner in which they were summoned and requested that a new hearing be held, which they would attend. They also stated that the applicants should be given a proper opportunity to comment on the material on the basis of which Serbia was deemed safe. 34. On 30 September 2015 the asylum authority rejected the applications for asylum. It found that the reports prepared by the psychiatrist had not provided enough grounds to grant the applicants the status of “persons deserving special treatment” since they had not revealed any special need that could not be met in the transit zone. As to the status of Serbia being classified as a “safe third country”, the asylum authority had regard to relevant reports by the UNHCR and a non-governmental organisation. It further noted that the applicants had not referred to any pressing individual circumstances substantiating the assertion that Serbia was not a safe third country in their case, and therefore that they had been unable to rebut the presumption. The applicants’ expulsion from Hungary was consequently ordered. 35. The applicants sought judicial review by the Szeged Administrative and Labour Court. They argued, in particular, that the asylum authority had based its decisions on selectively chosen and incorrectly interpreted country information. They also submitted that, in their view, the burden of proof was on the asylum authority first of all to show that Serbia was a safe third country for the applicants and to substantiate this finding with relevant country information and other evidence. The applicants argued that the three-day time-limit for their rebuttal of the application of the safe third country principle could not even lawfully begin to run because the asylum authority had failed to meet its obligation to prove its assertions convincingly. The applicants further contended that the asylum authority had failed to verify whether the Serbian authorities would readmit them, this also being a condition for the application of the “safe third country” principle. They also referred to various alleged procedural shortcomings. 36. On 5 October 2015 the court, in separate decisions concerning the first and second applicant respectively, upheld the asylum authority’s decisions. It observed, in particular, that in the resumed procedure the asylum authority had examined, in accordance with the guidance of the court, whether Serbia could be regarded generally as a safe third country for refugees, and had found on the basis of the relevant law and the country information obtained that it was. It had considered the report of the Belgrade Centre for Human Rights published in 2015, the reports of August 2012 and June 2015 issued by the UNHCR concerning Serbia, and also other documents submitted by the applicants. It had established on the basis of those documents that Serbia satisfied the requirements of section 2 (i) of the Asylum Act. The court was satisfied that the asylum authority had established the facts properly and observed the procedural rules, and that the reasons for its decision were clearly stated and were reasonable. The court further emphasised that the statements given by the applicants at the hearings had been contradictory and incoherent. The first applicant had given various reasons for leaving his country and made confusing statements on whether he had received any documents from the Serbian authorities. The document he had finally produced was not in his name, and therefore could not be admitted as evidence. At no point during the administrative procedure had he referred to the conduct of the human traffickers before his hearing by the court. The second applicant’s statements were incoherent on the issue of the duration of his stay in Serbia and the submission of a request for asylum. The applicants had not relied on any specific fact that could have led the authority to consider Serbia unsafe in their regard. They had only contested the safety of Serbia in general, which was insufficient to rebut the presumption. 37. The final decisions were served on the applicants on 8 October 2015. They were written in Hungarian but explained to them in Urdu. During the afternoon of the same day the applicants were escorted by police officers out of the transit zone and then entered Serbia. 38. On 22 October 2015 the transcript of the court hearing held on 5 October 2015 was sent to the applicants’ lawyer. On 10 December 2015 the lawyer received the Bengali translation of the court’s decisions taken at the hearing. On 9 March 2016 the applicants’ petitions for review were dismissed on procedural grounds, since the Kúria held that it had no jurisdiction to review such cases. THE APPLICANTS’ REMOVAL TO SERBIA ON 8 OCTOBER 2015 39. The applicants submitted descriptions of the removal in a note from the UNHCR and a letter from a Serbian non-governmental organisation whose representatives were present, as well as in a video interview with the applicants conducted on the evening of their return to Serbia with the assistance of a lawyer of another Serbian non-governmental organisation via an Urdu interpreter. The respondent Government did not contest the descriptions but maintained that the applicants had left Hungary voluntarily. 40. It transpires from those descriptions that on the morning of 8 October 2015 UNHCR staff met the applicants at the transit zone and explained to them that following the judgment in their case they could return to Serbia voluntarily or appeal, in which case they would be detained for two months. The applicants expressed their wish to appeal and remain in Hungary and signed an appeal. The UNHCR staff left. In the early afternoon the police and the asylum authorities told the applicants, with the help of an Afghan man who could speak some Urdu, that the court had decided that they should go back to Serbia. The applicants replied that they did not want to go to Serbia and that the UN staff had told them that they might be able to stay for two months in Hungary. They handed a copy of the appeal they had signed but the authorities refused to take it. The police insisted and said that the applicants could choose between voluntary departure or detention and forceful handing over to the Serbian police. The applicants felt threatened and thought that they risked violence. They decided to leave. The police told them to cross into Serbia via the forest and not through the official checkpoint. As they were being led out of the transit zone the UNHCR staff arrived and conversed with the police who told them that the applicants had decided to leave Hungary voluntarily and also that they would not be escorted all the way and across to the Serbian side of the border. Serbian border police had informed the UNHCR staff and the Hungarian police officer that the applicants would not be allowed to enter Serbia through the official checkpoint without documents and that the only possibility would be to try to enter through the “green border”. The UNHCR representative made telephone calls to arrange for the applicants to be met at the other side of the border. The applicants were escorted only to the exit of the transit zone and given directions by the Hungarian police to go alone to the right, along the fence. No force was used. The UNHCR staff insisted and were eventually allowed to tell the two applicants that they would be met at the Serbian side of the border for which they had to go in another direction – to the left towards the highway and the Horgos border crossing on the Serbian side. This was communicated to the applicants. The applicants crossed the border as directed by the UNHCR and not through the forest. Serbian police officers were present when they crossed and only told them to wait for the UNHCR staff coming to meet them. The applicants were met by UNHCR staff who helped them. | This case concerned two asylum-seekers from Bangladesh who spent 23 days in a Hungarian border transit zone before being removed to Serbia after their asylum applications were rejected. The applicants alleged in particular that they had been confined to the transit zone in violation of Article 5 § 1 (right to liberty and security) and Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention. |
902 | Persons arrested or under criminal prosecution | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1951 and 1943, respectively. The first applicant lives in Bekkestua, near Oslo, and the second applicant lives in Oslo. At the material time, the first applicant was the Editor in Chief of Dagbladet and the second applicant was the Editor in Chief of Aftenposten, two major national newspapers in Norway. A. General background to the case 6. The present case has its background in the same case-complex as a previous application, P4 Radio Hele Norge ASA v. Norway (( dec .), no. 76682/01, ECHR 2003 ‑ VI). Like the latter, it concerns a complaint under Article 10 of the Convention about restrictions on media coverage of a major criminal trial, in this case concerning charges against four persons of triple murder, the so-called Orderud case, which took place before the Nes District Court ( herredsrett ) from 18 April to 15 June 2001. This was probably the most spectacular and media-focused criminal case in Norwegian history. The trial involved a son (A) and his wife (B), the wife ’ s half-sister (C) and a friend of the latter (D), who were charged with the murder of the son ’ s parents and sister, committed in a particularly brutal manner. Because of the great media interest in the case and since the hearing room was too small to host both members of the ordinary public and media representatives, special arrangements were made enabling the press to follow the trial at a press centre, set up in a sports hall, to which sound and pictures were transmitted live and shown on a television screen. On 6 May 2003 a Chamber of the former Third Section declared inadmissible as being manifestly ill-founded P4 ’ s complaint that a refusal by the District Court, under section 131A of the Administration of Courts Act 1915 ( domstolloven - hereinafter “the 1995 Act” ), to grant its application for radio broadcasting directly from the court hearing room violated Article 10 of the Convention. B. The impugned photographs 7. The case under consideration concerns restrictions on the publication by the press of photographs taken of B without her consent outside the court house while leaving, shortly after having attended the District Court ’ s delivery of its judgment of 22 June 2001, convicting A, B and C of the charges and sentencing each of them to 21 years ’ imprisonment and sentencing D to 2½ years ’ imprisonment. 8. The delivery of the District Court ’ s judgment was broadcast live on TV by two leading national broadcasting companies, the NRK and the TV2. The broadcast did not contain any pictures of B. 9. In the proceedings summarised here below, the Supreme Court (in paragraph 12 of its judgment), relying on the District Court findings, described the circumstances in which the photographing of B had taken place as follows: "The District Court has established as a fact that during the reading out of the judgment B realised that she would be found guilty, and that she suffered a physical reaction in the form of nausea. Because of this she went to the toilet, together with one of her defence counsels, Ms Y, Advokat. Thereafter she entered a side room, where she cried and was in deep despair. Shortly afterwards she was notified that she had been rearrested, to be remanded in custody. The rumour had spread, and a large number of photojournalists were waiting outside the community hall. B left the building 20-30 minutes after the judgment had been pronounced, together with defence counsel, Ms Y, accompanied by a plain-clothes police officer who walked a few metres behind them. On the way to the unmarked police car, which was parked 20-30 metres from the exit, she was photographed a number of times...” 10. On 22 June 2001 Dagbladet published and extra edition featuring a photograph covering two thirds of a page, showing B, holding a handkerchief to her face, and her lawyer Y, taken in a side angle from behind. The picture was part of an article, entitled “The farm dispute led to homicide”. An article underneath was entitled “Tense atmosphere before verdict”. The caption stated “Arrested: [B] was this morning sentenced to 21 years of prison. Here, while crying, she is guided out of the premises by her lawyer [Y]”. 11. On 23 June 2001 Dagbladet published a smaller photograph showing B seated inside an unmarked police car. The picture is part of an article entitled “Broken”, with an accompanying text: “The heavy trip, [B] is lead out of the [court house] and taken to Lillestrøm police station.” 12. On 23 June 2001 Aftenposten published a photograph covering one fifth of a page, showing B crying outside the court house, taken from the front holding a handkerchief, while her lawyer Y walks next to her and makes a deprecating gesture toward the photographer. A person walks behind, identified as a plain clothes police officer. Underneath the caption states: “21 years. [B] has realised it now – that freedom will not be the outcome. She is supported on the way out by defence counsel Y.” The picture appeared next to an article entitled “Firm, clear – and appealed”, commenting on the judgment. Below on the same page featured another article entitled: “The words are merciless- they fall like needles against the dense silence. Twisting around”. This photograph had been purchased and published by a number of newspapers throughout the country. 13. In the above-mentioned issues Dagbladet and Aftenposten reported on the District Court ’ s judgment and on the arrest. The prospects of arrests in the event of conviction had been an issue of discussion in the above newspapers during the weeks before. 14. B had not given her consent for photographs to be taken of her; on the contrary her lawyer Y attempted to prevent it. The authorisation to broadcast the delivery of the judgment had only concerned the reading out of the judgment as such. C. The ensuing proceedings 15. On 6 July 2001 B ’ s defence lawyer, F.S., reported the applicants and three of the photographers to the police for violation of section 131A of the 1915 Act, which led to charges being brought against them. 16. On 15 October 2003 the Nedre Romerike District Court acquitted the defendants of the charges, giving inter alia the following reasons: “The District Court underlines that the main rule must still be that the taking of photographs of a convicted person on his or her way out of the court premises is prohibited, as is the publication of such images, but that the prohibition will not apply where entirely special considerations so indicate. In the assessment of the District Court such entirely special and weighty considerations are present in this case. In this regard the District Court notes that [B] had been convicted of a horrific crime involving the triple homicide of the parents and sister of her husband. As has already been noted, this crime, the investigation and subsequent criminal trial hearing were the subject of unprecedented attention on the part of the media and the general public. A further point for the Court is that [B] ’ s identity had since long been revealed. Photographs of her had appeared in all the country ’ s newspapers numerous times during the course of the investigation and in connection with the trial hearing before Nes District Court. During the period prior to the trial in the District Court, [B] had rarely consented to being photographed. Nevertheless, the press took a number of photographs of her without her knowledge. However, the situation was different during the almost eight week long trial. According to the information provided, [B] and her husband had consented to being photographed once per week during the trial. The photographs taken during these photo sessions appeared almost daily in the country ’ s biggest newspapers and on various television channels. The issue of protection against identification through photographs was accordingly not an argument in this case. ... ... A key consideration underlying the prohibition against the taking of photographs in section 131A is to protect the accused or convicted person against portrayal in situations in which their self-control is reduced. In this case [B] had been sentenced to the most severe penalty permitted under the law for the triple homicide and was in a form of shock. On the other hand, the weight of this consideration is somewhat reduced by the fact that the taking of photographs did not take place until 25-30 minutes after the end of the court hearing at which the judgment was delivered. In the meantime she had had the opportunity to compose herself in a side room to the hearing room, in the presence of her two defence counsel and members of her family. In the assessment of the District Court it may be doubtful that these circumstances of themselves are sufficient for it to be necessary to limit the application of the prohibition with the result that publication must be considered permissible pursuant to Article 10 § 2 of the ... Convention .... However, the court views this in the context of the fact that an arrest situation must be said to have existed at the time. [A], [B] and [C] were all arrested by the police during the minutes following the pronouncement of judgment while they were in the side rooms to the court premises in the company of their defence counsel. Two of the photographs that formed the basis for the penalty charge notices in this case depict [B] as she crosses the 20 - 30 metres between the court premises and the police car that would take her to the police station in Lillestrøm. The third photograph depicts her seated inside the unmarked police vehicle. It is clear that the issue of arrest had been discussed in a number of mass media during the days preceding the pronouncement of judgment. There was speculation about whether in the event of a conviction the police would arrest the convicted persons or whether they would remain at liberty awaiting the appeal proceedings before the High Court that most people expected would come, whatever the outcome in the District Court. As noted earlier, the various editorial boards discussed what the significance of the prohibition against the taking of photographs would be in the event of an arrest situation. This issue was also discussed amongst the photojournalists who gathered at the exit from the court premises when it became known that three of the convicted persons had been rearrested. Based on the information on the case presented before the District Court it must be assumed that reasonable doubt as to whether any photographs whatsoever would have been taken of the convicted persons on this occasion had they not been arrested. An arrest of this nature must be regarded as a new situation in terms of fact and law. This was an event that was awaited with considerable interest by the media and the general public. Interestingly, in the wake of the arrest, there was discussion amongst centrally placed lawyers about whether it was correct to arrest the convicted persons or not. The District Court regards the arrest as a new situation and an event that the mass media could legitimately cover as a news item using both words and images. In the assessment of the District Court the arrest aspect of the situation overshadows the fact that the convicted persons were on their way out of the court premises. Aftenposten ’ s feature on 23 June 2001 states on the front page, on which [B] is shown being escorted into the prison building, that an arrest took place immediately after judgment had been pronounced. The arrest is also described in detail in the extra edition of Dagbladet on 22 June 2001. The Court ’ s assessment of the photographs concerned by the penalty charge notices [ foreleggene ] is that it is made clear to the reader that the intention of the photographs is to illuminate the situation surrounding the arrest. As a general rule there is no prohibition against taking photographs of arrest situations. Notwithstanding the fact that the arrest in this case was undramatic involving no use of physical force on the part of the police and was carried out with the use of plain-clothes officers and unmarked police vehicles, the decisive point as regards the news aspect and the information needs of the media must be that these arrests marked a provisional end to a criminal case that had been the subject of extensive discussion. The three defendants who, prior to the trial before Nes District Court, had been at liberty for over a year were immediately arrested and subsequently remanded in custody. As a result of subsequent developments in the case, these three have not been out of prison since their arrest on 22 June 2001. The District Court accordingly finds having assessed the circumstances as a whole, that entirely special considerations are present such that the prohibition against the taking of photographs in section 131A of the 1915 Act cannot entail criminal liability for the journalists and editors charged in this case. All five defendants will accordingly be acquitted.” 17. The Public Prosecutor appealed against the applicants ’ acquittal (not that of the photographers) directly to the Supreme Court. 18. By a judgment of 23 March 2004 the Supreme Court convicted the applicants of having published the impugned photographs in violation of sections 131A and 198 (3) of the 1915 Act and sentenced each of them to pay NOK 10,000 in fines, failing which the fines were to be converted into 15 days ’ imprisonment. The Supreme Court rejected a claim by B for compensation of non-pecuniary damage. Its reasoning, stated by Mrs Justice Stabel and joined in the main by the other members of the formation, included the following: “(13) The District Court held that B had not given her consent to being photographed. On the contrary, Y made active attempts on her behalf to prevent the taking of photographs. I find in addition that the consent that the District Court gave for the pronouncement of the judgment to be transmitted live on television applied only to the reading of the judgment. It is in any event clear that the authority of the Court to grant an exemption from the prohibition against the taking of photographs in section 131A(2) of the 1915 Act applies only during the trial itself. This provision will accordingly not apply in our case. (14) The question in this case is whether it constituted a breach of section 131A of the 1915 Act and thus a criminal offence pursuant to its section 198 (3) to publish photographs of a weeping B, distraught and dissolved in tears, leaving the court premises having been convicted of aiding and abetting in a triple homicide. If this question were to be answered in the affirmative, a further question would arise as to whether the enforcement of the prohibition would be contrary to ... Article 10 of the Convention, cf. section 3 of the Human Rights Act. ... (15) It is the second sentence [of section 131A(1)] that is of interest in our case. ... (16) The question is: What restrictions will follow from the phrase ‘ on his or her way to, or from, the hearing ’. I agree with the District Court that the restrictions on the taking of photographs will apply only ‘ in the immediate vicinity of the court premises, i.e. normally up to the car parking area, and that the special protection that follows from section 131A will not apply after the accused has driven away from the court premises ’. The District Court concluded that the provision therefore also encompassed B as she made her way out of the courtroom and into the waiting vehicle. I agree with this. I also agree with the District Court that the fact that she was under arrest at the time does not render the provision inapplicable. (17) I must accordingly conclude that the photographs in question contravene the prohibition against the taking of photographs in section 131A .... I must therefore examine whether ... Article 10 of the Convention would nevertheless lead to a different outcome. (18) On the subject of the general balancing of interests I refer to the discussion in Supreme Court ’ s judgment in the Valebrokk case (2003).... The Supreme Court held by three votes to two that the filming by TV2 of one of the convicted persons following the pronouncement of judgment in the Baneheia case did not constitute a punishable offence. The majority found, with the support of the minority, that the general rule must be that the taking of photographs in the courtroom was prohibited, including after the court had adjourned, but that this restriction would not apply ‘ where entirely special considerations suggest that the taking and publishing of photographs must be permitted ’. (19) The majority held that the purpose of the prohibition was to protect the ‘ reputation or rights ’ of the accused or convicted person, and that accordingly the Act pursued a legitimate aim. Although enforcement of the restrictions on the taking of photographs would generally constitute a serious interference pursuant to Article 10 § 1, it ought to be considered whether the interference nevertheless was necessary in a democratic society according to Article 10 § 2. The point of departure must be that it was generally important to protect accused and convicted persons against exposure through the taking of photographs in the courtroom, both during the hearing itself and in immediate connection with the hearings. The majority noted that most countries had prohibitions against the taking of photographs, although the scope and wording varies. By way of conclusion, paragraph 62 noted that: ‘ The reality of this is a general rule prohibiting the taking of photographs in the courtroom after court session has been adjourned, and a prohibition against the publication of the photographs, although the prohibition will not apply if warranted by entirely special considerations. The prosecution has argued that a rule of this nature would undermine the prohibition against the taking of photographs. It is of course true that a rule with certain limitations will be less absolute. Even so, a rule of this nature will not give the news media a ‘ free hand ’ to take and publish photographs when deemed expedient. The prohibition against the taking of photographs is supported by weighty and genuine considerations, not least in the situation immediately after the pronouncement of a judgment. Accordingly, in such a situation, strong reasons will have to be adduced for it to be accepted that it is required to photograph the convicted person and to put these pictures on display. ’ (20) The view that the prohibition against the taking of photographs does not violate Article 10 would appear to be supported by the inadmissibility decision of 6 May 2003 rendered by the European Court in P4 Radio Hele Norge ASA v. Norway ( dec .), no. 76682/01, ECHR 2003 ‑ VI. ... (21) The European Court found the application to be ’ manifestly ill-founded ’. The Court held that the prohibition against recording and broadcasting must to some extent be viewed as an interference with the freedom of expression provided for in Article 10 § 1. Nevertheless, the Court held that there was no common ground in the legal systems of the Contracting States with regard to radio and television transmission from court proceedings. The balance between the need for openness and the need for court proceedings to be conducted without disturbance could be resolved in various ways. Moreover ... the Court held: ‘ Depending on the circumstances, live broadcasting of sound and pictures from a court hearing room may alter its characteristics, generate additional pressure on those involved in the trial and, even, unduly influence the manner in which they behave and hence prejudice the fair administration of justice. ... ’ (22) The Court also held that the national authorities, particularly the courts, were best placed to assess whether in the individual case the broadcasting of proceedings would conflict with the ’ fair administration of justice ’. By way of conclusion the Court noted that on this point the Contracting States must enjoy a ’ wide margin of appreciation ’. Thus the general rule provided for in section 131A of the Administration of Courts Act, which applies equally to broadcasting and the taking of photographs, was not found to be problematic in relation to Article 10 of the Convention. (23) ...It must be assumed that the margin of appreciation with regard to measures that are considered necessary with a view to securing ‘ fair administration of justice ’ is relatively broad. (24) The opinions expressed in this decision must also have a bearing in relation to section 131A(1), second sentence, of the 1915 Act. The interests that the prohibition against the taking of photographs seeks to safeguard have been summarised in the following way in a note on the case by the Director General of Public Prosecutions: -Protection against identification through the taking of photographs. - Protection against portrayal in photographs in situations in which the subject ’ s control is reduced. - The safeguarding of one of the fundamental requirements for due process of law, namely that it should inspire trust and show consideration towards the persons involved. An accused or convicted person who has to force his or her way through press photographers and television teams may - quite apart from the issues of protection of personal integrity that arise - feel this to be a considerable additional burden. - The need to protect the dignity and reputation of the courts. Since in general it is the courts that require the presence of the accused, which of itself may be burdensome, it is important that the courts should at the same time ensure that accused persons receive fair and considerate treatment. A failure to do so will affect not only the accused person him or herself, but also the court, which is required to ensure that the accused is treated in a considerate manner while being within and in the vicinity of the court premises. (25) This means that in addition to privacy considerations the prohibition against the taking of photographs is supported by entirely central principles for due process. Although the need to safeguard the openness of proceedings, including satisfactory opportunities for an active and alert press, is a central consideration, this means that a balancing of interests must be conducted. The legislators conducted this balancing of interests with the introduction of section 131A of the 1915 Act, and the penal provision in section 19(3), in connection with the enactment of the Criminal Procedure Act of 22 May 1981 nr. 25. It is apparent from the legislative history that the background to this was that the existing legislation, including the Photography Act of 1960, was not found to afford the accused and convicted persons sufficient protection against being treated as ‘ fair game ’ by the press, particularly in cases of major interest to the public. (26) I should add that the provision has not been regarded as a problem in relation to Article 10 of the Convention. Doubt on this point has mainly attached to other aspects of the new Article 390C of the Criminal Code, which was enacted with the legislative change of 4 June 1999 nr. 37, but which has not yet entered into force. This provision entails an extension of the prohibition against the taking of photographs, inter alia in relation to suspected persons in the custody of the police. Given the position of our case, I will not discuss this in further detail. (27) Accordingly I will now move on to consider whether in our case there exist entirely special considerations, see the Valebrokk ruling, according to which the prohibition against the taking of photographs must yield to the freedom of expression. In paragraph 63 of the judgment in that case (HR-2003-00037 a -A63) the majority attached weight to the fact that the case - the harrowing child killings in Baneheia - had attracted extensive public interest and that the identity of the convicted person was known. It was also noted that the photographs might reveal something significant - in a negative sense - about his personality. The decisive point, however, which was discussed in paragraph 64, was that by their nature the photographs were corrective in that they showed a different and more unaffected reaction to the judgment than had been publicly expressed by defence counsel. This was viewed as information which the public had a right to receive in such a case. (28) Applied to our case it is clear that the Orderud case, too, was horrifying and was the subject of enormous public interest. Moreover, B ’ s identity was already widely known when the photographs were taken. However, the photographs of B were in my view of an entirely different nature. The reaction that she displayed to the judgment - distress and sobbing - must be characterised as normal and expected in the circumstances. She was in a situation in which she had reduced control, in immediate connection with her conviction by the District Court - in other words she was within the core area of what the prohibition against the taking of photographs is intended to protect. The decisive point must therefore be whether other elements were present that would give the press the right to take the photographs and the public the right to see them. (29) The decisive point as regards the District Court ’ s acquittal was that the arrest - which took place directly after judgment was pronounced - was perceived as a new situation in fact and in law. According to the District Court the arrest was an event that it was legitimate for the mass media to cover, including with the aid of photographs. In my view there are no grounds for maintaining that the arrest meant that ‘ entirely special considerations ’ applied. An arrest after a conviction by a court is not entirely unusual and would not have been unexpected in a serious homicide case such as the Orderud case, in which the accused persons had been at liberty throughout the trial. Moreover, I cannot conclude that the considerations that justify the protection against the taking of photographs in and around the court premises should be any less in such a situation. As long as the photographs do not show something entirely special, for example relating to the procedures of the police during the arrest itself, the protection must in my view remain the same. (30) [The applicants ’ ] defence counsel has argued forcibly that the shocking offences of which B was convicted and the extensive public interest in the case, gave the media a right and a duty to inform, even if this was contrary to the interests of the convicted persons. Moreover, in today ’ s media-based society this information would not be complete without photographs, which suggested that the scope of the prohibition against the taking of photographs should be limited. In my view the protection afforded to the convicted person pursuant to section 131A of the 1915 Act must in principle apply regardless of the nature of the case and of the media interest that the case evokes. In practice, persons who have been convicted of very serious and sensational crimes will usually not be able to avoid being identified. Nevertheless, the other considerations justifying the prohibition against the taking of photographs will be present, frequently to a greater degree than in the case of other convicted persons. (31) ... (32) I have accordingly concluded that the District Court ’ s acquittal is not based on a correct application of the law. The case has been sufficiently elucidated for the Supreme Court to render a new judgment, cf. Section 345 second paragraph of the Criminal Procedure Act. The Defendants have not objected to this. I find that [the applicants] must be convicted in accordance with the indictment and that the sentence proposed by the prosecution, a fine of NOK 10,000, in the alternative a prison sentence of 15 days, is appropriate for both parties. (33) I will conclude by considering the criminal injuries compensation claim. (34) B has filed a claim for damages for non-pecuniary loss, not to exceed NOK 50,000, from each of the accused. She submits that given their convictions for breaches of sections 131A and 198(3) of the 1915 Act, the preconditions for awarding damages pursuant to section 3-6(1), last sentence, of the Damage Compensation Act will also have been met. I agree that this may frequently be the case. However, I will not consider this further since this involves a ‘ may ’ provision and I do not find that there are sufficient grounds to award economic compensation in this case. (35) It will be clear from my comments on the question of penalty that considerations of protection of personal privacy have not been dominant in my assessment. Moreover it is clear from B ’ s testimony that she was not even aware that the photographs had been taken. The violation lies solely in the publication of the photographs, which were not particularly conspicuous in relation to what had been published about her otherwise. This case has first and foremost revolved around the drawing of boundaries between the information work of the press and key principles of legal process. Given this situation it is my view that criminal sanctions against the editors in the form of fines will be sufficient for the purpose of emphasising that that boundary was transgressed and that there are no grounds for awarding damages.” III. RECOMMENDATION BY THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE 21. 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.” | The two applicants, editors-in-chief of two major national newspapers in Norway, complained about their conviction and sentencing to a fine for publishing photographs of an individual about to be taken away to serve the long prison term to which she had just been sentenced for her involvement in a triple murder. |
993 | Cases in which the Court found no violation of Article 18 in conjunction with Article 5 | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1961 and lives in Thalwil, Switzerland. A. Background information 7. The applicant is a well-known journalist and political analyst in Azerbaijan. On several occasions he was awarded the prize for journalist of the year in Azerbaijan. By a presidential order of the Republic of Azerbaijan of 21 July 2005, he was awarded the title of “honoured journalist” ( əməkdar jurnalist ). The applicant was also awarded the Gerd Bucerius Free Press of Eastern Europe 2008 prize by the German ZEIT Foundation, for his journalistic activity. 8. In July 2010 the applicant left Azerbaijan for Turkey, and at the time of the events described below he was based in Ankara and was working as a correspondent for the Azerbaijani newspaper Zerkalo. He wrote articles which mainly concerned regional foreign policy issues. B. The applicant ’ s arrest and deportation from Turkey 9. By a letter dated 26 December 2013, the Directorate General of Press and Information attached to the Turkish Prime Minister ’ s Office (“the BYEGM”) informed the Ankara governor ’ s office that it had been decided to grant the applicant with a press card valid between 1 January and 31 December 2014. In the same letter, the BYEGM also requested the governor ’ s office to issue the applicant with a residence permit for the duration of his press card in accordance with section 2 of Law no. 4817 on the Work Permits of Foreign Nationals in force at the material time and the Directorate General of Security ’ s Circular no. 63 dated 2 April 2004. The applicant was accordingly granted a permit to reside in Turkey until 31 December 2014. 10. On 8 April 2014 the BYEGM decided to annul the applicant ’ s press card under section 45 of the former Regulation on Press Cards (see paragraph 69 below). On the same date the BYEGM informed the Ankara Security Directorate of its decision, and requested that it take the necessary action to revoke the applicant ’ s residence permit. 11. On 11 April 2014 information regarding the revocation of the applicant ’ s residence permit was registered in the Turkish police information network. 12. In the meantime, on 9 April 2014 the applicant had been invited to the offices of the BYEGM in Ankara, where he was verbally informed that his press card had been revoked. The applicant was not provided with any written notification in that respect, nor was he given any explanation as to why his press card had been revoked. 13. On 11 April 2014 the applicant lodged a petition with the BYEGM, requesting written confirmation of the revocation of his press card, along with the reasons for that revocation. 14. On 18 April 2014 the Directorate General of Migration Management informed the Ankara Security Directorate of its decision that the applicant should be deported from Turkey in accordance with section 54 of the Law on Foreigners and International Protection (Law no. 6458), and instructed the security directorate to take the necessary steps to issue the official deportation decision made by the Ankara governor ’ s office. 15. On 18 April 2014 the applicant and his family took a bus to go to Georgia. Shortly after the bus left Ankara, at approximately midnight, the bus was stopped by the police so that identity checks could be carried out. During those checks, it was noted that the applicant ’ s residence permit had been revoked, and he was taken by the police to the Ankara Security Directorate. 16. According to a report drawn up shortly after the applicant ’ s arrest by the police officers who apprehended him, he was informed that he had been arrested as he was no longer legally resident in Turkey following the revocation of his residence permit. The applicant refused to sign that report. 17. According to an information document prepared by the police at 12.30 a.m. on 19 April 2014, the applicant was notified in writing that a procedure had been initiated for his deportation under section 54 of Law no. 6458. It is indicated on the document that the applicant refused to sign it. According to the applicant, he was never notified of this procedure. 18. At the same time, a separate document, which he allegedly also refused to sign, notified the applicant that his presence in Turkey was illegal. The document stated that a deportation decision had been taken in respect of him under section 53 of Law no. 6458, and that a decision had been taken to detain him under section 57 of the same law. The document also provided an explanation as to the procedures for administrative detention and deportation, as well as information on the legal avenues which one could use to object to the deportation and administrative detention decisions. The applicant was reminded of his right to obtain the assistance of a lawyer, either by his own means or through the legal aid mechanism. According to the applicant, he was never notified of this. 19. According to the applicant, he asked the Turkish authorities for the assistance of a lawyer and an opportunity to contact his wife, but both his requests were ignored. 20. On 19 April 2014 the police took the applicant to Ankara Esenboğa Airport. It appears from the applicant ’ s submissions, and the Government did not contest this, that while at the airport he was informed in writing that a decision had been taken to ban him from entering Turkey for a period of twelve months from that date. The relevant information document was signed by the applicant. He was subsequently placed on a flight to Baku at around midday. He was under police control until the plane departed. 21. On 21 April 2014 the Ankara governor ’ s office issued an official decision on the applicant ’ s deportation and administrative detention. C. Institution of criminal proceedings against the applicant in Azerbaijan and his remand in custody 22. Following the arrival of the plane at Baku Airport at 4.20 p.m. on 19 April 2014, the applicant was arrested by agents of the Azerbaijani Ministry of National Security (“the MNS”). 23. At 5.15 p.m. on 19 April 2014 an investigator from the Serious Crimes Department of the Prosecutor General ’ s Office issued a record stating that the applicant was being detained as a suspect. The applicant was suspected of having committed the criminal offence of high treason under Article 274 of the Criminal Code. 24. At 5.20 p.m. on the same day the investigator questioned the applicant as a suspect, in the presence of a State-appointed lawyer. The applicant admitted that on various dates in Turkey, Armenia and Georgia, within the framework of various international conferences, he had met with L.B., the head of an Armenian non-governmental organisation, and D.S., the former head of the Armenian intelligence service, with whom he had discussed the prospect of resolving the Nagorno-Karabakh problem and the international situation in the region. However, the applicant denied the accusations of high treason against him, stating that he had not provided the Armenian intelligence services with any information about the military, socio-political or economic situation in the country, or the location of military units. 25. On 21 April 2014 the applicant was charged under Article 274 (high treason) of the Criminal Code. The relevant part of the decision stated: “... Mirgadirov Rauf Habibula oglu has been charged on the basis of sufficient evidence because, as a citizen of the Republic of Azerbaijan, to the detriment of the Republic of Azerbaijan ’ s sovereignty, State security, territorial inviolability and defence capacity, he was recruited for secret collaboration by L.B., an agent of the Armenian intelligence services, and [by] others, with whom he has had close ties since April 2008. Upon their instructions, for profit, [he] collected necessary information about the socio-political, economic, [and] military situation in the country and the location of military units, which constitute State secret[s], so that this information could be used in hostilities against the Republic of Azerbaijan. On several occasions [he] met with agents from the Armenian intelligence services – L.B., A.S., and others, from 1 to 4 April 2008 in the city of Tsakhkadzor in Armenia, on 28 September 2008 in Turkey, [and] on 2 February 2009 in the main room of the Marco Polo restaurant situated at 44 Shota Rustavelli Street in the city of Tbilisi in Georgia. [He] committed high treason by espionage, namely by providing [those individuals] with the information [he had] collected, together with photographs and technical drawings ( sxemlər ), and by deliberately providing them with assistance so that this information could be used against the Republic of Azerbaijan. Through these actions, Mirgadirov Rauf Habibula oglu committed a criminal offence under Article 274 of the Criminal Code of the Republic of Azerbaijan. ...” 26. On the same date, relying on the official charges brought against the applicant and an application by the prosecutor, the Nasimi District Court ordered that the applicant be detained pending trial for a period of three months. The court referred to the risk of his absconding and obstructing the investigation, and the nature of the criminal act, and justified its decision as follows: “Having examined the application and the material in the case file, and having heard the submissions of the participants in the criminal proceedings, the court considers that the application should be granted and the accused should be remanded in custody. ... ... the court considers that the criminal act under Article 274 of the Criminal Code of the Republic of Azerbaijan attributed to the accused, Mirgadirov Rauf Habibula oglu, is classified as a serious crime. There is a likelihood that the accused will abscond from the investigation, fail to comply with the requests of the investigating authorities without good reason, or avoid his criminal prosecution or sentence by other means. For these reasons, the application should be granted and the accused, Mirgadirov Rauf Habibula oglu, should be remanded in custody.” 27. On 22 April 2014 the applicant appealed against that decision with the assistance of a lawyer whom he had appointed in the meantime. He complained in particular that there was no reasonable suspicion that he had committed a criminal offence, and that there was no justification for the application of the preventive measure of detention pending trial. 28. On 25 April 2014 the Baku Court of Appeal dismissed the appeal, finding that the detention order was justified. D. Restrictions imposed on the applicant ’ s rights 29. On 7 May 2014 the investigator in charge of the case issued a decision in respect of the applicant “restricting some of the accused ’ s rights at [his] place of detention” ( təqsirləndirilən şəxsin həbs yerində bəzi hüquqlarının məhdudlaşdırılması haqqında ). In particular, the investigator decided to restrict the applicant ’ s rights to use the telephone at his place of detention, to correspond with and meet people other than with his lawyers, and to receive and subscribe to any socio-political newspaper or magazine. The investigator temporarily imposed the above-mentioned restrictions during the preliminary investigation ( ibtidai istintaq dövründə müvəqqəti olaraq ), without providing any specific time-limit. The investigator referred to Articles 17.3 and 19.8 of the Law on the Guarantee of the Rights and Freedoms of Individuals Kept in Detention Facilities of 22 May 2012 (“the Law of 22 May 2012”) as the legal basis for his decision, and justified it by referring to the necessity to protect the confidentiality of the investigation and prevent the disclosure of information about the investigation. 30. On 14 May 2014 the applicant lodged a complaint against the investigator ’ s decision of 7 May 2014, claiming that it was unlawful. 31. Following the death of the applicant ’ s father on 23 May 2014, on 24 May 2014 the applicant obtained permission to have three days to attend his father ’ s funeral. During that period he stayed at his parents ’ home. 32. On 27 May 2014 the Sabail District Court dismissed the applicant ’ s complaint, finding that the investigator ’ s decision of 7 May 2014 was lawful and justified. The court ’ s decision also referred to Articles 17.3 and 19.8 of the Law of 22 May 2012 being the legal basis for the imposition of the restrictions. 33. On 27 May 2014 the applicant appealed against that decision. He argued that the decision of 7 May 2014 was unlawful and that the investigator had failed to justify it. In that connection, he pointed out that on 24 May 2014 he had been allowed to attend his father ’ s funeral and stay at his parents ’ home for a period of three days and that during this period he had not breached any procedural rule or tried to disclose any information relating to the investigation. 34. On 6 June 2014 the Baku Court of Appeal dismissed the appeal. 35. No information is available in the case file as regards the date on which the above-mentioned restrictions imposed on the applicant ended. 36. In the meantime, on 12 May 2014 the applicant had lodged an application with the investigator in charge of the case, asking him to ensure his right to have the benefit of a notary service during his detention. In support of his application, he noted that he intended to give a lawyer a notarised power of attorney so that the lawyer could defend his rights which had been violated in Turkey. 37. On 19 May 2014 the investigator dismissed the application, finding that delivering a notarised power of attorney to a lawyer which would authorise him to act on the applicant ’ s behalf in Turkey might lead to evidence being tampered with, given the fact that the applicant had met with agents from the foreign intelligence service in Turkey, the nature of the act attributed to the applicant, and the applicant ’ s failure to specify the actions which were to be taken on his behalf in Turkey. 38. On an unspecified date the applicant lodged a complaint against the investigator ’ s decision of 19 May 2014. 39. On 9 June 2014 the Nasimi District Court found the investigator ’ s decision lawful and dismissed the complaint. 40. On 17 June 2014 the Baku Court of Appeal upheld the Nasimi District Court ’ s decision of 9 June 2014. E. Joint statement of 17 July 2014 by law-enforcement authorities concerning the criminal proceedings against the applicant 41. On 17 July 2014 a joint statement was made by the Prosecutor General ’ s Office and the MNS. That joint statement officially informed the public of the progress of the criminal proceedings against the applicant. The relevant parts of the joint statement read as follows: “As there are justified suspicions ( əsaslı şübhələr ) within the framework of the criminal investigation carried out by the Serious Crimes Department of the Prosecutor General ’ s Office that Mirgadirov Rauf Habibula oglu, a citizen of the Republic of Azerbaijan, has committed high treason by espionage [namely] deliberately assisting agents of the Armenian intelligence service, on 19 April 2014 he was arrested on suspicion of having committed a criminal offence. On 21 April 2014 [he] was charged with the criminal offence provided for by Article 274 of the Criminal Code of the Republic of Azerbaijan, and the Nasimi District Court imposed the preventive measure of remand in custody in respect of him. An investigative operational unit composed of agents of the Prosecutor General ’ s Office and the Ministry of National Security was set up in respect of the criminal case, and investigative operational measures continue to be taken. A decision was made to give more information to the public as new relevant facts ( yeni xüsusatlar ) appeared during the investigation of the criminal case. ... It has been established ( Müəyyən edilib ki ) that Rauf Mirgadirov collaborated with the ‘ Region ’ Research Center, [a centre] headed by the above-mentioned L.B. since 2008. ... It has been established ( Müəyyən edilib ki ) that Rauf Mirgadirov had a meeting behind closed doors with the former Minister of National Security of Armenia, D.S., in a conference held in Turkey in 2008 [and] organised by the Friedrich Naumann Foundation, with the attendance of Georgian and Armenian participants. Following this meeting, Rauf Mirgadirov informed L.B. via Internet correspondence ( internet yazışmalarında ) that he agreed with D.S. ’ s thoughts about the prospect of resolving the Nagorno-Karabakh problem, and by collecting information about the current situation in socio-political, industrial, energetics, and military technical supplies fields to be used against the Republic of Azerbaijan, [he] transferred ( ötürüb ) a technical drawing ( sxem ) accompanied with photographs describing the exact location of military units, an aerodrome and other strategic State installations which constitute State and military secrets. Moreover, Rauf Mirgadirov transferred ( ötürüb ) information, photographs and technical drawings ( sxemlər ) of the indicated areas and other military installations [indicating] that the Azerbaijani Government had allegedly authorised the USA to use its territory in a prepared military intervention against Iran; that secret military installations would allegedly be constructed in Baku by the USA; and that the construction of the Zig Highway in concrete had been financed so that it could be used as a runway for military planes in future air strikes against Iran. ...” F. Extension of the applicant ’ s pre-trial detention and further developments 42. On 14 July 2014 the prosecutor in charge of the criminal case lodged an application with the court, asking for the applicant ’ s pre-trial detention to be extended for a period of four months, submitting that more time was needed to complete the investigation. 43. On 15 July 2014 the Nasimi District Court extended the applicant ’ s detention pending trial for a period of four months, namely until 19 November 2014. In justifying the extension of the detention period, the court limited itself to referring to the relevant domestic law and court practice, which authorised a court to extend a period of pre-trial detention for a period of four months. It appears from the court decision that the applicant stated that there was no justification for his continued detention. In that connection, he noted that although he had been authorised to stay at his parents ’ home for a period of three days following the death of his father, he had not tried to abscond from the investigation or breached any procedural rule during that period. 44. On 16 July 2014 the applicant appealed against the decision extending his pre-trial detention, claiming that there was no evidence that he had committed a criminal offence and that the first-instance court had failed to justify the extension of his pre-trial detention. 45. On 25 August 2014 the Baku Court of Appeal dismissed the appeal and upheld the Nasimi District Court ’ s decision of 15 July 2014. The appellate court ’ s reasoning reiterated that provided by the first-instance court. 46. On 20 November 2014 one of the applicant ’ s lawyers went to the detention facility where the applicant was detained. He asked the administration of the detention facility to immediately release the applicant, since the latest detention order extending his pre-trial detention had expired on 19 November 2014. The lawyer also asked the administration of the detention facility if he could meet the applicant. However, the lawyer was told that he could not meet the applicant because the latter was undergoing a medical examination. The lawyer also sent telegrams to the Prosecutor General ’ s Office, the MNS and the Ombudsman, asking for the applicant ’ s immediate release. 47. On the same day, in the afternoon, when the applicant ’ s lawyer was still in the detention facility waiting for a meeting with the applicant, the applicant was taken to the Nasimi District Court, which ordered the extension of his pre-trial detention for a period of five months, namely until 19 April 2015. The court justified the necessity of this extension on the grounds of the complexity of the case and the fact that a number of investigative steps needed to be carried out, and thus more time was needed to complete the investigation. The applicant ’ s lawyers were not informed of the hearing and the applicant was represented before the court by a State ‑ appointed lawyer. The transcript of the court hearing indicates that it took place at 4 p.m. on 20 November 2014. 48. On 22 November 2014 the applicant appealed against that decision, claiming that he had been unlawfully detained from 19 to 20 November 2014 without any court order. He also argued that the first-instance court had failed to justify the extension of his continued detention pending trial, and that the hearing of 20 November 2014 had been held in the absence of his two lawyers, who had not been informed of the date and venue of that hearing. 49. On 28 November 2014 the Baku Court of Appeal upheld the Nasimi District Court ’ s decision of 20 November 2014. The appellate court made no mention of the applicant ’ s specific complaints concerning the lawfulness of his detention from 19 to 20 November 2014 and the first-instance court ’ s failure to inform his lawyers of the date and venue of the hearing. 50. In the meantime, on 21 November 2014 the applicant had lodged two separate complaints with the Sabail District Court. In his first complaint, he asked the court to declare the failure of the detention facility ’ s administration to allow him to meet his lawyer on 20 November 2014 unlawful. In his second complaint, he asked the court to declare his detention from 19 to 20 November 2014 in the absence of any court order unlawful. 51. On 9 December 2014 the Sabail District Court dismissed the applicant ’ s complaints in two separate decisions, finding them unsubstantiated. 52. On 18 December 2014 the Baku Court of Appeal upheld the Sabail District Court ’ s decisions of 9 December 2014 in two separate decisions. 53. On 8 April 2015 the Nasimi District Court decided to extend the applicant ’ s pre-trial detention until 19 May 2015. The court justified the extension on the grounds of the complexity of the case and the fact that a number of investigative steps needed to be carried out, and thus more time was needed to complete the investigation. 54. On 16 April 2015 the applicant appealed against that decision. He claimed that there was no reasonable suspicion that he had committed a criminal offence, and that the first-instance court had failed to justify the extension of his pre-trial detention. 55. On 23 April 2015 the Baku Court of Appeal dismissed the appeal and upheld the Nasimi District Court ’ s decision of 8 April 2015. 56. On 6 May 2015 the Nasimi District Court ordered the extension of the applicant ’ s pre-trial detention for a period of four months, namely until 19 September 2015. The court justified the extension of the applicant ’ s detention by referring to the necessity to carry out further investigative steps. 57. On 8 May 2015 the applicant appealed against that decision, reiterating his previous complaints. 58. On 12 May 2015 the Baku Court of Appeal upheld the Nasimi District Court ’ s decision of 6 May 2015. 59. No further extension decisions were included in the case file. 60. On 28 December 2015 the Baku Court of Serious Crimes found the applicant guilty of high treason and sentenced him to six years ’ imprisonment. 61. On 17 March 2016 the Baku Court of Appeal changed the sentence and decided to conditionally suspend it for five years. The applicant was released from prison on the same day. | This case concerned the arrest on arrival in Baku airport and pre-trial detention of the applicant, an Azerbaijani national, and a well-known journalist who was working as a correspondent for an Azerbaijani newspaper in Turkey, on charges of high treason as he had allegedly spied for Armenia. The applicant submitted in particular that the restrictions imposed on him had been linked to his work as a journalist and political analyst. |
94 | Taking of children into care | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants, United Kingdom nationals and husband and wife, were born in 1972 and 1976 respectively, and live in Oldham. 7. The applicants had a daughter M. born on 24 July 1998. 8. On 26 September 1998, M. screamed with pain when picked up by the maternal grandmother. The parents and grandmother took M. to the hospital. The triage nurse made a note of information given by the family. That note stated that the mother, rather than the grandmother, had “yanked” M. 9. An X - ray showed a displaced slightly-comminuted fracture of the midshaft of the femur. While it was noted that there was no history of metabolic bone disease in the family, it was not noted that the parents were first cousins, an incident relevant to a possible genetic condition. Neither the mother nor grandmother spoke much English; no Pushtu interpreter was provided. A consultant paediatrician, Dr Blumenthal, interviewed the parents and grandmother early in the morning the next day, again without an interpreter. He noted that none of them appeared to know how the injury had occurred. He concluded that it was an inflicted injury and told the parents this. 10. The police were informed. The parents were interviewed on 27 September 1998 by a social worker. He was unable to communicate with the mother due to language difficulties. 11. On 28 September 1998 the health visitor for the family was interviewed and stated that she had had no concerns about the family. 12. On 29 September 1998 the police interviewed the parents with an interpreter present. 13. On 30 September 1998, a social worker interviewed the family again and indicated that medical opinion was clear that M. could not have been injured by being picked up in the manner described by the grandmother. She warned that without a convincing explanation for the injury a child protection conference would have to be called. 14. On 14 October 1998, in light of the doctor ’ s conclusion of non-accidental injury (NAI), the Child Protection Conference decided to seek a second opinion but that meanwhile an interim care order should be obtained. Such care order was issued and parental responsibility given to the local authority on 16 October 1998. 15. On 23 October 1998, M. was discharged from hospital into the care of her aunt. The parents were allowed supervised contact. 16. The parents obtained legal advice and jointly instructed an expert, with M. ’ s guardian, inter alia, to clarify whether tests had been carried out to exclude brittle bone disease. However no further tests were carried out at this stage. 17. On 23 December 1998, the County Court judge found that the mother and grandmother were liars and knew more about the injury than they were prepared to reveal (they had given evidence through an interpreter which they allege was suspect) and that as the father was convinced of the innocence of his wife, he was disqualified as a person capable of protecting M. He ordered M. to be placed in care. M. remained with her aunt who lived a few hundred yards from the family home. 18. On 29 March 1999, M. sustained a second injury in her aunt ’ s care. Bilateral femoral fractures were found and following further tests she was diagnosed with osteogenesis imperfecta (“OI”, commonly known as brittle bone disease). Professor Carty and Dr Paterson were consulted at this time by Dr Blumenthal and inter alia did not find any ground for reaching a diagnosis of OI in preference to a non-accidental injury at the time of the first injury. 19. After discharge from hospital, M. returned home in April 1999. 20. On 17 June 1999, the care order was discharged and M. returned to her parents. In her report to the court dated 14 June 1999, M. ’ s guardian ad litem noted, inter alia, that this had been a particularly perplexing case, in which a diagnosis of non-accidental injury in respect of the first injury had appeared to be the most likely explanation while not fitting with the other information, essentially positive, which had emerged about the family. She also noted that all the experts agreed that medical evidence available to the court at the time of the interim care order was as complete as it could be at that time and that a diagnosis of bone disorder could not have been made at the time of the first injury. 21. The entire local community were aware that the family had been suspected of harming M. and the family had been extremely shocked and shamed. Rumours had spread to Pakistan that the mother had been put in prison. The parents ’ relationship with M. and with the grandmother were severely affected and disrupted as a result of events. 22. On 24 September 2001 the parents brought claims for negligence and breach of their Article 8 rights against the hospital trust and the consultant paediatrician. 23. On 4 December 2002, the High Court found no duty of care was owed to the parents and that the Human Rights Act 1998 (“HRA 1998”) did not apply to events before it came into force on 2 October 2000. The parents appealed. 24. Leave to appeal to the Court of Appeal was granted. Two other cases raising similar issues were considered at the same time. 25. On 31 July 2003, concerning the parents ’ claims in the three cases, the Court of Appeal held as regards allegations under Article 6 that no violation of this provision was involved, referring to Strasbourg judgments ( Z. and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001 ‑ V and T.P. and K.M. v. the United Kingdom ([GC], no. 28945/95, ECHR 2001 ‑ V). It found that while domestic law now recognised that there was a duty of care in relation to children, whose best interests were always paramount, there was a potential conflict of interest between the child and the parents, as it would always be in the parents ’ best interests for the child not to be removed. Where consideration was being given to whether child abuse justified measures, a duty of care could be owed to the child but not to the parents. It upheld the rulings of the various County Court judges as a result. 26. After a hearing on 31 January and 1 and 2 February 2005, the House of Lords gave judgment on 21 April 2005. They affirmed the orders made by the first- instance judges and Court of Appeal. Lord Nicholls, in his judgment with which the majority agreed, found inter alia : "70. There are two cardinal features in these cases. One feature is that a parent was suspected of having deliberately harmed his or her own child or having fabricated the child ’ s medical condition. The other feature, which is to be assumed, is that the ensuing investigation by the doctors was conducted negligently. In consequence, the suspected parent ’ s life was disrupted, to a greater or lesser extent, and the suspected parent suffered psychiatric injury. 71. It is the combination of these features which creates the difficult problem now before the House. In the ordinary course the interests of parent and child are congruent. This is not so where a parent wilfully harms his child. Then the parent is knowingly acting directly contrary to his parental responsibilities and to the best interests of his child. So the liability of doctors and social workers in these cases calls into consideration two countervailing interests, each of high social importance: the need to safeguard children from abuse by their own parents, and the need to protect parents from unnecessary interference with their family life. 72. The first of these interests involves protection of children as the victims of crime. Child abuse is criminal conduct of a particularly reprehensible character: children are highly vulnerable members of society. Child abuse is also a form of criminal conduct peculiarly hard to combat, because its existence is difficult to discover. Babies and young children are unable to complain, older children too frightened. If the source of the abuse is the parent, the child is at risk from his primary and natural protector within the privacy of his home. This both increases the risk of abuse and means that investigation necessitates intrusion into highly sensitive areas of family life, with the added complication that the parent who is responsible for the abuse will give a false account of the child ’ s history. 73. The other, countervailing interest is the deep interest of the parent in his or her family life. ... Interference with family life requires cogent justification, for the sake of children and parents alike. So public authorities, should, so far as possible, cooperate with the parents when making decisions about their children. Public authorities should disclose matters relied upon by them as justifying interference with family life. Parents should be involved in the decision-making process to whatever extent is appropriate to protect their interests adequately. 74. The question raised by these appeals is how these countervailing interests are best balanced when a parent is wrongly suspected of having abused his child. Public confidence in the child protection system can only be maintained if a proper balance is struck, avoiding unnecessary intrusion in families while protecting children at risk of significant harm... Clearly health professionals must act in good faith. They must not act recklessly, that is without caring whether an allegation of abuse is well-founded or not. Acting recklessly is not acting in good faith. But are health professionals liable to the suspected parents if they fall short of the standard of skill and care expected of any reasonable professional in the circumstances? Are they exposed to claims by the parents for professional negligence? ... 75. In considering these questions the starting point is to note that in each of these three cases... the doctors acted properly in considering whether the claimant parents had deliberately inflicted injury on the child in question. The doctors were entitled, indeed bound to consider this possibility. Further, having become suspicious, the doctors rightly communicated their suspicions to the statutory services responsible for child protection. That is the essential next step in child protection... 76. In each case the suspected parent was eventually cleared of suspicion. In one case this was after ten days, in the other cases after much longer periods. The second point to note is that, essentially, the parents ’ complaints related to the periods for which they remained under suspicion. In each case the parent ’ s complaint concerns the conduct of the clinical investigation during these periods; the investigation, it is said, was unnecessarily protracted. The doctors failed to carry out the necessary tests with appropriate expedition. Had due care and skill been realised from the outset, the doctors ’ suspicions would have been allayed at once or much more speedily than occurred, and, in consequence, the parents would have been spared the trauma to which they were subjected. Thus the essence of the claims is that the health professionals responsible for protecting a suspected child victim owe a person suspected of having committed a crime against the child a duty to investigate their suspicions, a duty sounding in damages if they act in good faith but carelessly. 77. Stated in this broad form, this is a surprising proposition. In this area of the law, concerned with the reporting and investigation of suspected crime, the balancing point between the public interest and the interest of a suspected individual has long been the presence or absence of good faith... 78. This background accords ill with the submission that those responsible for the protection of a child against criminal conduct owe suspected perpetrators the duty suggested. The existence of such a duty would fundamentally alter the balance in this area of the law. It would mean that if a parent suspected that a babysitter or a teacher at a nursery or school might have been responsible for abusing her child, the doctor would owe a duty of care to the suspect... 79... <Counsel> did not contend for such a broad proposition... His submission was more restricted.... That the health professionals ’ duty to exercise due professional skill and care is owed only to the child ’ s primary carers, usually the parents, as well as the child himself. ... 80. My initial difficulty... is that the distinction between primary carers, to whom the duty would be owed, and other suspects to whom it would not, is not altogether convincing. It is difficult to see why, if a health professional owes no duty to a childminder or teacher suspected of abuse, he should nonetheless owe such a duty to a parent suspected of abuse. An erroneous suspicion that a childminder or school teacher had been abusing a child in his or her care can be very damaging to him or her. ... 81. There is, however, one major difference between parents and childminders or school teachers,. In the case of a parent suspicion may disrupt the parent ’ s family life. ... So the crucial question ... is whether this potential disruption of family life tilts the balance in favour of imposing liability in negligence where abuse by a parent is erroneously suspected... ... 85. In my view the Court of Appeal reached the right conclusion on the issue... Ultimately the factor which persuaded me that, at common law, interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled ‘ conflict of interest ’. A doctor is obliged to act in the best interests of his patient. In these cases the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel ‘ quite right ’, a doctor must be able to act single-mindedly in the interests of the child. He ought not have to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent. 86. ... the seriousness of child abuse as a social problem demands that health professionals, acting in good faith in what they believe are the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child may have been abused, or when deciding whether their doubts should be communicated to others, or when deciding what further investigatory or protective steps should be taken. The duty to the child in making these decisions should not be clouded by imposing a conflicting duty in favour of parents or others suspected of having abused the child. ..." | The applicants’ daughter, born in July 1998, was in September 1998 taken to hospital with a fractured femur; doctors concluded that the injury had not been accidental and she was placed in the care of her aunt. Following another injury, the child was diagnosed with brittle bone disease (osteogenesis imperfecta). She was returned home in April 1999. The applicants complained that their daughter had been placed temporarily in care due to a medical misdiagnosis. |
1,037 | Allegedly excessive length of proceedings | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant, Mária Jablonská, is a Slovak national of Polish origin. She was born in 1921 in Warsaw and lives in Senec, Slovakia. A. Background of the case 8. Before the Second World War the applicant’s parents had title to a house in Warsaw. By virtue of an edict of 26 October 1945, all land in Warsaw was nationalised and they were allocated a flat in Warsaw. Later, they requested the administrative authorities to grant them a right of perpetual lease ( prawo wieczystej dzierżawy ) of their house. On 10 July 1951 the Warsaw National Council ( Rada Narodowa ) refused their request. After the death of the applicant’s parents, she, being the sole heir to the property, sought restitution of, or compensation for, loss of property. 9. By a notarial deed of 4 December 1989 the Warsaw- Mokotów District Office ( Urząd Dzielnicowy ) granted a married couple, Mr S. and Mrs G.-S. the so-called “right of perpetual use” ( prawo użytkowania wieczystego ) of the property that had once belonged to the applicant’s parents. Mr S. and Mrs G.-S. claimed to have been legal successors of the applicant’s parents under a contract transferring title to the estate, a contract which had been allegedly concluded in 1967. 10. On 17 February 1992 the Warsaw Regional Prosecutor ( Prokurator Wojewódzki ) filed an action with the Warsaw Regional Court ( Sąd Wojewódzki ) against Mr S. and Mrs G.-S. and the Warsaw- Mokotów District Office, seeking to have the notarial deed of 4 December 1989 declared null and void. 11. By a notarial deed of 30 March 1992 Mr S. and Mrs G.-S. sold the property to a certain Ms J.P. 12. On 3 April 1992 the applicant filed an action with the Warsaw Regional Court against Mr S. and Mrs G.-S., seeking the annulment of the notarial deed of 4 December 1989. 13. On 23 June 1992 the court ordered that the action brought by the Regional Prosecutor and the one brought by the applicant be joined. On 7 May 1997 the proceedings were terminated by the judgment of the Warsaw Court of Appeal declaring the notarial deed of 4 December 1989 null and void. B. Proceedings for the annulment of the notarial deed of 30 March 1992 1. Facts before 1 May 1993 14. On 5 November 1992 the applicant sued Ms J.P., Mr S. and Mrs G. ‑ S. before the Warsaw Regional Court. She asked that the notarial deed of 30 March 1992 concluded between Ms J.P. and two other defendants be declared null and void (see paragraph 11 above). 15. On 13 November 1992 the court exempted the applicant from court fees. 16. On 18 November 1992 the court secured the applicant’s claim and listed the first hearing for 18 January 1993. 2. Facts after 1 May 1993 17. On 13 May 1993 the Regional Court stayed the proceedings under Article 177 § 1 (1) of the Code of Civil Procedure. It considered that the determination of the case depended on the outcome of the proceedings brought against Mr S. and Mrs G.-S. (see paragraphs 10-13 above and paragraph 27 below). 18. On 19 September 1997 the applicant asked the trial court to resume the proceedings. On the same day she complained to the Minister of Justice about their excessive length. 19. The proceedings were resumed on 30 September 1997. A hearing listed for 5 February 1998 was, however, adjourned, as the defendants were not present. The court ordered them to present a justification for their absence. A further hearing, which was to be held on 2 June 1998, was adjourned at the request of the applicant’s lawyer. On the same day the court asked the Warsaw District Court to supply a file of a criminal case pending before that court and ordered the defendants to produce further documentary evidence. 20. On 30 July 1998 the applicant’s counsel asked the court not to fix any hearings between 3 and 12 August 1998 and between 7 and 19 September 1998 because she would be on holiday on those dates. 21. On 25 November 1998 the court asked the Warsaw District Court to supply an extract from the mortgage register kept for the property in question. 22. Two further hearings listed, respectively, for 23 June 1999 and 27 March 2000 were adjourned; the first due to the defendants’ absence, the second one at the defendants’ request. 23. On 10 April 2000 the applicant again complained to the Minister of Justice about the delay in the proceedings. On 15 June 2000 the Minister acknowledged that that the proceedings were indeed lengthy and apologised to the applicant. He also stated that all the measures so far taken to counteract the unreasonable delay in the proceedings were ineffective and instructed the President of the Warsaw Court of Appeal to supervise the conduct of the trial. 24. On 12 July 2000 the Warsaw Regional Court held a hearing and heard evidence from the defendants. On 26 July 2000 it gave judgment declaring the contested notarial deed null and void. The defendants appealed. Subsequently, they asked the court to exempt them from court fees. 25. On 10 July 2001 the Warsaw Court of Appeal held a hearing. On 24 July 2001 it quashed the first-instance judgment and dismissed the applicant’s claim. 26. The applicant lodged a cassation appeal with the Supreme Court ( Sąd Najwyższy ) on 30 October 2001. The Prosecutor of Appeal ( Prokurator Apelacyjny ) filed a cassation appeal on her behalf on 31 October 2001. The appeals were dismissed on 23 October 2002. | The 81-year-old applicant complained that the length of proceedings concerning the annulment of a notarial deed had exceeded a reasonable time. She maintained in particular that, despite her very old age and the fact that her every appearance before the Regional Court had involved a long and tiring travel, she had attended hearings and given evidence whenever necessary and had never caused any undue delay. |
190 | Prohibition of discrimination (Article 14 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1972 and lives in Diyarbakır. 8. The applicant ’ s mother married A.O. in a religious ceremony. In 1990 the applicant and H.O., A.O. ’ s son, started a relationship and began living together. They officially married on 12 November 1995. They had three children, in 1993, 1994 and 1996. The applicant and H.O. had heated arguments from the outset of their relationship. The facts set out below were not disputed by the Government. A. The first assault by H.O. and A.O. against the applicant and her mother 9. On 10 April 1995 the applicant and her mother filed a complaint with the Diyarbakır Public Prosecutor ’ s Office, alleging that H.O. and A.O had been asking them for money, and had beaten them and threatened to kill them. They also alleged that H.O. and his father wanted to bring other men home. 10. On the same day, the applicant and her mother were examined by a doctor. The applicant ’ s medical report noted bruises on her body, an ecchymosis and swelling on her left eyebrow and fingernail scratches on the neck area. The medical report on the applicant ’ s mother also noted bruises and swellings on her body. On 20 April 1995 definitive reports were issued, which confirmed the findings of the first report and stated that the injuries in question were sufficient to render both the applicant and her mother unfit to work for five days. 11. On 25 April 1995 the public prosecutor lodged indictments against H.O. and A.O. for death threats and actual bodily harm. On 15 June 1995 the Diyarbakır First Magistrate ’ s Court discontinued the assault case, as the applicant and her mother had withdrawn their complaints and had thereby removed the basis for the proceedings under Article 456 § 4 of the Criminal Code. 12. On 11 September 1995 the Diyarbakır Second Magistrate ’ s Court also acquitted the defendants of making death threats on account of the lack of evidence, and again discontinued the assault case, noting that it had been previously heard by the Diyarbakır First Magistrate ’ s Court. B. The second assault by H.O. against the applicant 13. On 11 April 1996, during an argument, H.O. beat the applicant very badly. The medical report drawn up on that occasion recorded surface bleeding on the applicant ’ s right eye, bleeding on her right ear, an ecchymosis on her left shoulder and back pain. The report concluded that the applicant ’ s injuries were sufficient to endanger her life. On the same day, at the request of the public prosecutor and by a decision of a single judge, H.O. was remanded in custody. 14. On 12 April 1996 the public prosecutor filed a bill of indictment with the Diyarbakır Criminal Court, accusing H.O. of aggravated bodily harm under Articles 456 § 2 and 457 § 1 of the Criminal Code. 15. On 15 April 1996 H.O. filed a petition with the Presidency of the First Magistrate ’ s Court, requesting his release pending trial. He explained that during an argument with his wife he had become angry and had slapped his wife two or three times. Then his mother-in-law, who worked at a hospital, had obtained a medical report for his wife and that report had led to his detention for no reason. He stated that he did not want to lose his family and business and that he regretted beating his wife. 16. On 16 April 1996 the Second Magistrate ’ s Court dismissed H.O. ’ s request for release pending trial and decided that his pre-trial detention should be continued. 17. At the hearing on 14 May 1996, the applicant repeated her complaint. The public prosecutor requested that H.O. be released pending trial, considering the nature of the offence and the fact that the applicant had regained full health. Consequently, the court released H.O. 18. At a hearing of 13 June 1996, the applicant withdrew her complaint, stating that she and her husband had made their peace. 19. On 18 July 1996 the court found that the offence fell under Article 456 § 4 of the Criminal Code, for which the applicant ’ s complaint was required in order to pursue the proceedings. It accordingly discontinued the case on the ground that the applicant had withdrawn her complaint. C. The third assault by H.O. against the applicant and her mother 20. On 5 February 1998 the applicant, her mother, her sister and H.O. had a fight, in the course of which H.O. pulled a knife on the applicant. H.O., the applicant and her mother sustained injuries. The medical reports certified injuries which rendered them unfit to work for seven, three and five days respectively. 21. On 6 March 1998 the public prosecutor decided not to prosecute anyone in respect of this incident. He concluded that there was insufficient evidence to prosecute H.O. in connection with the knife assault, and that the other offences such as battery and damage to property could be the subject of civil lawsuits. There was thus no public interest in pursuing the case. 22. The applicant went to stay with her mother. D. The fourth assault by H.O. against the applicant and her mother: threats and assault (using a car) leading to initiation of divorce proceedings 23. On 4 March 1998 H.O. ran a car into the applicant and her mother. The applicant ’ s mother was found to be suffering from life - threatening injuries. At the police station, H.O. maintained that the incident had been an accident. He had only wished to give the applicant and her mother a lift, which they had refused before they continued walking. They had then thrown themselves in front of the car. The applicant ’ s mother alleged that H.O. had told them to get into his car and that he would kill them if they refused. Since they did not want to get into the car and had started running away, H.O. had driven his car into the applicant, who had fallen. While the applicant ’ s mother tried to help her daughter, H.O. reversed and then drove forward, this time into the mother. The applicant ’ s mother regained consciousness in hospital. In her statements to the police the applicant confirmed her mother ’ s statements and alleged that her husband had tried to kill them with his car. 24. On 5 March 1998 a single judge at the Diyarbakır Magistrate ’ s Court remanded H.O. in custody. 25. On 19 March 1998 the public prosecutor initiated criminal proceedings against H.O. in the Diyarbakır Third Criminal Court for making death threats and inflicting grievous bodily harm. On the same day the Forensic Medicine Institute submitted a medical report which noted grazes on the applicant ’ s knees. The report concluded that the applicant ’ s injuries rendered her unfit to work for five days. 26. On 20 March 1998 the applicant brought divorce proceedings against H.O. on the grounds that they had intense disagreements, that he was evading his responsibilities as a husband and a father, that he was mistreating her ( as proved by medical reports ), and that he was bringing other women to their home. The applicant submits that she later dropped the divorce case due to threats and pressure from her husband. 27. On 2 April 1998 the applicant and her mother filed a petition with the Diyarbakır Chief Public Prosecutor ’ s Office, asking for protective measures from the authorities subsequent to the death threats issued by H.O. and his father. 28. On 2 and 3 April 1998 police officers took statements from the applicant, her mother, her brother and the latter ’ s wife as well as H.O. and his father. The applicant and her mother stated that H.O. had attempted to kill them with his car and that he had threatened to kill them if the applicant did not return to H.O. They noted that the applicant had already commenced divorce proceedings and that she did not want to return to live with H.O. The applicant ’ s brother and his wife alleged that the applicant was discouraged by her mother from going back to her husband and that they knew nothing about the threats issued by H.O. and his father. H.O. contended that his only intention was to bring his family together, but that his mother-in-law was preventing this. He also alleged that he had gone to the applicant ’ s brother and family elders for help, but to no avail. He maintained that he had never threatened the applicant or her mother and that their allegations were slanderous. H.O. ’ s father maintained that the applicant ’ s mother wanted her daughter to divorce H.O. and to marry somebody else. 29. In a report dated 3 April 1998, the Director of the Law and Order Department of the Diyarbakır Security Directorate informed the Chief Public Prosecutor ’ s Office of the outcome of the investigation into the allegations made by the applicant and her mother. He concluded that the applicant had left her husband and gone to live with her mother. H.O. ’ s repeated requests for the return of his wife had been turned down by the applicant ’ s mother and the latter had insulted H.O. and made allegations that H.O. had issued death threats against her. H.O. had spent twenty - five days in prison for running a car into his mother - in-law and, following his release, had asked a number of mediators to convince his wife to return home. However, the mother did not allow the applicant to go back to H.O. Both parties had issued threats against each other. Furthermore, the mother had wished to separate her daughter from H.O. in order to take revenge on her ex-husband, had constantly made slanderous allegations and had also “wasted” the security forces ’ time. 30. On 14 April 1998 the Diyarbakır Chief Public Prosecutor indicted H.O. and his father A.O. and charged them with issuing death threats against the applicant and her mother, contrary to Article 188 § 1 of the Criminal Code. 31. On 30 April 1998 the Diyarbakır Criminal Court released H.O. pending trial. It further declared that it had no jurisdiction over the case and sent the file to the Diyarbakır Assize Court. 32. On 11 May 1998 the Assize Court classified the offence as attempted murder. During the hearing of 9 July 1998, H.O. repeated that the incident had been an accident; the car door was open, and had accidentally hit the complainants when he moved the car. The applicant and her mother confirmed H.O. ’ s statement and maintained that they no longer wished to continue the proceedings. 33. On 23 June 1998 the Diyarbakır Assize Court acquitted H.O. and his father of the charges of issuing death threats, for lack of sufficient evidence. The court noted that the accused had denied the allegations and the complainants had withdrawn their complaints. The applicant again resumed living with H.O. 34. On 9 July 1998 the applicant ’ s mother was given another medical examination, which found that her injuries were not life-threatening but were sufficient to render her unfit for work for twenty - five days. 35. At the hearing of 8 October 1998 the applicant and her mother withdrew their complaints. They stated that the car door had been open and that H.O. had accidentally hit them. When questioned about their complaints against H.O., the applicant and her mother stated that they had had a fight with H.O. and that they had made those allegations in anger. 36. On 17 November 1998 the Diyarbakır Assize Court concluded that the case should be discontinued in respect of the offence against the applicant, as she had withdrawn her complaint. However, it decided that, although the applicant ’ s mother had also withdrawn her complaint, H.O. should still be convicted of that offence, since the injuries were more serious. Subsequently, the court sentenced H.O. to three months ’ imprisonment and a fine; the sentence of imprisonment was later commuted to a fine. E. The fifth assault by H.O. against the applicant : causing grievous bodily harm 37. On 29 October 2001 the applicant went to visit her mother. Later that day H.O. telephoned and asked the applicant to return home. The applicant, worried that her husband would again be violent towards her, said to her mother “this man is going to tear me to pieces!” The applicant ’ s mother encouraged the applicant to return home with the children. Three-quarters of an hour later one of the children went back, saying that his father had stabbed and killed his mother. The applicant ’ s mother rushed to the applicant ’ s house. She saw that the applicant was lying on the floor bleeding. With the help of neighbours, she put the applicant into a taxi and took her to the Diyarbakır State Hospital. The hospital authorities told her that the applicant ’ s condition was serious and transferred her to the Dicle University Hospital, which was better equipped. The medical report on the applicant noted seven knife injuries on different parts of her body. However, the injuries were not classified as life-threatening. 38. At about 11.30 p.m. on the same day, H.O. handed himself in at a police station. The police confiscated the knife which he had used during the incident. H.O. maintained that his wife and children were still not at home when he came back at 6 p.m. He had telephoned them and asked them to come back. On their return, he asked the applicant, “Why are you wandering outside? Why haven ’ t you cooked anything for me?” The applicant replied, “We ate at my mother ’ s”, and brought him a plate of fruit. They continued arguing. He told her, “Why are you going to your mother so often? Don ’ t go there so much, stay at home and look after the children!” The argument escalated. At some point, the applicant attacked him with a fork. They started fighting, during which he lost control, grabbed the fruit knife and stabbed her; he did not remember how many times. He claimed that his wife was bigger than him, so he had to respond when she attacked him. He added that his wife was not a bad person and that they had lived together peacefully until two years previously. However, they started fighting when the applicant ’ s mother began interfering with their marriage. He stated that he regretted what he had done. H.O. was released after his statement had been taken. 39. On 31 October 2001 the applicant ’ s mother ’ s lawyer petitioned the Diyarbakır Public Prosecutor ’ s Office. In her petition, she stated that the applicant ’ s mother had told her that H.O. had beaten her daughter very badly about five years earlier, after which he was arrested and detained. However, he was released at the first hearing. She maintained that her client and the applicant had been obliged to withdraw their complaints due to continuing death threats and pressure from H.O. She further stated that there was hearsay about H.O. being involved in trafficking women. Finally, she referred to the incident of 4 March 1998 (see paragraph 23 above), arguing that, following such a serious incident, H.O. ’ s release was morally damaging and requested that he be detained on remand. 40. On 2 November 2001 the applicant ’ s lawyer filed an objection with the Chief Public Prosecutor ’ s Office against the medical report of the Dicle Medical Faculty Hospital, which had concluded that the applicant ’ s injuries were not life-threatening. The lawyer requested a new medical examination. 41. On 9 November 2001 the applicant filed a petition with the Diyarbakır Chief Public Prosecutor ’ s Office, complaining that she had been stabbed many times by H.O. subsequent to an argument with him. She asked the public prosecutor to send her to the Forensic Institute for a new medical examination. 42. On 8 November 2001 the applicant underwent a new medical examination at the Forensic Institute in Diyarbakır on the instructions of the public prosecutor. The forensic medical doctor noted the presence of wounds caused by a knife on the left - hand wrist (3 cm long), on the left hip (5 cm deep), another 2 cm-deep wound on the left hip and a wound just above the left knee. He opined that these injuries were not life-threatening but would render the applicant unfit for work for seven days. 43. On 12 December 2001 the public prosecutor filed a bill of indictment with the Diyarbakır Magistrate ’ s Court, charging H.O. with knife assault under Articles 456 § 4 and 457 § 1 of the Criminal Code. 44. By a criminal decree of 23 May 2002, the Diyarbakır Second Magistrate ’ s Court imposed a fine of 839,957,040 Turkish liras (TRL) on H.O for the knife assault on the applicant. It decided that he could pay this fine in eight instalments. F. The sixth incident whereby H.O. threatened the applicant 45. On 14 November 2001 the applicant lodged a criminal complaint with the Diyarbakır Public Prosecutor ’ s Office, alleging that H.O. had been threatening her. 46. On 11 March 2002 the public prosecutor decided that there was no concrete evidence to prosecute H.O. apart from the allegations made by the applicant. G. The applicant ’ s mother filed a complaint with the public prosecutor ’ s office alleging death threats issued by H.O. and A.O. 47. On 19 November 2001 the applicant ’ s mother filed a complaint with the public prosecutor. In her petition, she stated that H.O., A.O. and their relatives had been consistently threatening her and her daughter. In particular, H.O. told her, “I am going to kill you, your children and all of your family!” He was also harassing her and invading her privacy by wandering around her property carrying knives and guns. She maintained that H.O. was to be held liable should an incident occur involving her and her family. She also referred to the events of 29 October 2001, when the applicant was stabbed by him (see paragraph 37 above). In response to this petition, on 22 November 2002, the public prosecutor wrote a letter to the Security Directorate in Diyarbakır and asked them to take statements from the complainant and H.O. and to submit an investigation report to his office. 48. In the meantime, on 14 December 2001 the applicant again initiated divorce proceedings in the Diyarbakır Civil Court. 49. On 23 December 2001 the police took statements from H.O. in relation to the applicant ’ s mother ’ s allegations. He denied the allegations against him and claimed that his mother-in-law, who had been interfering with his marriage and influencing his wife to lead an immoral life, had issued threats against him. The police took further statements from the applicant ’ s mother on 5 January 2002. She claimed that H.O. had been coming to her doorstep every day, showing a knife or shotgun and threatening to kill her, her daughter and her grandchildren. 50. On 10 January 2002 H.O. was charged under Article 191 § 1 of the Criminal Code with making death threats. 51. On 27 February 2002 the applicant ’ s mother submitted a further petition to the Diyarbakır Public Prosecutor ’ s Office. She maintained that H.O. ’ s threats had intensified. H.O., together with his friends, had been harassing her, threatening her and swearing at her on the telephone. She stated that her life was in immediate danger and requested that the police tap her telephone and take action against H.O. On the same day, the public prosecutor instructed the Directorate of Turkish Telecom in Diyarbakır to submit to his office a list of all the numbers which would call the applicant ’ s mother ’ s telephone line over the following month. In the absence of any response, the public prosecutor repeated his request on 3 April 2002. 52. On 16 April 2002 the Diyarbakır Magistrate ’ s Court questioned H.O. in relation to his knife assault on his mother-in-law. He repeated the statement he had made to the police, adding that he did not wish his wife to visit her mother, as the mother had been pursuing an immoral life. H. The killing of the applicant ’ s mother by H.O. 53. The applicant had been living with her mother since the incident of 29 October 2001. 54. On an unspecified date the applicant ’ s mother made arrangements with a removal company to move her furniture to İzmir. H.O. learned of this and allegedly said, “Wherever you go, I will find and kill you!”. Despite the threats, on 11 March 2002 the furniture was loaded onto the removal company ’ s pick-up truck. The pick-up truck made two trips between the company ’ s transfer centre and the house. On its third trip, the applicant ’ s mother asked the driver whether she could drive with him to the transfer centre. She sat on the front seat, next to the driver. On their way, a taxi pulled up in front of the truck and started signalling. The pick-up driver, thinking that the taxi driver was going to ask for an address, stopped. H.O. got out of the taxi. He opened the front door where the applicant ’ s mother was sitting, shouted something like, “Where are you taking the furniture?” and shot her. The applicant ’ s mother died instantly. I. The criminal proceedings against H.O. 55. On 13 March 2002 the Diyarbakır Public Prosecutor filed an indictment with the Diyarbakır Assize Court, accusing H.O. of intentional murder under Article 449 § 1 of the Criminal Code. 56. In his statements to the police, the public prosecutor and the court, H.O. claimed that he had killed the applicant ’ s mother because she had induced his wife to lead an immoral life, like her own, and had encouraged his wife to leave him, taking their children with her. He further alleged that on the day of the incident, when he asked the deceased where she was taking the furniture and where his wife was, the deceased had replied “F... off, I will take away your wife, and sell [her]”. He stated that he had lost his temper and had shot her for the sake of his honour and children. 57. In a final judgment dated 26 March 2008, the Diyarbakır Assize Court convicted H.O. of murder and illegal possession of a firearm. It sentenced him to life imprisonment. However, taking into account the fact that the accused had committed the offence as a result of provocation by the deceased and his good conduct during the trial, the court mitigated the original sentence, changing it to fifteen years and ten months ’ imprisonment and a fine of 180 Turkish liras (TRY). In view of the time spent by the convict in pre-trial detention and the fact that the judgment would be examined on appeal, the court ordered the release of H.O. 58. The appeal proceedings are still pending before the Court of Cassation. J. Recent developments following the release of H.O. 59. In a petition dated 15 April 2008, the applicant filed a criminal complaint with the Kemalpaşa Chief Public Prosecutor ’ s Office in İzmir, for submission to the Diyarbakır Chief Public Prosecutor ’ s Office, and asked the authorities to take measures to protect her life. She noted that her ex ‑ husband [1], H.O., had been released from prison and that in early April he had gone to see her boyfriend M.M., who worked at a construction site in Diyarbakır, and had asked him about her whereabouts. Since M.M. refused to tell him her address, H.O. threatened him and told him that he would kill him and the applicant. The applicant claimed that H.O. had already killed her mother and that he would not hesitate to kill her. She had been changing her address constantly so that H.O. could not find her. Finally, she asked the prosecuting authorities to keep her address, indicated on the petition, and her boyfriend ’ s name confidential and to hold H.O. responsible if anything untoward happened to her or her relatives. 60. On 14 May 2008 the applicant ’ s representative informed the Court that the applicant ’ s husband had been released from prison and that he had again started issuing threats against the applicant. She complained that no measures had been taken despite the applicant ’ s request. She therefore asked the Court to request the Government to provide sufficient protection. 61. In a letter dated 16 May 2008, the Registry transmitted the applicant ’ s request to the Government for comments and invited them to inform the Court of the measures to be taken by their authorities. 62. On 26 May 2008 the Director of the International Law and Relations Department attached to the Ministry of Justice faxed a letter to the Diyarbakır Chief Public Prosecutor ’ s Office in relation to the applicant ’ s complaints to the European Court of Human Rights. He informed the Chief Public Prosecutor ’ s Office of the applicant ’ s pending application before the Court and asked them to provide information on the current state of execution of H.O. ’ s sentence, the state of proceedings with regard to the applicant ’ s criminal complaint filed with the Kemalpaşa Chief Public Prosecutor ’ s Office in İzmir and the measures taken to protect the applicant ’ s life. 63. On the same day, a public prosecutor from the Diyarbakır Chief Public Prosecutor ’ s Office wrote to the Diyarbakır Governor ’ s Office and asked him to take measures for the protection of the applicant. 64. By a letter of 28 May 2008 from the Diyarbakır Chief Public Prosecutor ’ s Office to the Şehitler Central Police Directorate in Diyarbakır, the Public Prosecutor (A.E.) asked the police to summon H.O. to his office in relation to an investigation. 65. On 29 May 2008 A.E. questioned H.O. in relation to the criminal complaint filed by the applicant. H.O. denied the allegation that he had issued threats against the applicant and claimed that she had made such allegations in order to disturb him following his release from prison. He maintained that he did not feel any enmity towards the applicant and that he had devoted himself to his family and children. 66. On 3 June 2008 A.E. took statements from the applicant ’ s boyfriend, M.M. The latter stated that H.O. had called him and asked him for the applicant ’ s address, and had told him that he would kill her. M.M. did not meet H.O. Nor did he file a criminal complaint against H.O. He had, however, called the applicant and informed her about the threats issued by H.O. 67. In a letter dated 20 June 2008, the Government informed the Court that the applicant ’ s husband had not yet served his sentence but that he had been released pending the appeal proceedings in order to avoid exceeding the permissible limit of pre-trial detention. They also stated that the local governor ’ s office and the Chief Public Prosecutor ’ s Office had been informed about the applicant ’ s complaint and that they had been instructed to take precautions for the protection of the applicant. 68. Finally, on 14 November 2008 the applicant ’ s legal representative informed the Court that his client ’ s life was in immediate danger since the authorities had still not taken any measures to protect her from her former husband. The Registry of the Court transmitted this letter on the same day to the Government, inviting them to provide information about the measures they had taken to protect the applicant. 69. On 21 November 2008 the Government informed the Court that the police authorities had taken specific measures to protect the applicant from her former husband. In particular, the photograph and fingerprints of the applicant ’ s husband had been distributed to police stations in the region so that they could arrest him if he appeared near the applicant ’ s place of residence. The police questioned the applicant in relation to the allegations. She stated that she had not been threatened by her husband over the past month and a half. | The applicant and her mother were assaulted and threatened over many years by the applicant’s husband, at various points leaving both women with life-threatening injuries. With only one exception, no prosecution was brought against him on the grounds that both women had withdrawn their complaints, despite their explanations that the husband had harassed them into doing so, threatening to kill them. He subsequently stabbed his wife seven times and was given a fine equivalent to about 385 euros, payable in instalments. The two women filed numerous complaints, claiming their lives were in danger. The husband was questioned and released. Finally, when the two women were trying to move away, the husband shot dead his mother-in-law, arguing that his honour had been at stake. He was convicted for murder and sentenced to life imprisonment but released pending his appeal, whereupon his wife claimed he continued to threaten her. |
292 | (Suspected) terrorists | THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1948, 1956 and 1953 respectively. The first applicant was detained in Topas Prison when his application was lodged with the Court. The third applicant is detained in Zuera Prison. The second applicant was living in Ciboure (France) when his application was lodged with the Court. Application no. 65101/16 6. On 30 September 1987 the first applicant was arrested in France. 7. On 3 October 1987 he was placed in detention in France for belonging to the ETA terrorist organisation. 8. On 4 July 1990 the Paris Regional Court sentenced him to ten years ’ imprisonment on charges of criminal conspiracy, breach of the law on arms and explosives, breach of the Electronic Mail and Communications Code and an offence related to individual or collective action aimed at creating public disorder through intimidation or terror. That conviction concerned offences committed in France in 1987. The first applicant served his sentence up until 3 October 1995, after a full prison term of seven years. 9. The first applicant then remained in detention in France, for the purposes of extradition, until 21 December 2000, when he was surrendered to the Spanish judicial authorities pursuant to an extradition request. 10. In Spain, the first applicant was sentenced to more than three thousand years ’ imprisonment after eleven separate sets of criminal proceedings before the Audiencia Nacional. He was convicted of several terrorist attacks and murders committed in Spain between 1980 and 1987 by the ETA terrorist organisation, including the booby-trapped car explosion on the Plaza República Dominicana in Madrid on 14 July 1986 ( killing twelve Guardia Civil officers and injuring forty-four Guardia Civil officers and seventeen passers-by ) and the car-bomb attack on the Hipercor shopping centre in Barcelona on 19 June 1987 ( killing twenty-one people and injuring forty-six others ). 11. Once the convictions in Spain had become final by decision of 7 March 2006, the Audiencia Nacional noted that the chronological links between the offences of which she had been convicted made it possible to group them together ( acumulación de penas ) as provided for in section 988 of the Criminal Procedure Act ( Ley de Enjuiciamiento Criminal ) in conjunction with Article 70.2 of the 1973 Criminal Code, in force when the offences were committed (see “ relevant domestic law and practice” in the case of Del Río Prada v. Spain [GC], no. 42750/09, §§ 24-25, ECHR 2013). The Audiencia Nacional fixed the maximum term to be served by the first applicant in respect of all his prison sentences in Spain combined at thirty years. 12. On 27 June 2006 an initial calculation was carried out for the purposes of fixing the date on which he would have finished serving his sentence ( liquidación de condena ), stating that the first applicant would be released on 30 January 2030. 13. At the first applicant ’ s request, the period of detention in France for the purposes of extradition ( from 3 October 1995 to 21 December 2000) was deducted from the maximum prison term by decision of 24 May 2011 of the Audiencia Nacional. Consequently, the prison authorities recalculated the prison term and fixed the date on which he would have finished serving his sentence for 24 September 2025. That calculation was confirmed by an order issued on 27 September 2011 by the Audiencia Nacional. 14. Following the judgment delivered by the Court in the case of Del Río Prada, cited above, the first applicant sought and ultimately obtained a recalculation of his prison term, fixing the date of his release on 21 July 2020, which was approved by decision of 28 February 2014. The remissions of sentence to which the applicant was entitled were deducted from the maximum term of thirty years ’ imprisonment, rather than from each of the sentences separately ( see, as regards the consequences of the Del Río Prada judgment for other convicted persons, Lorenzo Vázquez v. Spain ( dec. ), no. 30502/12, §§ 19-24, 19 January 2016), for the purposes of determining his release date. 15. On 25 March 2014 the first applicant requested the deduction of the prison sentence imposed by the French judicial authorities and served in France from the maximum thirty-year term established in Spain. He relied on judgment no. 186/2014 of 13 March 2014 of the Supreme Court, which had accepted the possibility of taking into consideration a sentence served in France for the purposes of grouping together sentences on the basis of Framework Decision no. 2008/675/JAI of the Council of the European Union of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings ( “ Framework Decision no. 2008/675/JAI ” ) ( see “ relevant domestic and EU law and practice ”, paragraphs 73-77 and 83 below ). 16. By decision of 2 December 2014 the Audiencia Nacional ( first section of the Criminal Division ) agreed to deduct the prison term served in France from the maximum term of thirty years ’ imprisonment. The Audiencia relied, in particular, on judgment no. 186/2014 delivered by the Supreme Court on 13 March 2014, as well as Framework Decision no. 2008/675/JAI, particularly Article 3 § 1 thereof, which provides that each Member State of the European Union ( “ the EU ” ) should ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts are taken into account to the extent previous national convictions are taken into account. The Audiencia Nacional took the view that a previous conviction handed down in another Member State should therefore be taken into account in calculating the maximum prison terms provided in criminal law. 17. The public prosecutor ’ s office lodged an appeal on points of law with the Supreme Court against that decision, for the purposes of clarifying the law. In the framework of those proceedings, the first applicant requested an application for a preliminary ruling from the Court of Justice of the European Union ( “ the CJEU ” ) on the basis of Article 267 of the Treaty on the Functioning of the European Union. Moreover, he pointed out that allowing the appeal on points of law would violate the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law and the right to effective judicial protection. 18. On 4 December 2014, while the appeal on points of law was pending before the Supreme Court, the Audiencia Nacional recalculated the sentence to be served by the first applicant under the impugned decision. It noted that pursuant to that decision, and taking account of the sentence served in France for the purposes of grouping the sentences together, the applicant ought to have finished serving his sentence on 27 January 2013. 19. On 21 December 2014 the first applicant was released from prison. He was placed in pre-trial detention on 20 January 2015 in relation to offences committed in 1986 and 1987 for which he had not yet stood trial. 20. On 10 March 2015 the Supreme Court allowed the appeal on points of law lodged by the public prosecutor ’ s office for the purposes of clarifying the law. In its judgment, which was delivered and published on 24 March 2015, it held that there had been no need to take account of the sentence served by the first applicant in France for the purposes of grouping sentences together ( acumulación de penas ). The Supreme Court had followed the same approach as in its leading judgment no. 874/2014 of 27 January 2015, by which the Plenary Criminal Division had decided not to take account of sentences imposed and served in France in tandem with sentences imposed in Spain for the purposes of determining the maximum prison term ( see “ Relevant law and practice at the domestic and EU levels ”, paragraph 69 below ). 21. Referring to the reasoning set out in its leading judgment no. 874/2014 of 27 January 2015, the Supreme Court reiterated all the applicable case-law and legislation concerning the consideration of sentences imposed abroad. It identified three different periods in this regard: the first period up until 15 August 2008, the date of publication of Framework Decision no. 2008/675/JAI; the second extending between that date and the date of publication of Organic Law no. 7/2014 of 12 November 2014 on the exchange of information from police records and taking account of criminal court decisions in the EU, which had come into force on 3 December 2014; and lastly, the third period from the date of publication of the aforementioned organic law to the present day. As regards the first period, the Supreme Court noted that the Spanish courts had only agreed to take account of sentences imposed abroad alongside those imposed in Spain where the sentence imposed abroad was to be served in Spain under an international treaty on the execution of criminal judgments ( for example a bilateral treaty or the Council of Europe ’ s Convention on the Transfer of Convicted persons ). On the other hand, it pointed out that when the sentence had already been served abroad, there was no reason to consider it in connection with sentences to be served in Spain for the purposes of implementing the maximum prison term ( judgment no. 2117/2002 of 18 December 2002). Concerning the second period (mid - August 2008 to November 2014), the Supreme Court observed that under the Framework Decision itself ( Article 3 § 5), it was not compulsory for States to take account of a sentence imposed in another Member State for the purposes of applying the maximum prison term set out in the Penal Code. The court added, however, that as it transpired from its judgment no. 186/2014 of 13 March 2014, in the absence of domestic legislation transposing the Framework Decision or of rules expressly governing this matter, the rules in force should be interpreted in a manner as compatible as possible with the content of European regulations, provided that such interpretation was not contra legem where domestic law was concerned. It pointed out that it was in that context that judgment no. 186/2014, which had been enacted before the transposition of the Framework Decision, had agreed to take into consideration a sentence imposed in France for the purposes of grouping it together with sentences subsequently imposed in Spain. Finally, as regards the third period, the Supreme Court noted that Organic Law no. 7/2014 had incorporated the Framework Decision into Spanish law, while expressly ruling out the effects of sentences imposed in another Member State in calculating the length of sentences given in Spain for offences committed before any sentences handed down by the courts of the other Member State ( section 14 ( 2 ) of Organic Law no. 7/2014 ). It considered that under those circumstances, even though the aim was not to apply that law directly, its existence meant that it was no longer possible to interpret Spanish law ( Article 70.2 of the Penal Code and section 988 of the Criminal Procedure Act ) in the previously accepted sense, that is to say in favour of taking into account sentences imposed in another Member State for the purposes of calculating the maximum prison term. Given that the Spanish State, through the intermediary of its legislature, had expressed its choice in the transposition of the Framework Decision, ruling out any consideration of sentences imposed in another Member State, the previous interpretation was no longer possible, because it was no longer praeter legem but contra legem. 22. Furthermore, in its judgment, the Supreme Court had considered whether Organic Law no. 7/2014 was compatible with the Framework Decision, and concluded that the exceptions provided for in the Consideration of Sentences imposed in other Member States Act were authorised by the optional exception set out in Article 3 § 5 of the Framework Decision. 23. The Supreme Court also considered that the new interpretation of the law set out in its judgment no. 874/2014 did not contravene Article 7 of the Convention read in the light of the Court ’ s case-law. It took the view that the change of interpretation could not be compared with the reversal of case-law which had given rise to the case of Del Río Prada. Firstly, the Supreme Court held that it would be difficult for an interpretation based on such a legal instrument as a Framework Decision, which itself introduced optional exceptions for its transposition, to give rise to legitimate expectations. Secondly, it considered that it was a case of a pre- established case-law or interpretative practice laying down the general rule of consideration of sentences already served abroad. Thirdly, it pointed out that judgment no. 186/2014 of 13 March 2014 had been the first decision in which it had been called upon to interpret the Framework Decision, at a time when the commonly accepted practice of the courts in similar cases had been to refuse to take account of sentences served abroad. Fourthly, the court emphasised that in the absence of any established case-law, the first applicant could not, when he had been serving his prison sentence, have legitimately expected that the sentence already served in France would be taken into consideration for the purposes of applying the maximum prison term in Spain. It concluded that even though the impugned interpretation differed from that adopted in judgment no. 186/2014, that change was not such as to infringe any expectation on the first applicant ’ s part based on reasonable foreseeability. Moreover, it considered that that foreseeability could never have existed either at the time the first applicant had committed the offences in France (1987) or at the time the decision was taken to group together sentences in Spain (2006), since the Framework Decision had not yet been adopted then and no judicial precedent had supported the taking into account of sentences served abroad. Finally, the Supreme Court held that the first applicant must have known that the Framework Decision had to be implemented at the domestic level, and pointed out that such transposition would determine whether or not sentences imposed in another Member State could be taken into account under the optional exception set forth in Article 3 § 5 of the Framework Decision itself. It noted that ultimately, Spanish law as a whole, including the relevant case-law, had not been drawn up sufficiently precisely for the argument advanced by the applicant to be accepted as established and evident. 24. As regards the first applicant ’ s desire to request a preliminary ruling from the CJEU, the Supreme Court held that that was unnecessary in view of the clear wording of Article 3 § 5 of the Framework Decision read in its context and in the light of the procedure for adopting that instrument. 25. The Supreme Court had adopted its judgment by four votes to one. One judge had appended a dissenting opinion submitting that the exceptions laid down in Organic Law no. 7/2014 on taking account of sentences imposed in another Member State were contrary to the spirit of the Framework Decision and destroyed the very essence of the equivalence objective which that instrument was supposed to enshrine. 26. On 13 March 2015 the Audiencia Nacional took note of the communication of the Supreme Court judgment and of the latter ’ s annulment of the 2 December 2014 decision on grouping sentences together in respect of the first applicant, thus rendering inoperative the latest calculation of the prison term to be served. It stated that the first applicant now had to continue serving his prison sentence. 27. On 10 April 2015 the 24 March 2015 judgment of the Supreme Court was served on the first applicant ’ s representative. The notice accompanying the judgment stated that the latter was final and could be the subject of an amparo appeal before the Constitutional Court within thirty working days. 28. On 15 April 2015 the first applicant filed an action ( incidente de nulidad ) to set aside the judgment of the Supreme Court on the basis of section 241 ( 1 ) of the Organic Law on the Judiciary ( “ LOPJ ” ) ( see “ Relevant law and practice at the domestic and EU levels ”, paragraph 69 below ), alleging in particular an infringement of the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law and the right to effective judicial protection. He requested that his action be dealt with under urgent procedure so that he could lodge an amparo appeal before the Constitutional Court within the thirty-day time-limit. 29. On 25 May 2015 the first applicant requested the withdrawal of his action on the grounds that the Supreme Court, which had delivered the impugned cassation judgment, had already had an opportunity to reply to his allegations of breaches of fundamental rights. 30. On 26 May 2015 the first applicant lodged an amparo appeal with the Constitutional Court. He relied on Article 14 ( equality principle ), Article 17 ( right to liberty ), Article 24 ( right to effective judicial protection) and Article 25 ( principle that only a statute can define offences and lay down penalties ) of the Constitution. He once again requested that the CJEU be invited to give a preliminary ruling. Regarding the requirement of exhaustion of available domestic remedies, the first applicant pointed out that no ordinary appeal lay with the cassation judgment and that the Supreme Court had already determined all the allegations of violations of fundamental rights, redress for which he was now seeking before the Constitutional Court. 31. At a subsequent date (27 May 2015 according to the applicant and 8 June 2015 according to the Government ) the first applicant was served with a decision of the Supreme Court dated 30 April 2015 declaring his action for annulment inadmissible. In that decision the Supreme Court stated that most of the applicant ’ s complaints had already been assessed in its cassation judgment, and that consequently, pursuant to section 241 ( 1 ) LOPJ, the action should be declared inadmissible. 32. On 24 May 2016 the Constitutional Court declared the amparo appeal inadmissible on grounds of non- exhaustion of existing legal remedies, relying on section 44 ( 1 ) ( a) of the Organic Law on the Constitutional Court. That court noted that the first applicant had not lodged an action for annulment based on section 241 ( 1 ) LOPJ. B. Application no. 73789/16 33. The second applicant was arrested in France on 18 November 1990. He was subsequently placed in pre-trial detention. 34. By judgment of 11 March 1994 the Paris Regional Court sentenced him to seven years ’ imprisonment on charges of criminal conspiracy ( terrorism ), transport of arms and munitions and use of forged documents, in respect of offences committed in French territory in 1990. In its decision the court noted that the applicant was a member of the ETA. 35. The second applicant served that sentence in France up until the date of his extradition to Spain on 11 March 1996. 36. By judgment of 31 July 1997 the Audiencia Nacional sentenced the second applicant to a forty- six years ’ imprisonment for two attempted murders and damage to property, in connection with a terrorist attack on a bar in Eskoriaza ( Guipuscoa Province ) on 22 May 1987. The judgment stated that regard would be had to the upper limit set out in Article 70.2 of the 1973 Penal Code, which provided for a maximum prison term of thirty years. The judgment was upheld by the Supreme Court on 12 June 1998 following an appeal on points of law. 37. On 18 August 1998 an initial calculation was carried out for the purposes of fixing the date on which he would have finished serving his sentence ( liquidación de condena ), stating that the first applicant would be released on 3 March 2026. The Audiencia Nacional approved that calculation on 27 August 1998. 38. On 20 March 2014 the second applicant requested that the prison sentence imposed by the French judicial authorities and served in France be taken into account in determining the maximum thirty -year prison term set in Spain. He relied on judgment no. 186/2014 of the Supreme Court of 13 March 2014 and Framework Decision no. 2008/675/JAI of 24 July 2008. 39. By decision of 2 December 2014 the Audiencia Nacional ( first section of the Criminal Division ) agreed to deduct the prison term served in France from the maximum term of thirty years ’ imprisonment. The Audiencia relied, in particular, on judgment no. 186/2014 delivered by the Supreme Court on 13 March 2014, as well as Framework Decision no. 2008/675/JAI, particularly Article 3 § 1 thereof, which provides that each Member State of the European Union (“the EU”) should ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts are taken into account to the extent previous national convictions are taken into account. 40. The public prosecutor ’ s office lodged an appeal on points of law with the Supreme Court against that decision, for the purposes of clarifying the law. In the framework of those proceedings, the second applicant requested an application for a preliminary ruling from the CJEU on the basis of Article 267 of the Treaty on the Functioning of the European Union. Moreover, he pointed out that should the appeal on points of law be allowed, that would violate the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law and the right to effective judicial protection. 41. On 2 December 2014 the Audiencia Nacional recalculated the sentence to be served by the second applicant in accordance with the impugned decision. It noted that pursuant to that decision and having taken into account the sentence served in France for the purposes of grouping sentences together, the applicant should have completed his sentence on 24 August 2013. The Audiencia Nacional also had regard to the ordinary remissions of sentence to which the second applicant was entitled and which had to be deducted from the thirty-year limit. 42. On 4 December 2014 the Audiencia Nacional confirmed that calculation and the second applicant was released from prison. 43. On 10 March 2015 the Supreme Court allowed the appeal on points of law lodged by the public prosecutor ’ s office for the purposes of clarifying the law. In its judgment, which was delivered and published on 24 March 2015, it held that there had been no need to take account of the sentence served by the first applicant in France for the purposes of grouping the sentences together. The Supreme Court had followed the same approach as in its cassation judgment concerning the first applicant (see paragraphs 20-24 above), referring to the approach which it had adopted in its leading judgment no. 874/2014 of 27 January 2015. One judge had appended a dissenting opinion to the judgment. 44. Also on 10 March 2015, the cassation judgment was communicated to the Audiencia Nacional. The latest calculation of the prison term to be served by the second applicant was rendered inoperative and the previous calculation was reinstated. The Audiencia Nacional therefore fixed the date on which the second applicant would have finished serving his sentence as 16 August 2018 ( liquidación de condena ), and ordered his recall to prison. 45. Just as he was to return to prison, the second applicant absconded and remained untraceable. International arrest warrants were issued, and once he had been located, an extradition request was issued to the French State. 46. On 10 April 2015 the 24 March 2015 judgment of the Supreme Court was served on the second applicant ’ s representative. The notice accompanying the judgment stated that the latter was final and could be the subject of an amparo appeal before the Constitutional Court, to be lodged within thirty working days. 47. On 17 April 2015 the second applicant filed an action to set aside the judgment of the Supreme Court on the basis of section 241 (1) of the Organic Law on the judiciary (“LOPJ”), alleging in particular an infringement of the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law and the right to effective judicial protection. He requested that his action be dealt with under urgent procedure so that he could lodge an amparo appeal before the Constitutional Court within the thirty-day time-limit. 48. On 26 May 2015 the second applicant requested the withdrawal of his action on the grounds that the Supreme Court, which had delivered the impugned cassation judgment, had already had an opportunity to reply to his allegations of breaches of fundamental rights. 49. On the same date the second applicant lodged an amparo appeal with the Constitutional Court. He relied on Article 14 (equality principle), Article 17 (right to liberty), Article 24 (right to effective judicial protection) and Article 25 (principle that only a statute can define offences and lay down penalties ) of the Constitution. He once again requested that the CJEU be invited to give a preliminary ruling. Regarding the requirement of exhaustion of available domestic remedies, the first applicant pointed out that no ordinary appeal lay with the cassation judgment and that the Supreme Court had already determined all the allegations of violations of fundamental rights, redress for which he was now seeking before the Constitutional Court. 50. On 27 May 2015 the second applicant was served with a decision of the Supreme Court dated 30 April 2015 declaring his action for annulment inadmissible. In that decision the Supreme Court stated that most of the applicant ’ s complaints had already been assessed in its cassation judgment, and that consequently, pursuant to section 241 (1) LOPJ, the action had to be declared inadmissible. 51. The second applicant was arrested in France on 7 September 2015. It transpires from the case file that the Government adopted an agreement to request his extradition on 9 October 2015. 52. On 22 June 2016 the Constitutional Court declared the amparo appeal inadmissible on grounds of non-exhaustion of existing legal remedies, relying on section 44 (1) (a) of the Organic Law on the Constitutional Court. That court noted that the first applicant had not lodged an action for annulment based on section 241 (1) LOPJ. C. Application no. 73902/16 53. The third applicant was arrested in France on 29 March 1992 in the framework of an operation against the main ETA leaders. 54. By judgment of 19 June 1997, the Paris Regional Court sentenced him to ten years ’ imprisonment on charges, inter alia, of criminal conspiracy, unlawful possession of arms and munitions and use of forged documents, in respect of offences which had been committed in French territory between 1990 and 1992. The third applicant served that sentence in France. 55. On 8 February 2000 he was surrendered to the Spanish judicial authorities pursuant to an extradition request. 56. In Spain the third applicant was sentenced to over four thousand seven hundred years ’ imprisonment following seventeen separate sets of criminal proceedings before the Audiencia Nacional. He was convicted, inter alia, of several terrorist attacks and murders (twenty-three in all) committed in Spain (Madrid, Zaragoza, Santander and Valencia) between 1987 and 1993. 57. On 4 December 2012, once the sentences imposed in Spain had become final, the third applicant requested the grouping together of the sentences for the purposes of determining the maximum prison term to be served ( thirty years ). He did not refer to the sentence served in France. 58. By decision of 18 November 2013, the Audiencia Nacional noted that the chronological links between the offences of which she had been convicted made it possible to group them together ( acumulación de penas ) as provided for in section 988 of the Criminal Procedure Act ( Ley de Enjuiciamiento Criminal ) in conjunction with Article 70.2 of the 1973 Criminal Code, in force when the offences were committed. The Audiencia Nacional fixed the maximum term to be served by the first applicant in respect of all his prison sentences in Spain combined at thirty years. 59. By decision of 11 April 2014, the Audiencia Nacional approved the calculation of the sentence to be served by the third applicant, taking account of the remissions of sentence to which he was entitled. The date on which he would have finished serving his sentence ( liquidación de condena ) was fixed for 13 November 2024. 60. On 30 April 2014 the third applicant requested that the prison sentence which he had served in France be taken into account in determining the maximum thirty -year term. He relied in particular on judgment no. 186/2014 of the Supreme Court and Framework Decision no. 2008/675/JAI. 61. By decision of 2 December 2014, the Audiencia Nacional ( first section of the Criminal Division ) agreed to deduct the prison term served in France from the maximum term of thirty years ’ imprisonment. The Audiencia relied, in particular, on judgment no. 186/2014 delivered by the Supreme Court on 13 March 2014, as well as Framework Decision no. 2008/675/JAI, particularly Article 3 § 1 thereof, which provides that each Member State of the European Union (“the EU”) should ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts are taken into account to the extent previous national convictions are taken into account. 62. That decision was contested on points of law before the Supreme Court by the public prosecutor ’ s office for the purposes of clarifying the law, and by the third applicant. The latter requested the consideration of the whole sentence imposed in France ( ten years ), encompassing the remissions of sentence given, and not exclusively the time actually spent in prison ( from 29 March 1992 to 7 February 2000 – seven years and eleven months ). In the framework of the cassation proceedings, the third applicant requested that the CJEU be invited to give a preliminary ruling on the basis of Article 267 of the Treaty on the Functioning of the European Union. Furthermore, he complained of an infringement of the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law and the right to effective judicial protection. 63. On 3 December 2014, the date on which the third applicant would have finished serving his sentence ( liquidación de condena ) was fixed for 21 March 2022, pursuant to the impugned decision and after deduction of the prison sentence served in France from 29 March 1992 to 7 February 2000. Having regard to the remissions of sentence already granted, deductible from the maximum thirty-year term, his final date of release ( licenciamiento definitivo ) was fixed for 5 August 2016. 64. On 23 April 2015 the Supreme Court allowed the appeal on points of law lodged by the public prosecutor ’ s office for the purposes of clarifying the law, holding that there had been no need to take account of the sentence served by the third applicant in France for the purposes of grouping sentences together. The Supreme Court had followed the same approach as in its judgments concerning the first and second applicants (see paragraphs 20-24 above), while also referring to the approach adopted in its leading judgment no. 874/2014 of 27 January 2015. Two judges appended a dissenting opinion to the Supreme Court ’ s judgment. The appeal on points of law lodged by the third applicant was dismissed. 65. On 18 May 2015 the judgment of the Supreme Court was communicated to the Audiencia Nacional and served on the third applicant, who was represented by the same solicitor as the first and second applicants. The notice accompanying the judgment stated that the latter was final and could be the subject of an amparo appeal before the Constitutional Court within thirty working days. 66. On 20 May 2015 the latest calculation of the prison term to be served by the third applicant was rendered inoperative. The previous calculation was re - validated and updated by taking account of the further applicable remissions of sentence. According to that calculation, approved by the Audiencia Nacional on 21 July 2015, the third applicant would have finished serving his sentence ( liquidación de condena ) on 14 March 2024. 67. On 26 June 2015 the third applicant lodged an amparo appeal with the Constitutional Court. He relied on Article 14 (equality principle), Article 17 (right to liberty), Article 24 (right to effective judicial protection) and Article 25 (principle that only a statute can define offences and lay down penalties ) of the Constitution. He once again requested that the CJEU be invited to give a preliminary ruling. Regarding the requirement of exhaustion of available domestic remedies, the third applicant pointed out that no ordinary appeal lay with the cassation judgment and that the Supreme Court had already determined all the allegations of violations of fundamental rights, redress for which he was now seeking before the Constitutional Court. 68. On 22 June 2016 the Constitutional Court declared the amparo appeal inadmissible on grounds of non- exhaustion of existing domestic remedies, relying on section 44 ( 1 ) ( a) of the Organic Law on the Constitutional Court. That court noted that the first applicant had not lodged an action for annulment based on section 241 (1) LOPJ. RELEVANT DOMESTIC AND eUROPEAN UNION LAW AND PRACTICE A. Action for annulment 69. Section 241 ( 1 ) of the Organic Law on the Judiciary ( “ LOPJ ” ) as amended under the first final provision of Organic Law no. 6/2007 of 24 May 2007 provides : “ As a general rule, actions for the annulment of judicial decisions must be declared inadmissible. In exceptional cases, however, legitimate or potentially legitimate parties may request in writing that judicial decisions be declared null and void on grounds of a violation of a fundamental right secured under Article 53 § 2 of the Constitution, provided that such violation could not have been complained of before the delivery of the judgment or decision terminating the proceedings, and that, in either case, no ordinary or extraordinary remedy lies with the judgment or decision .” B. Organic Law on the Constitutional Court 70. Section 44 ( 1 ) ( a) of the Organic Law on the Constitutional Court as amended under Organic Law no. 6/2007 of 24 May 2007, provides : “ 1. Violations of rights and freedoms which are open to an amparo appeal and which derive immediately and directly from an act or omission on the part of a judicial body may give rise to such an appeal, subject to the following conditions: ( a ) that all the legal remedies provided for by procedural rules have been exercised in the practical case, through judicial channels ... ”. C. Applicable law regarding upper limits on and the grouping together of sentences in Spain 71. The relevant provision of the 1973 Penal Code in force at the time of commission of the offences in issue read : Article 70 “ Where all or some of the sentences ( penas ) ... cannot be served simultaneously by the convicted person, the follow rules will apply : 1. Sentences ( penas ) shall be imposed in accordance with their respective severity such that the convicted person serves them one after another, whereby the execution of a sentence shall begin, as far as possible, when the previous sentence has been served or been the subject of a pardon ... 2. Notwithstanding the foregoing rule, the maximum prison term ( condena ) to be served by the convicted person cannot exceed three times the length of the heaviest of the sentences ( penas ) imposed, the remainder of which shall lapse as soon as the maximum term, which cannot exceed thirty years, has been reached. The thirty-year maximum shall apply even if the sentences ( penas ) were imposed in the framework of separate sets of proceedings, provided that the connection between the offences concerned was such that they could have been the subject of one single set of proceedings. ” 72. The relevant provision of the Criminal Procedure Act ( Ley de Enjuiciamiento Criminal ) in force at the material time provided : Article 988 “ ... where a person found guilty of several criminal offences was convicted in the framework of separate sets of proceedings of offences which could have been covered by the same proceedings pursuant to section 17 of this Act, the judge or court which delivered the latest judgment shall fix, proprio motu or at the request of the public prosecutor ’ s office or the convicted person, the maximum prison term for serving the sentences imposed in pursuance of Article 70.2 of the Criminal Code. ... ” D. Framework Decision no. 2008/675/JAI of the Council of the European Union of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings 73. Framework Decision no. 2008/675/JAI, which was adopted by the Council of the European Union on 24 July 2008 (JO L 220/32, 15/08/2008, pp. 32-34), came into force on 15 August 2008. Article 5 § 1 required EU Member States to take the necessary measures to comply with the provisions of the instrument by 15 August 2010. 74. The relevant parts of the preamble to the Framework Decision read as follows : “6. In contrast to other instruments, this Framework Decision does not aim at the execution in one Member State of judicial decisions taken in other Member States, but rather aims at enabling consequences to be attached to a previous conviction handed down in one Member State in the course of new criminal proceedings in another Member State to the extent that such consequences are attached to previous national convictions under the law of that other Member State. ... 7. The effects of a conviction handed down in another Member State should be equivalent to the effects of a national decision at the pre-trial stage of criminal proceedings, at the trial stage and at the time of execution of the sentence. 8. Where, in the course of criminal proceedings in a Member State, information is available on a previous conviction in another Member State, it should as far as possible be avoided that the person concerned is treated less favourably than if the previous conviction had been a national conviction. 9. Article 3(5) should be interpreted, inter alia, in line with recital 8, in such a manner that if the national court in the new criminal proceedings, when taking into account a previously imposed sentence handed down in another Member State, is of the opinion that imposing a certain level of sentence within the limits of national law would be disproportionately harsh on the offender, considering his or her circumstances, and if the purpose of the punishment can be achieved by a lower sentence, it may reduce the level of sentence accordingly, if doing so would have been possible in purely domestic cases. ” 75. The relevant parts of Article 3 of the Framework Decision, titled “ Taking into account, in the course of new criminal proceedings, a conviction handed down in another Member State ”, provide : “ 1. Each Member State shall ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts in other Member States, in respect of which information has been obtained under applicable instruments on mutual legal assistance or on the exchange of information extracted from criminal records, are taken into account to the extent previous national convictions are taken into account, and that equivalent legal effects are attached to them as to previous national convictions, in accordance with national law. 2. Paragraph 1 shall apply at the pre-trial stage, at the trial stage itself and at the time of execution of the conviction, in particular with regard to the applicable rules of procedure, including those relating to provisional detention, the definition of the offence, the type and level of the sentence, and the rules governing the execution of the decision. ... 5. If the offence for which the new proceedings being conducted was committed before the previous conviction had been handed down or fully executed, paragraphs 1 and 2 shall not have the effect of requiring Member States to apply their national rules on imposing sentences, where the application of those rules to foreign convictions would limit the judge in imposing a sentence in the new proceedings. However, the Member States shall ensure that in such cases their courts can otherwise take into account previous convictions handed down in other Member States. ” 76. In its 2 June 2014 report on the implementation by Member States of Framework Decision no. 2008/675/JAI (COM(2014) 312 final), the European Commission noted that six Member States, including Spain, had not yet notified it of the measures transposing the obligations laid down in this instrument. With reference to Article 3 § 5 of the Framework Decision, the European Commission pointed out that the implementation of that provision would have to be assessed in the light of national criminal law principles and procedures related specifically to imposing sentences (e.g. aggregated sentences). 77. Framework decisions taken on the basis of Title VI of the version of the Treaty on European Union as amended by the Treaty of Amsterdam are binding on Member States as regards the required outcome, leaving to the national authorities the choice of form and methods. Such decisions cannot induce any direct effect ( Article 34 § 2 ( b) from the Treaty on European Union, in its version amended by the Treaty of Amsterdam). According to the case-law of the CJEU ( case of Pupino, judgment of 16 June 2005, C-105/3), the binding nature of such framework decisions imposes on the national authorities, and in particular the national courts, an obligation of interpretation in conformity with national law. In applying national law, a national court called upon to interpret the latter is required to do so as far as possible in the light of the wording and purpose of the framework decision in order to achieve the outcome pursued by that decision. This obligation ceases where national law cannot be the subject of a mode of application leading to a result compatible with that pursued by the framework decision. In other words, the compatible interpretation principle cannot serve as the basis for an interpretation contra legem of national law. That principle nevertheless requires the national court to take account, where appropriate, of national law in its entirety in order to assess the extent to which it can be applied in such a way as to avoid a result contrary to that pursued by the framework decision. E. Organic Law no. 7/2014 of 12 November 2014 on the exchange of information from police records and taking account of criminal court decisions in the EU 78. The draft legislation which gave rise to Organic Law no. 7/2014 on the exchange of information from police records and taking account of criminal court decisions in the EU was tabled in Parliament ( the Cortes Generales ), before the Congress of Deputies, on 14 March 2014. It was published in the Parliament ’ s Official Gazette on 21 March 2014. The relevant provisions of the bill underwent several amendments during the enactment procedure in the Senate, between September and October 2014. The Organic law was finally approved by the Congress of Deputies, with the Senate ’ s amendments, on 30 October 2014. 79. Organic Law no. 7/2014 was enacted on 12 November 2014 and published in the State Official Journal the next day. It came into force on 3 December 2014. It transposed Framework Decision no. 2008/675/JAI into Spanish law ( see paragraphs 73-75 above ). 80. The relevant parts of the explanatory memorandum to Organic Law no. 7/2014 read as follows : “ The regulations set out in Title II of this law presuppose official recognition of the principle of equivalence between judgments delivered within the European Union by taking them into account in subsequent proceedings held following the commission of fresh offences. That means that, like previous convictions handed down in Spain, sentences imposed in another Member State must be taken into account [ at whatever stage], whether during the preliminary phase of criminal proceedings, the criminal proceedings themselves, or the sentence-enforcement phase. The effects of taking such sentences into account are confined to those attaching to a conviction handed down in Spain, and are, moreover, subject to the condition that the conviction in another Member State was handed down in respect of acts punishable under Spanish law as in force at the date of their commission. Recognition of the effects concerns not only the time of imposition of the sentence, but also the decisions which must be taken during the investigatory and sentence-enforcement phases, for example decisions on the pre-trial detention of a suspect, on the amount of bail, on the calculation of the sentence, on a stay of execution or a revocation of such stay, or on release on licence. With this general principle, in order to reinforce legal certainty, the law lists, pursuant to the provisions and options laid down in the Framework Decision, the cases in which such convictions [ handed down in another Member State ] cannot be taken into account : where previous convictions in Spain or decisions given with a view to their enforcement must be reconsidered; where convictions likely to be handed down at a later date in Spain are given in respect of offences committed before the sentence could be imposed by the other Member State; and in cases of decisions relating to the determination of the maximum prison term in respect of sentences imposed pursuant to section 988 of the Criminal Procedure Act, where one such sentence is incorporated. ... ” 81. The relevant provisions of Organic Law no. 7/2014 read as follows : Article 14 Legal effects attaching to previous convictions under the new criminalprocedure “ 1. Previous final convictions handed down in other Member States in respect of a person for a different offence will, on the occasion of fresh criminal proceedings, the same legal effects as those attaching to a conviction handed down in Spain, subject to the following conditions: ( a) the convictions must have been handed down for acts which were punishable under Spanish law as in force at the time of their commission; ( b) sufficient information on the convictions must have been obtained under the instruments applicable to legal mutual assistance or the exchange of information from police records. 2. Notwithstanding the provisions of the previous sub-paragraph, final convictions handed down in other Member States will have no effect on the following, nor can they lead to their revocation or reconsideration: ( a) final judgments delivered previously by Spanish judges and courts, and decisions adopted for their enforcement; ( b) convictions handed down during subsequent proceedings conducted in Spain for offences committed before any conviction has been handed down by the courts in the other Member State; ( c) decisions which have given or are to be given in pursuance of the provisions of section 988 (3) of the Criminal Procedure Act, fixing the maximum prison term for grouping together sentences, including any conviction of the type set out in sub- paragraph ( b) above. ... ” Single additional provision. Convictions prior to 15 August 2010 “ Account will not be taken, for the purposes of the present law, of convictions handed down by a court in any Member State of the European Union prior to 15 August 2010. ” F. Case-law of the Supreme Court on the grouping together of sentences imposed and served in another State 82. By judgment no. 2117/2002 of 18 December 2002, the Supreme Court rejected the possibility of taking into account a sentence already served in France for the purposes of implementing the maximum prison term in Spain. It considered that the various offences which had been committed in France and Spain could not possibly have been the subject of the same criminal proceedings, since they had occurred in different national territories, subject to the sovereignty of different States, and had consequently been prosecuted before different national courts. 83. By judgment no. 186/2014 of 13 March 2014 the Supreme Court ( a five-judge criminal division ) considered the possibility of grouping together a sentence already served in France with subsequent sentences imposed in Spain for different offences, for the purposes of implementing the maximum prison term established by the Spanish Penal Code ( thirty years ). It accepted that possibility, in the light of Framework Decision no. 2008/675/JAI and in the absence, at the time, of domestic legislation transposing that Framework Decision or rules explicitly governing that subject matter. The Supreme Court held as follows : “ ... the existence of a European area of freedom, security and justice, which, in a way, implies separate consideration of specific aspects relating to the exercise of sovereignty. Accordingly, Framework Decision no. 2008/675/JAI of the Council of the European Union, which was adopted on 24 July 2008 and therefore subsequently to our judgment of 18 December 2002, stated that its aim was to establish a minimum obligation on Member States to take outside of convictions handed down in other Member States. Article 3 of the Framework Decision provided : ‘ 1. Each Member State shall ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts in other Member States, in respect of which information has been obtained under applicable instruments on mutual legal assistance or on the exchange of information extracted from criminal records, are taken into account to the extent previous national convictions are taken into account, and that equivalent legal effects are attached to them as to previous national convictions, in accordance with national law. 2. Paragraph 1 shall apply at the pre-trial stage, at the trial stage itself and at the time of execution of the conviction, in particular with regard to the applicable rules of procedure, including those relating to provisional detention, the definition of the offence, the type and level of the sentence, and the rules governing the execution of the decision. ’ Regardless of the Spanish State ’ s diligence, as an EU Member State, in implementing the provisions of Article 5.1 of the aforementioned Framework Decision ( ‘ 1. Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 15 August 2010 ’ ), the fact is that in the absence of rules explicitly governing the present subject matter in any categorical manner, the current regulations must be interpreted in a manner as compatible as possible with the content of European regulations, the transposition of which into the domestic system is an obligation entered into by the Spanish State on becoming a member of the European Union. Therefore, there is nothing to prevent taking into account the judgment delivered in France for the purposes of grouping sentences together. ” 84. In accordance with the approach thus followed by the Supreme Court in its judgment no. 186/2014, some sections of the Criminal Division of the Audiencia Nacional have decided, in calculating the maximum thirty-year prison term, to deduct sentences imposed and served in France. The decisions given by that court concerning the three applicants in the present case followed the same reasoning ( see paragraphs 16, 39 and 61 above ). Those decisions did not become final, since they were set aside by the Supreme Court following the appeals on points of law lodged by the public prosecutor ’ s office for the purposes of clarifying the law. Moreover, it transpires from the information supplied by the parties that in three different cases concerning other defendants, the sectional decisions in their favour were not the subject of an appeal on points of law and therefore became res judicata ( two decisions of 9 June 2014 and one decision of 24 November 2014). 85. By judgment no. 874/2014 of 27 January 2015, the Plenary Criminal Division of the Supreme Court ( comprising fifteen judges) discounted the possibility of grouping together sentences imposed and served in another EU Member State with sentences handed down in Spain for the purposes of determining the maximum prison term. The Division ’ s reasoning largely served as the basis for that adopted by the Supreme Court in its judgments on points of law relating to the three applicants in the instant case. The main lines of that reasoning are summarised in the “ Facts ” section on the first applicant ( see paragraphs 20-24 above ). Judgment no. 874/2014 was adopted by a majority of nine votes to six. Four judges appended dissenting opinions. G. Case-law of the Constitutional Court 86. By judgment of 19 December 2013 (no. 216/2013) the Constitutional Court ( Plenary formation ) clarified the criteria for determining when an action for annulment was a judicial remedy which had to be exercised by a litigant before lodging an amparo appeal, pursuant to section 44 ( 1 ) ( a) of the Organic Law on the Constitutional Court. It held that such an action did not have to be lodged where the judicial authorities had already had an opportunity to decide on the fundamental rights subsequently relied on in the framework of the amparo appeal. The Constitutional Court considered that the aim of the rule on exhaustion of available domestic remedies was to preserve the subsidiary nature of the amparo remedy, so that the ordinary courts could consider and, where appropriate, remedy the alleged fundamental rights violations. The Constitutional Court pointed out that this reasoning also applied in cases where the rights violation had originated in a single judicial decision given by a court at first instance and where the subject matter of the dispute before that court had entailed assessing the alleged violation of the fundamental right in issue. In that case, the aim of bringing an action for annulment would merely be to seek a re- examination of the merits of the decision by the same court, on the basis of arguments analogous to those used during the main proceedings. 87. Furthermore, by reasoned decision ( auto ) of 20 September 2016, the Constitutional Court ( plenary formation) determined the amparo appeal lodged against judgment no. 874/2014 of the Supreme Court. The court held that the Supreme Court had not retroactively applied Organic Law no. 7/2014 – which had entered into force after the applicant ’ s request to group his sentences together – but had mentioned it solely in order to back up its interpretation of Framework Decision no. 2008/675/JAI, particularly in relation to the exception set out in Article 3 § 5 of that legal instrument. As regards the allegation of possible retroactive application of case-law unfavourable to the convicted person, the Constitutional Court drew a distinction between the case in question and Del Río Prada. It noted that when the total sentence to be served had been fixed in 2007 and throughout the execution of the sentence in Spain, the applicant had obtained no decision in favour of taking account of the sentence served in France. The court therefore considered that criminal legislation had been applied clearly and in complete conformity with existing judicial practice, without ever encouraging the applicant to hope that the sentence which he had served in France would be taken into account in determining the maximum prison term in Spain. It noted that the only requests which the applicant had submitted for such an eventuality had been in 2013, that is to say after the 2007 decision to group decisions together, and they had all been dismissed. It consequently considered that in the instant case there had been no retroactive application of an unfavourable interpretation inconsistent with the judicial practice applicable at the time when the sentence had been determined. The Constitutional Court noted that the applicant had only claimed that a possible interpretation of a previous legal rule, that is to say the rule laid down in judgment no. 186/2014 of the Supreme Court, had been applied to him retroactively. In fact, under the principle of equality before the law, it had noted that that interpretation – adopted by a five-judge section of the Supreme Court the first time that court had been called upon to adjudicate on the Framework Decision – had remained isolated and been rejected a few months later by the Plenary Supreme Court in its judgment no. 874/2014. Moreover, the Constitutional Court observed that the detailed reasoning of that judgment had not been based on an arbitrary or unreasonable interpretation of the applicable legislation. For all those reasons it declared the amparo appeal inadmissible, since there had manifestly been no violation of the fundamental rights relied upon ( including the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law, the right to equality before the law ). 88. That decision gave rise to two dissenting opinions by four judges of the Constitutional Court. In one dissenting opinion, two judges held that the Constitutional should have declared the appeal admissible and adjudicated on the merits with a judgment. In the other dissenting opinion, two judges also held that there had been a violation of the right to liberty and the principle that only a statute can define offences and lay down penalties, given that, in their view, the applicant had suffered the retroactive application of an unfavourable rule extending his prison term. H. Civil Code 89. Article 1 of the Civil Code provides : “ 1. The sources of the Spanish legal system are the law, custom and the general principles of law. ... 6. Case-law complements the legal system with the doctrine regularly established by the Supreme Court in its interpretations and applications of the law, custom and the general principles of law. ... ” | This case concerned the calculation of the maximum length of prison terms to be served in Spain by members of the terrorist organisation ETA and the question whether time already served in France should be taken into account. The applicants complained in particular of what they saw as the retrospective application of new Supreme Court case-law and of a new law which had come into force after their conviction, which they submitted had extended the actual length of their sentences. |
985 | 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 6. The applicant was born in 1978 and lives in Baku. A. Background 7. The applicant is a well-known civil society activist and human rights defender. He is the Chairman and one of the co-founders of the Election Monitoring and Democracy Studies Centre ( Seçkilərin Monitorinqi və Demokratiyanın Tədrisi Mərkəzi − “the Centre”), a non-governmental organisation specialising in the monitoring of elections. 8. The applicant has actively taken part in election observation in Azerbaijan. He was also the Chairman and one of the co-founders of the Election Monitoring Centre ( Seçkilərin Monitorinqi Mərkəzi ), a non ‑ governmental organisation specialising in the monitoring of elections which was established on 19 February 2006. Following numerous attempts to acquire status as a legal entity under domestic law, the Election Monitoring Centre was finally registered by the Ministry of Justice on 1 February 2008. However, a few months later, in May 2008, the domestic courts ordered its dissolution at the request of the same ministry. The domestic proceedings relating to the registration and dissolution of the Election Monitoring Centre are the subject of an application pending before the Court (see application no. 64733/09). 9. Following the dissolution of the Election Monitoring Centre, on 1 December 2008 the applicant and some of his colleagues founded the Centre (see paragraph 7 above), which has made several unsuccessful attempts to obtain State registration through applications to the Ministry of Justice. The domestic authorities ’ refusal to register the Centre is the subject of another application pending before the Court (see application no. 70981/11). 10. The applicant has been involved in the preparation of various reports relating to the organisation of elections and general human rights situation in Azerbaijan. In particular, he has been a speaker at Council of Europe events and has cooperated with UN institutions. B. Institution of criminal proceedings against the applicant and his detention pending trial 11. The Centre conducted both short-term and long-term observations of the last presidential elections, held on 9 October 2013, in cooperation with its partner organisation, the Volunteers International Cooperation Public Union ( Könüllülərin Beynəlxalq Əməkdaşlığı İctimai Birliyi – “the Public Union ” ) which has been registered as a legal entity by the Ministry of Justice. The Centre ’ s preliminary report concerning the results of the elections, published on 21 October 2013, concluded that the presidential elections had failed to comply with democratic standards. 12. On 29 October 2013 the Prosecutor General ’ s Office instituted criminal proceedings in connection with alleged irregularities in the financial activities of the Centre and the Public Union. 13. On 31 October 2013 a search was conducted at the Centre ’ s office, during the course of which all the organisation ’ s documents and electronic data storage devices were taken away by the prosecuting authorities. 14. On 16 December 2013 the applicant was arrested and charged under Articles 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (abuse of power) of the Criminal Code. The description of the charges consisted of a single sentence which was one page long. In particular, the applicant was accused of receiving since May 2013, as co ‑ founder and Chairman of the Centre, an “organisation lacking State registration ” − with the complicity of S.B. and E.M., through the Public Union, which was a registered NGO − a number of grants, in the amount of 215, 287 Azerbaijani manats (AZN) from the United States of America ’ s National Democratic Institute resulting from certain grant agreements. He was accused of generating profit, “by paying money to himself and other people involved in the projects in the guise of salaries and service fees” despite the fact that the Centre did not have status as a legal entity. It was also stated that “as an official, he had failed to register these grants with the relevant executive authority, even though he had a professional obligation to do so”. Furthermore, he was accused of avoiding payment of taxes under Article 219 of the Tax Code in the amount of AZN 19,535, thus causing “significant damage to State interests protected by law, entailing grave consequences”. 15. On the same day the prosecutor lodged a request with the Nasimi District Court seeking the applicant ’ s detention pending trial. The prosecutor justified his request by citing the gravity of the charges against the applicant, the fact that he did not live at the address where he was officially registered as a resident, and that there was a risk of his absconding from the investigation and obstructing the investigation ’ s functioning by influencing other participants in the criminal proceedings. In particular, the fact that the applicant had studied abroad, had frequently travelled to foreign countries, and was in constant contact with people living abroad constituted grounds for believing there was a risk of his absconding from the investigation. 16. On 16 December 2013 the Nasimi District Court, relying on the official charges brought against the applicant and the prosecutor ’ s request, ordered the applicant ’ s detention for a period of three months. The court cited the gravity of the charges and the risk of re-offending and justified its decision as follows: “ After having examined the request with the material of the case file and having heard the submissions of the investigator and the prosecutor in favour of the request and the submissions of the accused and his representative against the request, the court considers that the request should be granted. The accused has been charged under Article 308.2 of the Criminal Code of the Republic of Azerbaijan which constitutes a serious crime. The accused Anar Mammadli has also been charged with a criminal offence punishable by more than three years ’ imprisonment, and there is a strong likelihood that he will re-offend.” 17. On 18 December 2013 the applicant appealed against that decision, claiming that his detention was unlawful. He complained, in particular, that there was no “reasonable suspicion” that he had committed a criminal offence and that no proof in this respect had been produced, that he had not been involved in any entrepreneurial activity, and that it was not forbidden by law to receive grants. He also pointed out that he had registered all the grants received with the relevant authorities as required by the domestic law. The applicant also complained that there was no justification for the application of the preventive measure of detention pending trial. He had complied with the investigation ’ s requests all along and that the court had failed to justify his detention pending trial. Moreover, he was unable to obstruct the functioning of the investigation as all the documents relating to his activities had been in the possession of the investigation since the search of the Centre ’ s office on 31 October 2013. 18. On 23 December 2013 the Baku Court of Appeal dismissed the appeal, finding that the first-instance court ’ s decision was lawful. The appellate court was silent as to the applicant ’ s above-mentioned specific complaints and confined itself to noting that the applicant ’ s personal situation ‒ that he had a permanent place of residence, that he was married, that his family was financially dependent on him, and that he had a good reputation ‒ did not constitute grounds for lifting the detention pending trial. C. Extension of the applicant ’ s pre-trial detention and further developments 19. On 20 December 2013 the applicant lodged a request to be released on bail or placed under house arrest instead of in pre-trial detention, arguing that there was no “reasonable suspicion” that he had committed a criminal offence. He also claimed that there were no grounds justifying his continued detention. In particular, he had cooperated with the investigation all along and, although he often travelled abroad, he had never intended to abscond from the investigation. The applicant also pointed out that the domestic courts had failed to take into account his personal situation, namely that he had no criminal record, had a permanent place of residence, and that his family were financially dependent on him. 20. On 25 December 2013 the Nasimi District Court dismissed the request, finding that the grounds justifying his detention, as specified in its decision of 16 December 2013, “had not ceased to exist”. 21. On 26 December 2013 the applicant appealed against this decision, reiterating his previous complaints. 22. On 30 December 2013 the Baku Court of Appeal dismissed the appeal and upheld the Nasimi District Court ’ s decision of 25 December 2013, relying essentially on the same reasoning. 23. Following a request dated 4 March 2014 from the Prosecutor General ’ s Office for an extension of the period of the applicant ’ s pre-trial detention, on 6 March 2014 the Nasimi District Court extended the applicant ’ s detention pending trial by three months, until 16 June 2014. The court justified its decision by citing the complexity of the case and the fact that a number of investigative steps still needed to be carried out, meaning that more time was needed to complete the investigation. 24. On 7 March 2014 the applicant appealed against this decision. He claimed, in particular, that there was no “reasonable suspicion” that he had committed a criminal offence and that the first-instance court had failed to justify the extension of his pre-trial detention. 25. On 14 March 2014 the Baku Court of Appeal dismissed the appeal, upholding the Nasimi District Court ’ s decision of 6 March 2014. The appellate court provided the same reasoning as the first-instance court. 26. On 19 March 2014 the Prosecutor General ’ s Office charged the applicant under Articles 179.3.2 (high-level embezzlement) and 313 (forgery in public office) of the Criminal Code, in addition to the original charges under Articles 192.2.2, 213.1 and 308.2 of the Criminal Code. The description of the allegations against him was slightly expanded, but essentially remained the same as that given on 16 December 2013 (see paragraph 1 4 above), with additional information alleging that the applicant had falsified various pieces of paperwork and minor contracts for services provided by a number of individuals (presumably in connection with various grant projects) and had not paid them in full as stipulated in the contracts. 27. On 31 March 2014 the applicant again lodged a request with the court, asking the substitution of his detention pending trial with either house arrest or release on bail. In support of his request, he reiterated his previous arguments. 28. On 1 April 2014 the Nasimi District Court dismissed the request. The court substantiated its decision by citing the gravity of the criminal charges against the applicant and the risk of his absconding from the investigation and obstructing its functioning. 29. On 7 April 2014 the Baku Court of Appeal upheld the Nasimi District Court ’ s decision of 1 April 2014, providing the same reasoning as the first-instance court. 30. In the meantime, on 5 April 2014 the applicant ’ s case was sent to the Baku Court of Serious Crimes for trial. 31. On 26 May 2014 the Baku Court of Serious Crimes found the applicant guilty on all counts and sentenced him to five and a half years ’ imprisonment. 32. On 10 December 201 4 the Baku Court of Appeal upheld this judgment. It was further upheld on 2 6 August 201 5 by the Supreme Court. 33. Following a presidentially decreed pardon on 17 March 2016, the applicant was released from serving the remainder of his sentence. D. Public reaction to the applicant ’ s arrest and institution of criminal proceedings against him 34. The applicant ’ s arrest and institution of criminal proceedings against him attracted significant public and media interest both inside the country and internationally. Immediately after his arrest, a number of domestic NGOs, as well as international NGOs such as Amnesty International and Human Rights Watch, condemned the authorities ’ actions, calling on them to drop “all politically motivated charges against him”. 35. On 17 December 2013, Janez Lenarčič, Director of the OSCE Office for Democratic Institutions and Human Rights, expressed his concern over the applicant ’ s arrest. He noted that “the reported arrest of Anar Mammadli is disturbing as it endangers citizen election observation, the role of which in ensuring the integrity of electoral processes has been recognised by all OSCE participating States, including the Republic of Azerbaijan”. 36. On 20 December 2013 the Monitoring Committee co-rapporteurs for Azerbaijan of the Parliamentary Assembly of the Council of Europe (PACE) expressed their concern about the arrest and pre-trial detention of the applicant. They stated that they had met him on several occasions during their fact-finding visits to Baku and at the Parliamentary Assembly in Strasbourg, pointing out that “this decision on pre-trial detention may raise suspicions about politically - motivated justice which we denounced in our recent report on the honouring of obligations and commitments by Azerbaijan”. 37. On 9 May 2014 Maina Kiai, UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, and Margaret Sekaggya, UN Special Rapporteur on the situation of human rights defenders, condemned the arrest and criminal prosecution of the applicant. In particular, the UN Special Rapporteurs stated that they were seriously concerned that three human rights defenders, including the applicant, were being prosecuted in retaliation for their legitimate work documenting alleged widespread irregularities and human rights violations around the presidential elections of 9 October 2013. “ All charges brought against them should be dropped and Mr. Mammadli should be released immediately”. E. Statements by public officials and politicians from the ruling party concerning the cases of arrested human rights activists 38. Following the arrest of the applicant and other human rights activists, a number of politicians from the ruling political party made comments about recently arrested NGO activists and human rights defenders in Azerbaijan, describing them as spies or as being a “fifth column” for foreign interests and traitors, without specifically naming the applicant. Some examples of such comments can be found in the Court ’ s judgment in Rasul Jafarov v. Azerbaijan (no. 69981/14, §§ 38-42, 17 March 2016). | This case concerned the arrest and detention of a well-known civil society activist and human rights defender, who runs several NGOs involved in election monitoring. He was arrested in December 2013 and held in pre-trial detention until his conviction in May 2014 for a number of offences, including illegal entrepreneurship, tax evasion and abuse of power. The applicant alleged in particular that he had been arrested and detained without any reasonable suspicion that he had committed a criminal offence, that the courts had failed to take into account his arguments in favour of release, and that his arrest and detention had been politically motivated and had been part of a targeted repressive campaign to silence human rights defenders and NGO activists. |
73 | Parental authority, child custody and access rights | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant is a Portuguese national born in 1961. He lives in Queluz ( Portugal ). 9. In 1983 the applicant married C.D.S. On 2 November 1987 they had a daughter, M. The applicant separated from his wife in April 1990 and has since then been living with a man, L.G.C. Following divorce proceedings instituted by C.D.S., the divorce decree was pronounced on 30 September 1993 by the Lisbon Family Affairs Court ( Tribunal de Família ). 10. On 7 February 1991, during the divorce proceedings, the applicant signed an agreement with C.D.S. concerning the award of parental responsibility ( poder paternal ) for M. Under the terms of that agreement C.D.S. was to have parental responsibility and the applicant a right to contact. However, the applicant was unable to exercise his right to contact because C.D.S. did not comply with the agreement. 11. On 16 March 1992 the applicant sought an order giving him parental responsibility for the child. He alleged that C.D.S. was not complying with the terms of the agreement signed on 7 February 1991 since M. was living with her maternal grandparents. The applicant submitted that he was better able to look after his child. In her memorial in reply C.D.S. accused L.G.C. of having sexually abused the child. 12. The Lisbon Family Affairs Court delivered its judgment on 14 July 1994 after a period in which the applicant, M., C.D.S., L.G.C. and the child’s maternal grandparents had been interviewed by psychologists attached to the court. The court awarded the applicant parental responsibility, dismissing as unfounded – in the light of the court psychologists’ reports – C.D.S.’s allegations that L.G.C. had asked M. to masturbate him. It also found, again in the light of the court psychologists’ reports, that statements made by M. to that effect appeared to have been prompted by others. The court added: “The mother continues to be most uncooperative and it is wholly improbable that her attitude will change. She has repeatedly failed to comply with the Court’s decisions. The finding is inescapable that [the mother] has not shown herself capable at present of providing M. with conditions conducive to the balanced and calm life she needs. The father is at present better able to do so. In addition to providing the economic and living conditions necessary to have the child with him, he has shown himself capable of providing her with the balanced conditions she needs and of respecting her right to maintain regular and sustained contact with her mother and maternal grandparents.” 13. M. stayed with the applicant from 18 April to 3 November 1995, when she was allegedly abducted by C.D.S. The applicant reported the abduction and criminal proceedings are pending in that connection. 14. C.D.S. appealed against the Family Affairs Court’s judgment to the Lisbon Court of Appeal ( Tribunal da Relação ), which gave judgment on 9 January 1996, reversing the lower court’s judgment and awarding parental responsibility to C.D.S., with contact to the applicant. The judgment was worded as follows. “In the proceedings for the award of parental responsibility for the child M., born on 2 November 1987, daughter of [the applicant] and C.D.S., the decision given on 7 February 1991 confirmed the agreement between the parents as to parental responsibility for the child, contact and the amount of maintenance payable by the father, since custody of M. was awarded to the mother. On 16 March 1992 [the applicant] applied for a variation of the order granting parental responsibility, alleging that the child was not living with her mother in accordance with what had been decided, but with her maternal grandparents, which – he argued – was unsatisfactory. It was for that reason that the custody arrangements should be varied so as to allow him to have his daughter and apply to the mother the contact and maintenance arrangements which had hitherto been applied to him. The child’s mother not only opposed the application lodged by the applicant, but also relied on evidence supporting her contention that the child should not remain in the company of her father because he was a homosexual and was cohabiting with another man. After a number of steps had been taken in connection with those proceedings, the following decision was given on 14 July 1994 : ‘1. Custody and care of the child is awarded to the father, in whom parental responsibility shall be vested. 2. The child may see her mother on alternate weekends, from Friday to Monday. Her mother shall collect her from school on the Friday and bring her back to school on Monday morning before lessons start. 3. The child may also see her mother every Tuesday and Wednesday; her mother shall fetch her from school after lessons and bring her back the following morning. 4. The child shall spend Christmas Eve and Christmas Day alternately with her father and her mother. 5. The child shall spend the Easter holidays with her mother. 6. During the school summer holidays the child shall spend thirty days with her mother. The dates must be agreed on with the father at least sixty days beforehand. 7. The mother shall pay the father maintenance of 30,000 escudos per month, payable before the 8th of every month. Those maintenance payments shall be adjusted once annually on the basis of the inflation index for the previous year published by the INE (National Institute of Statistics).’ That decision specifically governed arrangements applicable to the year 1994. C.D.S., who was dissatisfied with the decision, appealed. She had previously appealed against the decision appearing on page 238, which dismissed an application for a stay of the proceedings, and the decision given at the hearing of 29 April 1994 on the application for an examination of the document appearing on page 233; both those appeals were adjourned and did not have the effect of staying the proceedings. The appellant sets out the following grounds in her appeal: … In his pleadings [the applicant] submitted that the judgment of the first-instance court should be upheld. State Counsel attached to the Court of Appeal has recommended that the decision be set aside, but not on the grounds relied on by the appellant. After examining the case, we shall give our decision. We shall first examine the following facts, which the first-instance court considered to be established. 1. The child, M., who was born on 2 November 1987, is the daughter of [the applicant] and C.D.S. 2. Her parents married on 2 April 1983. 3. Divorce was granted on 30 September 1993 and their marriage dissolved. 4. The parents have been living separately since April 1990, when [the applicant] left his home to go and live with another man, whose first name is L. 5. On 7 March 1991 the Loures Court gave a decision in case no. 1101/90 confirming the following agreement on the exercise of parental responsibility for the child: ‘I. The mother shall have custody of the child. II. The father may visit his daughter whenever he likes provided that he does not disrupt her schooling. III. The child shall spend alternate weekends and Christmas and Easter with her father. IV. The child shall spend the father’s holidays with him unless those holidays coincide with those of the mother, in which case the child shall spend fifteen days with each parent. V. On the weekends which the child spends with her father, he shall collect her from her mother’s house on Saturday at about 10 a.m. and bring her back on Sunday at about 8 p.m. VI. The child shall go to a kindergarten as soon as possible, the enrolment fees to be paid by the father. VII. The father shall pay maintenance of 10,000 escudos per month, which shall be adjusted once annually by the same percentage as the net increase in his salary. That sum shall be paid into the account of the child’s mother – account no. …– before the 5th day of the following month. VIII. The father shall also pay half his daughter’s kindergarten fees. IX. The father shall pay half of any special expenses for his child’s health.’ 6. From April 1992 the child stopped seeing her father on the agreed terms, against his wishes. 7. Until January 1994 the child lived with her maternal grandparents [name] at Camarate [address]. 8. From that date the child went to live with her mother and her mother’s boyfriend [address] in Lisbon. 9. She continued, however, to stay overnight at her maternal grandparents’ house from time to time. 10. On schooldays when the child did not stay overnight with her grandparents, her mother used to drive her to her grandparents’ house where she used to stay after school from 5 p.m. 11. During that school year M. was in the first year primary at … school, for which the fees came to 45,400 escudos per month. 12. Her mother has been cohabiting with J. for at least two years. 13. J., who is a business manager, works in the imports and exports sector, the major part of his activity being in Germany where he has immigrant status. His income amounts to some 600,000 escudos per month. 14. The mother, C.D.S., is the manager of DNS, the partners of which are her boyfriend and his brother, J.P. 15. She has been registered with the State agency for employment and vocational training since 17 February 1994. 16. Her expenses are paid for jointly by herself and her boyfriend. 17. She states that she pays 120,000 escudos in rent and spends approximately 100,000 escudos per month on food. 18. The father, João Mouta, is in a homosexual relationship with L.G.C., with whom he has been living since April 1990. 19. He is the head of his sector at A., and his net monthly income, plus commission, comes to just over 200,000 escudos. 20. The child is very close to her maternal grandmother, who is a Jehovah’s Witness. 21. Following her failure to comply with the decision referred to in paragraph 5, the child’s mother was ordered, on 14 May 1993, to pay a fine of 30,000 escudos because since April 1992 she had been refusing to allow the father to exercise his ‘right to contact with his daughter in accordance with the decision given’. 22. On 25 June 1994, after interviewing the father and mother both individually and together, and M. without her parents or her maternal grandmother being present, and the maternal grandmother and the father’s partner individually, and performing a psychological examination of M., the court psychologists drew up the following report: ‘M. is a communicative child of normal intellectual development for her age and above average intelligence. She is very attached to her father and mother, and the conflict between her parents is a source of some insecurity. She would like her parents to live closer together because she finds it difficult to understand why she has to live with her grandparents and not see her father or to accept this. She has a very good relationship with her father, who is very affectionate and attentive towards his daughter. Both [the applicant] and his ex-wife are affectionate and flexible parents and both invest in their daughter’s upbringing and emotional security. The reasons for their separation were subsequently a source of substantial conflict between them, exacerbated by M.’s maternal grandmother, who does not accept [the applicant’s] lifestyle and unconsciously tries to keep him away from his daughter. To sum up, both parents are capable of overseeing their daughter’s satisfactory psychoaffective development, but we do not feel that it is right for her to live with her grandmother, who exacerbates the conflict between the two parties and fuels it by trying to keep [the applicant] away because she does not accept his lifestyle.’ 23. On 16 August 1993 M. told the psychologist and her father that the latter’s partner had asked her, while her father was out, to go into the bathroom with him, that he had locked the door and asked her to masturbate him (she made gestures imitative of masturbation) and then told her that she did not need to wash her hands and that she should not say anything to her father. The psychologist stated that the manner in which the child had related that episode had made her doubt the truthfulness of the story, which might have been suggested by repeated promptings. She added that while the daughter was describing the episode, the applicant had been understanding and asked for clarification, which confirmed that the father and daughter had a good relationship. 24. During the interview with the psychologist on 6 December 1993 the child stated that she was still living with her maternal grandmother and that from time to time she stayed with her mother where she would sleep on a sofa in the living room because there was no bedroom for her. 25. In a report dated 17 January 1994, drawn up following a meeting between the daughter and her father, the psychologist concluded that ‘although M. has observed during her meetings with her father that he is living with another man, her parental images have been fully assimilated and she presents no problem relating to psychosexual identity, be it her own or that of her parents’. 26. Dr V., a psychiatrist, stated, after interviewing the boyfriend of [the applicant], the child’s father, that in his opinion the partner was well adjusted and of satisfactory emotional and cognitive development. He found nothing abnormal about the boyfriend either as an individual or in terms of his relationship with the child’s father. He considered it wholly improbable that the episode related by the child, as described in paragraph 23, had really occurred. 27. The final report drawn up by the court psychologists, dated 12 April 1994, indicated that M. was suffering from a degree of insecurity due in part to the conflict between her mother’s side of the family and her father, and that she had a defensive attitude which manifested itself in a refusal to confront potentially stressful situations. The child is aware that her family opposes her meetings with her father, their opposition being justified by the child’s description of an episode which had allegedly occurred between her and her father’s boyfriend, L.G.C., in which L.G.C. had asked her to masturbate him. With regard to that account, it is difficult to imagine how a 6-year-old child could relate in detail an episode which had occurred several years earlier. The experts conclude in their report that the fact that M. had described in detail the above-mentioned masturbation episode did not mean that it had actually occurred. They reiterate that the father is a very affectionate father, full of understanding and kindness towards his daughter, while also imposing on her, satisfactorily and instructively, limits which were necessary and made her feel secure. The experts also reiterate that the child’s mother is a very affectionate mother, but rather permissive, which is not conducive to a feeling of security, although she is capable of improving. They also conclude that it is not advisable for the child to live with her grandmother because the religious fanaticism present in her environment not only condemns the father, but excludes him on grounds of the individual and emotional choices he has made. This has contributed to sowing confusion in the child’s mind and exacerbating her sense of conflict and anxiety, thus compromising her healthy psychoaffective development. 28. At the hearing on 24 January 1994 the following interim decision was given with the agreement of both parents: (I) M. could spend every Saturday from 10 a.m. to 10 p.m. with her father, (II) to that end, her father would fetch her from her mother’s house accompanied by her paternal grandmother and/or her paternal great-grandmother. 29. The mother did not allow her daughter to see her father on the terms fixed by the above-mentioned decision. 30. On 22 April 1994 the child psychiatry department of D. Estefânea Hospital decided that M. should be monitored because her feelings of anxiety were such as might inhibit her psychoaffective development. Those facts, found at first instance, are considered to have been definitively established, without prejudice to the possibility of considering a further factor in delivering this judgment. With regard to the other appeals, since the mother has not submitted any pleadings they are considered to be inoperative under Articles 292 § 1 and 690 § 2 of the Code of Civil Procedure. Apart from the fact that factual evidence has not been submitted, these aspects appear to us to be sufficient to give a ruling here as we understand that the lower court ruled on the essential issue of the case, that is to which of the two parents custody of the child should be awarded. The shortcomings in the decision referred to by State Counsel, although relevant, do not warrant setting it aside. Let us now examine the appeal: Article 1905 § 1 of the Civil Code provides that in cases of divorce, judicial separation of persons and possessions, declarations of nullity or annulment of marriage, child custody, maintenance and the conditions of payment are governed by agreement between the parents, that agreement being subject to confirmation by the court; confirmation is refused if the agreement is contrary to the child’s interests, including the child’s interest in maintaining a very close relationship with the non-custodial parent. Paragraph 2 adds that, in the absence of an agreement, the court shall decide, while protecting the child’s interests, including his or her interest in maintaining a very close relationship with the non-custodial parent, it being possible to award custody of the child to one or other parent or, if one of the cases provided for in Article 1918 applies, to a third party or to an educational or welfare establishment. The Guardianship Act also deals with this point. Section 180(1) of that Act provides that any award of parental responsibility must be in the child’s interests. A judgment of the Lisbon Court of Appeal of 24 April 1974, summarised in BMJ ( Bulletin of the Ministry of Justice ) no. 236, p. 189, states: ‘The Convention on the Rights of the Child – Resolution of 20 November 1989 of the General Assembly of the United Nations – proclaims with rare concision that children, for the full and harmonious development of their personality, require love and understanding; they should, as far as possible, grow up under the protection and responsibility of their parents and, in any event, in a climate of affection and psychological and material security, with young children not being separated from their mother save in exceptional cases.’ We do not have the slightest hesitation in supporting that declaration, which fully corresponds to the realities of life. Despite the importance of paternal love, a young child needs the care which only the mother’s love can provide. We think that M., who is now aged 8, still needs her mother’s care. See on this point the judgment of the Porto Court of Appeal of 7 June 1988, in BMJ no. 378, p. 790, in which that court held that ‘in the case of young children, that is until 7 or 8 years of age, the emotional tie to the mother is an essential factor in the child’s psychological and emotional development, given that the special needs of tenderness and attentive care at this age can rarely be replaced by the father’s affection and interest’. The relationship between M. and her parents is a decisive factor in her emotional well-being and the development of her personality, particularly as it has been demonstrated that she is deeply attached to her parents, just as it has been shown that both of them are capable of guiding the child’s psychoaffective development. In the official record of the decision of 5 July 1990 awarding parental responsibility, [the applicant] acknowledged that the appellant was capable of looking after their daughter and suggested that custody be awarded to the mother, a statement he repeated in the present proceedings to vary that order, as recorded in the transcript of the hearing of 15 June 1992, declaring that he wished to waive his initial application for custody of the child because she was living with her mother again. M.’s father expresses the wish that his daughter not stay with her maternal grandparents, referring to the numerous difficulties he encounters when trying to see his daughter, given the conduct of the appellant and her mother who do all they can to keep him away from his daughter because they do not accept his homosexuality. Section 182 of the Guardianship Act provides that previous arrangements can be varied if the agreement or final decision is not complied with by both parents or if subsequent circumstances make it necessary [to vary] the terms. Consideration needs to be given, however, to whether there is a justified ground for varying the decision awarding custody of the child to her mother. On examining the content of the initial application for a variation of the order it can be seen that emphasis is placed on the fact that the child was living with her maternal grandparents who are Jehovah’s Witnesses. The truth of the matter, however, is that [the applicant] has not produced any evidence to prove that this religion is harmful and has merely stressed the grandparents’ stubborn refusal to allow the father and daughter to see each other. To the Court’s knowledge, the beliefs of Jehovah’s Witnesses do not incite to evil practices, although fanaticism does exist. Are there adequate reasons for withdrawing from the mother the parental responsibility which was granted her with the parents’ agreement? There is ample evidence in this case that the appellant habitually breaches the agreements entered into by her with regard to the father’s right to contact and that she shows no respect for the courts trying the case, since on several occasions, and without any justification, she has failed to attend interviews to which she has been summoned in the proceedings. We think, however, that her conduct is due not only to [the applicant]’s lifestyle, but also to the fact that she believed the indecent episode related by the child, implicating the father’s partner. On this point, which is particularly important, we agree that it is not possible to accept as proven that such an episode really occurred. However, we cannot rule out the possibility that it did occur. It would be going too far – since there is no conclusive evidence – to assert that the boyfriend of M.’s father would never be capable of the slightest indecency towards M. Thus, although it cannot be asserted that the child told the truth or that she was not manipulated, neither can it be concluded that she was telling an untruth. Since there is evidence to support both scenarios, it would be wrong to give greater credence to one than the other. In the same way, the accepted principle in cases involving awards of parental responsibility is that the child’s interests are paramount, completely irrespective of the – sometimes selfish – interests of the parents. In order to establish what is in the child’s interests, a court must in every case take account of the dominant family, educational and social values of the society in which the child is growing up. As we have already stated and as established case-law authority provides, having regard to the nature of things and the realities of daily life, and for reasons relating to human nature, custody of young children should as a general rule be awarded to the mother unless there are overriding reasons militating against this (see the Evora Court of Appeal’s judgment of 12 July 1979, in BMJ no. 292, p. 450). In the instant case parental responsibility was withdrawn from the mother despite the fact that it had been awarded her, we repeat, following an agreement between the parents, and without sufficient evidence being produced to cast doubt on her ability to continue exercising that authority. The question which therefore arises, and this should be stressed, is not really which of the two parents should be awarded custody of M., but rather whether there are reasons for varying what was agreed. Even if that were not the case, however, we think that custody of the child should be awarded to the mother. The fact that the child’s father, who has come to terms with his homosexuality, wishes to live with another man is a reality which has to be accepted. It is well known that society is becoming more and more tolerant of such situations. However, it cannot be argued that an environment of this kind is the healthiest and best suited to a child’s psychological, social and mental development, especially given the dominant model in our society, as the appellant rightly points out. The child should live in a family environment, a traditional Portuguese family, which is certainly not the set-up her father has decided to enter into, since he is living with another man as if they were man and wife. It is not our task here to determine whether homosexuality is or is not an illness or whether it is a sexual orientation towards persons of the same sex. In both cases it is an abnormality and children should not grow up in the shadow of abnormal situations; such are the dictates of human nature and let us remember that it is [the applicant] himself who acknowledged this when, in his initial application of 5 July 1990, he stated that he had definitively left the marital home to go and live with a boyfriend, a decision which is not normal according to common criteria. No doubt is being cast on the father’s love for his daughter or on his ability to look after her during the periods for which she is entrusted to his care, for it is essential that they do see each other if the objectives set out above are to be met, that is ensuring the child’s well-being and the development of her personality. M. needs to visit her father if her feelings of anxiety and insecurity are to be dissipated. When children are deprived of contact with their father, their present and future development and psychological equilibrium are put at risk. The mother would be wise to try to understand and accept this if she is not to cast doubt on her own ability to exercise parental responsibility. At present, the failure to comply with the decision confirming the contact arrangements does not amount to a sufficient reason for withdrawing from the appellant the parental responsibility awarded to her by that decision. Accordingly, we reverse the judgment of the lower court as regards the child’s permanent residence with her father, without prejudice to the father’s right to contact during the periods which will be stipulated below. It should be impressed upon the father that during these periods he would be ill-advised to act in any way that would make his daughter realise that her father is living with another man in conditions resembling those of man and wife. For all the foregoing reasons the Court of Appeal reverses the impugned decision and rules that the appellant, C.D.S., shall continue to exercise parental responsibility for her daughter, M. The contact arrangements shall be established as follows: 1. The child may see her father on alternate weekends from Friday to Monday. To that end the father shall fetch his daughter from school at the end of classes on the Friday and bring her back on Monday morning before classes start. 2. The father may visit his daughter at school on any other day of the week provided that he does not disrupt her schooling. 3. The child shall spend the Easter holidays alternately with her father and her mother. 4. The Christmas holidays shall be divided into two equal parts: half to be spent with the father and the other half with the mother, but in such a way that the child can spend Christmas Eve and Christmas Day with one and New Year with the other alternately. 5. During the summer holidays the child shall spend thirty days with her father during the latter’s holidays, but if that period coincides with the mother’s holidays the child shall spend fifteen days with each of them. 6. During the Easter, Christmas and summer holidays the father shall fetch the child from the mother’s house and bring her back between 10 a.m. and 1 p.m. unless the parents agree on different times. 7. In accordance with the date of this decision, the child shall spend the next Easter and Christmas holidays with the parent with whom she did not spend those holidays in 1995. 8. The matter of maintenance payable by the father and the manner of payment shall be examined by the Third Section of the Third Chamber of the Lisbon Family Affairs Court in case no. 3821/A, which has been adjourned pending the present decision regarding the child’s future. Costs are awarded against the respondent.” 15. One of the three Court of Appeal judges gave the following separate opinion: “I voted in favour of this decision, with the reservation that I do not consider it constitutionally lawful to assert as a principle that a person can be stripped of his family rights on the basis of his sexual orientation, which – accordingly – cannot, as such, in any circumstances be described as abnormal. The right to be different should not be treated as a ‘right’ to be ghettoised. It is not therefore a matter of belittling the fact that [the applicant] has come to terms with his sexuality and consequently of denying him his right to bring up his daughter, but rather, since a decision has to be given, of affirming that it cannot be declared in our society and in our era that children can come to terms with their father’s homosexuality without running the risk of losing their reference models.” 16. No appeal lay against that decision. 17. The right to contact granted to the applicant by the judgment of the Lisbon Court of Appeal was never respected by C.D.S. 18. The applicant therefore lodged an application with the Lisbon Family Affairs Court for enforcement of the Court of Appeal’s decision. On 22 May 1998, in connection with those proceedings, the applicant received a copy of a report drawn up by the medical experts attached to the Lisbon Family Affairs Court. He learnt from this that M. was in Vila Nova de Gaia in the north of Portugal. The applicant made two unsuccessful attempts to see his daughter. The enforcement proceedings are apparently still pending. | The applicant – a homosexual living with another man – was prevented by his ex-wife from visiting his daughter, in breach of an agreement reached at the time of their divorce. He complained of an unjustified interference with his right to respect for his private and family life, as guaranteed by Article 8 of the Convention and discrimination contrary to Article 14 of the Convention. He maintained, too, that contrary to Article 8 he had been forced by the court of appeal to hide his homosexuality when seeing his daughter. |
310 | Prevention of terrorism | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1953 and lives in Béziers. 6. The applicant is the former head of the Basque separatist organisation Iparretarrak. After his detention in 1988, he was convicted several times: on 4 March 1991 he was sentenced to six years ’ imprisonment for criminal association with a view to preparing a terrorist offence; on 10 November 1992 he was sentenced to life imprisonment for murder in the framework of terrorist activity, killing two members of the State security police force ( “ CRS ” ); on 9 April 1993 he was sentenced to six years ’ imprisonment for armed robbery; on 9 June 1993 he was sentenced to life imprisonment for murder in the framework of terrorist activity, killing a gendarme; and on 31 March 2000 he was sentenced to twenty years ’ imprisonment for conspiracy to murder, complicity in murder and armed robbery. 7. By judgment of 1 February 2007 the Sentence enforcement division of the Paris Court of Appeal released him on licence from 14 February 2007 to 14 February 2014, ordering to follow a seven-year programme of assistance and supervision. The Government pointed out that the applicant was the first person sentenced to life imprisonment for offences linked to terrorism ever to have been released on licence. 8. The Sentence enforcement division reiterated in its judgment that the applicant ’ s release on licence would be accompanied by the following general obligations (Article 132-44 of the Penal Code): complying with the instructions of the sentence enforcement judge or of the social worker from the Prison rehabilitation and probation service; receiving visits from the latter and providing him or her with information or documents facilitating supervision of his livelihood and compliance with his obligations; informing the social worker of any job changes and, if such changes are liable to hamper compliance with his obligations, obtaining prior authorisation from the sentence enforcement judge; informing the social worker of any changes of address and of any travel lasting for more than two weeks, reporting back to the latter on his return; and obtaining the authorisation of the sentence enforcement judge for any foreign travel and for any change of job or of address liable to impede compliance with his obligations. The division added the following special obligations ( Article 132-45 [ 1 ], [ 3 ], [ 5 ] and [ 14 ] of the Penal Code) : exercising an occupation or following vocational education or training; residing in Béziers; continuing, in accordance with his means, to pay into the Guarantee Fund for the compensation of victims of terrorism; and refraining from possessing or carrying a weapon. 9. On 7 November 2007 the Criminal Chamber of the Court of Cassation dismissed the appeal on points of law lodged by the Public Prosecutor with the Paris Court of Appeal. 10. On 24 December 2007 the applicant took part in a peaceful demonstration outside Agen Prison in support of Basque detainees being held there. The media reported on that demonstration. 11. Consequently, the Paris Sentence Enforcement Court delivered a judgment on 14 May 2008 imposing additional special obligations on the applicant: refraining from attending, in the vicinity of a prison or other detention facility, any demonstration in support of persons detained for terrorist offences or of any association or movement which is committing or has committed terrorist acts (Article 135-45 [ 9 ] of the Penal Code); refraining from distributing any document or audiovisual material produced or co- produced by himself concerning, in whole or in part, an offence committed by himself, and refraining from discussing that offence in public (Article 132-45 [ 16 ] of the Penal Code). 12. That judgment was upheld by judgment of the Paris Court of Appeal on 2 October 2008. However, the latter judgment was quashed by judgment of the Criminal Chamber of the Court of Cassation on 10 June 2009, on the grounds that the sentence enforcement court did not have jurisdiction to modify the obligations for release on licence, for which matter the sentence enforcement judge held jurisdiction. 13. On 18 February 2010 the Public Prosecutor ’ s Office requested that the sentence enforcement judge of the Regional Court of Paris add both the aforementioned obligations to the applicant ’ s list of obligations for release on licence, as well as a prohibition on “contacting any person actively engaged in promoting Basque separatism or supporting detainees convicted of or charged with terrorist acts pursuant to Articles 421-1 to 421-6 of the Penal Code, particularly with a view to expressing support for such detainees ( Article 132-42 [ 12 ] of the Penal Code ) ”. 14. By judgment of 28 June 2010 the sentence enforcement judge decided to impose on the applicant the obligation set out in Article 132-45 ( 16 ) of the Penal Code : “ refraining from distributing any document or audiovisual material produced or co- produced by himself concerning, in whole or in part, the offence committed, and refraining from discussing that offence in public, whereby [ these ] provisions [ are ] applicable only in cases of convictions for serious offences of intentional homicide, sexual assault or sexual abuse ”. He noted that in its judgment of 1 February 2007 the Paris Court of Appeal had described the applicant “ as a calm, respectful person who spent most of his time writing his memoirs”. The judge inferred that “although it is unclear what the word ‘ memoirs ’ entails, it is quite possible that Mr Bidart might be tempted to publish his memoirs and make statements on the offences of which he was convicted ”. Nor did the judgment go into further detail on that point. It explained, however, that “during the adversarial proceedings Mr Bidart was reminded that the prosecution had requested the prohibition only of writings or statements connected with the offences of which he had been convicted”. 15. That judgment was upheld by judgment of the Paris Court of Appeal on 31 August 2010, stating that the obligation in question “ merely prohibited commenting on or condoning the offences committed ” and “ that the obligation was not a disproportionate measure in the light of the need to protect public order, nor does it prevent Philippe Bidart from expressing his political convictions ”. 16. By judgment of 30 March 2011 the Criminal Division of the Court of Cassation dismissed the appeal on points of law lodged by the applicant, on the grounds that in its judgment the Court of Appeal had properly applied Article 132-45 [ 16 ] of the Penal Code, in compliance with the legal texts and conventions relevant to the applicant ’ s appeal ( including Article 10 of the Convention). ... | This case concerned the obligation imposed on the applicant, the former leader of the Basque separatist organisation Iparretarrak, in the context of his release on licence, to refrain from disseminating any work or audio-visual production authored or co-authored by him concerning the offences of which he had been convicted, and from speaking publicly about those offences. |
135 | Sexual abuse | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants, son and father, were born in 1990 and 1954 respectively and currently live in Iasi. A. The alleged rape and violence inflicted on the first applicant 1. Applicants’ version of the abuse 7. From January 1998 to April 1998, the first applicant, who was then a seven year-old boy, was allegedly subjected to repeated rape and violence by P.E. 8. In January 1998, the child was followed home from school by P.E. In front of the applicant’s family’s apartment, P.E. grabbed the key from his hand, opened the door and forcefully pushed the boy inside. He hit the child several times in the stomach. He pulled the applicant’s clothes off and tied his hands and legs and gagged him with strips of white cloth that he had taken out of his trouser pocket. Then P.E. dragged the boy into the kitchen, removed a piece of furniture from against the wall and placed it near the couch. He bent the child over the furniture and sexually abused him. He then removed the gag and forced the child into oral sex. P.E. hit the applicant again several times in the stomach, head and genitalia, untied him and told him to put his clothes on. He threatened the child with a knife and warned him that he would kill him if anyone found out what had happened. 9. The first applicant was too scared to scream during the assault. 10. The abuse continued during the following months, several times per week. At a certain point, P.E. made a copy of the applicant’s key so he could enter the apartment. Sometimes he would wait for the child inside, sometimes he came with a dog and once with other persons, including two minor children. Before leaving the apartment, P.E. sometimes stole food and small sums of money. 11. Eventually the applicant told his brother and father about what was happening to him. 12. After the events the first applicant changed school and in October 2005 the family finally moved from Bacău to Iaşi, following the advice of the school psychologist. 2. The Government’s position 13. The Government did not contest the description of the facts by the first applicant. B. Criminal investigations into the allegations of rape and violence 1. Police investigations 14. On 27 April and 4 May 1998 on behalf of his son, the second applicant reported the sexual abuse and violence inflicted on the child to the Bacău Police. He accused P.E., S.P. and L.I.D. He reiterated his complaints on 18 and 28 May, 4, 8 and 9 June and on 19 July 1998. 15. The police started investigating the case. 16. On 18 May 1998, at the request of the investigators, the first applicant underwent a medical examination at the Bacău Clinic. The record noted: “... healing anal lesion and hypotonia of the anal sphincter. No signs of violence on the body ... The lesions necessitate 16-18 days of medical care and could have been caused by anal intercourse.” A medical certificate issued on 19 May 1998 at the request of the police, summarised the findings of the examination. 17. On 12, 15 and 29 June 1998 P.E. gave statements to the police. He claimed that he had not been in the area during that period, and that he did not know the applicants’ family. He had only been in the building once, on New Year’s Eve, for approximately ten minutes. He admitted that he used to take his sister’s dog out for a walk but he had not done so in a while; during the time in question he had been training a similar dog, in the afternoons, from 5 p.m. to 7 p.m. During a polygraph test, P.E. showed simulated behaviour when asked whether he had had sexual intercourse with the first applicant. S.P. and L.I.D. denied any participation in the abuse. 18. The first applicant was interviewed several times by the investigators. He gave details about the facts. His statements were recorded on 19 June 1998, 12 October 2001, 31 May 2002 and 25 March 2003. In some of the interviews he declared that he had told his brother and father about the abuse, but in others he stated that he had not mentioned anything to anyone. In his first statement he also told the police that the day after he had told his father about the abuse, his parents had allowed him to return on his own from school and he had remained alone in the apartment after school. 19. The second applicant gave statements to the investigators, relating the facts as his son had described them. 20. On 15 December 1999 the first applicant’s mother declared that she had suspected something was going on as her son’s voice on the phone had sometimes been trembling and as she had sometimes found the house untidy and litter in the bathroom, but that she had thought the children were responsible. Before the prosecutor she supplemented her statements and stated that during that time she had noticed that food and money had disappeared from the house. 21. The first applicant identified P.E. in a line up at the police headquarters. 22. Several other witnesses were interviewed by the police, including neighbours and acquaintances. R.M., the neighbour from upstairs, stated that she had no knowledge of what had happened in the applicants’ home. A few days later she changed her statements and declared that she had seen a man who fitted P.E.’s description entering the applicants’ apartment with a dog during the period in question. She explained that she had been afraid that if she talked about what she had seen, the neighbours would have thought she had been spying on them. During the investigations and court proceedings R.M. changed her statements, claiming both to have seen P.E. entering the victim’s apartment several times, between February and March, and to have seen him entering only once. 23. On 10 January 2000 the police confronted R.M. and P.E. They both maintained their previous statements. 24. B.V. informed the police that at the second applicant’s request, he had followed the applicant to school and home a few times in April 1998. He had noticed P.E. in the vicinity several times, and on 22 April 1998 had seen him forcing the first applicant into the apartment. R.I., R.M.’s adolescent son, stated that he had seen P.E. entering the victim’s home from January to April, sometimes with a dog. On 27 June 1998 the police organised a confrontation between R.I. and P.E. R.I. maintained that he had seen P.E. entering the apartment with the victim and then had heard the child scream. P.E. denied having seen R.I. or having abused the first applicant. 25. The investigators also searched the applicants’ and P.E.’s homes, but found no further evidence to support the accusations. They checked the record of calls made from the applicants’ telephone during the period under investigation. They also checked and confirmed that the upstairs neighbours could see, from the hallway, who entered the applicants’ apartment. 26. During the investigations the first applicant underwent several medical and psychiatric evaluations in the presence of his father. 27. On 1 February 2000 a new medical examination by the Bacău Laboratory of Forensic Medicine, ordered by the police, confirmed the findings of the expert examination of 18 May 1998. The doctors considered that it was impossible to tell whether the perpetrator had been an adult or a minor. They concluded that the lesions could only have been caused by repeated sexual abuse. 2. The prosecutors’ decisions 28. On 16 June 2000 the Prosecutor’s Office attached to the Bacău District Court decided to discontinue prosecution of P.E. and not to prosecute S.P. and L.I.D. The second applicant objected. 29. On 27 July 2000 the prosecutor at the Bacău District Court allowed the objection and sent the case back to the police for further investigation. 30. On 28 February 2001 the Prosecutor’s Office attached to the Bacău District Court again decided to discontinue the prosecution. On 5 September 2001 the second applicant’s objection was allowed by the Prosecutor’s Office attached to the Supreme Court of Justice. The latter sent the case to the District Court prosecutor and ordered him to continue the investigation. 31. On 7 March 2002 the prosecution file was sent to the Prosecutor’s Office attached to the Bacău County Court with an instruction to continue the investigation. 32. On 16 September 2002 the prosecutor at the Bacău County Court discontinued the prosecution of P.E. and decided not to prosecute S.P. and L.I.D. on the ground that they had not committed the crimes. It was also decided to continue the investigation in order to identify the criminals. 33. The second applicant appealed against the decision. On 11 November 2002 the Prosecutor’s Office attached to the Bacău Court of Appeal reversed the decision. 34. On 8 April 2003, the prosecutor at the Bacău County Court committed P.E. to trial for rape and unlawful entry of the victim’s home ( violare de domiciliu ). It was also decided not to prosecute S.P. and L.I.D. The first applicant sought civil damages in the amount of 300,000,000 Romanian lei. 35. During this period some witnesses were brought in again for interviews and a new expert report was drafted concluding that the anal lesions suffered by the first applicant may have been produced ten to twelve days before the expert examination of 19 May 1998. On 31 March 2002, the second applicant refused to subject his son, the first applicant, to another psychiatric evaluation. 3. Complaints about the investigations 36. Throughout the investigation and prosecution, the second applicant complained several times about the length of the proceedings. His complaints were dismissed by the Prosecutor’s Office attached to the Bacău District Court on 16 August 1999 and 29 February 2000. On 12 July 2002 the Bacău County Police answered a similar complaint, outlining the latest procedural steps taken in the case. 37. In addition, on 22 November 2001 the second applicant complained that he, his family and some of the witnesses had received threats from P.E. On 8 November 2004 P.E. threatened the applicants with retaliation. They reported the incidents to the police. 38. On 20 April 2004 the second applicant complained about the prosecutor’s decision not to prosecute S.P. and L.I.D. On 21 May 2004 the Bacău District Court dismissed the complaint. The decision became final as the parties did not appeal against it. C. First-instance proceedings 39. The case was initially referred to the Bacău County Court. However, on 27 May 2003 the County Court changed the legal classification of the crimes and sent the case to the District Court. It noted that at the time when the facts occurred, males were not recognised as potential victims of rape. Furthermore, at the time of the investigations, same-sex relations had been decriminalised. Therefore the facts under investigation could only be classified as the crime of “sexual perversion” and “sexual corruption of a minor”, which were under the jurisdiction of the district courts. The Bacău District Court started the examination of the case. On 13 May 2003 the first applicant gave a detailed description of the facts. P.E. denied having committed any crime against the applicant. 40. In September 2003 the first applicant’s older brother gave a statement to the court. He related what his brother had told him about the abuse. He further stated that around that period (January to April 1998) his brother’s behaviour had changed, he had refused to eat, had constantly been scared and had sometimes had blood on the back of his underpants. He declared that their mother had also noticed those blood stains. 41. The first applicant’s mother admitted that neither she nor her husband had taken time off work to accompany the child and see what had happened, although she had noticed the changes in his behaviour and sometimes even physical signs of potential abuse. 42. Several witnesses were interviewed by the court, including the neighbours R.I. and R.M., as well as S.P. 43. Between 20 December 2002 and 25 March 2003, the first applicant underwent a psychological evaluation. The final report revealed that he showed anxiety when shown his alleged aggressor’s image, uncertainty and social isolation; that he wished to have the routine of a “normal child”; and that he had a tendency to exaggerate and invent things, common to sufferers of trauma caused by such violence, especially children. 44. On 3 June 2003 the second applicant complained about the length of the proceedings and about P.E.’s request for release. On 11 August 2003 he complained that P.E. had been released from detention. 45. On 17 November 2003 the first applicant underwent a psychiatric evaluation in Iaşi Hospital No. 7. The examination commission noted that he was scared, insecure, had difficulty concentrating and showed the frustration associated with the experience of not being believed by others. 46. On 5 May 2004 the Bacău District Court acquitted P.E., on the ground that the crimes had not been committed by him. 47. The court noted in particular that the parents had failed to notice the change in their child’s behaviour and to notify the authorities in good time, but rather had waited until after the abuse had been going on for some time. The court also observed that the descriptions of the facts given by the first applicant and the witnesses had not been accurate and differed in the details and pointed to the fact that the second applicant had tried to influence some of the witnesses to give statements against P.E. The court also attached importance to the fact that the searches performed during the criminal investigation had revealed no traces of P.E.’s presence in the victim’s apartment or any evidence in P.E.’s apartment to support the accusation against him. Lastly, the court considered that the findings of the medical report were not conclusive as to P.E.’s guilt. D. The appeal proceedings 48. On 4 October 2004 the Bacău County Court dismissed the appeals lodged by the prosecutor and the applicant against the judgment given by the District Court. The County Court found that there were contradictions in the statements given by the parties and witnesses. It acknowledged that such contradictions may have been caused by the time that had lapsed between the events and the examination of evidence by the courts, but considered that the length of the investigations had not been the main cause of the discrepancies. Accordingly, it noted that from the beginning of the investigation the second applicant and the witnesses had given contradictory descriptions of the aggressor in their various statements and considered that some of the witnesses had been dishonest and that the victim’s father had tried to influence several individuals to testify against P.E. The court also considered that the police line up had not been carried out properly, as the persons chosen to stand with P.E. had differed in physical appearance, in particular their height, length of hair, and posture. It also noted that only one family from the whole block of flats had heard the child screaming. The court was concerned by the fact that despite the alleged physical evidence of abuse (blood stains for example) and other odd occurrences around the house (missing food, moved furniture), the parents had waited a long time before reporting the alleged abuse to the police. Lastly, it noted that his psychological profile indicated that the first applicant was prone to exterior influence and fantasizing, and considered that he might have “put his parents on a false track, either because he did not know who the aggressor was or because he wanted to hide the latter’s identity”. On 20 January 2005 the Bacău Court of Appeal dismissed, by two votes to one, the appeals in cassation lodged by the prosecutor and the applicant. It reiterated the arguments put forward by the County Court. The dissenting judge argued that the evidence in the file was sufficient to convict P.E. for sexual corruption and unlawful entry. | This case concerned a seven-year-old and his father’s complaint that it had taken the authorities five years to investigate the first applicant’s repeated rape by a man, eventually acquitted, who had forced his way into the family flat when the boy had come home alone from school in a period from January to April 1998. |
319 | Obligation on States to protect the victims of trafficking | I. THE CIRCUMSTANCES OF THE CASE 13. The applicant, Mr Nikolay Mikhaylovich Rantsev, is a Russian national who was born in 1938 and lives in Svetlogorsk, Russia. He is the father of Ms Oxana Rantseva, also a Russian national, born in 1980. 14. The facts of the case, as established by the submissions of the parties and the material submitted by them, in particular the witness statements taken by the Cypriot police, may be summarised as follows. A. The background facts 15. Oxana Rantseva arrived in Cyprus on 5 March 2001. On 13 February 2001, X.A., the owner of a cabaret in Limassol, had applied for an “artiste ” visa and work permit for Ms Rantseva to allow her to work as an artiste in his cabaret (see further paragraph 115 below). The application was accompanied by a copy of Ms Rantseva ’ s passport, a medical certificate, a copy of an employment contract (apparently not yet signed by Ms Rantseva ) and a bond, signed by [X.A.] Agencies, in the following terms (original in English) : “KNOW ALL MEN BY THESE PRESENTS that I [X.A.] of L/SSOL Am bound to the Minister of the Interior of the Republic of Cyprus in the sum of £150 to be paid to the said Minister of the Interior or other the [sic] Minister of Interior for the time being or his attorney or attorneys. Sealed with my seal. Dated the 13 th day of February 2001 WHEREAS Ms Oxana RANTSEVA of RUSSIA Hereinafter called the immigrant, (which expression shall where the context so admits be deemed to include his heirs, executors, administrators and assigns) is entering Cyprus and I have undertaken that the immigrant shall not become in need of relief in Cyprus during a period of five years from the date hereof and I have undertaken to replay [sic] to the Republic of Cyprus any sum which the Republic of Cyprus may pay for the relief or support of the immigrant (the necessity for which relief and support the Minister shall be the sole judge) or for the axpenses [sic] of repatriating the immigrant from Cyprus within a period of five years from the date hereof. NOW THE CONDITION OF THE ABOVE WRITTEN BOND is such that if the immigrant or myself, my heirs, executors, administrators and assigns shall repay to the Republic of Cyprus on demand any sum which the Republic of Cyprus may have paid as aforesaid for the relief or Support of the immigrant or for the expenses of repatriation of the immigrant from Cyprus then the above written bond shall be void but otherwise shall remain in full force.” 16. Ms Rantseva was granted a temporary residence permit as a visitor until 9 March 2001. She stayed in an apartment with other young women working in X.A. ’ s cabaret. On 12 March 2001 she was granted a permit to work until 8 June 2001 as an artiste in a cabaret owned by X.A. and managed by his brother, M.A. She began work on 16 March 2001. 17. On 19 March 2001, at around 11a.m., M.A. was informed by the other women living with Ms Rantseva that she had left the apartment and taken all her belongings with her. The women told him that she had left a note in Russian saying that she was tired and wanted to return to Russia. On the same date M.A. informed the Immigration Office in Limassol that Ms Rantseva had abandoned her place of work and residence. According to M.A. ’ s subsequent witness statement, he wanted Ms Rantseva to be arrested and expelled from Cyprus so that he could bring another girl to work in the cabaret. However, Ms Rantseva ’ s name was not entered on the list of persons wanted by the police. B. The events of 28 March 2001 18. On 28 March 2001, at around 4 a.m., Ms Rantseva was seen in a discotheque in Limassol by another cabaret artiste. Upon being advised by the cabaret artiste that Ms Rantseva was in the discotheque, M.A. called the police and asked them to arrest her. He then went to the discotheque together with a security guard from his cabaret. An employee of the discotheque brought Ms Rantseva to him. In his subsequent witness statement, M.A. said (translation) : “When [Ms Rantseva] got in to my car, she did not complain at all or do anything else. She looked drunk and I just told her to come with me. Because of the fact that she looked drunk, we didn ’ t have a conversation and she didn ’ t talk to me at all.” 19. M.A. took Ms Rantseva to Limassol Central Police Station, where two police officers were on duty. He made a brief statement in which he set out the circumstances of Ms Rantseva ’ s arrival in Cyprus, her employment and her subsequent disappearance from the apartment on 19 March 2001. According to the statement of the police officer in charge when they arrived (translation) : “On 2 8 March 2001, slightly before 4 a.m., [M.A.] found [ Ms Rantseva ] in the nightclub Titanic ... he took her and led her to the police station stating that Ms Rantseva was illegal and that we should place her in the cells. He ( [M.A.] ) then left the place (police station). ” 20. The police officers then contacted the duty passport officer at his home and asked him to look into whether Ms Rantseva was illegal. After investigating, he advised them that her name was not in the database of wanted persons. He further advised that there was no record of M.A. ’ s complaint of 19 March 2001 and that, in any case, a person did not become illegal until 15 days after a complaint was made. The passport officer contacted the person in charge of the AIS (Police Aliens and Immigration Service), who gave instructions that Ms Rantseva was not to be detained and that her employer, who was responsible for her, was to pick her up and take her to their Limassol Office for further investigation at 7 a.m. that day. The police officers contacted M.A. to ask him to collect Ms Rantseva. M.A. was upset that the police would not detain her and refused to come and collect her. The police officers told him that their instructions were that if he did not take her they were to allow her to leave. M.A. became angry and asked to speak to their superior. The police officers provided a telephone number to M.A. The officers were subsequently advised by their superior that M.A. would come and collect Ms Rantseva. Both officers, in their witness statements, said that Ms Rantseva did not appear drunk. The officer in charge said (translation): “ Ms Rantseva remained with us ... She was applying her make-up and did not look drunk ... At around 5.20a.m. ... I was ... informed that [M.A.] had come and picked her up ... ” 21. According to M.A. ’ s witness statement, when he collected Ms Rantseva from the police station, he also collected her passport and the other documents which he had handed to the police when they had arrived. He then took Ms Rantseva to the apartment of M.P., a male employee at his cabaret. The apartment M.P. lived in with his wife, D.P., was a split-level apartment with the entrance located on the fifth floor of a block of flats. According to M.A., they placed Ms Rantseva in a room on the second floor of the apartment. In his police statement, he said: “ She just looked drunk and did not seem to have any intention to do anything. I did not do anything to prevent her from leaving the room in [the] flat where I had taken her.” 22. M.A. said that M.P. and his wife went to sleep in their bedroom on the second floor and that he stayed in the living room of the apartment where he fell asleep. The apartment was arranged in such a way that in order to leave the apartment by the front door, it would be necessary to pass through the living room. 23. M.P. stated that he left his work at the cabaret “Zygos” in Limassol at around 3.30 a.m. and went to the “Titanic” discotheque for a drink. Upon his arrival there he was informed that the girl they had been looking for, of Russian origin, was in the discotheque. Then M.A. arrived, accompanied by a security guard from the cabaret, and asked the employees of “ Titanic ” to bring the girl to the entrance. M.A., Ms Rantseva and the security guard then all got into M.A. ’ s car and left. At around 4.30 a.m. M.P. returned to his house and went to sleep. At around 6 a.m. his wife woke him up and informed him that M.A. had arrived together with Ms Rantseva and that they would stay until the Immigration Office opened. He then fell asleep. 24. D.P. stated that M.A. brought Ms Rantseva to the apartment at around 5.45 a.m.. She made coffee and M.A. spoke with her husband in the living room. M.A. then asked D.P. to provide Ms Rantseva with a bedroom so that she could get some rest. D.P. stated that Ms Rantseva looked drunk and did not want to drink or eat anything. According to D.P., she and her husband went to sleep at around 6 a.m. while M.A. stayed in the living room. Having made her statement, D.P. revised her initial description of events, now asserting that her husband had been asleep when M.A. arrived at their apartment with Ms Rantseva. She stated that she had been scared to admit that she had opened the door of the apartment on her own and had had coffee with M.A.. 25. At around 6.30 a.m. on 28 March 2001, Ms Rantseva was found dead on the street below the apartment. Her handbag was over her shoulder. The police found a bedspread looped through the railing of the smaller balcony adjoining the room in which Ms Rantseva had been staying on the upper floor of the apartment, below which the larger balcony on the fifth floor was located. 26. M.A. claimed that he woke at 7 a. m. in order to take Ms Rantseva to the Immigration Office. He called to D.P. and M.P. and heard D.P. saying that the police were in the street in front of the apartment building. They looked in the bedroom but Ms Rantseva was not there. They looked out from the balcony and saw a body in the street. He later discovered that it was Ms Rantseva. 27. D.P. claimed that she was woken by M.A. knocking on her door to tell her that Ms Rantseva was not in her room and that they should look for her. She looked for her all over the apartment and then noticed that the balcony door in the bedroom was open. She went out onto the balcony and saw the bedspread and realised what Ms Rantseva had done. She went onto another balcony and saw a body lying on the street, covered by a white sheet and surrounded by police officers. 28. M.P. stated that he was woken up by noise at around 7 a.m. and saw his wife in a state of shock; she told him that Ms Rantseva had fallen from the balcony. He went into the living room where he saw M.A. and some police officers. 29. In his testimony of 28 March 2001, G.A. stated that on 2 8 March 2001, around 6.30 a.m., he was smoking on his balcony, located on the first floor of M.P. and D.P. ’ s building. He said : “I saw something resembling a shadow fall from above and pass directly in front of me. Immediately afterwards I heard a noise like something was breaking ... I told my wife to call the police ... I had heard nothing before the fall and immediately afterwards I did not hear any voices. She did not scream during the fall. She just fell as if she were unconscious ... Even if there had been a fight (in the apartment on the fifth floor) I would not have been able to hear it.” C. The investigation and inquest in Cyprus 30. The Cypriot Government advised the Court that the original investigation file had been destroyed in light of the internal policy to destroy files after a period of five years in cases where it was concluded that death was not attributable to a criminal act. A duplicate file, containing all the relevant documents with the exception of memo sheets, has been provided to the Court by the Government. 31. The file contains a report by the officer in charge of the investigation. The report sets out the background facts, as ascertained by forensic and crime scene evidence, and identifies 17 witnesses: M.A., M.P. D.P., G.A., the two police officers on duty at Limassol Police Station, the duty passport officer, eight police officers who attended the scene after Ms Rantseva ’ s fall, the forensic examiner and the laboratory technician who analysed blood and urine samples. 32. The report indicates that minutes after receiving the call from G.A. ’ s wife, shortly after 6.30 a.m., the police arrived at the apartment building. They sealed off the scene at 6.40 a.m. and began an investigation into the cause of Ms Rantseva ’ s fall. They took photographs of the scene, including photographs of the room in the apartment where Ms Rantseva had stayed and photographs of the balconies. The forensic examiner arrived at 9.30 a.m. and certified death. An initial forensic examination took place at the scene 33. On the same day, the police interviewed M.A., M.P. and D.P. as well as G.A.. They also interviewed the two police officers who had seen M.A. and Ms Rantseva at Limassol Police Station shortly before Ms Rantseva ’ s death and the duty passport officer (relevant extracts and summaries of the statements given is included in the facts set out above at paragraphs 17 to 29 ). Of the eight police officers who attended the scene, the investigation file includes statements made by six of them, including the officer placed in charge of the investigation. There is no record of any statements being taken either from other employees of the cabaret where Ms Rantseva worked or from the women with whom she briefly shared an apartment. 34. When he made his witness statement on 28 March 2001, M.A. handed Ms Rantseva ’ s passport and other documents to the police. After the conclusion and signature of his statement, he added a clarification regarding the passport, indicating that Ms Rantseva had taken her passport and documents when she left the apartment on 19 March 2001. 35. On 29 March 2001 an autopsy was carried out by the Cypriot authorities. The autopsy found a number of injuries on Ms Rantseva ’ s body and to her internal organs. It concluded that these injuries resulted from her fall and that the fall was the cause of her death. It is not clear when the applicant was informed of the results of the autopsy. According to the applicant, he was not provided with a copy of the autopsy report and it is unclear whether he was informed in any detail of the conclusions of the report, which were briefly summarised in the findings of the subsequent inquest. 36. On 5 August 2001 the applicant visited Limassol Police Station together with a lawyer and spoke to the police officer who had received Ms Rantseva and M.A. on 28 March 2001. The applicant asked to attend the inquest. According to a later statement by the police officer, dated 8 July 2002, the applicant was told by the police during the visit that his lawyer would be informed of the date of the inquest hearing before the District Court of Limassol. 37. On 10 October 2001 the applicant sent an application to the District Court of Limassol, copied to the General Procurator ’ s Office of the Republic of Cyprus and the Russian Consulate in the Republic of Cyprus. He referred to a request of 8 October 2001 of the Procurator ’ s Office of the Chelyabinsk region concerning legal assistance (see paragraph 48 below) and asked to exercise his right to familiarise himself with the materials of the case before the inquest hearing, to be present at the hearing and to be notified in due time of the date of the hearing. He also advised that he wished to present additional documents to the court in due course. 38. The inquest proceedings were fixed for 30 October 2001 and, according to the police officer ’ s statement of 8 July 2002 (see paragraph 36 above), the applicant ’ s lawyer was promptly informed. However, neither she nor the applicant appeared before the District Court. The case was adjourned to 11 December 2001 and an order was made that the Russian Embassy be notified of the new date so as to inform the applicant. 39. In a facsimile dated 20 October 2001 and sent on 31 October 2001 to the District Court of Limassol, copied to the General Procurator ’ s Office of the Republic of Cyprus and the Russian Consulate in the Republic of Cyprus, the applicant asked for information regarding the inquest date to be sent to his new place of residence. 40. On 11 December 2001 the applicant did not appear before the District Court and the inquest was adjourned until 27 December 2001. 41. On 27 December 2001 the inquest took place before the Limassol District Court in the absence of the applicant. The court ’ s verdict of the same date stated, inter alia (translation) : “At around 6.30 a.m. on [28 March 2001] the deceased, in an attempt to escape from the afore-mentioned apartment and in strange circumstances, jumped into the void as a result of which she was fatally injured ... My verdict is that MS OXANA RANTSEVA died on 28 March 2001, in circumstances resembling an accident, in an attempt to escape from the apartment in which she was a guest ( εφιλοξενείτο ). There is no evidence before me that suggests criminal liability of a third person for her death”. D. Subsequent proceedings in Cyprus and Russia 42. Ms Rantseva ’ s body was transferred to Russia on 8 April 2001. 43. On 9 April 2001 the applicant requested the Chelyabinsk Regional Bureau of Medical Examinations (“the Chelyabinsk Bureau”) to perform an autopsy of the body. He further requested the Federal Security Service of the Russian Federation and the General Prosecutor ’ s Office to investigate Ms Rantseva ’ s death in Cyprus. On 10 May 2001 the Chelyabinsk Bureau issued its report on the autopsy. 44. In particular the following was reported in the forensic diagnosis (translation provided) : “It is a trauma from falling down from a large height, the falling on a plane of various levels, politrauma of the body, open cranial trauma: multiple fragmentary comminuted fracture of the facial and brain skull, multiple breeches of the brain membrane on the side of the brain vault and the base of the skull in the front brain pit, haemorrhages under the soft brain membranes, haemorrhages into the soft tissues, multiple bruises, large bruises and wounds on the skin, expressed deformation of the head in the front-to-back direction, closed dull trauma of the thorax with injuries of the thorax organs ..., contusion of the lungs along the back surface, fracture of the spine in the thorax section with the complete breach of the marrow and its displacement along and across ... Alcohol intoxication of the medium degree: the presence of ethyl alcohol in the blood 1,8%, in the urine -2,5%. ” 45. The report ’ s conclusions included the following: “The color and the look of bruises, breaches and wounds as well as hemorrhages with the morphological changes of the same type in the injured tissues indicates, without any doubt, that the traumas happened while she was alive, as well as the fact, that they happened not very long before death, within a very short time period, one after another. During the forensic examination of the corpse of Rantseva O. N. no injuries resulting from external violence, connected with the use of various firearms, various sharp objects and weapons, influence of physical and chemical reagents or natural factors have been established. ... During the forensic chemical examination of the blood and urine, internal organs of the corpse no narcotic, strong or toxic substances are found. Said circumstances exclude the possibility of the death of Rantseva O.N. from firearms, cold steel, physical, chemical and natural factors as well as poisoning and diseases of various organs and systems. ... Considering the location of the injuries, their morphological peculiarities, as well as certain differences, discovered during the morphological and histological analysis and the response of the injured tissues we believe that in this particular case a trauma from falling down from the great height took place, and it was the result of the so-called staged/bi-moment fall on the planes of various levels during which the primary contact of the body with an obstacle in the final phase of the fall from the great height was by the back surface of the body with a possible sliding and secondary contact by the front surface of the body, mainly the face with the expressed deformation of the head in the front-to-back direction due to shock- compressive impact ... During the forensic chemical examination of the corpse of Rantseva O.N. in her blood and urine we found ethyl spirits 1,8 and 2,5 correspondingly, which during her life might correspond to medium alcohol intoxication which is clinically characterized by a considerable emotional instability, breaches in mentality and orientation in space in time. ” 46. On 9 August 2001 the Russian Embassy in Cyprus requested from the chief of Limassol police station copies of the investigation files relating to Ms Rantseva ’ s death. 47. On 13 September 2001 the applicant applied to the Public Prosecutor of the Chelyabinsk region requesting the Prosecutor to apply on his behalf to the Public Prosecutor of Cyprus for legal assistance free of charge as well as an exemption from court expenses for additional investigation into the death of his daughter on the territory of Cyprus. 48. By letter dated 11 December 2001 the Deputy General Prosecutor of the Russian Federation advised the Minister of Justice of the Republic of Cyprus that the Public Prosecutor ’ s Office of the Chelyabinsk region had conducted an examination in respect of Ms Rantseva ’ s death, including a forensic medical examination. He forwarded a request, dated 8 October 2001, under the European Convention on Mutual Assistance in Criminal Matters (“ the Mutual Assistance Convention” – see paragraphs 175 to 178 below ) and the Treaty between the USSR and the Republic of Cyprus on Civil and Criminal Matters 1984 (“the Legal Assistance Treaty ” – see paragraphs 179 to 185 below ), for legal assistance for the purposes of establishing all the circumstances of Ms Rantseva ’ s death and bringing to justice guilty parties, under Cypriot legislation. The request included the findings of the Russian authorities as to the background circumstances; it is not clear how the findings were reached and what, if any, investigation was conducted independently by the Russian authorities. 49. The findings stated, inter alia, as follows (translation provided) : “The police officers refused to arrest Rantseva O.N. due to her right to stay on the territory of Cyprus without the right to work for 14 days, i.e. until April 2, 2001. Then Mr [M.A.] suggested to detain Rantseva O.N. till the morning as a drunken person. He was refused, since, following the explanations provided by the police officers Rantseva O.N. looked like a sober person, behaved decently, was calm, was laying make-up. M.A., together with an unestablished person, at 5.30 a.m. on March 28, 2001 took Rantseva O.N. from the regional police precinct and brought her to the apartment of [D.P.] ... where [they] organised a meal, and then, at 6.30 a. m. locked Rantseva O.N. in a room of the attic of the 7 th floor of said house. ” 50. The request highlighted the conclusion of the experts at the Chelyabinsk Bureau of Forensic Medicine that there had been two stages in Ms Rantseva ’ s fall, first on her back and then on her front. The request noted that this conclusion contradicted the findings made in the Cypriot forensic examination that Ms Rantseva ’ s death had resulted from a fall face-down. It further noted: “It is possible to suppose, that at the moment of her falling down the victim could cry from horror. However, it contradicts the materials of the investigation, which contain the evidence of an inhabitant of the 2 nd floor of this row of loggias, saying that a silent body fell down on the asphalt ... ” 51. The report concluded: “Judging by the report of the investigator to Mr Rantsev N.M., the investigation ends with the conclusion that the death of Rantseva O.N. took place under strange and un- established circumstances, demanding additional investigation.” 52. The Prosecutor of the Chelyabinsk region therefore requested, in accordance with the Legal Assistance Treaty, that further investigation be carried out into the circumstances of Ms Rantseva ’ s death in order to identify the cause of death and eliminate the contradictions in the available evidence; that persons having any information concerning the circumstances of the death be identified and interviewed; that the conduct of the various parties be considered from the perspective of bringing murder and/or kidnapping and unlawful deprivation of freedom charges, and in particular that M.A. be investigated; that the applicant be informed of the materials of the investigation; that the Russian authorities be provided with a copy of the final decisions of judicial authorities as regards Ms Rantseva ’ s death; and that the applicant be granted legal assistance free of charge and be exempted from paying court expenses. 53. On 27 December 2001 the Russian Federation wrote to the Cypriot Ministry of Justice requesting, on behalf of the applicant, that criminal proceedings be instituted in respect of Ms Rantseva ’ s death, that the applicant be joined as a victim in the proceedings and that he be granted free legal assistance. 54. On 16 April 2002 the Russian Embassy in Cyprus conveyed to the Cypriot Ministry of Justice and Public Order the requests dated 11 December and 27 December 2001 of the General Prosecutor ’ s Office of the Russian Federation, made under the Legal Assistance Treaty, for legal assistance concerning Ms Rantseva ’ s death. 55. On 25 April 2002 the Office of the Prosecutor General of the Russian Federation reiterated its request for the institution of criminal proceedings in connection with Ms Rantseva ’ s death and the applicant ’ s request to be added as a victim to the proceedings in order to submit his further evidence, as well as his request for legal aid. It requested the Cypriot Government to provide an update and advise of any decisions that had been taken. 56. On 25 November 2002, the applicant applied to the Russian authorities to be recognised as a victim in the proceedings concerning his daughter ’ s death and reiterated his request for legal assistance. The request was forwarded by the Office of the Prosecutor General of the Russian Federation to the Cypriot Ministry of Justice. 57. By letter of 27 December 2002 the Assistant to the Prosecutor General of the Russian Federation wrote to the Cypriot Ministry of Justice referring to the detailed request made by the applicant for the initiation of criminal proceedings in connection with the death of his daughter and for legal aid in Cyprus, which had previously been forwarded to the Cypriot authorities pursuant to the Mutual Assistance Convention and the Legal Assistance Treaty. The letter noted that no information had been received and requested that a response be provided. 58. On 13 January 2003 the Russian Embassy wrote to the Cypriot Ministry of Foreign Affairs requesting an expedited response to its request for legal assistance in respect of Ms Rantseva ’ s death. 59. By letters of 17 and 31 January 2003 the Office of the Prosecutor General of the Russian Federation noted that it had received no response from the Cypriot authorities in relation to its requests for legal assistance, the contents of which it repeated. 60. On 4 March 2003 the Cypriot Ministry of Justice informed the Prosecutor General of the Russian Federation that its request had been duly executed by the Cypriot police. A letter from the Chief of Police, and the police report of 8 July 2002 recording the applicant ’ s visit to Limassol Police Station in August 2001 were enclosed. 61. On 19 May 2003 the Russian Embassy wrote to the Cypriot Ministry of Foreign Affairs requesting an expedited response to its request for legal assistance in respect of Ms Rantseva ’ s death. 62. On 5 June 2003 the Office of the Prosecutor General of the Russian Federation submitted a further request pursuant to the Legal Assistance Treaty. It requested that a further investigation be conducted into the circumstances of Ms Rantseva ’ s death as the verdict of 27 December 2001 was unsatisfactory. In particular, it noted that despite the strange circumstances of the incident and the acknowledgment that Ms Rantseva was trying to escape from the flat where she was held, the verdict did not make any reference to the inconsistent testimonies of the relevant witnesses or contain any detailed description of the findings of the autopsy carried out by the Cypriot authorities. 63. On 8 July 2003 the Russian Embassy wrote to the Cypriot Ministry of Foreign Affairs requesting a reply to its previous requests as a matter of urgency. 64. On 4 December 2003 the Commissioner for Human Rights of the Russian Federation forwarded the applicant ’ s complaint about the inadequate reply from the Cypriot authorities to the Cypriot Ombudsman. 65. On 17 December 2003, in reply to the Russian authorities ’ request (see paragraph 52 above), the Cypriot Ministry of Justice forwarded to the Prosecutor General of the Russian Federation a further report prepared by the Cypriot police and dated 17 November 2003. The report was prepared by one of the officers who had attended the scene on 28 March 2001 and provided brief responses to the questions posed by the Russian authorities. The report reiterated that witnesses had been interviewed and statements taken. It emphasised that all the evidence was taken into consideration by the inquest. It continued as follows (translation) : “At about 6.30 a.m. on 28 March 200 1 the deceased went out onto the balcony of her room through the balcony door, climbed down to the balcony of the first floor of the apartment with the assistance of a bedspread which she tied to the protective railing of the balcony. She carried on her shoulder her personal bag. From that point, she clung to the aluminium protective railing of the balcony so as to climb down to the balcony of the apartment on the floor below in order to escape. Under unknown circumstances, she fell into the street, as a result of which she was fatally injured.” 66. The report observed that it was not known why Ms Rantseva left the apartment on 19 March 2001 but on the basis of the investigation (translation): “ ... it is concluded that the deceased did not want to be expelled from Cyprus and because her employer was at the entrance of the flat where she was a guest, she decided to take the risk of trying to climb over the balcony, as a result of which she fell to the ground and died instantaneously.” 67. As to the criticism of the Cypriot autopsy and alleged inconsistencies in the forensic evidence between the Cypriot and Russian authorities, the report advised that these remarks had been forwarded to the Cypriot forensic examiner who had carried out the autopsy. His response was that his own conclusions were sufficient and that no supplementary information was required. Finally, the report reiterated that the inquest had concluded that there was no indication of any criminal liability for Ms Rantseva ’ s death. 68. By letter of 17 August 2005 the Russian Ambassador to Cyprus requested further information about a hearing concerning the case apparently scheduled for 14 October 2005 and reiterated the applicant ’ s request for free legal assistance. The Cypriot Ministry of Justice responded by facsimile of 21 September 2005 indicating that Limassol District Court had been unable to find any reference to a hearing in the case fixed for 14 October 2005 and requesting clarification from the Russian authorities. 69. On 28 October 2005 the applicant asked the Russian authorities to obtain testimonies from two young Russian women, now resident in Russia, who had been working with Ms Rantseva at the cabaret in Limassol and could testify about sexual exploitation taking place there. He reiterated his request on 11 November 2005. The Russian authorities replied that they could only obtain such testimonies upon receipt of a request by the Cypriot authorities. 70. By letter of 22 December 2005 the Office of the Prosecutor General of the Russian Federation wrote to the Cypriot Ministry of Justice seeking an update on the new inquest into Ms Rantseva ’ s death and requesting information on how to appeal Cypriot court decisions. The letter indicated that, according to information available, the hearing set for 14 October 2005 had been suspended due to the absence of evidence from the Russian nationals who had worked in the cabaret with Ms Rantseva. The letter concluded with an undertaking to assist in any request for legal assistance by Cyprus aimed at the collection of further evidence. 71. In January 2006, according to the applicant, the Attorney-General of Cyprus confirmed to the applicant ’ s lawyer that he was willing to order the re-opening of the investigation upon receipt of further evidence showing any criminal activity. 72. On 26 January 2006 the Russian Embassy wrote to the Cypriot Ministry of Justice requesting an update on the suspended hearing of 14 October 2005. The Ministry of Justice replied by facsimile on 30 January 2006 confirming that neither the District Court of Limassol nor the Supreme Court of Cyprus had any record of such a hearing and requesting further clarification of the details of the alleged hearing. 73. On 11 April 2006 the Office of the Prosecutor General of the Russian Federation wrote to the Cypriot Ministry of Justice requesting an update on the suspended hearing and reiterating its query regarding the appeals procedure in Cyprus. 74. On 14 April 2006, by letter to the Russian authorities, the Attorney-General of Cyprus advised that he saw no reason to request the Russian authorities to obtain the testimonies of the two Russian citizens identified by the applicant. If the said persons were in the Republic of Cyprus their testimonies could be obtained by the Cypriot police and if they were in Russia, the Russian authorities did not need the consent of the Cypriot authorities to obtain their statements. 75. On 26 April 2006 the Cypriot Ministry of Justice replied to the Office of the Prosecutor General of the Russian Federation reiterating its request for more information about the alleged suspended hearing. 76. On 17 June 2006 the Office of the Prosecutor General of the Russian Federation wrote to the Attorney - General of Cyprus reminding him of the outstanding requests for renewal of investigations into Ms Rantseva ’ s death and for information on the progress of judicial proceedings. 77. On 22 June and 15 August 2006 the applicant reiterated his request to the Russian authorities that statements be taken from the two Russian women. 78. On 17 October 2006 the Cypriot Ministry of Justice confirmed to the Office of the Prosecutor General of the Russian Federation that the inquest into Ms Rantseva ’ s death was completed on 27 December 2001 and that it found that her death was the result of an accident. The letter noted: “No appeal was filed against the decision, because of the lack of additional evidence”. 79. On 25 October 2006, 27 October 2006, 3 October 2007 and 6 November 2007 the applicant reiterated his request to the Russian authorities that statements be taken from the two Russian women. II. REPORTS ON THE SITUATION OF “ ARTISTES ” IN CYPRUS A. Ex Officio report of the Cypriot Ombudsman on the regime regarding entry and employment of alien women as artistes in entertainment places in Cyprus, 24 November 2003 80. In November 2003, the Cypriot Ombudsman published a report on “ artistes ” in Cyprus. In her introduction, she explained the reasons for her report as follows (all quotes are from a translation of the report provided by the Cypriot Government) : “Given the circumstances under which [ Oxana ] Rantseva had lost her life and in the light of similar cases which have been brought into publicity regarding violence or demises of alien women who arrives in Cyprus to work as ‘ artistes ’, I have decided to undertake an ex officio investigation ... ” 81. As to the particular facts of Ms Rantseva ’ s case, she noted the following: “After formal immigration procedures, she started working on 16 March 2001. Three days later she abandoned the cabaret and the place where she had been staying for reasons which have never been clarified. The employer reported the fact to the Aliens and Immigration Department in Limassol. However, [ Oxana ] Rantseva ’ s name was not inserted on the list comprising people wanted by the Police, for unknown reasons, as well.” 82. She further noted that: “The reason for which [ Oxana ] Rantseva was surrendered by the police to her employer, instead of setting her free, since there were [neither] arrest warrant [nor] expulsion decree against her, remained unknown.” 83. The Ombudsman ’ s report considered the history of the employment of young foreign women as cabaret artistes, noting that the word “artiste” in Cyprus has become synonymous with “prostitute”. Her report explained that since the mid- 1970s, thousands of young women had legally entered Cyprus to work as artistes but had in fact worked as prostitutes in one of the many cabarets in Cyprus. Since the beginning of the 1980s, efforts had been made by the authorities to introduce a stricter regime in order to guarantee effective immigration monitoring and to limit the “well-known and commonly acknowledged phenomenon of women who arrived in Cyprus to work as artistes”. However, a number of the measures proposed had not been implemented due to objections from cabaret managers and artistic agents. 84. The Ombudsman ’ s report noted that in the 1990s, the prostitution market in Cyprus started to be served by women coming mainly from former States of the Soviet Union. She concluded that : “During the same period, one could observe a certain improvement regarding the implementation of those measures and the policy being adopted. However, there was not improvement regarding sexual exploitation, trafficking and mobility of women under a regime of modern slavery. ” 85. As regards the living and working conditions of artistes, the report stated : “The majority of the women entering the country to work as artistes come from poor families of the post socialist countries. Most of them are educated ... Few are the real artistes. Usually they are aware that they will be compelled to prostitute themselves. However, they do not always know about the working conditions under which they will exercise this job. There are also cases of alien women who come to Cyprus, having the impression that they will work as waitresses or dancers and that they will only have drinks with clients ( ‘ consomation ’ ). They are made by force and threats to comply with the real terms of their work ... Alien women who do not succumb to this pressure are forced by their employers to appear at the District Aliens and Immigration Branch to declare their wish to terminate their contract and to leave Cyprus on ostensible grounds ... Consequently, the employers can replace them quickly with other artistes ... The alien artistes from the moment of their entry into the Republic of Cyprus to their departure are under constant surveillance and guard of their employers. After finishing their work, they are not allowed to go wherever they want. There are serious complaints even about cases of artistes who remain locked in their residence place. Moreover, their passports and other personal documents are retained by their employers or artistic agents. Those who refuse to obey are punished by means of violence or by being imposed fees which usually consist in deducting percentages of drinks, ‘ consommation ’ or commercial sex. Of course these amounts are included in the contracts signed by the artistes. ... Generally, artistes stay at one or zero star hotels, flats or guest-houses situated near or above the cabarets, whose owners are the artistic agents or the cabaret owners. These places are constantly guarded. Three or four women sleep in each room. According to reports given by the Police, many of these buildings are inappropriate and lack sufficient sanitation facilities. ... Finally, it is noted that at the point of their arrival in Cyprus alien artistes are charged with debts, for instance with traveling expenses, commissions deducted by the artistic agent who brought them in Cyprus or with commissions deducted by the agent who located them in their country etc. Therefore, they are obliged to work under whichever conditions to pay off at least their debts.” ( footnotes omitted) 86. Concerning the recruitment of women in their countries of origin, the report noted : “Locating women who come to work in Cyprus is usually undertaken by local artistic agents in cooperation with their homologues in different countries and arrangements are made between both of them. After having worked for six months maximum in Cyprus, a number of these artistes are sent to Lebanon, Syria, Greece or Germany .” ( footnotes omitted) 87. The Ombudsman observed that the police received few complaints from trafficking victims: “The police explain that the small number of complaints filed is due to the fear that artistes feel, since they receive threats against their lives on the part of their procurer. ” 88. She further noted that protection measures for victims who had filed complaints were insufficient. Although they were permitted to work elsewhere, they were required to continue working in similar employment. They could therefore be easily located by their former employers. 89. The Ombudsman concluded: “The phenomenon of trafficking in person has so tremendously grown worldwide. Trafficking in persons concerns not only sexual exploitation of others but also exploitation of their employment under conditions of slavery and servitude ... From the data of this report it is observed that over the last two decades Cyprus has not been only a destination country but a transit country where women are systematically promoted to the prostitution market. It follows also that this is also due to a great extent to the tolerance on the part of the immigration authorities, which are fully aware of what really happens. On the basis of the policy followed as for the issue of entry and employment permits to entertainment and show places, thousands of alien women, with no safety valve, have entered by law the country to work as artistes unlawfully. In various forms of pressure and coercion most of these women are forced by their employers to prostitution under cruel conditions, which infringe upon the fundamental human rights, such as individual freedom and human dignity.” ( footnotes omitted) 90. Although she considered the existing legislative framework to combat trafficking and sexual exploitation satisfactory, she noted that no practical measures had been taken to implement the policies outlined, observing that: “ ... The various departments and services dealing with this problem, are often unaware of the matter and have not been properly trained or ignore those obligations enshrined in the Law ... ” B. Extracts of report of 12 February 2004 by the Council of Europe Commissioner for Human Rights on his visit to Cyprus in June 2003 (CommDH(2004)2) 91. The Council of Europe Commissioner for Human Rights visited Cyprus in June 2003 and in his subsequent report of 12 February 2004, he referred to issues in Cyprus regarding trafficking of women. The report noted, inter alia, that : “ 29. It is not at all difficult to understand how Cyprus, given its remarkable economic and tourist development, has come to be a major destination for this traffic in the Eastern Mediterranean region. The absence of an immigration policy and the legislative shortcomings in that respect have merely encouraged the phenomenon. ” 92. As regards the legal framework in place in Cyprus (see paragraphs 127 to 131 below), the Commissioner observed: “ 30. The authorities have responded at the normative level. The Act of 2000 (number 3(I), 2000) has established a suitable framework for suppression of trafficking in human beings and sexual exploitation of children. Under the Act, any action identifiable as trafficking in human beings in the light of the Convention for the Suppression of Trafficking in Persons and of the Exploitation and Prostitution of Others, together with other acts of a similar nature specified by law, are an offence punishable by 10 years ’ imprisonment, the penalty being increased to 15 years where the victim is under 18 years of age. The offence of sexual exploitation carries a 15 year prison sentence. If committed by persons in the victim ’ s entourage or persons wielding authority or influence over the victim, the penalty is 20 years in prison. According to the provisions of Article 4, using children for the production and sale of pornographic material is an offence. Article 7 grants State aid, within reasonable limits, to victims of exploitation; such aid comprises subsistence allowance, temporary accommodation, medical care and psychiatric support. Article 8 reaffirms the right to redress by stressing the power of the court to award punitive damages justified by the degree of exploitation or the degree of the accused person ’ s constraint over the victim. A foreign worker lawfully present in Cyprus who is a victim of exploitation can approach the authorities to find other employment up until the expiry of the initial work permit (Article 9). Lastly, the Council of Ministers, under Article 10, appoints a guardian for victims with the principal duties of counselling and assisting them, examining complaints of exploitation, and having the culprits prosecuted, as well as for pinpointing any deficiency or loophole in the law and for making recommendations with a view to their removal. ” 93. Concerning practical measures, the Commissioner noted: “ 31. At a practical level, the Government has made efforts to protect women who have laid a complaint against their employers by permitting them to remain in the country in order to substantiate the charges. In certain cases, the women have remained in Cyprus at government expense during the investigation.” 94. However, he criticised the failure of the authorities to tackle the problem of the excessive number of young foreign women coming to work in Cypriot cabarets: “ 32. However, apart from punitive procedures, preventive control measures could be introduced. By the authorities ’ own admission, the number of young women migrating to Cyprus as nightclub artistes is well out of proportion to the population of the island .” C. Extracts of follow-up report of 26 March 2006 by the Council of Europe Commissioner for Human Rights on the progress made in implementing his recommendations ( CommDH(2006)12) 95. On 26 March 2006, the Council of Europe Commissioner for Human Rights published a follow-up report in which he assessed the progress of the Cypriot Government in implementing the recommendations of his previous report. As regards the issue of trafficking, the report observed that: “48. The Commissioner noted in his 2003 report that the number of young women migrating to Cyprus as nightclub artistes was well out of proportion to the population of the island, and that the authorities should consider introducing preventive control measures to deal with this phenomenon, in conjunction with legislative safeguards. In particular, the Commissioner recommended that the authorities adopt and implement a plan of action against trafficking in human beings.” 96. The report continued: “ 49. The so called ‘ cabaret artiste ’ visas are in fact permits to enter and work in nightclubs and bars. These permits are valid for 3 months and can be extended for a further 3 months. The permit is applied for by the establishment owner on behalf of the woman in question. Approximately 4,000 permits are issued each year, with 1,200 women working at a given time and most women originating from Eastern Europe. A special information leaflet has been prepared by the Migration Service and translated into four languages. The leaflet is given to women entering the country on such permits, is also available on the website of the Ministry of the Interior and the Ministry of Foreign Affairs and copies of the leaflet are sent to the consulates in Russia, Bulgaria, the Ukraine and Romania in order for women to be informed before they enter Cyprus. The leaflet sets out the rights of the women and the responsibilities of their employers. The authorities are aware that many of the women who enter Cyprus on these artistes visas will in fact work in prostitution .” 97. The Commissioner ’ s report highlighted recent and pending developments in Cyprus : “ 50. A new Law on Trafficking in Human Beings is currently being discussed. The new law will include other forms of exploitation such as labour trafficking as well as trafficking for sexual exploitation. Cyprus has signed but not ratified the Council of Europe Convention on Action Against Trafficking in Human Beings. 51. The Attorney General ’ s Office has prepared a National Action Plan for the Combating of Human Trafficking. The Action Plan was presented and approved by the Council of Ministers in April 2005. Some NGOs complained of their lack of involvement in the consultation process. The Ministry of the Interior is responsible for the implementation of the Action Plan. According to the Action Plan, women involved in cases of sexual exploitation or procuring are not arrested or charged with any offence, but are considered as victims and are under the care of the Ministry of Labour and Social Security. Victims who will act as witnesses in court trials can reside in Cyprus until the end of the case. They have the possibility of working, or if they do not wish to work, the Ministry will cover all their residential, health and other needs. A special procedures manual has been drafted for the treatment of victims of trafficking, and has been circulated to all ministries and government departments, as well as NGOs for consultation. 52. There is no specific shelter for victims of trafficking at present, although victims may be accommodated by the authorities in two rooms in state-owned retirement homes, which are available in each major town. A shelter in Limassol is due to be opened soon, which will provide accommodation for 15 women, as well as providing the services of a social worker, lawyer, and vocational advisor. ” 98. As regards steps taken to improve information collection and research into trafficking, he noted: “ 53. An Office for the Prevention and Combating of Human Trafficking was set up by the police in April 2004. The office ’ s role is to collect and evaluate intelligence regarding trafficking in human beings, to co-ordinate operations of all police divisions and departments, to organise and participate in operations, and to follow-up on cases that are under investigation, pending trial or presented to the courts. The office also prepares reports on trafficking and investigates child pornography on the Internet. In addition, the office organises educational seminars carried out at the Cyprus Police Academy. 54. According to statistical information provided by the police from 2000 to 2005, there is a clear increase in the number of cases reported concerning offences of sexual exploitation, procuring, and living on the earnings of prostitution, etc. NGOs confirm that awareness about issues relating to trafficking has increased. ” 99. Finally, in respect of preventative measures, the Commissioner highlighted recent positive developments: “ 55. Preventive and suppressive measures are also undertaken by the police, such as raids in cabarets, inspections, interviews with women, co-operation with mass media, and control of advertisements found in different newspapers. The police provide an anonymous toll-free hotline where anybody can call to seek help or give information. Cabarets which are under investigation are put on a black list and are unable to apply for new visas. 56. Some efforts have been made by the Cypriot authorities to improve victim identification and referral, and in particular, 150 police officers have been trained on this issue. However, according to NGOs a culture still prevails in which women are seen by the police to have ‘ consented ’ to their predicament and victim identification remains inadequate .” 100. The report reached the following conclusions: “ 57. Trafficking in human beings is one of the most pressing and complex Human Rights issues faced by Council of Europe member states, including Cyprus. There is obviously a risk that the young women who enter Cyprus on artiste visas may be victims of trafficking in human beings or later become victims of abuse or coercion. These women are officially recruited as cabaret dancers but are nevertheless often expected also to work as prostitutes. They are usually from countries with inferior income levels to those in Cyprus and may find themselves in a vulnerable position to refuse demands from their employers or clients. The system itself, whereby the establishment owner applies for the permit on behalf of the woman, often renders the woman dependent on her employer or agent, and increases the risk of her falling into the hands of trafficking networks. 58. The Commissioner urges the Cypriot authorities to be especially vigilant about monitoring the situation and ensuring that the system of artiste visas is not used for facilitating trafficking or forced prostitution. In this context, the Commissioner recalls the exemplary reaction of the Luxembourg authorities to similar concerns expressed in his report on the country and their withdrawal of the cabaret artiste visa regime. Changes to the current practice might, at the very least, include women having to apply for the visa themselves, and the information leaflet being given to the women, if possible, before they enter the country. 59. The Commissioner welcomes the new National Action Plan for the Combating of Human Trafficking as a first step in addressing this issue and encourages the Ministry of the Interior to ensure its full implementation. The new law on trafficking, once enacted, will also play an important role. The variety of police activities in response to this phenomenon, such as the setting up of the Office for the Prevention and Combating of Human Trafficking, should also be welcomed. 60. In order to respect the human rights of trafficked persons, the authorities need to be able to identify victims and refer them to specialised agencies which can offer shelter and protection, as well as support services. The Commissioner urges the Cypriot authorities to continue with the training of police officers in victim identification and referral, and encourages the authorities to include women police officers in this area. More effective partnerships with NGOs and other civil society actors should also be developed. The Commissioner expresses his hope that the shelter in Limassol will be put into operation as soon as possible. ” D. Extracts of report of 12 December 2008 by the Council of Europe Commissioner for Human Rights on his visit to Cyprus on 7 ‑ 10 July 200 8 (CommDH(200 8 ) 36 ) 101. The Commissioner of Human Rights has recently published a further report following a visit to Cyprus in July 2008. The report comments on the developments in respect of issues relating to trafficking of human beings, emphasising at the outset that trafficking of women for exploitation was a major problem in many European countries, including Cyprus. The report continued as follows: “33. Already in 2003, the Commissioner for Administration (Ombudswoman) stated that Cyprus had been associated with trafficking both as a country of destination and transit, the majority of women being blackmailed and forced to provide sexual services. In 2008, the island still is a destination country for a large number of women trafficked from the Philippines, Russia, Moldova, Hungary, Ukraine, Greece, Vietnam, Uzbekistan and the Dominican Republic for the purpose of commercial sexual exploitation ... Women are reportedly denied part or all of their salaries, forced to surrender their passports, and pressed into providing sexual services for clients. Most of these women are unable to move freely, are forced to work far above normal working hours, and live in desperate conditions, isolated and under strict surveillance. 34. Victims of trafficking are recruited to Cyprus mainly on three-month so-called ‘ artiste ’ or ‘ entertainment ’ visas to work in the cabaret industry including night clubs and bars or on tourist visas to work in massage parlours disguised as private apartments ... The permit is sought by the owner of the establishment, in most cases so - called ‘ cabarets ’, for the women in question. 35. The study conducted by the Mediterranean Institute of Gender Studies (MIGS) led to a report on trafficking in human beings published in October 2007. It shows that an estimated 2 000 foreign women enter the island every year with short term ‘ artiste ’ or ‘ entertainment ’ work permits. Over the 20-year period 1982-2002, there was a dramatic increase of 111% in the number of cabarets operating on the island ... 36. During his visit the Commissioner learned that there are now approximately 120 cabaret establishments in the Republic of Cyprus, each of them employing around 10 to 15 women ... ” (footnotes omitted) 102. The Commissioner noted that the Government had passed comprehensive anti-trafficking legislation criminalising all forms of trafficking, prescribing up to 20 years ’ imprisonment for sexual exploitation and providing for protection and support measures for victims (see paragraphs 127 to 131 below). He also visited the new government-run shelter in operation since November 2007 and was impressed by the facility and the commitment shown by staff. As regards allegations of corruption in the police force, and the report noted as follows: “42. The Commissioner was assured that allegations of trafficking-related corruption within the police force were isolated cases. The authorities informed the Commissioner that so far, three disciplinary cases involving human trafficking/prostitution have been investigated: one resulted in an acquittal and two are still under investigation. In addition, in 2006, a member of the police force was sentenced to 14 months imprisonment and was subsequently dismissed from service following trafficking related charges.” 103. The report drew the following conclusions in respect of the artiste permit regime in Cyprus : “ 45. The Commissioner reiterates that trafficking in women for the purposes of sexual exploitation is a pressing and complex human rights issues faced by a number of Council of Europe member States, including Cyprus. A paradox certainly exists that while the Cypriot government has made legislative efforts to fight trafficking in human beings and expressed its willingness through their National Action Plan 2005, it continues to issue work permits for so-called cabaret artistes and licences for the cabaret establishments. While on paper the permits are issued to those women who will engage in some type of artistic performance, the reality is that many, if not most, of these women are expected to work as prostitutes. 46. The existence of the ‘ artiste ’ work permit leads to a situation which makes it very difficult for law enforcement authorities to prove coercion and trafficking and effectively combat it. This type of permit could thus be perceived as contradicting the measures taken against trafficking or at least as rendering them ineffective. 47. For these reasons, the Commissioner regrets that the ‘ artiste ’ work permit is still in place today despite the fact that the government has previously expressed its commitment to abolish it. It seems that the special information leaflet given to women entering the country on such a permit is of little effect, even though the woman needs to have read and signed the leaflet in the presence of an official. 48. The Commissioner calls upon the Cypriot authorities to abolish the current scheme of cabaret ‘ artistes ’ work permits ... ” 104. The Commissioner also reiterated the importance of a well-trained and motivated police force in the fight against trafficking in human beings and encouraged the authorities to ensure adequate and timely victim identification. E. Trafficking in Persons Report, U. S. State Department, June 2008 105. In its 2008 report on trafficking, the U. S. State Department noted that: “Cyprus is a destination country for a large number of women trafficked from the Philippines, Russia, Moldova, Hungary, Ukraine, Greece, Vietnam, Uzbekistan, and the Dominican Republic for the purpose of commercial sexual exploitation ... Most victims of trafficking are fraudulently recruited to Cyprus on three-month ‘ artiste ’ work permits to work in the cabaret industry or on tourist visas to work in massage parlors disguised as private apartments.” 106. The report found that Cyprus had failed to provide evidence that it had increased its efforts to combat severe forms of trafficking in persons from the previous year. 107. The report recommended that the Cypriot Government: “Follow through with plans to abolish, or greatly restrict use of the artiste work permit—a well-known conduit for trafficking; establish standard operating procedures to protect and assist victims in its new trafficking shelter; develop and launch a comprehensive demand reduction campaign specifically aimed at clients and the larger public to reduce wide-spread misconceptions about trafficking and the cabaret industry; dedicate more resources to its anti-trafficking unit; and improve the quality of trafficking prosecutions to secure convictions and appropriate punishments for traffickers.” i. it is done by the use of force, violence or threats; or ii. there is fraud; or iii. it is done through abuse of power or other kind of pressure to such an extent so that the particular person would have no substantial and reasonable choice but to succumb to pressure or ill-treatment; b. the trafficking of adult persons for profit and for sexual exploitation purposes in the circumstances referred to in subsection (a) above; c. the sexual exploitation or the ill-treatment of minors; d. the trafficking of minors for the purpose of their sexual exploitation or ill-treatment .” 128. Section 6 provides that the consent of the victim is not a defence to the offence of trafficking. 129. Under section 5(1), persons found guilty of trafficking adults for the purposes of sexual exploitation may be imprisoned for up to ten years or fined CYP 10,000, or both. In the case of a child, the potential prison sentence is increased to fifteen years and the fine to CYP 15,000. Section 3(2) provides for a greater penalty in certain cases: “For the purposes of this section, blood relationship or relationship by affinity up to the third degree with the victim and any other relation of the victim with the person, who by reason of his position exercises influence and authority over the victim and includes relations with guardian, educators, hostel administration, rehabilitation home, prisons or other similar institutions and other persons holding similar position or capacity that constitutes abuse of power or other kind of coercion : a. a person acting contrary to the provisions of section 1 (a) and (b) commits an offence and upon conviction is liable to imprisonment for fifteen years; b. a person acting contrary to the provisions of section 1 (c) and (d) commits an offence and upon conviction is liable to imprisonment for twenty years. ” 130. Section 7 imposes a duty on the State to protect victims of trafficking by providing them with support, including accommodation, medical care and psychiatric support. 131. Under sections 10 and 11, the Council of Ministers may appoint a “guardian of victims” to advise, counsel, and guide victims of exploitation; to hear and investigate complaints of exploitation; to provide victims with treatment and safe residence; to take the necessary steps to prosecute offenders; to take measures aimed at rehabilitating, re-employing or repatriating victims; and to identify any deficiencies in the law to combat trafficking. Although a custodian was appointed, at the time of the Cypriot Ombudsman ’ s 2003 Report (see paragraphs 80 to 90 above ), the role remained theoretical and no programme to ensure protection of victims had been prepared. B. Russia 1. Jurisdiction under the Russian Criminal Code 132. Articles 11 and 12 of the Criminal Code of the Russian Federation set out the territorial application of Russian criminal law. Article 11 establishes Russian jurisdiction over crimes committed in the territory of the Russian Federation. Article 12 (3) provides for limited jurisdiction in respect of non-Russian nationals who commit crimes outside Russian territory where the crimes run counter to the interests of the Russian Federation and in cases provided for by international agreement. 2. General offences under the Criminal Code 133. Article 105 of the Russian Criminal Code provides that murder shall be punishable with a prison term. 134. Article 125 of the Russian Criminal Code provides that deliberate abandonment and failure to provide assistance to a person in danger is punishable by a fine, community service, corrective labour or a prison term. 135. Articles 12 6 and 12 7 make abduction and illegal deprivation of liberty punishable by prison terms. 3. Trafficking in human beings 136. In December 2003, an amendment was made to the Russian Criminal Code by the insertion of a new Article 127.1 in the following terms: “1. Human beings ’ trafficking, that is, a human being ’ s purchase and sale or his recruiting, transportation, transfer, harbouring or receiving for the purpose of his exploitation ... shall be punishable by deprivation of liberty for a term of up to five years. 2. The same deed committed: a) in respect of two or more persons; ... d) moving the victim across the State Border of the Russian Federation or illegally keeping him abroad; ... f) with application of force or with the threat of applying it; ... shall be punishable by deprivation of liberty for a term from three to 10 years. 3. The deeds provided for by Parts One and Two of this Article: a) which have entailed the victim ’ s death by negligence, the infliction of major damage to the victim ’ s health or other grave consequences; b) committed in a way posing danger to the life or health of many people; c) committed by an organized group – shall be punishable by deprivation of liberty for a term from eight to 15 years.” V. THE CYPRIOT GOVERNMENT ’ S UNILATERAL DECLARATION 186. By letter of 10 April 2009 the Attorney-General of the Republic of Cyprus advised the Court as follows: “Please note that the Government wishes to make a unilateral declaration with a view to resolving the issues raised by the application. By the Unilateral Declaration the Government requests the Court to strike out the application in accordance with Article 37 of the Convention. ” 187. The relevant parts of the appended a unilateral declaration read as follows: “ ... (a) The Government regrets the decision taken by the police officers on 28 March 20 01 not to release the applicant ’ s daughter but to hand her over to [M.A.], from whom she sought to escape. The Government acknowledges that the above decision violated its positive obligation towards the applicant and his daughter arising from Article 2 of the Convention to take preventive measures to protect the applicant ’ s daughter from the criminal acts of another individual. (b) The Government acknowledges that the police investigation in the present case was ineffective as to whether the applicant ’ s daughter was subjected to inhuman or degrading treatment prior to her death. As such the Government acknowledges that it violated the procedural obligation of Article 3 of the Convention in respect of the failure to carry out an adequate and effective investigation as to whether the applicant ’ s daughter was subjected to inhuman or degrading treatment prior to her death. (c) The Government acknowledges that it violated its positive obligations towards the applicant and his daughter arising out of Article 4 of the Convention in that it did not take any measures to ascertain whether the applicant ’ s daughter had been a victim of trafficking in human beings and/or been subjected to sexual or any other kind of exploitation. (d) The Government acknowledges that the treatment of applicant ’ s daughter at the police station on 28 March 2001 in deciding not to release her but to hand her over to [M.A.] although there was not any basis for her deprivation of liberty, was not consistent with Article 5(1) of the Convention. (e) The Government acknowledges that it violated the applicant ’ s right to an effective access to court in failing to establish any real and effective communication between its organs (i.e. the Ministry of Justice and Public Order and the police) and the applicant, regarding the inquest proceedings and any other possible legal remedies that the applicant could resort to. 3. In regard to the above issues, the Government recalls that the Council of Ministers has followed the advice of the Attorney General – Government Agent, and has thus appointed on 5 February 2009 three independent criminal investigators whose mandate is to investigate: (a) The circumstances of death of applicant ’ s daughter and into any criminal responsibility by any person, authority of the Republic, or member of the police concerning her death, (b) the circumstances concerning her employment and stay in Cyprus in conjunction with the possibility of her subjection to inhuman or degrading treatment or punishment and/or trafficking and/or sexual or other exploitation, (by members of the police, authorities of the Republic or third persons) contrary to relevant laws of the Republic applicable at the material time, and (c) into the commission of any other unlawful act against her, (by members of the police, authorities of the Republic or third persons) contrary to relevant laws of the Republic applicable at the material time. 4. The Government recalls that the investigators are independent from the police (the first investigator is the President of the Independent Authority for the Investigation of Allegations and Complaints Against the Police, the second is a Member of the said Authority, and the third is a practicing advocate with experience in criminal law). The Government recalls that the investigators have already commenced their investigation. 5. In these circumstances and having regard to the particular facts of the case the Government is prepared to pay the applicant a global amount of 37,300 (thirty seven thousand and three hundred) EUR ( covering pecuniary and non pecuniary damage and costs and expenses). In its view, this amount would constitute adequate redress and sufficient compensation for the impugned violations, and thus an acceptable sum as to quantum in the present case. If, the Court however considers that the above amount does not constitute adequate redress and sufficient compensation, the Government is ready to pay the applicant by way of just satisfaction such other amount of compensation as is suggested by the Court ... ” | The applicant was the father of a young woman who died in Cyprus where she had gone to work in March 2001. He complained that the Cypriot police had not done everything possible to protect his daughter from trafficking while she had been alive and to punish those responsible for her death. He also complained about the failure of the Russian authorities to investigate his daughter’s trafficking and subsequent death and to take steps to protect her from the risk of trafficking. |
454 | Treatment of prisoners with drug addiction | I. THE CIRCUMSTANCES OF THE CASE 8. The applicants Andrew George McGlinchey and Natalie Jane Best, born in 1985 and 1990 respectively, are the children of Judith McGlinchey (born in 1968). The applicant Hilary Davenport, born in 1945, is the mother of Judith McGlinchey. 9. On 3 January 1999, Judith McGlinchey died in Pinderfields Hospital, Wakefield, West Yorkshire, whilst in the care of the Home Office of the United Kingdom government as a convicted prisoner. 10. Judith McGlinchey had a long history of intravenous heroin addiction and was asthmatic, for which she had been admitted to hospital on six occasions during the previous year. It is purported that Judith McGlinchey had, prior to being imprisoned, told her mother, who now cares for her children Andrew and Natalie, that she wanted rehabilitation assistance to rid herself of the heroin addiction. She told her solicitor that she had tried to refer herself for help but that it was impossible to obtain appointments without inordinate delays. 11. After having been convicted of theft, Judith McGlinchey was sentenced at Leeds Magistrates’ Court, on 7 December 1998, to four months’ imprisonment, despite an alternative proposal for a probation order with a condition that she be treated for her addiction. Thereafter, she was detained at New Hall Prison, Wakefield. She stated to her solicitor that she intended to use the period in custody as an opportunity to rid herself of her addiction to heroin. 12. At the health screening on her arrival at the prison on 7 December 1998, Judith McGlinchey was noted as not seeming excessively withdrawn, depressed or anxious. She weighed 50 kg. She complained of swelling to her left arm, withdrawal symptoms from her addiction and suffering from severe asthma especially when withdrawing, and was kept in the health-care centre pending an examination by a doctor. That evening, Judith McGlinchey telephoned her mother complaining of her infected arm and asthma. During the night, when she was observed to be wheezing, she was given an inhaler. She was also given paracetamol. 13. The prison medical records showed thereafter that she was complaining of withdrawal symptoms and that she was vomiting frequently. The records consisted of the continuous medical record, prescription and administration charts and the nursing assessment notes. Her blood pressure, temperature and pulse were checked daily. 14. On 8 December 1998 Judith McGlinchey was examined by Dr K., the prison senior medical officer, who prescribed antibiotics for her arm, inhalers for her asthma and medication, Lofexidine, to appease the symptoms of heroin withdrawal. The nursing notes stated that she threw a cup of tea across the cell, was “locked in for education” and that during the night she was very loud and demanding. Lofexidine was not administered at 12 noon. The applicants alleged that this was a punishment, while the Government submitted that it was on the instructions of the doctor due to a drop in Judith McGlinchey’s blood pressure. The entries in the nursing notes show that Judith McGlinchey was seen by a medical officer that morning and the drugs record sheet, signed by Dr K., indicates that after a blood pressure reading of 80/60 the next dose of Lofexidine was omitted at 12 noon. 15. On 9 December 1998 the record noted that she remained demanding. She had been told to clean her cell prior to education, which was a reference to the routine tidying-up of the cell and in accordance with normal practice. It was noted that she refused to comply. She was locked in during the education period and declined every meal. In the evening her weight was recorded as 43 kg. It was noted that she had vomited during the evening and had complained of vomiting during the night. She was encouraged to take fluids and given two doses of a mild anti-nausea drug (magnesium trisilicate) by the nursing staff. 16. Her situation was reviewed by Dr K. on 10 December 1998. As stated later in a statement to the coroner dated 4 January 1999, her medical readings (temperature, pulse and blood pressure) remained satisfactory. She did not appear dehydrated – it was noted that her tongue was moist and clean – but as she was still complaining of vomiting she was given an injection of anti-emetic medication. She complained of diarrhoea and stomach cramps to the nurse on duty during the night. A dose of magnesium trisilicate was given for nausea but it was recorded that this had little effect. 17. On 10 December 1998 Judith McGlinchey called her mother in tears, complaining that despite having been given an injection, she could not stop vomiting and was getting no other medical support to assist her to come off drugs. She said that she was having to clean up her own vomit and thought she was going to die. The Government stated that there was a lavatory in her cell which she would have been able to reach and that the practice was for nursing staff to clean up if vomit landed on the floor or any other area. The only member of staff involved in the care of Judith McGlinchey who remains with the Prison Service and who is head of nursing care at the prison has informed the Government that a prisoner would not have been asked to clean up her own vomit and she has no recollection of Judith McGlinchey being asked to do so. 18. On 11 December 1998 she was recorded as keeping down a cup of tea and a glass of juice but was vomiting again during the afternoon and evening. At 6.10 a.m. she was found smoking in bed and when asked what the matter was, she replied “nothing”. The next day, she was found to be “opiate positive”. 19. The doctor examined her on 11 December 1998. She was given a further injection of medication to help with her symptoms. He found her general condition to be stable. In his statement of 4 January 1999 he noted that, following the injection, she was able to keep down oral fluids during the day, although she vomited again in the evening. The Government stated that the doctor checked her for signs of dehydration but did not find any. This was confirmed by Dr K.’s evidence to the coroner. The notes stated that her tongue was moist and clean. In the case of a person who was severely dehydrated, he would have expected the person to be physically very weak and possibly bedridden, to have a fast pulse rate and low blood pressure and, on examination, the eyes would appear sunken, the tongue dry and cracked, the lips drawn and the skin drawn and thin. 20. On 12 December 1998 she continued to vomit and suffered from diarrhoea and abdominal discomfort. Her weight was recorded as 40 kg. She ate nothing. The nursing notes recorded that she had had a better night. There was a reference: “Continues to vomit on occasions? hand down throat.” The medical record stated that she had been observed with fingers down throat and vomit on her hand. 21. On 13 December 1998 according to the nursing entries, there was no vomiting complained of or witnessed apart from twice at the beginning of the night. It was also recorded that she ate a small dinner and slept for long periods that night. There were no entries in the medical record on this day. The doctor stated in his statement of 4 January 1999 that on 12 and 13 December 1998 her temperature, pulse and blood pressure all remained within normal limits. Oral doses of anti-emetic drugs (metoclopromide) were prescribed to follow the injections, and administered on four occasions between 10 and 12 December 1998. In her evidence to the coroner, the head of nursing care stated that the drugs were not given on 13 December as Judith McGlinchey had stopped vomiting. 22. However, at 8.30 a.m. on 14 December 1998, the following was noted in the continuous medical record: “... went to see inmate in cell, as she got out of bed she collapsed against me vomiting (coffee ground). Laid on floor in recovery position and summoned help. Patient appeared unresponsive and appeared to be having a fit. Ambulance called (999). Regained consciousness, still vomiting, 2 nurses helped her onto bed. Oxygen in situ. ECG taken. Unable to obtain pulse or BP. Unable to gain IV access due to abscesses on arms and previous drug use. Next of kin rung at 0915 hours at Judith’s request, unavailable, son to pass on message within half an hour. Taken to hospital by ambulance. Ambulance arrived at 0845 hours and left at 0853 hours for Pinderfields General Hospital, Wakefield.” 23. Lots of “coffee-ground” vomit (altered blood in the stomach) was recorded as being found on her bed. Pinderfields Hospital medical records showed that she was admitted at 9.18 a.m. Her mother was informed around that time that Judith McGlinchey was in hospital and that she was ill but had stabilised. She was recorded as being “... drowsy but movable and responsive. Staff nurse informed me that the white cell count was raised, with abnormal kidney and liver function ... possible diagnosis of ... drug abuse”. 24. Her mother later learned from the nursing staff that on admission Judith McGlinchey’s hair was matted with vomit. 25. On 15 December 1998 at 8 a.m., the following entry was recorded: “Transferred to Ward 7; Ward 7 contacted in the middle of an emergency with her, arrested, but has been resuscitated ( sic ) and now is having a blood transfusion and an airway [made] ...” At 10.30 a.m.: “... Ward 7 contacted to ask if relatives have been informed of deterioration, they are with her now, they are going to reassess her in half an hour and if no improvement turn off the ventilator.” 26. The hospital informed the family that Judith McGlinchey was in a critical condition and might have suffered brain damage due to the cardiac arrest. Her liver and kidneys were failing and they could not stabilise her. She was ventilated by hand as there were no beds in the Intensive Care Unit (ICU). The doctors said that they would stop the medication to see if she came round and breathed on her own and, if not, they would leave her. A Roman Catholic priest was called. The family was advised to say goodbye to Judith McGlinchey and did. She then recovered a little and at 7.15 p.m. she was moved to Bradford Royal Infirmary where there was an ICU bed available. She was stable on the ICU ward although she was kept on life support and was heavily sedated. 27. On 16 December 1998 at 6.45 a.m., Judith McGlinchey’s condition was recorded as stable but critical. At 1 p.m. she was given a very poor prognosis. By 2 p.m. on 18 December 1998, her condition had improved a little. She remained on a ventilator, although sedation had then been stopped. She made jerking movements at times and appeared to be waking up slowly. On the night of 23 December 1998, she opened her eyes and responded to light, although the brain scan did not reveal any activity. 28. On 27 December 1998 Judith McGlinchey was transferred to Pinderfields General Hospital to the High Dependency Unit and from there to Ward 7. It was recorded on 31 December that although her eyes were open, she remained unresponsive and in a critical condition. On 2 January 1999 her mother visited with the children. Her eyes were open but she appeared dark yellow in colour and making jerky movements associated with brain damage. 29. On 3 January 1999 the hospital advised the family to go to the hospital immediately. The prison medical record stated that Judith McGlinchey died at 1.30 p.m. 30. The autopsy report, following the post-mortem examination of 4 January 1999, noted that Judith McGlinchey weighed 41 kg. It stated that although one symptom of heroin withdrawal can be vomiting, the cause of the applicant’s vomiting was never fully established. Episodes of severe vomiting could have caused a tear in the upper gastro-intestinal tract (“a Mallory Weiss tear”) though this would most likely have healed by the time she died. This was the most likely cause of haemorrhaging in the stomach which could result in coffee-ground vomiting. If she had lost a substantial amount of blood, rendering her anaemic, this could have triggered the cardiac arrest. The cardiac arrest precipitated hypoxic brain damage and multi-organ failure with an inevitably fatal outcome. 31. In a letter dated 18 January 1999, the coroner informed the family that an inquest would be held before a jury. At the inquest, which took place on 6 December, evidence was given by Dr K., the prison doctor, Sister N., the head of nursing care at the prison, the forensic pathologist who carried out the post mortem, three consultants from the Pinderfields and Bradford Hospitals who had been involved in treating Judith McGlinchey and the third applicant, Judith McGlinchey’s mother. The latter was represented during the proceedings by a solicitor who put questions to the witnesses on her behalf. 32. During the evidence it emerged that the scales used to weigh Judith McGlinchey in prison were inaccurate and incompatible, those used on reception being two to three pounds out compared with those used subsequently in the health-care centre. Due to this discrepancy, Dr K. explained that he placed greater importance on his clinical impressions of Judith McGlinchey regarding any effect of possible weight loss, but was aware of the potential problem and had given instructions for her weight to be monitored. Notwithstanding that antibiotics had been prescribed for her septic arm, it was also indicated that these had not been given to her over a number of days – out of twenty doses that she should have received over five days, she received sixteen. The head of nursing care, Sister N., was unable to explain the omissions although she suggested that the nurse could have forgotten to sign the medicine card. 33. Both Sister N. and Dr K. gave evidence that Judith McGlinchey did not give a clinical impression of being very ill during this period, stating that she was up and about and associating with others. Dr K. stated that her symptoms had been diminishing and that given her blood pressure, temperature, pulse and her general condition, he had no concern that she was gravely ill or that there was any need to admit her to an outside hospital. It was revealed that Dr K. did not work in the prison on weekends and was not present therefore on 12 and 13 December 1998 before Judith McGlinchey’s collapse. A part-time doctor attended on Saturday mornings and the prison depended on calling a doctor on agency if required. This explained the lack of any record in the notes for 13 December 1998. Sister N. explained that the entry in the nursing notes on 8 December which stated that Judith McGlinchey had been “locked in for education” referred to the routine procedure whereby those prisoners not participating in the education class were detained in their cells during that period. 34. Evidence was also given by the three consultants who treated Judith McGlinchey in hospital, concerning her state on arrival and her subsequent deterioration. They were unable to say with any certainty what had caused her collapse or the bleeding in her stomach. Dr Tobin considered that she was dehydrated on arrival at hospital but, due to her disturbed state, he was unable to put in a central line which would have allowed an accurate analysis to be made. Under questioning, he stated that the signs consistent with dehydration could also have been caused by fresh bleeding but not by one episode of coffee-ground vomiting. 35. In his summing-up to the jury, the coroner summarised the evidence as follows: “... for the first day Judith was admitted in the Health Care Centre ... she was then seen by the doctor, [Dr K.], on the second day, on 8 December. He examined her and made a note. She was still retained in the Health Care Centre but as the week proceeded, Judith started to become unwell. You have heard evidence of the fact that she was a heroin abuser and it was known that if she was to withdraw from heroin she might develop some unpleasant symptoms ... those symptoms might manifest themselves for example with diarrhoea and vomiting, possible stomach cramps, depleted sleep patterns and the like and in fact the information that Judith gave to her mother when she first rang rather gave you the impression that she knew that possibly she was to have a rough road ahead but she was prepared to put up with that. Certainly throughout that week ... it is well-documented that Judith was vomiting profusely. Although she was given medication for that on occasions it only worked for a very short time and it is fair to say that from about midweek onwards she was vomiting at some stage every day. There was also reference to the fact that she had diarrhoea and she was generally unwell. Her nutritional state may well have been not all that it should have been and although drinks were available for her there was no means of monitoring how much liquid she was taking in. It was not possible to monitor whether she was actually drinking and vomiting it back or not drinking at all. There was no attempt at measuring fluid during the course of that week and her vomiting actually progressed and on some occasions it was described as a lot of vomiting. It was referred to in the notes “vomiting +++” which means rather a lot and although she was seen by nursing staff every day and by the doctor on other occasions the medical staff at New Hall Prison were under the impression all along that Judith was showing no signs of being dehydrated. In other words, she was not being depleted of fluids and [Dr K.] explained in his evidence his findings and the fact that he could see no real evidence that she was dehydrated at the time and felt that even with hindsight there was no necessity for her to be admitted into hospital. Almost a week after her admission to [prison] on a particular morning when she woke up ... she virtually collapsed in the presence of nursing staff and she vomited a large amount of ... coffee ground vomit ... There was some discussion during the evidence ... as to whether Judith had actually had a cardiac arrest at that time. In fact all the doctors who subsequently examined her ... felt that that was not likely to have been the case, although there was certainly a collapse and although she may well have lost a fair amount of blood as a consequence of that. There was no evidence at that particular time that she had experienced a cardiac arrest. She was taken by ambulance to Pinderfields Hospital ... where she was immediately placed under the care of Dr Tobin ... His working diagnosis at the time was that Judith may well have some degree of liver failure and that there could also be some ... bleeding from the upper gastro-intestinal tract, the oesophagus ... because of the fact that she had vomited the coffee ground vomit. The evidence of Dr Naomi Carter, the Pathologist ... found some residual material in Judith’s stomach which could well have resembled blood or changed blood but ... was at pains to explain that she could find no source of any bleeding within Judith’s internal organs ... one possible likely cause of the bleed that had produced itself in the coffee ground vomiting was that the retching which she had sustained... might have caused a small tear either in her oesophagus at the point where it reaches the stomach or alternatively in the lining of the stomach itself ... that is a medical condition known as a Mallory Weiss tear but she could not find evidence of that. Her view was that possibly that small tear might well have healed by the time that she saw Judith’s body which was obviously by then some days later. That is the only explanation as to why there was any bleeding ... The significance of that bleed is appropriate because it is highly likely that as a consequence ... Judith will have lost some volume of blood which will have meant that her heart might have had to work harder in order to overcome that and certainly when she was at Pinderfields Hospital she was extremely unwell. Dr Tobin was of the view that he felt that Judith was in fact dehydrated but he could not prove that specifically because you will recall from Dr Tobin’s evidence that it was not possible for him to insert a central line. Had he been able to do that then it might have been that could have been used as a diagnostic tool ... certainly Dr Tobin was of the opinion that there would seem to be some suggestion that Judith was dehydrated, notwithstanding, according to the medical staff at New Hall, they felt that that was not the case as the week had gone on. On the morning of 15 December ... unfortunately Judith experienced a cardiac arrest and it was felt that as a consequence of that she had become deprived of oxygen and ... there would have been a deprivation of oxygen to her brain which would have caused her to sustain what was called hypoxic brain damage. ... The post-mortem evidence ... explained the cause of death and Dr Carter was able to confirm that the cause of death was hypoxic brain damage, deprivation of oxygen to the brain, caused by a cardiac arrest which Dr Carter felt was as a consequence of an upper gastro-intestinal haemorrhage of an undetermined cause ...” 36. The coroner invited the jury to return a verdict of death through natural causes or an open verdict. The jury unanimously returned an open verdict. 37. Legal aid was granted to the three applicants to pursue domestic remedies for compensation. Their solicitors sent a notice of issue, under cover of a letter dated 12 February 1999, to the Treasury Solicitor requesting disclosure of medical and prison records in view of a claim for damages with respect to the death of Judith McGlinchey. 38. In a report dated 13 September 2000, the doctor consulted by the applicants stated, inter alia, as follows: “It is my understanding that repeated vomiting can be a symptom of heroin withdrawal and while I have no personal experience in managing people undergoing a detoxification programme, I would, however, be very unhappy about managing anyone who was vomiting repeatedly, without the use of intravenous fluids, the intravenous administration of anti-emetic drugs and the facility to monitor blood chemistry frequently. ... Judith was severely under weight. Her poor overall nutritional state was almost certainly longstanding and probably connected to her heroin addiction but any prolonged bout of vomiting, from whatever cause, was likely to cause a serious imbalance of her blood chemistry very quickly. Apart from electrolyte disturbance and dehydration, she would be very likely to have had difficulty maintaining an adequate blood sugar level, as she would have had no reserves in the form of stored carbohydrate substances within the body, that could have been utilised, when she was unable to absorb adequate nutrients from her gastrointestinal system due to her persistent vomiting. In such circumstances a vicious circle can occur. A low blood sugar level itself can cause more nausea and vomiting. Multiple metabolic pathways can be interfered with. The subject can become irritable. The level of consciousness may be severely reduced and coma can even occur. Intravenous access is often very difficult in intravenous drug abusers, even for clinicians such as anaesthetists who routinely insert needles. Central lines are likely to be needed. These are special long catheters, often with more than one lumen, that are inserted into major blood vessels close to the heart. I would not expect the average prison medical officer to be proficient in inserting such a line. It is preferable for these lines to be inserted in hospital, by personnel with the necessary skills. After insertion, the correct positioning ... needs to be checked by X ‑ ray before it is used to administer drugs and fluids. Once inserted their maintenance requires skilled, aseptic nursing care ... I would be inclined to attribute the agitation and apparent lack of cooperation displayed by Judith after her admission ... and before her second collapse to cerebral irritation. Cerebral irritation is often seen following a period of cerebral hypoxia. Certainly, a degree of cerebral hypoxia probably occurred at the time of her collapse [in prison] and continued up to the time that resuscitation was underway at Pinderfields ... The bleeding that occurred, following a period of persistent and violent vomiting, could certainly have been caused by a Mallory Weiss tear as suggested ... in the autopsy report. If Judith had been admitted to hospital earlier, it might still have proved difficult to control the vomiting and, in view of her poor general and nutritional state, if the cause of her bleeding was a Mallory Weiss tear, this might still have occurred, but she would not have had such a degree of dehydration and/or biochemical disturbance, and the consequences of such an occurrence would probably have been less serious. Alternatively, if her vomiting had been brought under control at an earlier stage, the subsequent sad sequence of events might have been prevented.” 39. In his opinion of 30 October 2000, counsel advised the applicants in the light of this medical report that there was insufficient evidence to establish the necessary causal link between Judith McGlinchey’s death and the allegedly negligent care afforded to her in custody. They did not pursue their claims in negligence. | This case concerned the adequacy of medical care provided by prison authorities to a heroin addict suffering withdrawal symptoms. Sentenced to four months’ imprisonment for theft in December 1998, the latter, while in prison, manifested heroin-withdrawal symptoms, had frequent vomiting fits and significantly lost weight. She was treated by a doctor and, as her condition worsened after one week in prison, admitted to hospital, where she died in January 1999. The applicants, her children and mother, complained in particular that she had suffered inhuman and degrading treatment in prison prior to her death. |
148 | Lack of access to prenatal genetic tests | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1973. 7. Early in December 2001 the applicant visited Dr S.B. in a hospital in T., in the region covered by the then Małopolska Regional Medical Insurance Fund (replaced later by the countrywide National Health Fund). Having performed an ultrasound scan, Dr S. B. estimated that the applicant was in the 6 th or 7 th week of pregnancy. 8. On 2 January 2002, in the 11 th week of her pregnancy, the applicant – who was at that time 29 years old, was married and had two children – was registered as a pregnant patient in her local clinic. 9. On 23 January and 20 February 2002 ultrasound scans were performed, in the 14 th and 18 th weeks of the applicant ’ s pregnancy. On the latter date Dr S.B. estimated that it could not be ruled out that the foetus was affected with some malformation and informed the applicant thereof. The applicant told him that she wished to have an abortion if the suspicion proved true. 10. The Government submitted that in January and February 2002 the applicant had visited Dr S.B. at a private clinic. They argued that such an institution had no right to issue a referral to any public health institution. 11. The applicant disagreed. She first submitted that at the material time Dr S.B. worked both at a public hospital in T. – where she had visited him in December 2001 and in February 2002, after the second scan – and at a non-public clinic. She further submitted that the Polish health care system was composed of so-called public health units and non-public health units. The latter, most often being first contact and basic care institutions, had financing contracts with the public National Health Fund (and had had such contracts with its predecessors, the Regional Medical Insurance Funds, at the material time). Medical services available in non-public clinics were partly financed by public funds, constituted by premiums paid by all persons covered by the universal system of health insurance. Doctors working for non-public units had the same rights and duties to provide health care to patients as doctors employed by public units, including a right to refer a patient to a public unit. 12. Subsequently, the applicant went to a hospital in T. The results of a third ultrasound scan performed in that hospital confirmed the likelihood that the foetus was suffering from some malformation. A genetic examination by way of amniocentesis was recommended by Dr O., in order to confirm or dispel this suspicion. [1] 13. On 28 February 2002 the applicant had another ultrasound scan in a private clinic in Łódź. She had no referral from Dr S.B. and had therefore to pay for the service herself. Under the applicable laws, her expenditure could not be reimbursed. The results of that scan confirmed the likelihood that the foetus was affected with an unidentified malformation. Genetic tests were recommended again. 14. She was subsequently received by Professor K.Sz. in Łódź, a specialist in clinical genetics. A genetic test was again recommended. Professor K.Sz. recommended that the applicant should obtain a formal referral from her family doctor, S.B., to have the test carried out in a public hospital in Łódź, which was outside her region covered by the then Universal Medical Insurance Fund. Subsequently, Dr S.B. refused to issue a referral, because in his view the foetus ’ condition did not qualify the applicant for an abortion under the provisions of the 1993 Act (see paragraph 6 6 below). 15. The Government submitted that no reference to the possibility of the foetus being affected with Edwards syndrome had ever been made. 16. The applicant disagreed. She submitted that during that visit she was told that the scan gave rise to a suspicion of either Edwards or Turner syndrome. [2] 17. In the first week of March 2002 the applicant and her husband visited Dr S.B. during his night duty at the hospital in T. They demanded termination of the pregnancy. He refused and indicated that the results of the ultrasound scan could not be treated as a sole ground for diagnosis that the foetus was affected with severe malformation. He proposed having a panel of doctors from the same hospital review his decision. The applicant refused. 18. On 11 March 2002 the applicant was admitted to a public hospital in T. , within her region covered by the National Health Insurance Fund, and requested advice. She was told that a decision on termination could not be taken at that hospital and was referred to a university hospital in Kraków, to a pathological pregnancies ward, in another region of the Fund, for further diagnosis (“ w celu dalszej diagnostyki ”). 19. During the applicant ’ s stay in the hospital in T. a hospital lawyer was asked to give an opinion with a view to ensuring that the laws on the availability of legal abortion were respected. The applicant was also told that termination of pregnancy would entail a serious risk to her life and that the two caesarean births which she had previously had constituted the most important risk factor in deciding whether she should have a genetic test at all. 20. On 14 March 2002, immediately after being discharged from the T. hospital, the applicant travelled 150 kilometres to Kraków. She went to see Dr K.R. at Kraków University Hospital. He criticised her for contemplating a termination. She was also informed that the hospital categorically refused to carry out abortions and that no abortions had ever been performed there for the last 15 0 years. She was also refused a genetic examination, Dr K.R. being in the opinion that it was not necessary in her case. She stayed in the hospital for three days and had another ultrasound scan performed, the results of which were inconclusive. Urine and blood tests were also performed. She was discharged on 16 March 2002. The applicant ’ s discharge record stated that the foetus was affected with developmental abnormalities (“ wady rozwojowe płodu ”). The same was stated in a medical certificate signed by Dr K.R. He recommended genetic testing in order to establish the character of the ailment. 21. On 21 March 2002 the applicant again contacted Professor K. Sz., who had examined her in February. Another ultrasound scan performed in a private clinic where Professor K.SZ. received patients confirmed the suspicion of malformation. The applicant obtained a referral from the professor to the Mother and Child Hospital in Łódź, but he informed her that he was in fact not competent to issue it. The professor told her that in order to have a genetic test carried out in Łódź, which was outside her region, she needed a referral issued by a doctor practising in her region and, in addition, an approval by a regional insurance fund, together with an undertaking that it would reimburse the costs of the test to the regional fund where the test was to be performed. The professor advised her to report to the Łódź hospital as an emergency patient, claiming that she was about to miscarry, as it was likely that she would then be admitted to that hospital. 22. Subsequently, on 22 March 2002, the applicant asked Dr K.R. for a referral. The Government submitted that Dr K.R. could not have referred the applicant for a genetic test in Kraków because neither the University Hospital nor any other hospital in Kraków carried out such tests as a routine procedure. The applicant disagreed. She submitted that Dr K.R. had told her that she would not obtain the referral for testing because if the results were positive she would want to have an abortion. 23. Afterwards, on the same day, she again unsuccessfully asked Dr S.B. for a referral to the Łódź hospital. 24. The Government submitted that the applicant had obtained from him a referral to the same Kraków University Hospital where she had already been hospitalised between 11 and 14 March. The applicant disagreed and submitted that no referral had been issued to her. The Court notes this discrepancy in the parties ’ submissions and notes that no copy of that referral has been submitted to it. 25. On 24 March 2002 the applicant went to the Łódź Mother and Child Hospital. 26. The Government submitted that she had gone to the hospital with a referral issued by Professor K. Sz. 27. The applicant disagrees. She submits that she had gone to that hospital without a referral, as advised, and had been admitted as an emergency patient. 28. A genetic test (amniocentesis) was performed there on 26 March 2002, in the 23 rd week of pregnancy, and the applicant was told that she had to wait two weeks for the results. 29. The Government submitted that the tests were carried out despite the fact that the applicant had not sought from the Małopolska section of the medical insurance fund any approval for financing them. 30. The applicant was discharged from the Łódź hospital on 28 March 2002. Before the results were available, on 29 March 2002 the applicant, increasingly desperate as by then she was very afraid that the foetus was suffering from severe genetic abnormalities, reported to the T. hospital, where she submitted a written request for an abortion. Dr G.S. told her that he could not take such a decision himself. He had to speak with the consultant. 31. By a letter of 29 March 2002 the applicant requested the hospital in T. to terminate the pregnancy, referring to the provisions of the 1993 Act. She requested that in case of a negative reply it should be made in writing “as soon as possible”. 32. On 3 April 200 2 the applicant went to that hospital again and was told that the consultant could not see her because he was ill. The visit was rescheduled for 10 April 2002. On the same day she wrote a letter of complaint to the director of the T. hospital, submitting that she had not received adequate treatment and that she felt that the doctors were intentionally postponing all decisions in her case so that she would be unable to obtain an abortion within the time-limit provided for by law. 33. On 9 April 2002 she again requested doctors at the T. hospital to carry out an abortion. She referred to the results of the genetic tests which she had received on that date. The certificate, established by Professor K.Sz., confirmed that the karyotype indicated the presence of Turner syndrome. The certificate further read: “A chromosomal aberration and an ultrasound image were established, indicating the presence of congenital defects which can have a serious impact on the child ’ s normal development. Further handling of the case under the provisions of the 1993 law on termination of pregnancy can be envisaged. A relevant decision should be taken with due regard to the parents ’ opinion”. The doctors in the T. hospital refused to carry out an abortion, Dr G.S. telling her that it was too late by then as the foetus was able at that stage to survive outside the mother ’ s body. 34. On 11 April 2002 the applicant again complained in writing to the Director of the T. hospital about the manner in which her case had been handled and about the procrastination on the part of Dr G.S. 35. In April 2002 the applicant and her husband submitted a number of complaints to various health care system institutions. In a reply from the Ministry of Health, dated 16 May 2002, it was stated that “it was impossible to establish on the basis of the available documents why the genetic tests were postponed until 28 February 2002 when the foetus had already become capable of surviving outside the mother ’ s body.” 36. On 29 April 2002 she received a reply from the T. hospital to her complaints of 29 March 2002 and 3 April 2002. The letter contained an account of the facts of the case and quoted provisions of the 1993 Act. No assessment of the lawfulness of the conduct of the medical staff involved was made. 37. On 11 July 2002 the applicant gave birth to a baby girl affected with Turner syndrome. 38. On 31 July 2002 the applicant requested the prosecuting authorities to institute criminal proceedings against the persons involved in handling her case. She alleged serious failure on the part of the doctors, acting as public agents, to safeguard her interests protected by law, on account of their failure to perform timely prenatal examinations. As a result, the applicant had been denied information on the foetus ’ condition and, consequently, divested of the possibility to decide for herself whether or not she wished to terminate her pregnancy in the conditions provided for by law, and she had been forced to continue it. 39. On 16 December 2002 the Tarnów District Prosecutor discontinued the investigations, finding that no criminal offence had been committed. The prosecutor relied on an expert opinion prepared by the Białystok Medical University, according to which under the 1993 Act legal abortion was possible only when foetal malformation was severe. It was not possible to assess whether malformations of a foetus were severe enough to justify an abortion until the foetus was able to live on its own outside the mother ’ s body. It concluded that in the applicant ’ s case an abortion would have been possible until the 23 rd week of pregnancy. The applicant appealed. 40. On 22 January 2003 the Regional Prosecutor allowed her appeal and ordered that the investigation be re-opened. Additional medical evidence was taken during the investigation. On 5 December 2003 the prosecutor again discontinued the investigation, finding that no criminal offence had been committed. 41. The applicant appealed, complaining, inter alia, that the prosecuting authorities had failed to address the critical issue of whether, in the circumstances of the case, genetic tests should have been carried out in order to obtain a diagnosis of the foetus ’ condition. Instead the investigation had focused on whether or not the applicant had a right to an abortion under the applicable law. 42. Ultimately, on 2 February 2004, the competent court upheld the decision of the prosecuting authorities. The court held that doctors employed in public hospitals did not have the quality of “public servants ”, which in the circumstances of the case was a necessary element for the commission of the criminal offence of breach of duty by a public servant. 43. On 11 May 2004 the applicant filed a civil lawsuit with the Kraków Regional Court against doctors S.B., G.S. and K.R. and against the Krakow and T. hospitals. She argued that the doctors dealing with her case had unreasonably procrastinated in their decision on her access to genetic tests and had thereby failed to provide her with reliable and timely information about the foetus ’ condition. They had also failed to establish the foetus ’ condition in time for her to make an informed decision as to whether or not to terminate the pregnancy. As a result of an unjustified delay in obtaining relevant information she had been divested of the possibility of exercising an autonomous choice as to her parenthood. The applicant further argued that the laws in force authorised abortion in specific situations. However, that right had been denied her as a result of difficulties in obtaining timely access to genetic tests and the lengthy delay before she had ultimately obtained such access. The applicant referred to section 4 (a) 1.2 of the 1993 Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) Act and to Articles 23 and 24 of the Civil Code guaranteeing so ‑ called personal rights. The applicant argued that the circumstances in which the determination of her access to genetic testing had been decided had breached her personal rights and dignity and had deeply humiliated her. No regard had been had to her views and feelings. She also claimed compensation from Dr S.B. for hostile and disparaging statements about her character and conduct which he had made in a press interview about her case. He had disclosed to the public details about her and the foetus ’ health covered by medical secret and told the journalist that the applicant and her husband were bad and irresponsible parents. 44. She claimed just satisfaction in a total amount of PLN 11 0,000 for breach of her rights as a patient and her personal rights. She also sought a declaration that the three medical establishments were responsible in respect of future costs to be borne by the applicant in connection with her daughter ’ s treatment. 45. On 28 October 2004 the Tarnów District Court found S.B. guilty of having disclosed to the public, in an interview he had given to the press, information covered by medical secrecy, including the fact that she had envisaged the termination of the pregnancy. It conditionally discontinued the proceedings against him and fixed a period of probation. 46. On 19 October 2005 the Kraków Regional Court awarded the applicant PLN 10,000 against S.B., finding that in a press interview published in November 2003 he had disclosed information relating to the applicant ’ s health and private life in connection with her pregnancy. He had also made disrespectful and hurtful comments about the applicant ’ s conduct and personality. 47. The court dismissed the remaining claims which she had lodged against doctors G.S. and K.R. and against the hospitals. The courts found that the applicant ’ s personal and patient ’ s rights had not been breached by either of these doctors or the hospitals. There had been no procrastination on the doctors ’ part in the applicant ’ s case. Under the World Health Organisation standards termination was permissible only until the 23 rd week of pregnancy, whereas the applicant had reported to the hospitals concerned when she was already in the 23 rd week of pregnancy, and on 11 April 2002 she had been in the 24 th week. Hence, neither her right to decide about her parenthood nor her rights as a patient had been breached in such a way as to place the defendants at fault. 48. On 12 December 2005 the applicant appealed. She submitted that the right to health-related information was protected both by Article 24 of the Civil Code, providing for legal protection of personal rights, and by section 19 of the Medical Institutions Act of 1992. In her case doctors S.B., K.R. and G.S. had been of the view that genetic tests were relevant to establishing the foetus ’ condition, but had not given her the necessary referral. K.R. had not been able to cite any legal basis for his refusal. G.S. had stated before the court that he had not issued a referral because the applicant had not asked for one. However, it was for a doctor with the required professional knowledge to decide what tests were called for in a given medical situation. The testimony given by the defendants had clearly shown that their conduct in the case had failed to comply with the applicable legal provisions. The doctors had tried to shift the responsibility for the way in which her case had been handled to the applicant, despite the obvious fact that the fundamental responsibility for the proper handling of a medical case lay with them as health professionals. The doctors had also been well aware, as shown by the evidence which they had given, that the applicant had been desperate, in reaction to information that the foetus might be affected with a genetic disorder. 49. The applicant submitted that the doctors ’ conduct had breached the law, in particular section 2 (a) of the 1993 Act in so far as it imposed on the authorities an obligation to ensure unimpeded access to prenatal information and testing, in particular in cases of increased risk or suspicion of a genetic disorder or development problem, or of an incurable life ‑ threatening ailment. The applicant had therefore had such a right, clearly provided for by the applicable law, but the defendants had made it impossible for her to enjoy that right. 50. On 28 July 2006 the Kraków Court of Appeal dismissed the applicant ’ s appeal and upheld the first-instance judgment, endorsing the conclusions of the lower court. 51. On 11 July 2008 the Supreme Court allowed her cassation appeal, quashed the judgment of the appellate court in its entirety on grounds of substance and ordered that the case be re-examined. The Supreme Court observed that the applicant ’ s claim was two-pronged: it was based firstly on the failure to refer her for genetic testing and, secondly, on the breach of her right to take an informed decision which resulted from this failure. 52. As to the first part of her claim, the Supreme Court observed that it was not open to doubt (and had been confirmed by an expert opinion prepared for the purposes of the criminal investigation) that only genetic testing could confirm or dispel suspicions that the foetus was affected with Turner syndrome. The doctors concerned had known of the procedure. They were obliged, under the Medical Institutions Act 1992 ( ustawa o zakładach opieki zdrowotnej ), insofar as it guaranteed patients ’ rights, to refer the applicant for genetic testing of their own motion, without her asking for it. Under the same Act, the applicant had a legally protected right to obtain adequate information about the foetus ’ health. Had the doctors had conscientious objections to issuing a referral, they should have informed the applicant thereof and referred her to another practitioner who would have referred her for the testing, in accordance with the applicable laws on the medical profession governing the relevant procedure, but they had failed to do so. 53. The procedures governing the carrying out of genetic tests and their financing by various parts of the then Medical Insurance Fund, applicable at the material time, could not be validly relied on as exempting doctors from issuing a referral, in particular as those procedures were not of a statutory character and could not be plausibly relied on to justify restricting the applicant ’ s rights as a patient. The obligation to refer the applicant had not, contrary to the courts ’ position, ended on the date when legal abortion of a foetus affected with suspected malformation was no longer possible ( that is, after the 22 nd week), since there were no legal – or medical – grounds on which to automatically link genetic testing with access to legal abortion. Furthermore, at the material time there had been no temporal limitation in law on the carrying out of these tests during pregnancy. It was only in 2004 that an ordinance had been enacted under which genetic testing became available only until the 22 nd week of pregnancy. 54. The Supreme Court considered that there were therefore good reasons to accept that the doctors dealing with the applicant ’ s case had breached her personal rights within the meaning of Article 24 of the Civil Code and her patient ’ s rights guaranteed by the Medical Institutions Act. They had been aware that only genetic testing was capable of determining the foetus ’ genetic situation, but had still refused a referral; instead they had sent her for various tests carried out in a hospital setting which were not relevant to such a diagnosis. Moreover, the lower courts had erred in their finding that the applicant had not suffered non-pecuniary damage as a result of the doctors ’ acts. Such damage had been caused by the distress, anxiety and humiliation she had suffered as a result of the manner in which her case had been handled. 55. As to the second part of the applicant ’ s claim, the Supreme Court observed that it transpired from the case- law of the Supreme Court (IV CK 161/05, judgment of 13 October 2005; see paragraph 8 0 below ) that a right to be informed about the foetus ’ health and to take informed decisions, in the light of that information, as to whether to continue the pregnancy or not was a personal right within the meaning of the Civil Code. If a child affected with a genetic problem was born as a result of failure to carry out genetic testing, a claim for just satisfaction ( zadośćuczynienie ) arose on the parent ’ s part. The lower courts had erred in that they had found that there was no adequate causal link between the doctors ’ conduct in the applicant ’ s case and the fact that she had not had access to legal abortion. In this respect the court noted that there had been enough time between the 18 th week of the pregnancy, when the suspicions had arisen, and the 22 nd, when the time-limit for legal abortion had expired, to carry out genetic testing. When the tests had finally been carried out, the applicant had received the results two weeks later. The tests should therefore have been carried out immediately after the suspicions had arisen, but instead, as a result of procrastination on the part of doctors S.B., G.S. and K. R., they had ultimately been conducted much later. 56. The court finally held that the amount of PLN 10,000 to be paid by doctor S. B. for denigrating statements he had made in a press interview about the applicant was, in the circumstances of the case, manifestly inadequate. 57. Hence, the judgment had to be quashed and the case remitted for re ‑ examination in its entirety. 58. On 30 October 2008 the Kraków Court of Appeal gave a judgment. It stated, referring to the findings of the Supreme Court, that Dr S.B. had failed to refer the applicant for genetic testing as soon as the suspicions as to the foetus ’ condition had arisen. He had referred her twice to the Kraków hospital, despite the fact that she had already been at that hospital and that no genetic tests had been carried out at that time. The court held that the applicant ’ s claim of PLN 20,000 should therefore be allowed. 59. It further amended the judgment of the first-instance court by increasing to PLN 30,000 the just satisfaction to be paid to the applicant by S.B. for breach of her personal rights in making denigrating public statements about her in the press. 60. In so far as the action was directed against the T. hospital, the court held that the applicant had not received a proper diagnosis. Dr G.S. , working at the T. hospital, had not referred her for genetic testing, but only to Kraków hospital, even though he had been aware that genetic testing was not carried out there. When the applicant had eventually received the results of the tests and, relying on them, had asked G.S. on 29 March 2002 to perform an abortion, a written negative reply had been served on her a month later, namely on 29 April 2002. 61. In respect of Kraków University Hospital, the court noted that when the applicant had been admitted there on 14 March 2002, she had already had the results of the scan made by Professor K.Sz. in Łódź, which strongly indicated that the foetus was affected with Turner syndrome. In such circumstances, the hospital was under an obligation to carry out tests in order to either confirm or dispel these suspicions, but had failed to do so. Other tests had been carried out instead, concerning a possible inflammatory condition of the foetus, which were irrelevant for the diagnosis of Turner syndrome. The hospital had exposed the applicant to unnecessary stress, while the correct diagnosis had not been made. The defendants had been aware that time was of the essence in the availability of legal abortion, but had failed to accelerate their decision-taking. The hospitals were liable for the negligent acts of their employees in so far as it was their duty to provide the applicant with full information about any genetic disorder of the foetus and how it might affect its development and to do so in time for her to prepare herself for the prospect of giving birth to a child with a genetic disorder. Moreover, the doctors had failed to make any record of their refusals and the grounds for them, an obligation imposed on them by section 39 of the Medical Profession Act. 62. As Kraków University Hospital had a higher referral level, its liability was more serious as a high level of professional skill could have been reasonably expected of it. The applicant had legitimately expected that she would obtain diagnostic and therapeutic treatment of the requisite quality, whereas her case had in fact been handled with unjustifiable delays. 63. Having regard to the defendants ’ failure to respect the applicant ’ s rights, the court awarded the applicant PLN 5,000 against T. Hospital of St. Lazarus and PLN 10,000 against Kraków University Hospital, and dismissed the remainder of her appeal. | A pregnant mother-of-two – carrying a child thought to be suffering from a severe genetic abnormality – was deliberately denied timely access to the genetic tests to which she was entitled by doctors opposed to abortion. Six weeks elapsed between the first ultrasound scan indicating the possibility that the foetus might be deformed and the results of the amniocentesis, too late for her to make an informed decision on whether to continue the pregnancy or to ask for a legal abortion, as the legal time limit had by then expired. Her daughter was subsequently born with abnormal chromosomes. The applicant submitted that bringing up and educating a severely-ill child had been damaging to herself and her other two children. Her husband also left her following the birth of their third child. |
925 | Absence of outside influence | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant company is a private company registered in Ukraine. At the time of the events it carried out barter trade operations with Russian companies involving, in particular, exchange of some food raw materials from Ukraine for Russian crude oil and further sale of finished oil products. A. The events between 1991 and 199 6 6. On 18 December 1991 the applicant company signed a contract with the Lysychansk Oil Refinery ( “the Refinery” – the biggest company in the oil refining industry in the country at the time, with 67.41% of its shares being owned by the State) for the refining of 225,000 tons of crude oil. 7. On 5 March 1993 the Higher Arbitration Court (“the HAC”), allowing a claim brought by the applicant company, directed the Refinery to deliver to the applicant company the oil products produced from its raw materials. 8. During June and July 1993 the Refinery only delivered a small part of the oil products to the applicant company. 9. On 19 August 1993 the applicant company supplied another 150,000 tons of crude oil to the Refinery for refining. 10. In autumn 1993 the State -owned companies in the Lugansk region involved in harvesting, coal mining and other activities essential for the local economy suffered a particularly acute shortage of fuel. As a part of the emergency measures instituted to overcome the crisis, the local authorities directed the Refinery to provide for local needs, free of charge, some oil products, regardless of whether they had been produced from oil owned by customers. 11. Following a further claim brought by the applicant company, on 18 November 1994 the HAC ordered the Refinery to comply with the contract of 19 August 1993. 12. At some point the Refinery was renamed LysychanskNaftoOrgSyntez (“LyNOS”). 13. By a ruling of 5 April 1995, the HAC amended its judgment of 5 March 1993 and ordered LyNOS to pay the applicant company for the undelivered oil products. 14. On 26 April 1995 the Cabinet of Ministers instructed the State Department for the Oil, Gas and Oil Refining Industries (“Derzhnaftogazprom”) to verify whether the applicant company ’ s claims against LyNOS were justified. As can be seen from a letter from Derzhnaftogazprom to Parliament of 6 May 1995, it found the claims to be well grounded. It was noted in the letter, in particular, that the main reason for the Refinery ’ s failure to comply with its contractual obligations vis-à-vis the applicant company had been the unpaid diversion of oil products by the regional authorities in 1993. 15. On 19 July 1996 the HAC awarded the applicant company compensation for the lengthy non-enforcement of the judgments of 5 March 1993 and 18 November 1994 and ordered that the court fees be paid by LyNOS. B. The insolvency proceedings against LyNOS and other developments concerning the settlement of its arrears vis-à-vis the applicant company 16. On 22 July 1996 the applicant company applied to the HAC for the initiation of insolvency proceedings against LyNOS, referring to the lengthy non-enforcement of the judgments of 5 March 1993 and 18 November 1994. 17. On 9 August 1996 the Poltava Regional Arbitration Court (“the Poltava Arbitration Court ”), to which the HAC had referred the aforementioned motion of the applicant company, started insolvency proceedings. 18. On 3 March 1997 it made a preliminary finding that the outstanding debts of LyNOS vis-à-vis the applicant company had been confirmed by documentary evidence as 169,323,720 Ukrainian hryvnias (UAH) and 77,802 tons of oil products. 19. On 10 July 1997 the applicant company asked the HAC to secure the creditors ’ claims by seizing the State ’ s shares in LyNOS. 20. On 15 July 1997 the court allowed the request and prohibited “ [LyNOS], the State Property Fund and any other authorities from taking any action with a view to transferring ownership or changing the status of the State ’ s shares in [LyNOS] until the court completes the [insolvency proceedings].” 21. On 30 July 1997 the Prosecutor General ’ s Office informed the HAC ’ s President of the results of its investigation into the reasons for the arrears and the insolvency of LyNOS. It concluded, inter alia, that LyNOS ’ s debts vis-à-vis its customers had mainly been caused by the unpaid diversion of oil products for State needs in 1993. 22. On 20 August 1997 the applicant company concluded an agreement with LyNOS concerning the procedure for and conditions of repayment of the latter ’ s arrears resulting from the judgments of the HAC of 5 March 1993 and 18 November 1994, as well as the ruling of the Poltava Arbitration Court of 3 March 1997. Having signed that agreement, the debtor recognised its debt vis-à-vis the applicant company in the amount of UAH 225,355,355, which was, according to the agreed schedule, to be repaid in kind within five years. The parties also underlined that the agreement could not be understood as a friendly settlement and did not imply a request for termination of the insolvency proceedings against LyNOS. 23. On 18 November 1997 the HAC stayed the proceedings until the debtor, the creditors and the competent authorities had agreed on guarantees for the repayment of the arrears. 24. On 3 December 1997 the applicant company requested that the Prime Minister consider the possibility of transferring the State ’ s shares in LyNOS, equal to 26% of its share capital, into its trust for the period of the repayment of the arrears as a guarantee of that repayment. 25. On 14 January 1998 the HAC resumed the insolvency proceedings. 26. On 29 January 1998 it decided to leave unexamined the outstanding claims of LyNOS ’ s creditors. At the same time, referring to the need to continue to make efforts to settle the creditors ’ claims and prevent the debtor ’ s insolvency, the court decided to conduct further review of the parties ’ actions in that connection. Namely, it instructed LyNOS and the creditors whose claims remained unsettled to inform it on a monthly basis of the progress of the repayment of the arrears. Moreover, all the parties concerned were instructed to develop a mechanism to ensure the continued repayment of the arrears. The court also decided to invite the Cabinet of Ministers to take measures to prevent the insolvency of LyNOS. The court noted that it was common ground between the parties that the arrears could be repaid in kind. 27. On 13 February 1998 the HAC decided that the insolvency proceedings should be heard by a three-judge panel, instead of by a single judge. Prior to this, the single judge sitting in the case had been challenged by the applicant company. 28. On 20 February 1998 LyNOS wrote a letter to the First Deputy Speaker of Parliament asking for his “assistance in establishing the lawfulness” of the HAC ’ s rulings issued in the course of the insolvency proceedings. 29. On 21 March 1998 the First Deputy Speaker of Parliament wrote a letter to the acting President of the HAC with a request “not to tolerate any prejudice or issuance of ungrounded decisions concerning the insolvency of LyNOS ”, which was claimed to be strategically important for the State. The letter also contained the following request: “ ... with a view to preventing any infringements of the interests of the State and violations of the legislation of Ukraine, you are requested to take an urgent decision quashing the ruling of 13 February 1998 and terminating the proceedings concerning the insolvency of LyNOS .” 30. By a letter of 6 April 1998 the HAC ’ s President replied that the ruling of 13 February 1998 was in compliance with the relevant legislation and could not be reviewed under a supervisory review procedure. 31. The applicant company, in turn, requested that the HAC review the ruling of 29 January 1998 by means of a supervisory review procedure. It maintained that, while the debts of LyNOS had been confirmed by documentary evidence and had to be repaid, the court had failed to establish the final amount of the outstanding debt or to demand any effective guarantees of its redemption from the debtor. 32. On 6 April 1998 the Panel of the HAC for the Review of Judgments, Rulings and Resolutions (“the Review Panel”) quashed the HAC ’ s ruling of 29 January 1998 inasmuch as it concerned leaving the outstanding creditors ’ claims unexamined, and remitted the case for fresh examination by a different bench. It noted that the procedures by which the debt would be repaid and the scope and methods of the debt ’ s repayment remained unclear. 33. On 20 April 1998 the Chairman of the Department for the Fuel and Energy Sectors of the Cabinet of Ministers of Ukraine, who was also the Chairman of the Supervisory Board of LyNOS, sent a “ statement regarding the case” to the HAC, in which he noted, in particular, the following: “The prolonged continuation of the insolvency proceedings against LyNOS is inflicting both pecuniary and non-pecuniary damage on the company and deters potential investors. ... I urge you to terminate the insolvency proceedings against LyNOS .” 34. On 22 April 1998 LyNOS complained to the President of Ukraine that the HAC ’ s ruling of 6 April 1998 had been unlawful and asked him to intervene with a view to terminating the insolvency proceedings. 35. On 4 May 1998 the Prime Minister informed the HAC ’ s President that the management board and the trade unions of LyNOS disagreed with the court ’ s ruling of 6 April 1998 and requested that “this issue be considered in line with the established procedure”. 36. On 18 May 1998 the State Property Fund asked the HAC to terminate the insolvency proceedings. It noted that it could not proceed with the sale of its shares in LyNOS, given the prohibition by the HAC in its ruling of 15 July 1997 on any change in the status of the company ’ s shares. 37. On 21 May 1998 the HAC found substantiated the requests of the creditors ’ committee to speed up the final determination of the amount of outstanding arrears and to demand guarantees of their repayment from the debtors. It instructed both the creditors and the debtor to comply with their obligations under its earlier ruling of 6 April 1998 and to develop a scheme ensuring the further repayment of the arrears. The court rejected as unsubstantiated a request by the State Property Fund to terminate the insolvency proceedings so that it could conduct a non-commercial competition for the sale of the shares. It instructed the Fund to submit to it all the documents concerning the aforementioned competition and its results. 38. On 2 July 1998 the HAC considered the applicant company ’ s request for determination of the final amount of the debtor ’ s outstanding arrears owed to it. The court noted that the applicant company had originally estimated the arrears at UAH 660,000,000, but, following negotiations with the debtor, that amount had been reduced to UAH 225,355,355 in accordance with the agreement of 20 August 1997 (see paragraph 22 above). Following the partial implementation by LyNOS of that agreement in September-December 1997, which the court viewed as confirmation that LyNOS had accepted its terms, the outstanding debt was UAH 216,150,544. 39. Having regard to the critical financial situation of the debtor, as well as its strategic significance for the economy of the State, the applicant company requested that the court confirm that amount as the final total of the arrears. Furthermore, it was prepared to consider the debt satisfied in full once 90% of it had been repaid. 40. LyNOS, in turn, accepted the applicant company ’ s claims only in part and requested that the court establish the amount of the outstanding arrears to be paid in kind. It considered the rulings of the HAC allowing the applicant company ’ s claims to be unlawful, even if they had remained valid. The company also blamed the Government for its non-compliance with its contractual obligations vis-à-vis the applicant company. It maintained that the agreement of 20 August 1997 could not be considered valid, as it did not regulate essential terms such as costs, time limits and conditions placed upon the supply of the oil products. 41. The court found that the total outstanding debt of LyNOS to the applicant company was UAH 216,150,544. 42. On 7 July 1998 LyNOS complained to the President of Ukraine that the Prosecutor General and the HAC ’ s President had failed to bring a protest on the basis of LyNOS ’ s request with a view to overturning the HAC ’ s ruling of 6 April 1998 and, accordingly, terminating the insolvency proceedings. It was noted in the letter: “ ... the absence of prosecutorial reaction to the unlawful insolvency proceedings against LyNOS ... and the absence of a clear position on the part of the President of the Higher Arbitration Court as regards this case, multiplied by the boldness, unsated ambitions and, probably, some selfish interests on the part of the creditors ’ committee, ... have become an obstacle not only to the normal process of privatisation of LyNOS ’ s shares, but even to its normal functioning.” 43. On 30 July 1998 the HAC ’ s President wrote a letter to the Prime Minister (no. 01-2.1/181), in which he “informed [him] of the ongoing insolvency proceedings against LyNOS pursuant to the instructions of the President of Ukraine of 6 May and 13 July 1998”. The following was noted, inter alia, in the above letter: “The arrears of the former Lysychansk Oil Refinery vis-à-vis [its] creditors who undertake entrepreneurial activities in Ukraine, are, first of all, the result of its improper compliance with its contractual obligations. Having received oil owned by customers, the refinery is obliged to return finished oil products to its owners as agreed. The companies had to supply most of those oil products, [in turn], to Ukrainian agricultural enterprises. The systematic violations by LyNOS of its contractual obligations, as well as its evasion of enforcement of the judicial decisions, have not only resulted in the arrears, but have also led to their accrual. ... In the course of the examination of the case, the court, within its competence, took appropriate measures for settlement of the debts between LyNOS and its creditors. LyNOS concluded civil law agreements with some of the creditors governing the terms and conditions of the debts ’ repayment, which are being implemented and which offers some hope that all the arrears can be settled that way. This is the expectation that the debtor itself expressed in its application to the President of Ukraine. However, despite this, the debtor is evading complying with the procedure of debt repayment agreed with [the applicant company ]. Having regard to the difficult economic situation of LyNOS, [the applicant] company considerably reduced [its] claims ... - from UAH 596,055,564 to UAH 216,150,544 .... I note for your information that the arrears of LyNOS in respect of [the applicant company ] emerged in 1992-93 and are confirmed by judgments of the Higher Arbitration Court of Ukraine. The lawfulness of those judgments has been verified by the supervision instances, including by the Plenary Session of the Higher Arbitration Court, which upheld them. However, since the commencement of the insolvency proceedings, LyNOS has not enforced the judgments despite the fact that they have the force of law. Its statement that by the conclusion of the agreements with the creditors concerning the terms of and procedures for the repayment of the arrears it was released from the necessity to comply with the judgments is unlawful. Derzhgazprom, on the instruction of the Cabinet of Ministers of 26 July 1998 ..., investigated and fully confirmed the fact of LyNOS ’ s non-compliance with its contractual obligations, as a result of which the claims of [the applicant company ] were found to be fully justified. In its letter of 6 May 1995 ... this authority noted that during the second half of 1993 the leadership of the Lugansk regional authorities had grossly violated Ukrainian legislation, having ordered LyNOS to divert, free of charge, the oil products belonging to [the applicant company]. This undermines the statements of the debtor that it was not its fault that those oil products had not been delivered to their owners. The debtor did not even use the aid provided by the Government for repayment of the arrears. In June 1993 Ukrderzhnaftogaz provided LyNOS with resources ... and approved a schedule of delivery of oil products during the period from June to September 1993 which was to remain in force until the full repayment of the debt to [the applicant company ]. The [debtor] company delivered only 33,000 tons of those oil products during June and July 1993 and refused further repayment of the arrears, which exceeded this volume by several times. The demand to terminate the proceedings contradicts the law and cannot be satisfied until the complete repayment of the arrears. ... In the course of the examination of the case, the court exhausted all legally envisaged possibilities of saving the debtor from insolvent liquidation. The creditors have made it clear that it is not their goal to have the debtor liquidated or to get its assets into their possession. They insist on gradual repayment of the debts in compliance with the agreed schedules and, subject to that, do not object to termination of the proceedings upon the complete repayment of the arrears. Given the complexity of the settlements between the debtor and the creditors and the lack of clarity as to the final time- frame of the repayment of the arrears, which inevitably leads to the accrual of damages due to inflation and a loss of income for the creditors, and with a view to the recovery of the debtor company, it is deemed necessary to create a taskforce to investigate the problem onsite. In our opinion, it would be desirable to investigate and finally determine the destiny of the oil products produced by LyNOS from the oil owned by customers .” 44. On the same date, 30 July 1998, the Cabinet of Ministers created a taskforce to establish the reasons for the arrears of LyNOS vis-à-vis its foreign and domestic creditors and to study the consequences of settlement of their claims. It consisted of representatives of: the Cabinet of Ministers, the Ministry of Justice, the Ministry of the Economy, the Ministry of the Interior, the Ministry of Finance, the State Property Fund, the Main Audit Department, the Insolvency Prevention Agency, the National Agency for Reconstruction and European Integration, the State Security Service, the Prosecutor General ’ s Office, and LyNOS. 45. On 31 August 1998 the taskforce issued its report, which contained, inter alia, the following findings. LyNOS was the biggest oil refinery in Ukraine and was able to satisfy up to 35% of the fuel needs of the country. All the oil it had refined during 1998 belonged to Russian commercial entities, which had showed increasing interest in the company given its proximity to the Russian border. The report concluded that the company was insolvent. It noted that the final amount of its arrears vis-à-vis the applicant company, as confirmed by the HAC in its ruling of 2 July 1998, was UAH 216,150,544. The main reason for the company ’ s indebtedness had been the decision of the State authorities (in 1992 – according to the report in question, in 1993 – according to all the other documents in the case file) to divert the oil products produced by LyNOS from oil owned by customers for State needs. 46. The report also contained the following statement: “The taskforce supports the proposal [apparently, advanced by LyNOS] that the Higher Arbitration Court of Ukraine must also take into account ... the State ’ s share of the company ’ s assets and the other factors which were not taken into account during the previous hearings. This concerns fulfilment of the obligations in kind, since their translation into pecuniary terms caused the amount of the arrears to be overstated. ” 47. However, the taskforce considered that the amount of the outstanding debt of the company vis-à-vis the applicant company had to be verified, by means of expert reports if required. It further underlined a finding of the HAC in another case, according to which the indexation of debt to inflation had not been envisaged by the relevant legislation, and maintained that a similar line should be followed in the present case. It recommended suspending the insolvency proceedings until the “factual indebtedness of LyNOS vis-à-vis commercial enterprises was established on the basis of a documentary audit”. 48. According to the above report, the taskforce had been created at the request of the HAC ’ s President, such request having been expressed in a letter (no. 01-2.1/181) dated 30 July 1998, and pursuant to the above-mentioned order of the Cabinet of Ministers. 49. On 31 August 1998 the Review Panel rejected a request from LyNOS for an extension of the time-limit for challenging the HAC ’ s ruling of 15 July 1997 under the supervisory review procedure. 50. On 10 September 1998 the HAC ’ s President lifted the ban on changing the status of LyNOS ’ s shares which had been imposed by the HAC ’ s ruling of 15 July 1997. This was done at the request of LyNOS, which intended to conduct a non-commercial competition for the sale of the State ’ s shares in the company equal to 41.4% of its share capital. The sale was intended to help the company overcome its financial crisis and avoid insolvency. 51. On 12 September 1998 the First Deputy Prime Minister wrote a letter to the HAC ’ s President in which he asked him to also lift the ban on transferring the ownership of LyNOS ’ s shares. The letter stated: “ ... the members of the taskforce created at your request by an order of the Cabinet noted that the amount of [LyNOS ’ s] arrears vis-à-vis its domestic creditors requires further clarification and in-depth and thorough verification. Given the fact that LyNOS runs the biggest and the most modern oil refinery in Ukraine and having regard to its importance to the economy and security of the State, ... you are requested to consider the findings of the taskforce, to lift the ban on the sale of the company ’ s shares and to postpone the examination of the insolvency proceedings pending a determination of the final amount of its arrears vis-à-vis the domestic creditors.” 52. On 14 September 1998 the First Deputy Prime Minister instructed the Ministry of Finance, the Ministry of the Economy, the Ministry of the Interior, the National Agency for Reconstruction and European Integration, the State Property Fund, the State Tax Administration, Derzhnaftogazprom and the Insolvency Prevention Agency to ensure that a “thematic documentary audit of the agreements for oil refining entered into by LyNOS in 1992 and the amount of [its] arrears vis-à-vis the domestic creditors ” be undertaken by 10 October 1998. 53. On 9 October 1998 the Main Audit Department informed the Cabinet that it had checked the agreements entered into by LyNOS in 1992 and found that the company had delivered oil products to State agricultural enterprises pursuant to governmental instructions. There had been no documents or information suggesting that the Government had ever paid for that. As a result, the arrears of LyNOS (then called the Refinery) had emerged vis-à-vis its customers, commercial enterprises, and as of 1 January 1993 had been equal to 640,700 tons of oil products. 54. On 26 October 1998 the HAC rejected a request by LyNOS for an expert assessment of its arrears in respect of the applicant company, noting that it had already established the final amount of those arrears. On 21 January and 26 April 1999 the Review Panel upheld that ruling. 55. On 22 June 1999 the applicant company lodged a request with the Review Panel for review of the ruling issued by the HAC ’ s President on 10 September 1998. It claimed that he had lacked the power to make such a ruling. The applicant company submitted that the creditors had not previously challenged the ruling because it had been issued in order to enable a non-commercial competition to be held for sale of the State ’ s shares, amounting to 41.4% of the share capital in the company, and the competition had been subject to a guarantee that the arrears would be repaid by the company ’ s new owners. Referring to the fact that such a competition had never taken place and that, according to the media, there was instead a new plan to sell over 50% of the shares ( a controlling share) without any guarantee of repayment of the debts, the applicant company had sought to have the ruling of 10 September 1998 overturned and its claim secured by a ban on the sale of the State ’ s shares in LyNOS until the insolvency proceedings were complete. 56. On 9 July 1999 the HAC ’ s President wrote a letter to the First Deputy Prime Minister, in which he noted that the original claim of the applicant company in respect of LyNOS had been reduced through an agreement between the parties from UAH 596,055,564 to UAH 216,150,544, with the latter figure having been confirmed by the court. The letter stated that the creditors had agreed to a restructuring of LyNOS ’ s arrears for a term of five years, subject to an approved debt repayment schedule being formalised by a judicial decision and having its enforcement guaranteed. At the same time they had agreed, subject to the aforementioned conditions, to reduce the amount of the arrears payable in kind. With reference to the aforementioned points, the HAC ’ s President underlined that the court had exhausted all procedural possibilities for saving the debtor from insolvent liquidation. He proposed to take into account the above suggestions of the creditors for overcoming the company ’ s financial crisis made in the extrajudicial restructuring process, as the situation pertaining at the time had led to the accrual of the arrears due to inflation and to a loss of income for the creditors. 57. On 16 July 1999 the creditors ’ committee submitted its proposals for restoring the solvency of LyNOS and preventing its insolvency to the First Deputy Prime Minister. It proposed, inter alia, to transfer into the trust of the creditors ’ committee the State ’ s shares in LyNOS in an amount equal to the company ’ s arrears as a guarantee of the repayment of those arrears. The creditors ’ committee drew the attention of the First Deputy Prime Minister to what it described as “unlawful pressure by the authorities on the creditors and on the court, as well as the unacceptable protraction of the search for a solution to [this] acute problem”. 58. On 15 September 1999 LyNOS asked the Speaker of Parliament “to apply to the Higher Arbitration Court with a view to termination of the insolvency proceedings”. It contended that the HAC had wrongly resumed the insolvency proceedings, having overturned its earlier ruling of 29 January 1998 on 6 April 1998. It submitted that the HAC had “chosen to allow the claims of the creditors, who seek unjust enrichment ... ”. 59. On 12 November 1999 LyNOS instituted proceedings before the Kyiv City Arbitration Court seeking to have its contracts with the applicant company for oil refining entered into in 1991 and 1993, as well as the agreement of 20 August 1997 concerning the repayment of the arrears, declared formally invalid. On 24 December 1999 the HAC took the case over. 60. On 25 February 2000 LyNOS wrote a letter to the President of Ukraine in which it noted that extensive efforts were being made to overcome its financial crisis and that there was interest in it from a potential foreign investor. It considered, however, that “the position of a number of non- State creditors of the company [was] an obstacle to obtaining an effective result from the measures taken by the State authorities and to realisation of the investor ’ s potential”. It underlined that the applicant company was “blocking the possibility of resolving the problem in a civilised manner”. The company asked the President “to give instructions to the relevant State authorities to verify, within the legal framework, the soundness of [the applicant company ’ s] claims against LyNOS, the nature of their emergence and to determine the correct amount of the arrears.” 61. On 13 March 2000 the State Property Fund ordered that a tendering commission be created to further the commercial sale of the State ’ s shares in LyNOS (representing 67.41% of its share capital ). 62. On 17 March 2000 the HAC rejected LyNOS ’ s claim for the invalidation of its contracts with the applicant company entered into in 1991 and 1993, as well as the agreement of 20 August 1997 concerning the repayment of the arrears. 63. On 27 March 2000 the HAC ’ s President wrote a letter to the President of Ukraine with the following contents: “Pursuant to your instruction of 20 March 2000, I am informing you of the progress of the insolvency proceedings against LyNOS. Twenty enterprises are creditors in this case, with claims for the repayment of arrears amounting to over one billion hryvnias. In the course of the examination of the case, the court took, within its competence, certain measures to settle the debts of LyNOS owed to its creditors. However, given the complexity of the settlements between the debtor and the creditors and with a view to the company ’ s recovery, I request that you create a taskforce of specialists which will investigate, within the company, the problem, including clarification of the amount of the arrears.” 64. On 12 April 2000 the State Property Fund requested that the HAC ’ s President lift the ban on sale of shares in LyNOS, given that the ruling of 10 September 1998 had only lifted the ban on changing the status of the shares and it remained unclear whether that also concerned their sale. On the same date the HAC ’ s President allowed the request. 65. On 15 April 2000 the Lugansk Regional Audit Department issued a report on the “ verification of the validity of the debt obligations of LyNOS vis-à-vis [the applicant company] and the lawfulness of inflation indexation and application of penalties”, which had been undertaken pursuant to the instructions of the Main Audit Department. It established the final arrears owed by LyNOS to the applicant company in the amount of UAH 36,401,894. The report considered that the findings of the HAC concerning the outstanding debt to the applicant company had been wrong and in contradiction of the applicable legislation. 66. By a ruling of 6 June 2000 the HAC imposed a moratorium on allowing the creditors ’ claims in the case and appointed an administrator of the debtor ’ s property (an individual person). 67. In July 2000 the State ’ s shares in LyNOS, amounting to 67.41% of its share capital, were sold to a Russian company. 68. On an unspecified date in 2000 LyNOS applied to the Review Panel for review of the rulings of the Poltava Arbitration Court of 3 March 1997 and of the HAC of 2 July 1998 (both rulings concerning the amount of the outstanding debts of LyNOS vis-à-vis the applicant company ) on the basis of newly-discovered circumstances. It referred to the above report of the Lugansk Regional Audit Department of 15 April 2000 as the newly ‑ discovered circumstance warranting the review. 69. On 19 September 2000 the HAC examined the above application. Having found that the report relied on did not contain any new information that was not known at the time when the challenged rulings had been issued, the HAC ruled to “uphold the part of the [ relevant ] ruling regarding the final determination of the debt of LyNOS to the [applicant company]”. The court also noted that the ruling of the Poltava Arbitration Court of 3 March 1997 had determined the amount of the debt only in preliminary terms, while the amount later defined as final in the HAC ’ s ruling of 2 July 1998 had been based on the agreement between the parties of 20 August 1997. Furthermore, the court had secured the creditors ’ claims by imposing a ban on any activities involving the debtor ’ s assets. 70. Later in September 2000 the HAC ’ s President, relying on Article 92 of the Code of Arbitration Procedure, instructed his two deputies to review the HAC ’ s ruling of 19 September 2000, as, according to him, “it had virtually [paralysed] the work of a company strategically important for the State, which could harm the property interests of both the creditors and the debtor, as well as undermine the fulfilment of the investor ’ s obligations to the State Property Fund”. 71. On 4 October 2000 the Review Panel allowed an application brought by LyNOS for the suspension of the enforcement of the HAC ’ s ruling of 19 September 2000 until the Panel had decided whether to undertake the supervisory review sought by the company. 72. On 26 December 2000 the Review Panel quashed the HAC ’ s ruling of 19 September 2000 (with the exception of two unrelated points) and remitted the case for fresh examination. 73. On the same date, the Chairman of the Board of LyNOS wrote a letter to the President of Ukraine thanking him “for [his] firmness and insistence in solving the issues of the company ’ s privatisation and recovery”. The letter noted that “the positive results were self-explanatory”. The company considered, in particular, that the new investor had contributed to overcoming its crisis. The letter also contained the following statements: “As a manager, I find disturbing the actions of [the applicant company], which [is] trying to put pressure on LyNOS and the investor ..., constantly exaggerating its claims in the insolvency proceedings examined by the Higher Arbitration Court ... It will be extremely difficult for LyNOS to solve these problems without your intervention. In this connection, I ask you to support our team of employees and to instruct the Prosecutor General ’ s Office and the Higher Arbitration Court of Ukraine to sort the situation out and to issue lawful decisions”. 74. On 29 December 2000 the President of Ukraine forwarded the above request to the HAC ’ s President and to the Prosecutor General with a note as follows: “Please sort this out and take decisions according to the legislation in force”. 75. At the request of LyNOS, on 20 June 2001 the Review Panel reviewed the HAC ’ s ruling of 17 March 2000 under the supervisory review procedure and upheld the ruling, having found no grounds for the invalidation of LyNOS ’ s contracts with the applicant company entered into in 1991 and 1993, as well as the agreement of 20 August 1997 on the repayment of arrears. 76. On 27 June 2001 the HAC, at the request of LyNOS, reviewed the rulings of the Poltava Arbitration Court of 3 March 1997 and of the HAC of 2 July 1998 concerning the amount of its outstanding debts vis-à-vis the applicant company on the basis of newly-discovered circumstances. The court considered that the agreement between the parties of 20 August 1997 (on which the earlier determination of the outstanding arrears had been based) was to be considered in law as a contract of supply. However, it had not contained all the elements required for such a contract and thus had to be declared invalid. Furthermore, the court considered that the creditors ’ committee had lost its powers on 4 May 2000, the effective date of amendments to the insolvency legislation envisaging new procedures for the creation and activities of creditors ’ committees. 77. By the same ruling, the HAC established the final amount of the outstanding debts of LyNOS vis-à-vis the applicant company to be UAH 97,406,920, having noted that the earlier amounts established had been of a preliminary nature. 78. The applicant company appealed against the above ruling of the HAC, contending, inter alia, that the review and reduction of the amount of the arrears contradicted the final judicial decisions in that connection, which had become res judicata. 79. On 13 July 2001 the Higher Commercial Court (the former Higher Arbitration Court, as renamed in June 2001) transferred the insolvency case to the Lugansk Regional Commercial Court (“the Lugansk Commercial Court ”) for further examination in line with amendments introduced to the legislation governing arbitration proceedings in June 2001. 80. On 26 July 2001 the Higher Commercial Court returned the applicant company ’ s appeal against the HAC ’ s ruling of 27 June 2001 to it, making reference to the transfer of the case to the Lugansk Commercial Court on 13 July 2001. 81. Between March and July 2001 the applicant company introduced several applications with the HAC for access to the case files regarding the insolvency proceedings and the proceedings concerning its claims against LyNOS (then called the Refinery) lodged in 1993 and 1994. By a letter of 16 July 2001 the Higher Commercial Court informed the applicant company that the files relating to its claims brought in 1993 and 1994 had been destroyed, as the time-limit for their storage had expired. The applicant company was, however, given access to the case file concerning the insolvency proceedings. It complained to the Prosecutor General ’ s Office and to the President of the Supreme Court about the destruction of the case files pertaining to the 1993 and 1994 claims and of irregularities in respect of the file concerning the insolvency proceedings (lack of page numbering and inadequate numbering and inventory of contents). On 3 August 2001 the Prosecutor General ’ s Office informed the applicant company that it had brought the irregularities discovered in the case file with regard to the insolvency proceedings to the attention of the President of the Higher Commercial Court. 82. On 29 October 2001 the Donetsk Commercial Court of Appeal considered an appeal by the applicant company against the HAC ’ s ruling of 27 June 2001. As a result, it changed the total of the outstanding arrears of LyNOS vis-à-vis the applicant company to UAH 90,762,268 in debt and UAH 220,809 in compensation for delayed repayment (UAH 90, 983,077 in total). 83. On 16 April 2002 the Higher Commercial Court dismissed an appeal in cassation brought by the applicant company against the above-mentioned ruling of 29 October 2001. 84. On 25 June 2002 the Lugansk Regional Commercial Court commenced the court-supervised restructuring of LyNOS. 85. On 26 December 2002 the Supreme Court, sitting as a bench of five judges, rejected the applicant company ’ s request for leave to appeal in cassation against the rulings of 26 December 2000 and 16 April 2002, having “failed to come to an agreement as to the presence in this case of legal grounds for the institution of cassation proceedings before the Supreme Court”. 86. On 21 November 2003 the creditors ’ committee and the debtor signed a friendly settlement agreement, according to which the creditors ’ claims were to be settled by exchanging them for the debtor ’ s assets. The applicant company, in particular, was to receive 90,983,077 shares owned by the debtor in the share capital of the Lysychansk Oil Investment Company in settlement of its claims (equal to UAH 90,983,077). Its claims would also have been considered settled had it refused to accept the aforementioned shares. 87. On 8 December 2003 the Lugansk Regional Commercial Court approved the above friendly settlement agreement, noting, inter alia, that the creditors ’ committee had voted for it unanimously. It declared the court-supervised restructuring of the debtor company complete and lifted the moratorium on settling the creditors ’ claims. The applicant company was not present at the hearing, although, as noted in the ruling of the Donetsk Commercial Court of Appeal of 22 April 2004 (see below), it had been duly notified of it. 88. The applicant company appealed against the above ruling, submitting, amongst other things, that it had had no opportunity to object to the friendly settlement agreement, that there had been no assessment of the value of the shares in the Lysychansk Oil Investment Company, and that it had not been established whether LyNOS had been authorised to repay its debts with the assets of the aforementioned company. 89. On 22 April and 28 September 2004 the Donetsk Commercial Court of Appeal and the Higher Commercial Court, respectively, dismissed the applicant company ’ s appeal and cassation appeal as unsubstantiated. 90. On 25 November 2004 the Supreme Court rejected a further request by the applicant company for leave to appeal in cassation. | This case concerned the insolvency proceedings initiated by a private company against the biggest oil refinery in Ukraine, in an attempt to recover its outstanding debts. The applicant company complained in particular about the unfairness of the insolvency proceedings, alleging that the domestic courts had not been independent or impartial given the intense political pressure surrounding the case, the State authorities having a strong interest in its outcome. |
139 | Sexual abuse | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1992 and lives in Cotiglet, Romania. At the time of the events complained of, she was aged fourteen years and four months. A. The events of 13 January 2007 6. On 13 January 2007 the applicant was attending a funeral wake in her village. At around 8 p.m. she went with two girlfriends, P.A. ( ten years old) and Z.F.D. ( fourteen years old) to fetch some drinking water at a neighbour ’ s house. On their way, three boys, M. I. C. ( fifteen years old), M.S. ( fifteen years old) and M.C.S. ( sixteen years old), approached the girls. M. I. C. pulled the applicant ’ s arm behind her back, grabbed her head and told her to go with him. The boys took her into the garden of a nearby deserted building, where a man, M. C. ( twenty-two years old), was waiting. 7. The three boys left and M. C. pushed the applicant to the ground, partially undressed her and had sexual intercourse with her. In the meantime, another man, A.C.L. ( twenty-six years old), arrived at the scene and tried to have sex with the applicant, but was physiologically incapable. A third man, V.F. ( thirty years old) was also there. He had also intended to have sexual intercourse with the applicant but finally decided to help her get up, clean and dress herself, and accompanied her back to the house where the funeral wake was being held. Twenty minutes later the applicant ’ s father came looking for her and she told him that she had been raped. He immediately alerted the police. B. The applicant ’ s subsequent medical condition 8. The applicant underwent a forensic examination by a doctor on 14 January 2007. According to the subsequent forensic medical report, there were no signs of traumatic lesions on the applicant ’ s body and no sperm could be found either. The forensic doctor found signs of pathology which could have resulted from sexual intercourse. Lastly, the doctor mentioned that the applicant was in a state of anxiety and fear, and he recommended psychological counselling and possibly a neuropsychiatric examination. 9. On 15 February 2007 the applicant was admitted to the Oradea Psychiatric Hospital. The hospital observation sheet stated that the applicant had sought treatment because she had been raped. She was diagnosed with stress-related anxiety, irritability, a sleep disorder, slight intellectual disability (an IQ of 68) and lice infestation. She was prescribed treatment with anxiolytics and anti-depressives, and was discharged from hospital in a slightly improved condition on 20 February 2007. 10. On 5 March 2007 an additional forensic medical report was issued at the request of the applicant ’ s father. It stated that the applicant presented a psychological disorder caused by a physical and psychological trauma to which she had been exposed on 13 January 2007. The doctor held that, according to the documents presented by the Oradea Psychiatric Hospital, the applicant ’ s condition had required fourteen days of medical care. No signs of pregnancy had been detected. 11. On 24 April 2007 the applicant was readmitted to the Oradea Psychiatric Hospital. According to the hospital observation sheet, her state of health was slightly improving but she had started to have headaches. She was discharged from hospital the following day, having been told to continue the initial treatment and to return for further tests at the end of May. 12. In July 2007 the applicant was again hospitalised in the Oradea Psychiatric Hospital for fourteen days with symptoms including frontal headaches, depression, tearfulness and feelings of social isolation. She was diagnosed with an emotional disorder, a sleep disorder and anaemia, among other conditions. She received treatment with neurotropic drugs, anxiolytics and vitamins. The doctors prescribed further treatment with neurotropic drugs and anxiolytics until a follow-up examination scheduled for September. C. The criminal investigation 13. On 14 January 2007 the applicant, accompanied by her father, lodged a formal complaint with the police. On the same day she made a written statement about the events of the previous day, accusing the three adult men involved in the incident of rape. She also mentioned that, all the way to the deserted house, M.I.C. and M.S. had held her by her arms and neck, not allowing her to leave, and had threatened to beat her if she screamed for help. The police accompanied the applicant and her father to the scene of the incident and took photographs. No objects or other evidence were found. 14. Later the same day, written statements were given to the police by M.C. and M.I.C. M.C. stated that he had not forced the applicant in any way and he had not been aware that she was under fifteen. He alleged that he had seen the applicant during the wake and had invited her to go with him to the deserted house, which she had done voluntarily. After he had had consensual sex with the applicant, he had left her in the company of M.C.S. and had returned to the wake. M.I.C. denied any involvement in the events, stating that he had not left the house where the wake had been held. 15. On 15 January 2007 A.C. L., V.F. and M.C.S. gave statements to the police. 16. A.C.L. stated that on the evening of 13 January 2007 he had been passing by the deserted house when he had heard noises coming from the garden. He decided to go inside to see what was happening. There he met V.F., who told him that M.C. was there with a girl. He saw M.C. on top of the applicant, having sex. After he had finished, M.C. called him to do the same thing. He tried, but was physiologically incapable of having sex so he stood up and put his clothes back on. He left together with M.C., who was waiting for him nearby. 17. M.C.S. stated that he had seen how M.I.C. had grabbed and twisted the applicant ’ s arm and had left with her from the wake. He had followed them together with M.S., but received a phone call and continued on a separate road. 18. In his statement, V.F. claimed that he had been at the wake when the applicant ’ s brothers had asked him to help them look for their sister. He left alone and went to the deserted house where he found the applicant with M.C. A.C.L. was also there. At that moment his phone rang so he did not pay attention to the three people. When he finished on the phone he heard the applicant calling him and went to her. She was alone, lying on the ground, undressed from the waist down. He asked her what had happened but she did not say anything. When she asked him to come closer, he started kissing her and wanted to have sex with her, but felt uneasy about it, so he helped her get dressed and clean up the mud on her coat, and accompanied her back to the wake. 19. On 17 January 2007 the applicant ’ s two girlfriends made statements to the police. They mentioned that M.I.C., M.S. and M.C.S. had approached the applicant, twisted her arm to her back and taken her with them. When she returned to the wake, the applicant did not tell them where she had been. P.A. also stated that she had heard the applicant shouting at the three boys to leave her alone. Z.F. had also seen the three boys surround the applicant and take her with them. 20. The applicant gave another detailed account of the facts in a statement drafted on 18 January 2007. She repeated that the three boys had forced her to go with them without saying where they were taking her, so she had not known what was going on. Once they arrived at the deserted house, there was M.C. who threatened to beat her if she would not accept to have sex with him. She further clarified that M.C.S. had kept her there by force until M.C. had raped her a second time. Then A.C.L. and V.F. came around and tried to rape her but failed and it was V.F. who had finally helped her leave the scene of the incident. Lastly, she mentioned that she had never had sex before the incident of 13 January and that M.C., A.C.L. and V.F. had known her and had been aware of her age. 21. M.S. stated to the police on 22 January 2007 that he had heard M.C. asking M.I.C. to take the applicant to the deserted house without telling her why. When the girls came out of the house where the wake was being held, he saw M.I.C. going after them and grabbing the applicant ’ s head, twisting her arm to her back and taking her in the direction of the deserted house. He denied having touched or spoken to the applicant. He had just walked behind her and continued on his way past the deserted house. M.C.S. gave the same account of the facts. 22. M.I.C. was questioned again on 22 January 2007, when he re ‑ considered his initial statement and told the police that M.C. had asked him, M.S. and M.C.S. to “grab” the applicant and take her to the deserted house. He then admitted having grabbed her by the arms, but claimed that afterwards she had walked along with him voluntarily. 23. On 6 February 2007 the police took another round of statements from those involved in the events, who reiterated their previous statements. In addition, all the men questioned stated that they knew for a fact that the applicant had had sex before with other men and that they had been unaware of her age at the time. 24. On 2 March 2007 the case was transmitted to the prosecutor ’ s office attached to the Bihor County Court in order for it to pursue the investigation into the crime of sexual intercourse with a minor. 25. On 26 April 2007 the applicant gave a statement before the prosecutor and requested that M.C., A.C.L., M.I.C., M.C.S. and M.S. be investigated for rape and complicity to rape. 26. M.C. and A.C.L. also gave brief statements before the prosecutor. M.C. claimed on this occasion that the applicant was the one who had sent word through M.I.C. that she wished to meet with him. A.C.L. stated that he knew the applicant had already had sex before and she had poor school results. 27. On 23 May 2007 the prosecutor indicted M.C. for the crime of sexual intercourse with a minor and A.C.L. for attempt to commit the same crime. The prosecutor based the decision on the following facts: the two men declared that they had not forced the applicant in any way; the forensic medical certificate attested to no signs of violence on the applicant ’ s body; and after returning to the wake she had not told her girlfriends what had happened to her. In view of those elements it was considered that the applicant had consented to have sex with M.C. and A.C.L. The witnesses, M.I.C., M.C.S. and M.S., did not know about M.C. ’ s intentions and therefore it was considered that they had no criminal responsibility in the case. The criminal proceedings were discontinued with respect to V.F. because he had not had sexual intercourse with the applicant. D. The trial 28. The Beiuş District Court scheduled a first hearing in the case on 15 June 2007. The applicant stressed before the court that M.C. had twice had sexual intercourse with her without her consent. In support of her allegations, she submitted copies of the medical reports referred to in paragraphs 8 - 11 above. She also claimed civil damages for the suffering caused by the actions of the two defendants. 29. M.C. testified before the court that, once he had arrived at the funeral wake, M.I.C. had told him that the applicant was waiting for him at the deserted house. When he reached the meeting point, the applicant started kissing him and asked him to go with her to the back of the garden, away from the road. They then lay down on his coat and the applicant started undressing herself. They had sexual intercourse once, which was consensual. He did it because V.F. had told him once that he had had sex with the applicant in the past. Lastly, M.C. mentioned that he had done this before with other girls at other funeral wakes. 30. A.C.L. reiterated the statements he had given during the investigation. He concluded his testimony before the court with the remark: “ ... I was asked by someone in the village whether it was true what happened and whether I was not ashamed of what I had done, but I replied that it was not safe to leave girls alone on the streets.” 31. On 31 August and 28 September 2007 the court heard statements from the applicant ’ s two girlfriends, as well as from M.I.C. and M.C.S. In her testimony Z.F. claimed that the applicant had been scared when she had returned to the wake. She also mentioned that the applicant was a well ‑ behaved girl who did not go out with boys or go to bars. M.C.S. stated that he had heard the applicant asking M.I.C. to let go of her hand, but the latter had refused. 32. In his testimony M. I.C. also stated as follows: “The next morning we went to the police to give statements and afterwards I asked M.C. what had really happened. He then told me that he had raped her [the applicant]. He did not seem too happy about his actions. We have played this game before at another wake : you must take the girl to a secluded place where she must be kissed by the boy she chooses. When the defendant [M.C.] told me he had raped the victim, he also mentioned that he had kissed her. ” 33. On 12 October 2007 the Beiuş District Court convicted M. C. of sexual intercourse with a minor and gave him a suspended sentence of one year and four months. A.C.L. was convicted of attempted sexual intercourse with a minor and given a suspended sentence of one year. 34. In reaching its decision the court firstly observed that the forensic medical report indicated that no signs of violence had been detected on the victim ’ s body. The court further established the course of the events on the evening of 13 January 2007 as described by M.I.C., M.C.S. and M.S. It cited the parts of the statements given by the applicant ’ s two girlfriends in which they had mentioned that the applicant had not cried for help. Lastly, the court concluded that the two defendants ought to have known that the injured party was under the age of fifteen. The court did not address the applicant ’ s statement, the medical reports attesting to her medical condition or her requests for the incident to be examined as rape. It rejected her claim for civil damages, considering that the medical conditions described in the forensic reports had no connection with the incident at issue. In addition, it had come to light from witness statements that the applicant had had sex before the impugned incident. 35. All parties to the trial, including the applicant represented by her lawyer, appealed against the decision of the Beiuş District Court. In her reasons for appeal the applicant claimed that the sexual abuse committed against her could only be classified as rape. She asked the court to extend the examination of the case to M.I.C., M.C.S. and M.S., whom she considered accomplices to rape. Lastly, the applicant considered that the medical reports submitted clearly attested to the suffering she had endured and therefore the court had erred in rejecting her claim for damages. 36. On 27 February 2008 the Bihor County Court decided to increase the sentences imposed on the two defendants to three years ’ imprisonment for M.C. and eighteen months ’ imprisonment for A.C.L. The decision of the Beiuş District Court concerning the classification of the crime and the suspension of the execution of the sentences was upheld. The County Court also decided to award the applicant 2,000 Romanian lei (RON ) ( approximately 600 euros (EUR) ) in respect of non-pecuniary damage. In reply to the applicant ’ s reasons for appeal, the court reasoned : “It must be mentioned that the victim tried to convince the court that, in fact, she had not agreed to have sexual intercourse with the two defendants and that she had been the victim of a rape, but these allegations had not been proved in any way. Hence, the witnesses Z.F. and P.A. ... stated that ... the injured party had not cried for help ... and had not told them what had happened. ... It must also be noted that from the forensic medical report ... it does not appear that the injured party was the victim of a rape, since she displayed no signs of post ‑ traumatic injury on her body .” 37. An appeal on points of law ( recurs ) lodged by the applicant against that judgment was rejected as ill-founded on 8 May 2008 by the Oradea Court of Appeal. The court declared briefly that by corroborating the victim ’ s statement with the forensic medical report of 14 January 2007, the existence of a crime of rape had been excluded in the case. | This case concerned the applicant’s alleged rape when she was fourteen years old and the ensuing investigation. The applicant complained that, there having been no physical evidence of assault, the criminal justice system in Romania had been more inclined to believe the men involved in the abuse, rather than her. Furthermore, the authorities, refusing to take into consideration her young age and physical/psychological vulnerability, had shown no concern for the need to protect her as a minor. |
170 | Conditions of detention | I. THE CIRCUMSTANCES OF THE CASE 8. The first applicant was born in 1970 and the second applicant in 1997. They live in Montreal ( Canada ). 9. The applicants are a mother (“the first applicant”) and her daughter (“the second applicant”). They explained that the first applicant had arrived in Canada on 25 September 2000, where she was granted refugee status on 23 July 2001 and obtained indefinite leave to remain on 11 March 2003. 10. After being granted refugee status, the first applicant asked her brother, K., a Dutch national living in the Netherlands, to collect the second applicant, then five years old, from the Democratic Republic of Congo (“the DRC”), where she was living with her grandmother, and to look after her until she was able to join her. 11. At 7.51 p.m. on 17 August 2002 K. arrived at Brussels National Airport with the second applicant. He did not have the necessary travel and immigration papers for his niece or documents to show that he had parental authority and so he tried, unsuccessfully, to persuade the immigration authorities that the second applicant was his daughter. He explained to the Belgian authorities that he had been on a trip to Kinshasa to visit his father ’ s grave and that the first applicant had asked him to bring the second applicant to Europe in order to join her in Canada. The child had been living with a grandmother who was now too old to look after her and the first applicant ’ s attempts to bring her to Canada lawfully had failed. 12. On the night of 17 to 18 August 2002 the federal police telephoned the first applicant to inform her of the situation and to give her a telephone number where she could ring her daughter. The first applicant explained that she had made an application to the Canadian authorities on behalf of her daughter. 13. On 18 August 2002 the second applicant was refused leave to enter Belgium and directions were made for her removal on the ground that she did not have the documents required by the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980. On the same day directions were issued for her to be held in a designated place at the border in accordance with section 74/ 5 of that Act. Pursuant to that decision the second applicant was detained in Transit Centre no. 127. Her uncle returned to the Netherlands. On the same day a lawyer was appointed by the Belgian authorities to assist the applicant and he applied for her to be granted refugee status. 14. On 19 August 2002 the Belgian authorities contacted the immigration department at the Canadian embassy in The Hague to request information on the first applicant ’ s immigration status in Canada. The immigration department informed them that the first applicant had applied for asylum and indefinite leave to remain in Canada. However, the application for asylum made no mention of the second applicant and so did not extend to her. In the interim, the first applicant lodged an application in Canada for a visa for her daughter. 15. On 20 August 2002 a lawyer, Mr Ma., informed the authorities that he had been instructed to replace the lawyer initially assigned to the second applicant and that he was taking steps to secure leave for the first applicant to bring her daughter to Canada. 16. On 22 August 2002 the Aliens Office enquired informally of the Dutch authorities whether they would be willing to take over the second applicant ’ s request for asylum under the Dublin Convention, but they refused. It also asked K. to furnish the addresses of the members of the family in Kinshasa. 17. In a letter to Transit Centre no. 127 dated 23 August 2002, the lawyer thanked the staff at the centre for the friendly welcome they had given to the second applicant and the care with which they had attended to her needs. 18. On 26 August 2002 the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office by e-mail of the first applicant ’ s former address in Kinshasa and her parents ’ address there. 19. On 27 August 2002 the second applicant ’ s request for asylum was declared inadmissible by the Aliens Office, which refused her leave to enter and gave directions for her removal. The decision stated that she had a right of appeal against the refusal to the Commissioner-General for Refugees and Stateless Persons under the expedited procedure and could apply within thirty days to the Conseil d ’ Etat for an order setting aside the removal directions. The second applicant lodged an appeal under the expedited procedure with the Commissioner-General for Refugees and Stateless Persons. 20. On 4 September 2002, in reply to an enquiry from the Aliens Office, the Belgian embassy in the DRC advised that the addresses of the members of the applicant ’ s family in Kinshasa it had obtained on the basis of information provided by the first applicant were incorrect. The applicants denied that K. had given false addresses. 21. In an e-mail of 23 September 2002, the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office that the first applicant had not yet been granted refugee status in Canada. 22. On 25 September 2002 at the hearing of the appeal under the expedited procedure, the Commissioner-General for Refugees and Stateless Persons upheld the refusal of leave to enter after finding that the second applicant ’ s sole aim had been to join her mother in Canada and clearly could not form a basis for an application for refugee status. He drew the Minister of the Interior ’ s attention to the fact that, as a minor, the second applicant was entitled to join her family by virtue of Article 10 of the Convention on the Rights of the Child dated 20 November 1989. 23. On 26 September 2002 Mr Ma. sent a letter to the Aliens Office advising it that the first applicant had obtained refugee status in Canada and had applied to the Canadian authorities for a visa for her daughter. He asked the Aliens Office to place the second applicant in the care of foster parents on humanitarian grounds in view of her age and position until such time as the Canadian authorities had granted her leave to enter. He added that Ms M., an 18- year-old Belgian national, would make a suitable foster parent. He explained that although the child was being well treated, she was very isolated at the centre and at risk of psychological damage as a result of being detained with adult foreign nationals whom she did not know. The Aid to Young People in the French Community Department, from whom Mr Ma. had sought assistance, supported the proposal. No reply was received to the request. From information in the case file it would appear that the Aliens Office dismissed the idea on the grounds that it would place the second applicant at risk, as a warrant had been issued in 1998 for the arrest of Ms M. ’ s father on suspicion of sexual offences against minors and he lived in the same town as Ms M., albeit at a different address. The Aliens Office also considered that there was a very real danger that the child would be taken away by her uncle. 24. In October 2002 the Aliens Office contacted the Office of the United Nations High Commissioner for Refugees ( UNHCR), the Red Cross and the Belgian embassy in Kinshasa. With the embassy ’ s help it was able, on the basis of K. ’ s statements, to identify and subsequently locate a member of the second applicant ’ s family, namely her maternal uncle, B. (a student living on a university campus with five other people in what the embassy described as suitable accommodation and who, according to the applicants, was the sole member of the family still living in the DRC). An official from the Belgian embassy in Kinshasa went to B. ’ s home and explained the situation to him, but B. told him that he did not have the means to look after the child. 25. On 9 October 2002 the second applicant ’ s lawyer lodged an application for her release with the chambre du conseil of the Brussels Court of First Instance under section 74 / 5, paragraph 1, of the Law of 15 December 1980. In the application, he sought an order setting aside the removal directions of 27 August 2002 and an order for the second applicant ’ s release and placement with Ms M. acting as a foster parent or, failing that, with an institute for young children. In the interim, he also contacted the UNHCR, which made enquiries of the family in Kinshasa from which it emerged that no one was prepared to look after the child. 26. On 10 October 2002 the Belgian authorities booked a seat on a flight on 17 October 2002 with the same airline as the second applicant had flown with on the outward journey (they cited its obligation under section 74 / 4 of the Law of 15 December 1980 to transport at its own cost anyone not in possession of the requisite travel papers or who had been removed on lawful grounds to the country from which he had come or any other country prepared to accept him). The UNHCR, Aid to Young People in the French Community Department and the Belgian embassy in Kinshasa were informed. 27. On 11 October 2002 Brussels Crown Counsel informed the Aliens Office of the second applicant ’ s application and requested the case file, which the Aliens Office supplied on 14 October 2002. 28. According to the Government, B. was informed on 12 October 2002 that his niece would be arriving at 5.45 p.m. on 17 October. 29. In a letter of 15 October 2002, the Aliens Office advised Crown Counsel of its views on the application for the second applicant ’ s release: “... the enquiries have enabled the person concerned ’ s family to be located in Kinshasa. In view of the positive results of the enquiries as a whole, a flight has already been arranged for Thursday 17 October 2002. The child will be met at Kinshasa by her family. A representative from our embassy will also be present. Lastly, we would note that the sole responsibility for the length of the applicant ’ s detention lies with her uncle, who has been uncooperative and has studiously avoided giving the Aliens Office the family ’ s address. Accordingly, in the child ’ s own interest, she should remain in detention until Thursday 17 October 2002, when she can be returned to her own family in Kinshasa. ” On the same day, after receiving confirmation from the Aliens Office that the child was to be removed, the Belgian embassy official in Kinshasa informed B. in the following letter, which was sent by recorded delivery : “Dear Sir, I wish to confirm the message which the embassy has received from the Department in Brussels, namely, the return of your niece Mubilanzila Tabitha to Kinshasa (N ’ Djili ) arriving on the Hewa Bora flight at 5.45 p.m. on Thursday 17 October 2002. Yours faithfully, ... ” 30. On 16 October 2002 the chambre du conseil of the Brussels Court of First Instance held that the second applicant ’ s detention was incompatible with Article 3 § § 1 and 2 of the Convention on the Rights of the Child and ordered her immediate release. Noting that it had no jurisdiction to authorise her placement in a foster home or an institution, it held that the application was well-founded in part. Its decision was served on the director of Transit Centre no. 127 that same day. Crown Counsel, who had the right to appeal against that decision within twenty-four hours, informed the director of the Centre by fax the same day that he was reserving his decision whether or not to appeal. On the same day the UNHCR ’ s representative in Brussels sent a fax to the Aliens Office requesting permission for the second applicant to remain in Belgium while her application for a Canadian visa was being processed. It drew the Office ’ s attention to the fact that there did not appear to be an adult in Kinshasa who was able and willing to look after the second applicant, since, according to the information in its possession, B. was still a student. It added that the first applicant had had refugee status in Canada since 23 July 2001, that the second applicant ’ s father had disappeared in August 2000 and that her twin sister had been taken to Congo- Brazzaville four months earlier. 31. On 17 October 2002 the second applicant was deported to the DRC. She was accompanied by a social worker from Transit Centre no. 127 who placed her in the care of the police at the airport. On board the aircraft she was looked after by an air hostess who had been specifically assigned to accompany her by the chief executive of the airline. The second applicant travelled with three Congolese adults who were also being deported. There were no members of her family waiting for her when she arrived. The Government explained that after considerable efforts the embassy official had obtained B. ’ s agreement to come to the airport to meet his niece. However, he had reneged on his promise at the last minute. 32. The parties have not formally established whether or not a member of the Belgian embassy was at the airport, as stated in the Alien Office ’ s letter of 15 October 2002. The second applicant stayed at the airport until 5.23 p.m. before eventually being collected by Ms T., a secretary at the National Information Agency of the DRC, who offered her accommodation. On the same day the first applicant rang Transit Centre no. 127 and asked to speak to her daughter. She was informed that she was no longer staying at the Centre and advised to contact the Aliens Office for further details, which she did. The Aliens Office did not provide her with any explanation but suggested she speak to the UNHCR, from whom she learnt of her daughter ’ s deportation to Kinshasa. 33. On 18 October 2002 the official from the Belgian embassy in Kinshasa went to B. ’ s home, only to discover that he had disappeared. On the same day the Belgian authorities received a message from the Canadian embassy in The Hague informing them that the first applicant had been granted refugee status and indefinite leave to remain in Canada with a work permit in 2002 and was consequently entitled to have her family join her. 34. The second applicant left the DRC on 23 October 2002 following the intervention of the Belgian and Canadian Prime Ministers, with the latter agreeing in principle to authorise the reunification of the family. The second applicant travelled to Paris with Ms T. and from there to Canada the same day on a Canadian visa. During the stopover in Paris, Ms T. and the second applicant were accompanied by two officials from the Belgian embassy. The journey was paid for by the Belgian authorities. The case had attracted considerable attention from the press in the meantime. 35. On 25 October 2002 the airline which had flown the second applicant back to Kinshasa informed the Aliens Office that she had not travelled alone, but with four other aliens who were also being removed. It said that it had arranged for an air hostess to look after her until she was handed over to the authorities in Kinshasa. 36. On 29 October 2002 the first applicant applied to the Canadian authorities for a visa permitting family reunification. 37. At the request of the Aliens Office, the director of Transit Centre no. 127 described the second applicant ’ s living conditions at the centre in a letter of 23 November 2004. He explained that she had been looked after by two women who were themselves mothers, that she had played with other children, that her uncle and mother had telephoned her nearly every day and that she had been allowed to telephone them free of charge under the supervision of a team of social workers; he added that her lawyer had paid her a number of visits and had brought her telephone cards, confectionary and money, that she had often played outdoors, had watched large numbers of videos, done drawings and arithmetic and had been comforted if she showed any signs of distress after telephone calls from her family. The director also explained that during the removal procedure the second applicant had been accompanied to the embarkation area (more precisely, the federal police checkpoint) by a social worker and that the entire staff at Transit Centre no. 127 were concerned about the welfare of children, particularly unaccompanied minors. | This case concerned the nearly two months long detention at a transit centre for adults run by the Aliens Office near Brussels airport of a five-year old Congolese national travelling alone to join her mother who had obtained refugee status in Canada, and her subsequent removal to her country of origin. The applicants (the mother and the child) submitted in particular that the detention of the child had constituted inhuman or degrading treatment. |
32 | Placement of Roma gypsy children in “special” schools | I. THE CIRCUMSTANCES OF THE CASE 11. Details of the applicants ’ names and places of residence are set out in the Annex. A. Historical background 12. According to documents available on the website of the Roma and Travellers Division of the Council of Europe, the Roma originated from the regions situated between north- west India and the Iranian plateau. The first written traces of their arrival in Europe date back to the fourteenth century. Today there are between eight and ten million Roma living in Europe. They are to be found in almost all Council of Europe member States and indeed, in some central and east European countries, they represent over 5% of the population. The majority of them speak Romany, an Indo-European language that is understood by a very large number of Roma in Europe, despite its many variants. In general, Roma also speak the dominant language of the region in which they live, or even several languages. 13. Although they have been in Europe since the fourteenth century, often they are not recognised by the majority of society as a fully fledged European people and they have suffered throughout their history from rejection and persecution. This culminated in their attempted extermination by the Nazis, who considered them an inferior race. As a result of centuries of rejection, many Roma communities today live in very difficult conditions, often on the fringe of society in the countries where they have settled, and their participation in public life is extremely limited. 14. In the Czech Republic the Roma have national - minority status and, accordingly, enjoy the special rights associated therewith. The National Minorities Commission of the Government of the Czech Republic, a governmental consultative body without executive power, has responsibility for defending the interests of the national minorities, including the Roma. As to the number of Roma currently living in the Czech Republic, there is a discrepancy between the official, census-based, statistics and the estimated number. According to the latter, which is available on the website of the Minorities Commission of the Government of the Czech Republic, the Roma community now numbers between 1 50,000 and 300,000 people. B. Special schools 15. According to information supplied by the Czech Government, the special schools ( zvláštní školy ) were established after the First World War for children with special needs, including those suffering from a mental or social handicap. The number of children placed in these schools continued to rise (from 23,000 pupils in 1960 to 59,301 in 1988). Owing to the entrance requirements of the primary schools ( základní školy ) and the resulting selection process, prior to 1989 most Roma children attended special schools. 16. Under the terms of the Schools Act (Law no. 29/1984), the legislation applicable in the present case, special schools were a category of specialised school ( speciální školy ) and were intended for children with mental deficiencies who were unable to attend “ordinary” or specialised primary schools. Under the Act, the decision to place a child in a special school was taken by the head teacher on the basis of the results of tests to measure the child ’ s intellectual capacity carried out in an educational psychology centre and was subject to the consent of the child ’ s legal guardian. 17. Following the switch to the market economy in the 1990s, a number of changes were made to the system of special schools in the Czech Republic. These changes also affected the education of Roma pupils. In 1995 the Ministry of Education issued a directive concerning the provision of additional lessons for pupils who had completed their compulsory education in a special school. Since the 1996/97 school year, preparatory classes for children from disadvantaged social backgrounds have been opened in nursery, primary and special schools. In 1998 the Ministry of Education approved an alternative educational curriculum for children of Roma origin who had been placed in special schools. Roma teaching assistants were also assigned to primary and special schools to assist the teachers and facilitate communication with the families. By virtue of amendment no. 19/2000 to the Schools Act, which came into force on 18 February 2000, pupils who had completed their compulsory education in a special school were also eligible for admission to secondary schools, provided they satisfied the entrance requirements for their chosen course. 18. According to data supplied by the applicants, which was obtained through questionnaires sent in 1999 to the head teachers of the 8 special schools and 69 primary schools in the town of Ostrava, the total number of pupils placed in special schools in Ostrava came to 1,360, of whom 762 (56%) were Roma. Conversely, Roma represented only 2.26% of the total of 33,372 primary-school pupils in Ostrava. Further, although only 1.8% of non-Roma pupils were placed in special schools, in Ostrava the proportion of Roma pupils assigned to such schools was 50.3%. Accordingly, a Roma child in Ostrava was 27 times more likely to be placed in a special school than a non-Roma child. According to data from the European Monitoring Centre on Racism and Xenophobia (now the European Union Agency for Fundamental Rights), more than half of Roma children in the Czech Republic attend special schools. The Advisory Committee on the Framework Convention for the Protection of National Minorities observed in its report of 26 October 2005 that, according to unofficial estimates, the Roma represent up to 70% of pupils enrolled in special schools. Lastly, according to a comparison of data on fifteen countries, including countries from Europe, Asia and North America, gathered by the Organisation for Economic Cooperation and Development in 1999 and cited in the observations of the International Step by Step Association, the Roma Education Fund and the European Early Childhood Education Research Association [1], the Czech Republic ranked second highest in terms of placing children with physiological impairments in special schools and in third place in the table of countries placing children with learning difficulties in such schools. Further, of the eight countries who had provided data on the schooling of children whose difficulties arose from social factors, the Czech Republic was the only one to use special schools; the other countries concerned almost exclusively used ordinary schools for the education of such children. C. The facts of the instant case 19. Between 1996 and 1999 the applicants were placed in special schools in Ostrava, either directly or after a spell in an ordinary primary school. 20. The material before the Court shows that the applicants ’ parents had consented to and in some instances expressly requested their children ’ s placement in a special school. Consent was indicated by signing a pre-completed form. In the case of applicants nos. 12 and 16, the dates on the forms are later than the dates of the decisions to place the children in special schools. In both instances, the date has been corrected by hand, and one of them is accompanied by a note from the teacher citing a typing error. The decisions on placement were then taken by the head teachers of the special schools concerned after referring to the recommendations of the educational psychology centres where the applicants had undergone psychological tests. The applicants ’ school files contained the report on their examination, including the results of the tests with the examiners ’ comments, drawings by the children and, in a number of cases, a questionnaire for the parents. The written decision concerning the placement was sent to the children ’ s parents. It contained instructions on the right to appeal, a right which none of them exercised. 21. On 29 June 1999 the applicants received a letter from the school authorities informing them of the possibilities available for transferring from a special school to a primary school. It would appear that four of the applicants (nos. 5, 6, 11 and 16 in the Annex ) were successful in aptitude tests and thereafter attended ordinary schools. 22. In the review and appeals procedures referred to below, the applicants were represented by a lawyer acting on the basis of signed written authorities from their parents. 1. Request for reconsideration of the case outside the formal appeal procedure 23. On 15 June 1999 all the applicants apart from those numbered 1, 2, 10 and 12 in the Annex asked the Ostrava Education Authority ( Školský úřad ) to reconsider, outside the formal appeal procedure ( přezkoumání mimo odvolací řízení ), the administrative decisions to place them in special schools. They argued that their intellectual capacity had not been reliably tested and that their representatives had not been adequately informed of the consequences of consenting to their placement in special schools. They therefore asked the Education Authority to revoke the impugned decisions, which they maintained did not comply with the statutory requirements and infringed their right to education without discrimination. 24. On 10 September 1999 the Education Authority informed the applicants that, as the impugned decisions complied with the legislation, the conditions for bringing proceedings outside the appeal procedure were not satisfied in their case. 2. Constitutional appeal 25. On 15 June 1999 applicants nos. 1 to 12 in the Annex lodged a constitutional appeal in which they complained, inter alia, of de facto discrimination in the general functioning of the special- education system. In that connection, they relied on, inter alia, Articles 3 and 14 of the Convention and Article 2 of Protocol No. 1. While acknowledging that they had not appealed against the decisions to place them in special schools, they alleged that they had not been sufficiently informed of the consequences of placement and argued (on the question of the exhaustion of remedies) that their case concerned continuing violations and issues that went far beyond their personal interests. In their grounds of appeal, the applicants explained that they had been placed in special schools under a practice that had been established in order to implement the relevant statutory rules. In their submission, that practice had resulted in de facto racial segregation and discrimination that were reflected in the existence of two separately organised educational systems for members of different racial groups, namely special schools for the Roma and “ordinary” primary schools for the majority of the population. That difference in treatment was not based on any objective and reasonable justification, amounted to degrading treatment, and had deprived them of the right to education (as the curriculum followed in special schools was inferior and pupils in special schools were unable to return to primary school or to obtain a secondary education other than in a vocational training centre). Arguing that they had received an inadequate education and an affront to their dignity, the applicants asked the Constitutional Court ( Ústavní soud ) to find a violation of their rights, to quash the decisions to place them in special schools, to order the respondents (the special schools concerned, the Ostrava Education Authority and the Ministry of Education) to refrain from any further violation of their rights and to restore the status quo ante by offering them compensatory lessons. 26. In their written submissions to the Constitutional Court, the special schools concerned pointed out that all the applicants had been enrolled on the basis of a recommendation from an educational psychology centre and with the consent of their representatives. Furthermore, despite having been notified of the relevant decisions, none of the representatives had decided to appeal. According to the schools, the applicants ’ representatives had been informed of the differences between the special-school curriculum and the primary-school curriculum. Regular meetings of teaching staff were held to assess pupils (with a view to their possible transfer to primary school). They added that some of the applicants (nos. 5 to 11 in the Annex) had been advised that there was a possibility of their being placed in primary school. The Education Authority pointed out in its written submissions that the special schools had their own legal personality, that the impugned decisions contained advice on the right of appeal and that the applicants had at no stage contacted the Schools Inspectorate. The Ministry of Education denied any discrimination and noted a tendency on the part of the parents of Roma children to have a rather negative attitude to school work. It asserted that each placement in a special school was preceded by an assessment of the child ’ s intellectual capacity and that parental consent was a decisive factor. It further noted that there were eighteen educational assistants of Roma origin in schools in Ostrava. 27. In their final written submissions, the applicants pointed out (i) that there was nothing in their school files to show that their progress was being regularly monitored with a view to a possible transfer to primary school, (ii) that the reports from the educational psychology centres contained no information on the tests that were used, and (iii) that their recommendations for placement in a special school were based on grounds such as an insufficient command of the Czech language, an over-tolerant attitude on the part of the parents or an ill-adapted social environment, etc. They also argued that the gaps in their education made a transfer to primary school impossible in practice and that social or cultural differences could not justify the alleged difference in treatment. 28. On 20 October 1999 the Constitutional Court dismissed the applicants ’ appeal, partly on the ground that it was manifestly unfounded and partly on the ground that it had no jurisdiction to hear it. It nevertheless invited the competent authorities to give careful and constructive consideration to the applicants ’ proposals. (a) With regard to the complaint of a violation of the applicants ’ rights as a result of their placement in special schools, the Constitutional Court held that, as only five decisions had actually been referred to in the notice of appeal, it had no jurisdiction to decide the cases of those applicants who had not appealed against the decisions concerned. As to the five applicants who had lodged constitutional appeals against the decisions to place them in special schools (nos. 1, 2, 3, 5 and 9 in the Annex), the Constitutional Court decided to disregard the fact that they had not lodged ordinary appeals against those decisions, as it agreed that the scope of their constitutional appeals went beyond their personal interests. However, it found that there was nothing in the material before it to show that the relevant statutory provisions had been interpreted or applied unconstitutionally, since the decisions had been taken by head teachers vested with the necessary authority on the basis of recommendations by educational psychology centres and with the consent of the applicants ’ representatives. (b) With regard to the complaints of insufficient monitoring of the applicants ’ progress at school and of racial discrimination, the Constitutional Court noted that it was not its role to assess the overall social context and found that the applicants had not furnished concrete evidence in support of their allegations. It further noted that the applicants had had a right of appeal against the decisions to place them in special schools, but had not exercised it. As to the objection that insufficient information had been given about the consequences of placement in a special school, the Constitutional Court considered that the applicants ’ representatives could have obtained this information by liaising with the schools and that there was nothing in the file to indicate that they had shown any interest in transferring to a primary school. The Constitutional Court therefore ruled that this part of the appeal was manifestly ill- founded. III. COUNCIL OF EUROPE SOURCES A. The Committee of Ministers 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) 54. 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.” 55. 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. ...” B. The Parliamentary Assembly 1. Recommendation No. 1203 (1993) on Gypsies in Europe 56. 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. ...” 57. As far as education is concerned, the Recommendation states: “ ... vi. the existing European programmes for training teachers of Gypsies should be extended; vii. special attention should be paid to the education of women in general and mothers together with their younger children; 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 58. 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; iv. eradicating all practices of segregated schooling for Romany children, particularly that of routing Romany children to schools or classes for the mentally disabled; 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 the discrimination against Roma, especially in the fields of education and employment; ...” C. The European Commission against Racism and Intolerance (ECRI) 1. ECRI General Policy Recommendation No. 3: Combating racism and intolerance against Roma/Gypsies (adopted by ECRI on 6 March 1998) 59. The relevant sections of this Recommendation state: “The European Commission against Racism and Intolerance: ... Recalling that combating racism, xenophobia, antisemitism 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; Stressing that combating racism, xenophobia, antisemitism and intolerance is above all a matter of protecting the rights of vulnerable members of society; Convinced that in any action to combat racism and discrimination, emphasis should be placed on the victim and the improvement of his or her situation; 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; Convinced that the promotion of the principle of tolerance is a guarantee of the preservation of open and pluralistic societies allowing for a peaceful coexistence; 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) 60. The following definitions are used for the purposes of this Recommendation: “ 9 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. ” 61. 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. 3. The report on the Czech Republic published in September 1997 62. In the section of the report dealing with the policy aspects of education and training, ECRI stated that public opinion appeared sometimes to be rather negative towards certain groups, especially the Roma/Gypsy community, and suggested that further measures should be taken to raise public awareness of the issues of racism and intolerance and to improve tolerance towards all groups in society. It added that special measures should be taken as regards the education and training of the members of minority groups, particularly members of the Roma/Gypsy community. 4. The report on the Czech Republic published in March 2000 63. In this report, ECRI stated that the disadvantages and effective discrimination faced by members of the Roma/Gypsy community in the field of education were of particularly serious concern. It was noted that Roma/Gypsy children were vastly over - represented in special schools and that their channelling to special schools was reported to be often quasi-automatic. Roma/Gypsy parents often favoured this solution, partly to avoid abuse from non-Roma/Gypsy children in ordinary schools and isolation of the child from other neighbourhood Roma/Gypsy children, and partly owing to a relatively low level of interest in education. Most Roma/Gypsy children were consequently relegated to educational facilities designed for other purposes, offering little opportunity for skills training or educational preparation and therefore very limited opportunity for further study or employment. Participation of members of the Roma/Gypsy community in education beyond the primary school level was extremely rare. 64. ECRI therefore considered that the practice of channelling Roma/Gypsy children into special schools for those with mental retardation should be fully examined to ensure that any testing used was fair and that the true abilities of each child were properly evaluated. ECRI also considered that it was fundamental that Roma/Gypsy parents should be made aware of the need for their children to receive a normal education. In general, ECRI considered that there was a need for closer involvement of members of the Roma/Gypsy community in matters concerning education. As a start, the authorities needed to ensure that Roma/Gypsy parents were kept fully informed of measures taken and were encouraged to participate in educational decisions affecting their children. 5. The report on the Czech Republic published in June 2004 65. With regard to the access of Roma children to education, ECRI said in this report that it was concerned that Roma children continued to be sent to special schools which, besides perpetuating their segregation from mainstream society, severely disadvantaged them for the rest of their lives. The standardised test developed by the Czech Ministry of Education for assessing a child ’ s mental level was not mandatory and was only one of a battery of tools and methods recommended to the psychological counselling centres. As to the other element required in order to send a child to a special school – the consent of the child ’ s legal guardian – ECRI observed that parents making such decisions continued to lack information concerning the long-term negative consequences of sending their children to such schools, which were often presented to parents as an opportunity for their children to receive specialised help and be with other Roma children. ECRI also said that it had received reports of Roma parents being turned away from ordinary schools. ECRI also noted that the Schools Act had come into force in January 2000 and provided the opportunity for pupils from special schools to apply for admission to secondary schools. According to various sources, that remained largely a theoretical possibility as special schools did not provide children with the knowledge required to follow the secondary-school curriculum. There were no measures in place to provide additional education to pupils who had gone through the special- school system to bring them to a level where they would be adequately prepared for ordinary secondary schools. ECRI had received very positive feedback concerning the success of ‘ zero- grade courses ’ (preparatory classes) at pre-school level in increasing the number of Roma children who attended ordinary schools. It expressed its concern, however, over a new trend to maintain the system of segregated education in a new form – this involved special classes in mainstream schools. In that connection, a number of concerned actors were worried that the proposed new Schools Act created the possibility for even further separation of Roma through the introduction of a new category of special programmes for the “ socially disadvantaged ”. Lastly, ECRI noted that, despite initiatives taken by the Ministry of Education ( classroom assistants, training programmes for teachers, revision of the primary- school curriculum), the problem of low levels of Roma participation in secondary and higher education that had been described by ECRI in its second report persisted. D. Framework Convention for the Protection of National Minorities 1. The report submitted by the Czech Republic on 1 April 1999 pursuant to Article 25 § 1 of the Framework Convention for the Protection of National Minorities 66. The report stated that the government had adopted measures in the education sphere that were focused on providing suitable conditions especially for children from socially and culturally disadvantaged environments, in particular the Roma community, by opening preparatory classes in elementary and special schools. It was noted that “Romany children with average or above-average intellect are often placed in such schools on the basis of results of psychological tests (this happens always with the consent of the parents). These tests are conceived for the majority population and do not take Romany specifics into consideration. Work is being done on restructuring these tests”. In some special schools Roma pupils made up between 80% and 90% of the total number of pupils. 2. The report submitted by the Czech Republic on 2 July 2004 67. The Czech Republic accepted that the Roma were particularly exposed to discrimination and social exclusion and said that it was preparing to introduce comprehensive anti-discrimination tools associated with the implementation of the Council Directive implementing the principle of equal treatment. New legislation was due to be enacted in 2004 (the Act, Law no. 561/2004, was passed on 24 September 2004 and came into force on 1 January 2005). In the field of Roma education, the report said that the State had taken various measures of affirmative action in order to radically change the present situation of Roma children. The government regarded the practice of referring large numbers of Roma children to special schools as untenable. The need for affirmative action was due not only to the socio-cultural handicap of Roma children, but also to the nature of the whole education system and its inability to sufficiently reflect cultural differences. The proposed new Schools Act would bring changes to the special- education system by transforming “special schools” into “special primary schools”, thus providing the children targeted assistance in overcoming their socio-cultural handicap. These included preparatory classes, individual study programmes for children in special schools, measures concerning pre-school education, an expanded role for assistants from the Roma community and specialised teacher-training programmes. As one of the main problems encountered by Roma pupils was their poor command of the Czech language, the Ministry of Education considered that the best solution (and the only realistic one) would be to provide preparatory classes at the pre-school stage for children from disadvantaged socio-cultural backgrounds. The report also cited a number of projects and programmes that had been implemented nationally in this sphere (Support for Roma integration, Programme for Roma integration/Multicultural education reform, and Reintegrating Roma special- school pupils in primary schools). 3. Opinion on the Czech Republic of the Advisory Committee on the Framework Convention for the Protection of National Minorities, published on 25 January 2002 68. The Advisory Committee noted that, while the special schools were designed for mentally handicapped children, it appeared that many Roma children who were not mentally handicapped were placed in these schools due to real or perceived language and cultural differences between Roma and the majority. It considered that this practice was not compatible with the Framework Convention and stressed that placing children in such schools should take place only when absolutely necessary and always on the basis of consistent, objective and comprehensive tests. 69. The special schools had led to a high level of separation of Roma pupils from others and to a low level of educational skills in the Roma community. This was recognised by the Czech authorities. Both governmental and civil society actors agreed on the need for a major reform. There was however disagreement about the precise nature of the reform to be carried out, the amount of resources to be made available and the speed with which reforms were to be implemented. The Advisory Committee was of the opinion that the Czech authorities ought to develop the reform, in consultation with the persons concerned, so as to ensure equal opportunities for access to schools for Roma children and equal rights to an ordinary education, in accordance with the principles set out in Committee of Ministers Recommendation No. R (2000) 4 on the education of Roma/Gypsy children in Europe. 70. The Advisory Committee noted with approval the initiatives that had been taken to establish so-called zero classes, allowing the preparation of Roma children for basic school education, inter alia, by improving their Czech language skills, and encouraged the authorities to make these facilities more broadly available. It also considered the creation of posts of Roma pedagogical advisers in schools, a civil society initiative, to be a most positive step. The Advisory Committee encouraged the State authorities in their efforts to ensure the increase and development of such posts. A further crucial objective was to ensure a much higher number of Roma children had access to and successfully completed secondary education. 4. The Advisory Committee ’ s opinion on the Czech Republic, published on 26 October 2005 71. In this opinion, the Advisory Committee noted that the authorities were genuinely committed to improving the educational situation of Roma children, and were trying, in various ways, to realise this aim in practice. In that connection, it noted that it was too early to determine whether the revised educational system introduced by the new Schools Act (Law no. 561/2004) would substantially change the existing situation of over-representation of Roma children in special schools or special classes. 72. The Advisory Committee noted that the authorities were paying special attention to the unjustified placement of Roma children in special schools. Tests and methods used to assess children ’ s intellectual abilities upon school enrolment had already been revised with a view to ensuring that they were not misused to the detriment of Roma children. Special educational programmes had been launched to help Roma children overcome their problems. These included waiving fees for the last year of pre-school education, relaxing the rules on minimum class sizes, more individualised education, appointing educational assistants (mostly Roma), as well as producing methodological handbooks and guidelines for teachers working with Roma children. Preparatory pre-school classes had also been organised for Roma children, and had worked well, although on a fairly limited scale. To accommodate all the children concerned, these measures needed to be applied more widely. The Advisory Committee also took note of the special support programme for Roma access to secondary and higher education, and of the efforts that had been made to build up a network of qualified Roma teachers and educational assistants. 73. The Advisory Committee noted, however, that although constant monitoring and evaluation of the school situation of Roma children was one of the government ’ s priorities the relevant report submitted by the Czech Republic said little about the extent to which they were currently integrated in schools, or the effectiveness and impact of the many measures that had been taken for them. It noted with concern that the measures had produced few improvements and that local authorities did not systematically implement the government ’ s school support scheme and did not always have the determination needed to act effectively in this field. 74. The Advisory Committee noted with concern that, according to non-governmental sources, a considerable number of Roma children were still being placed in special schools at a very early age, and that revision of the psychological tests used in this context had not had a marked impact. According to unofficial estimates, Roma accounted for up to 70% of pupils in these schools, and this – having regard to the percentage of Roma in the population – raised doubts concerning the tests ’ validity and the methodology followed. This situation was made all the more disturbing by the fact that it also made it more difficult for Roma children to gain access to other levels of education, thus reducing their chances of integrating in society. Although legislation no longer prevented children from advancing from special to ordinary secondary schools, the level of education offered by special schools generally did not make it possible to cope with the requirements of secondary schools, with the result that most dropped out of the system. Although estimates of the number of Roma children who remained outside the school system varied, those who did attend school rarely advanced beyond primary school. 75. In addition, the Advisory Committee noted that, in spite of the awareness-raising initiatives taken by the Ministry of Education, many of the Roma children who attended ordinary schools were isolated by other children and by teaching staff, or even placed in separate classes. At the same time, it was recognised that in some schools Roma children were the largest pupil group simply because the schools concerned were located near the places where Roma resided compactly. According to other sources, material conditions in some of the schools they attended were precarious and the teaching they received was still, in most cases, insufficiently adapted to their situation. It was important to ensure that these schools, too, provided quality education. 76. According to the Advisory Committee priority had to go to placing Roma children in ordinary schools, supporting and promoting preparatory classes and also to educational assistants. Recruiting Roma teaching staff and making all education staff aware of the specific situation of Roma children also needed to receive increased attention. An active involvement on the part of the parents, in particular with regard to the implementation of the new Schools Act, also needed to be promoted as a condition sine qua non for the overall improvement of the educational situation of the Roma. Lastly, more determined action was needed to combat isolation of Roma children in both ordinary and special schools. A clearer approach, coupled with instructions and immediate action on all levels, was needed to put an end to unjustified placement of these children in special schools designed for children with mental disabilities. Effective monitoring measures, particularly designed to eliminate undue placement of children in such schools, had to be one of the authorities ’ constant priorities. E. Commissioner for Human Rights Final Report by Mr Alvaro Gil-Robles on the Human Rights Situation of the Roma, Sinti and Travellers in Europe (dated 15 February 2006) 77. 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 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 or a clear over-representation of Roma children in classes for children with special needs. Roma children were frequently placed in classes for children with special needs without an adequate psychological or pedagogical assessment, the real criteria clearly being their ethnic origin. 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 for further education and for finding employment in the future. The automatic placement of Roma children in classes for children with special needs was likely to increase the stigma by labelling the Roma children as less intelligent and less capable. At the same time, segregated education denied both the 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. 78. The Commissioner was told that in the Czech Republic the young members of the Roma/Gypsy community were drastically over-represented in “special” schools and classes for children with a slight mental disability. At the same time he noted that the authorities had introduced Roma assistant teachers in ordinary classes and set up preliminary classes and that these initiatives had had promising results, though only on a small scale due to the lack of adequate resources. In particular, preparatory classes for socially disadvantaged children had been central in efforts to overcome excessive attendance of Roma children in special schools. The Czech authorities deemed that preparatory schools attached to nursery schools had been particularly successful in easing the integration of Roma children in ordinary schools. In 2004 the Czech Republic also had 332 teaching assistants who attended to the special needs of Roma pupils. 79. It was also noted that special classes or special curricula for the 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 Romany -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. 80. 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. VI. OTHER SOURCES A. European Monitoring Centre on Racism and Xenophobia (now the European Union Agency for Fundamental Rights) 103. The information on education in the Czech Republic available on the website of the European Monitoring Centre includes the following. “In the Czech Republic, there are no official or non-official data on racism and discrimination in education available. The most serious problem of the Czech education system is still the segregatory placement of children from socially disadvantaged backgrounds (very often Roma) in special schools. More than half of Roma children study there. Such tendencies of the Czech education system especially at elementary schools were proved by extensive research carried out by the Institute of Sociology of the Academy of Sciences of the Czech Republic. Only a very small percentage of Roma youth enter secondary schools.” 104. The Monitoring Centre ’ s report entitled “ Roma and Travellers in Public Education ”, which was published in May 2006 and concerned what at the time were twenty-five member States of the European Union, noted, inter alia, that although systematic segregation of Roma children no longer existed as educational policy segregation was practised by schools and educational authorities in a number of different, mostly indirect, ways, sometimes as the unintended effect of policies and practices and sometimes as a result of residential segregation. Schools and educational authorities may, for example, segregate pupils on the basis of a perception of “their different needs” and/or as a response to behavioural issues and learning difficulties. The latter could also lead to the frequent placement of Roma pupils in special schools for mentally handicapped children, which was still a worrying phenomenon in member States of the European Union like Hungary, Slovakia and the Czech Republic. However, steps were being taken to review testing and placement procedures taking into account the norms and behavioural patterns of the Roma children ’ s social and cultural background. B. The House of Lords 105. In its decision of 9 December 2004 in the case of Regina v. Immigration Officer at Prague Airport and another ex parte European Roma Rights Centre and others, the House of Lords unanimously held that British immigration officers working at Prague Airport had discriminated against Roma wishing to travel from the airport to the United Kingdom as they had on racial grounds treated them less favourably than other people travelling to the same destination. 106. Baroness Hale of Richmond said, inter alia : “73. ... The underlying concept in both race and sex discrimination laws is that individuals of each sex and all races are entitled to be treated equally. Thus it is just as discriminatory to treat men less favourably than women as it is to treat women less favourably than men; and it is just as discriminatory to treat whites less favourably than blacks as it is to treat blacks less favourably than whites. The ingredients of unlawful discrimination are (i) a difference in treatment between one person and another person (real or hypothetical) from a different sex or racial group; (ii) that the treatment is less favourable to one; (iii) that their relevant circumstances are the same or not materially different; and (iv) that the difference in treatment is on sex or racial grounds. However, because people rarely advertise their prejudices and may not even be aware of them, discrimination has normally to be proved by inference rather than direct evidence. Once treatment less favourable than that of a comparable person (ingredients (i), (ii) and (iii)) is shown, the court will look to the alleged discriminator for an explanation. The explanation must, of course, be unrelated to the race or sex of the complainant. If there is no, or no satisfactory explanation, it is legitimate to infer that the less favourable treatment was on racial grounds ... 74. If direct discrimination of this sort is shown, that is that. Save for some very limited exceptions, there is no defence of objective justification. The whole point of the law is to require suppliers to treat each person as an individual, not as a member of a group. The individual should not be assumed to hold the characteristics which the supplier associates with the group, whether or not most members of the group do indeed have such characteristics, a process sometimes referred to as stereotyping. ... 75. The complaint in this case is of direct discrimination against the Roma. Indirect discrimination arises where an employer or supplier treats everyone in the same way, but he applies to them all a requirement or condition which members of one sex or racial group are much less likely to be able to meet than members of another: for example, a test of heavy lifting which men would be much more likely to pass than women. This is only unlawful if the requirement is one which cannot be justified independently of the sex or race of those involved ... But it is the requirement or condition that may be justified, not the discrimination. This sort of justification should not be confused with the possibility that there may be an objective justification for discriminatory treatment which would otherwise fall foul of Article 14 of the European Convention on Human Rights. ... 90. It is worth remembering that good equal opportunities practice may not come naturally. Many will think it contrary to common sense to approach all applicants with an equally open mind, irrespective of the very good reasons there may be to suspect some of them more than others. But that is what is required by a law which tries to ensure that individuals are not disadvantaged by the general characteristics of the group to which they belong. In 2001, when the operation with which we are concerned began, the race relations legislation had only just been extended to cover the activities of the immigration service. It would scarcely be surprising if officers acting under considerable pressure of time found it difficult to conform in all respects to procedures and expectations which employers have been struggling to get right for more than quarter of a century. 91. It is against this background that such evidence as there is of what happened on the ground at Prague Airport needs to be assessed. The officers did not make any record of the ethnic origin of the people they interviewed. The respondents cannot therefore provide us with figures of how many from each group were interviewed, for how long, and with what result. This, they suggest, makes it clear that the officers were not relying on the Authorisation: if they had been, they would only have had to record their view of the passenger ’ s ethnicity. If correct, that would have been enough to justify refusal of leave. But what it also shows is that no formal steps were being taken to gather the information which might have helped ensure that this high-risk operation was not being conducted in a discriminatory manner. It also means that the only information available is that supplied by the claimants, and in particular the ERRC which was attempting to monitor the operation. The respondents can cast doubt on the reliability of this, but they cannot contradict it or provide more reliable information themselves. ...” C. The United States Supreme Court 107. The Supreme Court issued its decision in the case of Griggs v. Duke Power Co., 401 US 424 (1971), in which it established the disparate impact test, after black employees at an electricity generating plant had brought proceedings on the grounds that their employers ’ practice of requiring them to hold a high school diploma or to pass an aptitude test, even for the least well-paid jobs, was discriminatory. Fewer blacks had managed to obtain the diploma or pass the standardised tests. The Supreme Court stated: “The [Civil Rights] Act [of 1964] requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race, and, if, as here, an employment practice that operates to exclude Negroes cannot be shown to be related to job performance, it is prohibited, notwithstanding the employer ’ s lack of discriminatory intent. ... The Act does not preclude the use of testing or measuring procedures, but it does proscribe giving them controlling force unless ... they are demonstrably a reasonable measure of job performance ... The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. ... Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.” | This case concerned 18 Roma children, all Czech nationals, who were placed in schools for children with special needs, including those with a mental or social handicap, from 1996 to 1999. The applicants claimed that a two-tier educational system was in place in which the segregation of Roma children into such schools – which followed a simplified curriculum – was quasi-automatic. |
641 | Journalists and publishing companies | I. THE CIRCUMSTANCES OF THE CASE 5. The first and second applicants, Mr Andrzej Stankiewicz and Ms Małgorzata Solecka, were born in 1974 and 1970 respectively and live in Piaseczno-Józefosław and Kraków. The third applicant, Presspublica sp. z o. o. is a limited liability company having its registered office in Warsaw. The company is the publisher of the daily newspaper “Rzeczpospolita” where the first and second applicants worked as journalists. A. Civil proceedings instituted by W.D. 6. It appears that A.F., the chief executive of the Polish branch of M.S.D. Inc. (“M.S.D.”), a large pharmaceutical company, approached journalists of the daily newspaper “Rzeczpospolita”. He informed them on condition of anonymity that the company had received a proposal to “arrange” the placement of its drug on the list of refunded drugs in exchange for a bribe. 7. On 12 May 2003 “Rzeczpospolita” published on the front and fourth pages an article entitled “ Drugs for millions of dollars ” ( “Leki za miliony dolarów” ), written by the first and second applicants. The subtitle read: “A pharmaceutical company asserts that the Head of the Private Office of the Minister of Health demanded a large bribe ” ( “koncern farmaceutyczny twierdzi, że szef gabinetu politycznego ministra zdrowia żądał dużej łapówki” ). 8. The journalists alleged that in the summer of 2002 W.D., the Head of the Private Office of the Minister of Health ( Szef Gabinetu Politycznego Ministra Zdrowia ) had demanded a bribe from representatives of a pharmaceutical company, offering in return his assistance in having a drug manufactured by the company placed on the list of drugs refunded within the framework of the national health care scheme. 9. In the article, the applicants recounted the circumstances of two meetings which had taken place in Warsaw restaurants. They were attended by W.D., B.O. – director of a private osteoporosis clinic and W.D. ’ s friend, as well as two representatives of the pharmaceutical company – Ł.Z. and H.M.N. The meetings had been devoted to the plan to set up jointly, by the two companies, a network of osteoporosis clinics in Poland. 10. The relevant parts of the article read: “W.D., the Head of the Private Office of M.Ł. [ Minister of Health], demanded a multi-million dollar bribe, offering his assistance in placing drugs on the list of refunded drugs – asserts foreign pharmaceutical company. W.D. rejects these allegations, and M.Ł. [the Minister] does not believe the version of events presented by the company. ... “It is the first such obvious case of a corruption proposal which has happened to me” – asserts the representative of the company. W.D. admits that he twice met the representatives of the company, but denies that he demanded money from them. ... Companies are keen to have their drugs placed on the list [of refunded drugs]. Why? Because the State pays part of their price so they are cheaper and more accessible to patients. It has been known for years that decisions concerning registration and placement of drugs on the list of refunded drugs were accompanied by “informal payments”. However, up to now the representatives of the pharmaceutical companies have never directly admitted that they were asked for a bribe. ... According to the director of the pharmaceutical company, W.D. was trying to convince [them] that the osteoporosis clinic [of B.O.] was a serious project. ... “He [W.D.] offered us cooperation and demanded a one-off rapid payment of 1.5 million dollars and then annual payments of 1-1.5 million. Money was to be spent on “infrastructure””. 11. The journalists sought comments from W.D. before the publication of the article. They put to him questions about his presence as a high-ranking State official at a business meeting between two companies. W.D. initially denied that he had participated in it. However, two days later he recalled that he had in fact participated in the second meeting. Contrary to his earlier assertions, he also stated that the issue of the list of refunded drugs had been discussed at the meeting but at the initiative of the pharmaceutical company. Eventually, W.D. admitted that his participation at the meetings had been inappropriate and stated that he had felt uncomfortable in his role of an official. 12. The Minister M. Ł. refused to speak to the journalists. In his written statement he asserted that W.D. ’ s participation at the meetings had not been inappropriate and that he did not believe the version of events as presented by the pharmaceutical company. 13. The journalists included in the article critical comments made by A.N., the Deputy Minister of Health responsible for drugs policy at the relevant time. A.N. stated that “W.D. was not authorised to participate at such meetings. It is not the role of the Head of the Private Office.” He also stated that “The Head of the Private Office should not be dealing with his business future in the course of carrying out his official duties”. 14. The article also included a report on the career of W.D. entitled “Doctor, businessman, official”. It described, inter alia, his activities in the Mazowiecki branch of the Alliance of the Democratic Left ( Sojusz Lewicy Demokratycznej ) and his association with M. Ł ., the future Minister of Health. On the recommendation of his party W.D. was appointed a member of the Board of the Mazowiecki Health Insurance Fund ( Mazowiecka Kasa Chorych ). After the parliamentary elections in the autumn 2001, won by the Alliance of the Democratic Left, W.D. together with the Minister of Health M.Ł. and the Deputy Minister A.N. became one of the most influential figures in the health ministry to the exclusion of three other deputy ministers. In September 2002 W.D. suddenly resigned from his position as the Head of the Private Office of the Minister. 15. On 22 May 2003 W.D. lodged a civil action with the Warsaw Regional Court against the applicants for infringement of his personal rights. He demanded that the defendants publish an apology and further sought 500,000 Polish zlotys (PLN) in compensation for non-pecuniary damage. Subsequently, he modified the latter claim and sought instead 50,000 PLN to be paid to a charity. W.D. submitted that the information about the alleged request for a bribe in exchange for the placement of a drug on the list of refunded drugs had been misleading and untrue. The newspaper ’ s allegations against W.D. had been based on unverified information originating from the representatives of the pharmaceutical company. 16. The applicants argued that the version of events presented in the article was credible and that they had observed due diligence in gathering information for their article. They further argued that the disclosure of the facts presented in the article had been justified in the public interest. 17. During the proceedings, the Warsaw Regional Court heard several witnesses, including the participants at the business meetings, i.e. B.O., H.M.N., Ł.Z., the claimant W.D. as well as A.F. and the journalists. 18. Ł.Z., an employee of the pharmaceutical company, testified that the meetings had been devoted to M.S.D. Inc. ’ s possible involvement in the project of setting up a network of osteoporosis clinics in Poland. This involvement, according to the expectations of B.O. ’ s company, was to be limited to making a payment of approximately PLN 400,000, i.e. approximately between USD 100,000 and USD 150,000, to a given bank account. According to Ł.Z. ’ s testimony, this proposal was not accepted by M.S.D. Inc., whose participation in the project was thereby terminated. Ł.Z. further testified that while indeed the participants had also talked about the possibility of placing a certain drug on the list of refunded drugs, there had been in fact no causal link between the two matters. 19. H.M.N., the finance director of the pharmaceutical company, testified that he had met W.D. and B.O. to discuss the same project. W.D. had introduced himself as a person representing a group which had been interested in the project. According to H.M.N., he expressed his surprise that the representative of the Government would be interested in the project involving a drug which had not been placed on the list of refunded drugs. At that point W.D. had stated that he would look into this issue. H.M.N. further stated that from the company point of view “there had been no connection between the project and the placement of the drug on the list”. The pharmaceutical company refused to participate financially in the project on the terms proposed by W.D. and B.O. 20. A.F., the chief executive of the company, testified that the participants at the meetings had discussed the project of setting up a network of clinics treating osteoporosis. He was informed by two of his employees present at the meeting that W.D. had proposed to the company to invest a certain amount in that project. According to A.F., W.D. had also discussed the issue of placement of the company ’ s drug used for treating osteoporosis on the list of refunded drugs. He considered that the two issues, namely the financial investment in the project and the placement of the company ’ s drug on the list were interconnected. He understood, basing himself on the information from his employees, that if the company had decided to invest in the project then the placement of its drug on the list of refunded drugs would have been possible. 21. B.O., director of a private osteoporosis clinic and friend of W.D., stated that the participants had discussed osteoporosis and the setting up of a network of clinics treating that illness. According to B.O., Ł.Z. had requested a meeting with W.D. and he had arranged it accordingly. B.O. denied that the participants at the meeting had discussed the issue of the placement of the company drug on the list of refunded drugs or that W.D. had demanded a bribe. 22. By a judgment of 17 June 2005 the Warsaw Regional Court dismissed W.D. ’ s claim. 23. The court established that in their article the applicants, besides their critical assessment of the Ministry of Health ’ s decision-making process concerning the registration and placement of drugs on the list of refunded drugs, described the events related by the anonymous representatives of the Polish branch of one of the large pharmaceutical companies. Their article was also based on the information received from A.N. (the Deputy Minister of Health), B.O., W.D. and the statement received from the Minister of Health. The assertions of the representatives of the pharmaceutical company were confronted with the statements of W.D. The journalists further presented W.D. ’ s professional and political career. In the article they pointed to specific contradictions and ambiguities in W.D. ’ s account of his meetings with the representatives of the pharmaceutical company. The article presented the claimant who was a high-ranking official in a negative light, but the readers were offered two versions of the relevant events and could make their own assessment of it. It was undisputed that W.D. had met twice in restaurants with H.M.N. and Ł.Z., the representatives of the American pharmaceutical company M.S.D. Inc. and introduced himself as the Head of the Private Office of the Minister of Health. 24. The Regional Court further established that W.D. assisted at the meetings with B.O., his friend and the owner of the Mokotów Osteoporosis Centre. The participants discussed the possibility of a joint undertaking of the two companies in developing a network of osteoporosis clinics in Poland. The pharmaceutical company was interested in the placement of its drug for the treatment of osteoporosis on the Ministry ’ s list of refunded drugs. The parties discussed the organisational and financial details of the joint project as well as the issue of the pharmaceutical company ’ s difficulties in securing the placement of its drug on the list. Eventually, the joint project failed because the pharmaceutical company had not accepted the financial terms of the Polish company. A.F. and H.M.N., respectively the chief executive and finance director of the Polish branch of M.S.D. Inc. approached the press and informed the journalists that W.D. had demanded from their company a bribe in exchange for the placement of the company ’ s drug on the list. 25. Two journalists, M. Solecka, who specialised in the public health issues, together with A. Stankiewicz became interested in the story. Before publishing the article, the journalists had spoken to A.F., H.M.N., B.O. and W.D. as well as high-ranking officials in the Ministry of Health in order to verify their information. A.F., the chief executive of the pharmaceutical company was considered by the journalists as a reliable source, especially as he had undertaken to confirm his story before the court if necessary. The court further noted that the version of events presented to the applicants by A.F. and H.M.N. had been consistent, while the version presented by W.D. had been varying and proved inaccurate upon verification. Faced with divergent accounts, the journalists decided to present two versions of the meetings between the parties. M. Solecka had observed for years irregularities in the process of placement of drugs on the list of refunded drugs and received anonymous information about them. 26. The Regional Court considered that the testimonies of A.F., H.M.N. and Ł.Z. in respect of the course of the meetings were in principle similar. Witness Ł.Z. stated that the claimant (W.D.) had undertaken to check the list of refunded drugs and the chances of placing on it the drug manufactured by M.S.D. The parties had also discussed the need for the pharmaceutical company to make a quick decision about the transfer of money to an indicated bank account to which the finance director had firmly objected and thus M. S. D. pulled out of the joint project. 27. The Regional Court found that part of the article contested by W.D. had corresponded to the version of events presented to the journalists by the directors of M. S. D. In view of the consistency of the directors ’ account and the lack of coherent explanation as to the course of the meetings by W.D. and B.O. the journalists could consider the former as a reliable source. Moreover, the court expressed a view that the mere fact of W.D. ’ s participation in the business meeting between two companies, during which he had introduced himself as a Ministry official, had placed him in an ambiguous and awkward situation and lent credibility to the account of the directors of M. S. D. In these circumstances the Regional Court held that the impugned article had been based on reliable and verified information. The accounts of the representatives of the M. S. D. and of W.D. had been accurately reported. It was further no doubt that the article had dealt with issues of public interest, namely corruption. 28. The court held that the article had infringed the personal rights of W.D. However, it found that the applicants ’ conduct had not been unlawful within the meaning of Article 24 of the Civil Code read in conjunction with the relevant provisions of the 1984 Press Act because the journalists had shown sufficient diligence in gathering and publishing the information and acted in accordance with the professional ethics. It noted that the information that the applicants had had at their disposal before the publication of the article had been sufficiently reliable to justify the allegation made in the article. Lastly, the court noted that the journalist had not been required to prove the truthfulness of their allegations in order to demonstrate the lack of unlawfulness in their actions. 29. W.D. appealed against the judgment and dropped his pecuniary claims. He argued that the journalists had largely based their conclusions on the version of events presented to them by A.F., and that the latter had deliberately sought to disparage him with a view to having the drug manufactured by M.S.D. Inc. placed on the list of refunded drugs. He further argued that A.F. had not in fact participated in the meeting at which the alleged offer of a bribe had been made, and thus his version of events could not be regarded as reliable. He further contended that while preparing the article the journalists had failed to question Ł.Z., who had served during the meeting as an interpreter of his conversations with H.M.N. He stressed that he spoke no English and H.M.N. did not speak or understand Polish, making any direct conversation between them impossible. 30. By a judgment of 11 October 2006 the Warsaw Court of Appeal allowed the appeal. 31. The Court of Appeal concurred with the lower court that W.D. ’ s personal rights had been infringed. It noted that the allegation levelled against the claimant that a high- ranking public official had demanded a bribe for securing a placement of the drug on the list of refunded drugs amounted to a criminal offence. The allegation that a person had committed or attempted to commit an offence amounted to a flagrant violation of one ’ s reputation. 32. The Court of Appeal, leaving aside the question of the truthfulness of the allegation raised, concentrated its analysis on whether the journalists had respected the special diligence required of them under the Press Act in order to rebut the presumption of unlawfulness of the infringement of W.D. ’ s personal rights. It referred to the case-law of the Supreme Court (the Supreme Court ’ s judgments of 14 May 2003, case no. I CKN 463/01, and of 18 February 2005, case no. I CKN 463/01) which held that in order to rebut the said presumption of unlawfulness it was sufficient to establish that a journalist had acted with requisite diligence, and that it was not necessary to prove the truthfulness of the allegations raised. Contrary to the lower court, the Court of Appeal found that the journalists had failed to observe special diligence in the preparation of their article. 33. It noted, first and foremost, that while preparing their article the applicants had failed to question Ł.Z., while the latter ’ s version of events had been crucial, given that W.D. and H.M.N. had relied on his interpretation to understand each other. The Court held that the journalists ’ failure to acquaint themselves with Ł.Z. ’ s version of events – given that there had been only four participants at the meeting – amounted to a cardinal error and clearly demonstrated that they had failed to observe due diligence. The court further noted that the version of events presented by A.F., the company ’ s chief executive, to the journalists had been essentially based on summary information concerning the meetings, given to him by H.M.N. and Ł.Z., and thus might have been inaccurate due to possible translation mistakes. The journalists had not attempted to confirm whether the latter ’ s version of events had corresponded to the version of Ł.Z., but on the other hand they had spoken to persons (certain members of parliament) who had not had much in common with the issues raised in the article. 34. The Court of Appeal observed that the reliability of A.F. was open to doubt. In this regard, it noted that the chief executive had clearly not wished that the journalists speak to Ł.Z. and that he had contacted the press only a few months after the impugned events had occurred. Furthermore, the list of refunded drugs for 2003 was only published in January of that year, while Ł.Z. had met the claimant in December 2002, on the instructions of A.F., to discuss the placement of the company ’ s drug on the list. The court noted that it could be concluded from that that if the company ’ s drug had been included on the Ministry ’ s list, then A.F. would not have disseminated the information which was the subject of the article. 35. The Court of Appeal also held that the first-instance court had erroneously assessed the testimonies of certain witnesses and concluded that the information that the applicants had had at their disposal before publication was insufficient for making the allegations of corruption against W.D. It was confirmed that B.O. had met with the representatives of M. S. D. to discuss the project of the network of osteoporosis clinics. This project was at the early stage but it was agreed that the financial contribution of M. S. D. would be in the region of 1-1.5 million USD. The parties did not agree on the form of this contribution. M. S. D. envisaged it in the form of supplying equipment and premises but did not accept the proposal of the Polish company to make a transfer of the above amount to an account of some unspecified company. According to the Court of Appeal it was only A.F. who had linked the demand to make the above payment with the issue of the list of refunded drugs. Witness H.M.N. stated that “there had been no connection between the project concerning osteoporosis clinics and the placement of the drug on the list”, while Ł.Z. denied that there had been any correlation between the two issues. Ł.Z. asserted that neither the claimant nor anyone else had proposed to have the drug placed on the list in exchange for a bribe. Accordingly, the court found that the witnesses ’ testimonies did not confirm the truthfulness of the allegations made by the journalists. 36. In conclusion, the Court of Appeal held that the applicants ’ conduct had been unlawful within the meaning of Article 24 of the Civil Code read in conjunction with the relevant provisions of the 1984 Press Act and infringed the claimant ’ s reputation and trust that was necessary in the exercise of his public duties. 37. The applicants were ordered to publish an apology in their newspaper, which the Court of Appeal worded as follows: “M.S. and A.S. [the first and second applicants], the authors of the article “ Drugs for millions of dollars”, published in the newspaper “Rzeczpospolita” of 12 May 2003, as well as the publisher of this newspaper, Presspublica sp. z o.o., hereby declare that by including in the article the statement to the effect that W.D. had offered to place a drug on the Minister of Health ’ s list of refunded drugs in return for a multi-million bribe, they infringed W.D. ’ s personal rights by exposing him to a loss of good reputation and trust necessary to pursue his public and professional activity and for that they present their apology.” 38. The applicants were also ordered to pay PLN 4,400 ( 1,100 euros (EUR) ) in court fees and to reimburse the costs of PLN 6,230 (EUR 1,550) to W.D. 39. The applicants lodged a cassation appeal against the judgment. They argued, inter alia, that their conduct had not been unlawful, as they had observed due diligence in gathering the material for their article and the information obtained from the persons that they had questioned before publication had been sufficiently reliable. Further, they submitted that it was their right and duty as journalists to publish an article about the issue of corruption and that they had acted in the public interest. 40. By a judgment of 13 April 2007, the Supreme Court dismissed the cassation appeal, holding that the applicants ’ conduct had in fact been unlawful. In doing so, the Supreme Court based its findings largely on the conclusions reached by the Warsaw Court of Appeal. It concurred with that court that the evidence in the case, in particular the testimonies of the witnesses, had not made it possible to establish that in the course of the negotiations concerning investment in osteoporosis clinics the claimant or anyone else had demanded a bribe with a view to securing the placement of the drug manufactured by the company on the list of refunded drugs. The Supreme Court ’ s judgment was served on the applicants on 20 June 2007. B. Criminal proceedings against W.D. 41. Following the publication of the article, on 22 May 2003 the Warsaw Appellate Prosecutor Office ( Department for the Organised Crime) opened an investigation in the case concerning a bribe-taking by a government official. 42. On 17 March 2004 the Warsaw Appellate Prosecutor charged W.D. with bribery in that W.D., as a public official, had demanded not less than 1.200.000 PLN from the pharmaceutical company in order to finance a network of osteoporosis clinics. The prosecutor alleged that W.D. jointly with the representative of the Mokotów Osteoporosis Centre had negotiated the project with the M. S. D. He had also participated in the registration in July 2002 of the limited liability company “Woman +50” which was subsequently intended to manage the network of clinics. Secondly, W. D. was charged with procurement fraud. The prosecutor alleged that W.D., as a deputy Chairman of the Board of the Mazowiecki Health Insurance Fund and the chief executive of the company “Woman +50”, had submitted false documents to the Mazowiecki Health Insurance Fund in order to secure contracts for the company. The prosecutor imposed preventive measures on W.D., namely a ban on leaving the country and ordered him to put up bail of PLN 200,000. 43. On 17 January 2007 the Warsaw Appellate Prosecutor discontinued the proceedings against W.D. in respect of the charge of bribery for lack of sufficient evidence that he had committed the impugned offence. | The applicants were two journalists and the publisher of the national daily newspaper where they both worked. The case concerned an article they published in that paper, in which they alleged that a high official of the Ministry of Health was involved in corrupt practices. The applicants complained that the Polish courts’ decisions had violated their right to freedom of expression. |
202 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1982 and 1981 respectively. The first applicant is serving a prison sentence in Kolomyya Prison no. 41. The second applicant lives in Khmelnytskyy [1]. A. Background events 6. On 13 March 2004 two persons wearing masks, one of whom was armed with a gun, attacked a certain Ms I. and her son at the door of their flat in Khmelnytskyy. In the course of the fight the armed intruder shot at Ms I., after which they both retreated without any further action and without their faces being seen. Some minutes later Ms I. died. B. Facts concerning the first applicant 1. The first applicant's detention from 20 to 23 May 2004 and administrative offence proceedings against him 7. On 20 May 2004, at about 1 p.m., the police apprehended the first applicant in the street and took him to the Pivdenno-Zakhidna Police Station. According to a written explanation addressed by one of the arresting officers to the Chief of the Pivdenno-Zakhidna Police Department, the apprehension was occasioned by the suspicious behaviour of the applicant, whom the police had seen “walking fast and looking around”, entering a building (according to the case-file materials, that was the building in which the applicant lived), leaving it when approached and trying to re-enter it later. In the applicant's submission, he was asked by two officers to go to the police station “to clarify some issues”, to which he agreed. 8. The applicant was body-searched in the police station. As a result, a packet containing a “green substance of plant origin” was discovered in his pocket. According to the applicant, it had been planted on him by the police. 9. On the same day, at 10. 45 p.m., on the premises of the police station, the applicant was placed in “administrative detention” on suspicion of illegal drug possession. As noted in the respective police report, the offence on suspicion of which the applicant was detained was “a breach of Article 44 of the Code on Administrative Offences”. 10. The applicant's relatives, while learning about his detention from a witness, were not informed of his whereabouts and enquired unsuccessfully at various police stations and detention facilities in the town, including the Pivdenno-Zakhidna Police Station. 11. On 22 May 2004 an expert report was issued, according to which the substance discovered in the applicant's pocket was not a drug. 12. On 23 May 2004 the applicant was released in the administrative offence proceedings “given the fact that all the circumstances of the case [had] been established and that [his release would] not impede further investigation”. He was however immediately re-arrested in the framework of the criminal proceedings (see below). 13. On 29 May 2004 the police terminated the administrative offence proceedings, finding that there was no case to answer. 2. Alleged ill-treatment of the first applicant and corresponding investigation 14. The applicant's account of the events of 21 May 2004 is as follows. During the night of 20 to 21 May 2004 he was taken from the cell to an office in the Pivdenno-Zakhidna Police Station, where the police officers R.O. and M.D. urged him, under threat of violence, to confess that he had murdered Ms I. As the applicant refused to confess, at about 4 a.m. those officers brought in a manual electricity generator. The applicant was handcuffed and suspended from a metal bar between two tables, with naked wires from the generator attached to his ankles and coccyx. One of the officers, R.O., administered electric shocks to the applicant, while the other officer, M.D., gagged his mouth with a sofa cushion. At about 6. 30 a.m. the applicant lost consciousness. After he had recovered consciousness, several officers took it in turns to beat him until 8 p.m., having previously put a bullet-proof jacket on him and covered his head with a pillow. In the meantime, at about 4 p.m., the applicant heard his wife (the second applicant) being questioned in the neighbouring office. One of the officers entered the office where the applicant was, and asked his colleague: “Do you think she would be able to survive what he has gone through?” The applicant then wrote his first confession, allegedly under dictation from a police officer. He stated that he had committed the murder of Ms I. together with a certain Mr M. At 10. 05 p.m. the applicant was placed in the Khmelnytskyy Temporary Detention Facility (the “ Khmelnytskyy ITT”). 15. The Government did not submit their version of the events of 21 May 2004, apart from mentioning the first applicant's placement in the Khmelnytskyy ITT. 16. At some point on 21 May 2004 the applicant was taken to the investigator in the Khmelnytskyy City Prosecutor's Office (“the KCPO ”), to whom he complained about his alleged torture by electric shocks. 17. On 24 May 2004 the applicant repeated his complaint to the investigator during questioning. On the same day he was examined by a doctor of the Khmelnytskyy Regional Forensic Medical Bureau, who noted that his both ankles had sores of 2.5 cm x 1.5 cm and 2.3 cm x 0.9 cm respectively. The doctor concluded that those injuries were minor and could have been inflicted on the applicant with blunt objects some three days earlier. Given their nature, which the doctor described as “unspecific”, he expressed doubt as to the plausibility of the applicant's allegation that electric current had been applied to him. 18. On 26 May 2004 the applicant's lawyer and relatives complained to the KCPO that he had been tortured during the first hours of 21 May 2004 by two police officers, R.O. and D. They noted that the doctor who had examined the applicant on 23 May 2003 had ignored a number of pinpoint sores on his ankles and that the medical report had been inaccurate. The complainants sought an investigation into the matter and a new medical examination of the first applicant. 19. On the same day the first applicant raised the ill-treatment complaint before the Khmelnytskyy City Court during the examination of the prosecutor's request for him to be remanded in custody (see paragraph 41 below). The court allegedly ignored his complaint. 20. Later on the same day the first applicant was allegedly beaten again by police officers, who had previously put a bullet-proof jacket on him. He confessed to the crimes again. 21. On 7 June 2004 the Pivdenno-Zakhidna Police Department examined the office in which the first applicant's questioning had been conducted on 21 May 2004 and issued a report according to which “there were no foreign objects discovered there which could have been used for inflicting bodily injuries”. 22. On 10 June 2004 the first applicant underwent another forensic medical examination ordered by the investigator. According to its report, twenty pinpoint sores had been discovered on the applicant's feet and ankles, each about 0.3 cm wide and 0.2 cm long. A purple bruise, 3 cm x 2 cm, was discovered on the back of his right thigh. The doctor concluded that the injuries were minor and could have been inflicted with blunt objects, possibly on 24 May 2004. The report mentioned: “There is no medical indication that the injuries were caused by an electric current”. 23. On 15 June 2004 the Khmelnytskyy Regional Police Department issued a report of its internal investigation in which it found the first applicant's allegation of his ill-treatment in police custody to be unsubstantiated. The report was based on the questioning of the police officers involved, who denied any coercion, as well as the medical findings of 24 May and the office examination report of 7 June 2004. 24. On 18 June 2004 the KCPO issued a decision refusing criminal prosecution of the police officers for lack of corpus delicti in their actions. It was mainly based on the questioning of the police officers involved and the findings of the medical reports of 24 May and 10 June 2004. 25. The first applicant challenged that refusal both separately and in the course of his own trial. In September 2005 the KCPO informed him that his complaints about his alleged ill-treatment by the police had been added to his own case file and would be considered in the course of his trial. 26. Overall, the prosecutor's refusal on 18 June 2004 to bring proceedings against the police officers involved to establish their criminal liability was quashed and subsequently upheld three times. Having quashed it for the last time on 28 March 2007, the Khmelnytskyy Regional Court of Appeal (“the Khmelnytskyy Regional Court”) also referred to the fact that the first applicant's ill-treatment complaint had been included in the case file concerning his own criminal case and was to be examined in the context of his trial (see also paragraph 95 below). 27. On 22 June 2004 the first applicant was transferred from the Khmelnytskyy ITT to the Pre-Trial Detention Centre (“the SIZO”). According to the Government, he did not raise any allegation about ill ‑ treatment before the ITT or the SIZO medical personnel or administration. 28. On 20 July 2004 the first applicant was allegedly beaten up again by the police officers who had escorted him to the court for a decision regarding his detention. On the same date his father raised a complaint in that regard before the General Prosecutor's Office (“the GPO”). 29. The applicant's father also complained about the alleged ill ‑ treatment of the applicant to the hotline of the Organised Crime Combating Unit of the Khmelnytskyy Regional Police Department. 30. On 19 August 2004 the aforementioned authority decided to forward the case to the Khmelnytskyy Regional Prosecutor's Office (“the KRPO”) given the inability of its own investigation to establish the truth. 31. In June 2005 the first applicant's lawyer asked a licensed private forensic-medical centre for an expert's conclusion regarding the following: (a) whether the findings of the medical reports of 24 May and 10 June 2004 provided grounds to state that the injuries to the applicant's ankles might have been caused by blunt objects; (b) what marks typically appeared on the skin in cases of direct contact with electric current and whether the marks on the applicant's body were of that nature; (c) what injuries could be caused if a bullet-proof jacket was put on the person before beating. 32. On 29 June 2005 two experts of the aforementioned centre, with twenty-three and four years of experience respectively, issued a report with the following conclusions: the first applicant's injuries could not have been caused by blunt objects; their number and features indicated that they might have been inflicted on 21 May 2004 by contacts, possibly multiple ones, with naked electric wires. As to the question about injuries from beatings inflicted through a bullet-proof jacket, the doctors referred to statements from their colleagues at the Khmelnytskyy Regional Forensic Medical Bureau given in the course of the trial, according to which in such cases internal injuries could be inflicted. They could be identified by X-ray, whereas the first applicant had not been X-rayed. 33. As is apparent from the ruling of the Shepetivka Court of 10 July 2006 (see paragraph 82 below ), the above medical report had been included in the first applicant's case file. 34. The facts concerning the investigation into the applicant's ill ‑ treatment allegation in the course of his trial are summarised below in the sections pertaining to the trial. 3. Criminal proceedings against the first applicant (a) Events before the official commencement of the proceedings 35. On 21 May 2004 the first applicant confessed to the armed assault and murder of Ms I. (see also paragraph 14 above). 36. On the same date the investigator applied to the Khmelnytskyy City Court for authorisation to search two flats where the first applicant's domicile was registered and where he actually lived. As noted in the application, the investigation had revealed that the applicant might have been involved in the murder and that significant evidence might be found at the place of his residence and/or official domicile. 37. On the same day the Khmelnytskyy City Court authorised the requested searches. 38. At about 9 p.m. the police searched the flat where the first applicant lived with his wife (the second applicant). Later that same evening they searched his parents'flat where his domicile was registered. Apparently the searches did not reveal anything of relevance to the investigation. (b) Pre-trial investigation and the first applicant's detention 39. On 23 May 2004 a criminal case was opened against the first applicant on suspicion of assault with intent to commit robbery and murder for profit, and he was arrested by the investigator in the context of the criminal proceedings. The investigator documented the arrest at 12 a.m. by filling in a document template entitled “ Record of a suspect's arrest”. The reasons for the arrest were included in the pre-printed part of the template and read as follows: “Having regard to the circumstances of the case, it cannot be ruled out that the suspect [name] may evade the investigation and impede the establishment of the truth, which, together with the seriousness of the crime committed, provides grounds for his detention”. In the line “Explanations of the detainee” it was noted that the first applicant “had not given any explanations”. The applicant had been body-searched, with “nothing having been discovered”. On the same day he withdrew his earlier confessions, alleging they had been extracted by force. 40. On 26 May 2004 the KCPO requested the Khmelnytskyy City Court to remand the applicant in custody, referring to strong evidence against him and to the fact that he was suspected of having committed serious crimes. According to the request, on 21 May 2004 the first applicant had walked into the Pivdenno-Zakhidna Police Station and had given himself up to the police, confessing to assault and murder. It then stated that he had been detained on suspicion of the aforementioned crimes on 23 May 2004. 41. On the same day, 26 May 2004, the Khmelnytskyy City Court, following a hearing with the participation of the first applicant and the lawyer contracted by his parents, Mr Ma. (see § 53 below), allowed the prosecutor's request and remanded the applicant in custody. It referred to the gravity of the charges against him and the inherent risk of his absconding or obstructing justice. It was noted in the aforementioned ruling that it could be appealed against within three days. 42. The case file contains a copy of the first applicant's written statement dated 28 May 2004, according to which he refused to make any statement in the course of the pre-trial investigation, relying on Article 63 of the Constitution. At the same time it transpires from some other documents that on the aforementioned date the applicant made another confession. According to the first applicant, he confessed again after his alleged beating by police officers in the Khmelnytskyy KCPO and the confession was dictated by the investigator. 43. On 1 June 2004 the first applicant again confessed to those crimes in the presence of his lawyer (Mr Ma.). According to him, those confessions were made in the presence of the police officers involved in his alleged ill ‑ treatment. The record of his questioning of 1 June 2004 contained both his confession and his note “I do not admit my guilt”. 44. On 2 June 2004 a certain Mr M. was arrested on the same charges as those laid against the applicant and confessed to the crimes after his alleged beating by police officers (as he would later complain during his trial). 45. On 5 June 2004 a confrontation was held between the applicant and Mr M., during which the first applicant repeated his confession in the presence of the appointed lawyer Mr Ko. (see paragraph 52 below). 46. On 15 July 2004 the first applicant, in the presence of the lawyer Mr Ma., retracted his earlier confessions as having been given under duress and pleaded not guilty. 47. On 20 July 2004 the Khmelnytskyy City Court, acting at the prosecutor's request, extended the term of the first applicant's detention to 23 September 2004, referring to the seriousness of the charges against him and to the inherent risk of his absconding, as well as the possibility of his impeding the investigation which had not yet been completed. 48. On 31 August 2004 the charges against the first applicant were changed from premeditated murder to grievous bodily harm causing death. Both co-accused were also charged with violent robbery and unlawful possession of weapons. 49. On 3 September 2004 the investigation was declared complete, and the first applicant and Mr M. received access to the case file. 50. On 22 September 2004 the case was sent to the Khmelnytskyy City Court. (c ) Legal representation of the first applicant during the pre-trial investigation 51. According to the first applicant, he was not legally represented during the period from 20 to 24 May 2004. 52. The Government maintained that on 23 May 2004 a lawyer (Mr Ko.) was appointed for the applicant. 53. On 24 May 2004 the first applicant's parents entered into an agreement with a private lawyer, Mr Ma., for legal representation of the applicant in the criminal proceedings against him. 54. On 25 May 2004 Mr Ma. received from the investigator dealing with the case a written permit for his meetings with the first applicant in the Khmelnytskyy ITT, where his client was detained. 55. On 27 May 2004 the first applicant refused the services of the appointed lawyer Mr Ko. and expressed his wish to be represented by Mr Ma. During some investigative activities thereafter he however agreed to be represented by Mr Ko. 56. On 2 June 2004 Mr Ma. was not admitted to see the applicant on the ground that the permit allegedly contained flaws. On the following day he complained about that to the Chief of the Khmelnytskyy Police Department. 57. On 18 June 2004 Mr Ma. also complained to the KCPO that the investigator was obstructing his participation in the investigative measures. He submitted in particular that he had not been duly notified of the investigative activities, which were conducted in his absence. Furthermore, he complained that the lawyer appointed for the applicant was incompetent. 58. On 24 June 2004 the Chief of the Khmelnytskyy Police Department wrote to Mr Ma. that indeed the ITT official had wrongly impeded his meetings with the applicant for which he had been disciplined. ( d ) The first applicant's acquittal and release by the Khmelnytskyy City Court 59. On 14 October 2004 the Khmelnytskyy City Court held a preparatory hearing at which it maintained the first applicant's detention. The materials submitted by the parties to the Court did not contain a copy of that ruling. 60. On 5 May 2005 the Khmelnytskyy City Court, under the presidency of Judge P., acquitted the applicant on all the charges, while the other co-defendant, Mr M., was found guilty of an unrelated instance of illegal possession of weapons ( a hunting gun and a box of bullets – of no relation to the murder of Ms I. – had been discovered in his garage ). The court found that there was no evidence of the defendants'guilt and that their confessions had been extracted by force. 61. The judgment noted as follows : “As it had been stated by the defendants in the course of the pre-trial investigation and later confirmed during the trial, ... the police had applied physical and psychological violence to them with the intention of coercing them into confessing to the murder which they had not committed and the circumstances of which they had found out from the police. There are no doubts about that, as it clearly transpires from the case file that the defendants were under arrest when they wrote their confessions. They name specific officers of the Pivdenno-Zakhidna Police Station as behaving violently towards them, and give a detailed account of their actions. The medical examinations held at the defendants'requests [ ... ] revealed injuries to their bodies. During the pre-trial investigation [the applicant and Mr M.] retracted their confessions to the crime against the family of [Ms I]. and complained to various authorities that they had been ill ‑ treated in police custody.” 62. The court noted that both the circumstances and motives of the crime were presented inconsistently in the confessions of the co-defendants. It observed that they had attracted the suspicion of the police only because the son of Ms I., who had happened to see them together in the street, believed that their statures and size were similar to those of the offenders. The court found that that investigation had wrongly taken over that wholly unsubstantiated argument. Moreover, it recognised all the findings of the investigation as mere presumptions not corroborated by any evidence. 63. The court further observed that the pre-trial investigation relied “as one of the key pieces of evidence proving the defendants'guilt” on the statements of a taxi driver, Mr K., who stated that he had taken two passengers somewhere close to the building where the murder took place. The court noted, however, that his description of those passengers changed on 22 March 2004 in comparison with that given earlier on 13 March 2004. While Mr K. had not been able to indicate any specific features of their appearance, he later recognised the first applicant from a choice of two persons “by his size”. 64. As to the other evidence, three witnesses had seen two persons running down the stairs close to the murder site, but they were not able to identify them as the defendants. The investigation had also found a box containing bullets at Mr M.'s home, but they were of a different type from the one with which the victim had been shot. 65. The court lifted the preventive measure concerning the applicant. 66. On the same day, 5 May 2005, the Khmelnytskyy City Court issued a separate ruling, by which it brought to the attention of the KRPO, the Khmelnytskyy Regional Police Department and the Khmelnytskyy Bureau of Forensic Medical Expertise the following violations: “[the defendants] had been detained for fictitious reasons; they had not been examined in the presence of attested witnesses; neither the reasons for the detention nor their right to defence had been explained to them; and their relatives had not been informed that they were detained”. 67. It was also noted in the separate ruling that the defendants had consistently complained that they had been ill-treated in police custody, naming the police officers involved, and that injuries had been discovered on their bodies. The court considered that the doctor who had examined the applicant on 24 May 2004 had come to a superficial and unfounded conclusion that there were no injuries caused by electric current. 68. On 5 May 2005 the Khmelnytskyy City Court also issued another ruling, by which it quashed the prosecutor's decision of 18 June 2004 not to open a criminal case into the applicant's allegation that he had been ill-treated in police custody. ( e ) Transfer of the case to the Ternopil Regional Court of Appeal and overturning of the first applicant's acquittal 69. Messrs I. (the son and husband of the deceased Ms I. having victim status in the proceedings) appealed against the judgment of 5 May 2005. In June 2005 they challenged before the Supreme Court the composition of the Khmelnytskyy Regional Court of Appeal, which was to examine their appeal, on the ground that some of its judges allegedly had friendly relations with Judge P. under whose presidency the impugned judgment had been delivered at first instance. They further contended that certain judges there were members of the regional lawyers'qualification and disciplinary board to which the defendants'lawyers also belonged. Messrs I. therefore sought the transfer of the case to any other regional appellate court. 70. On 23 June 2005 the Deputy President of the Supreme Court instructed the Khmelnytskyy Regional Court to transfer the case to the Ternopil Regional Court of Appeal (“the Ternopil Court”) “with a view to ensuring the most comprehensive and objective examination of the case”. 71. On 11 August 2005 the Ternopil Court found that the first-instance court had failed to assess all the evidence in the case thoroughly and conclusively and that it had accepted the defendants'allegations that they had been ill-treated in police custody, without having taken into consideration the related findings of the prosecution authorities. It also remarked that no assessment had been made of the confessions by the defendants in the presence of their lawyers. The Ternopil Court noted that some hearings had been held without the prosecutor's participation, and that the Khmelnytskyy City Court had not responded to the victims'request for remittal of the case for additional investigation, by which they had sought application of a stricter provision of the Criminal Code. On those grounds, the Ternopil Court quashed both the acquittal and the two rulings of the Khmelnytskyy City Court of 5 May 2005, and remitted the case to it for fresh examination by a different panel. 72. The Ternopil Court rejected the victims'request for transfer of the case to any other trial court in the Ternopil region, as such a transfer would be contrary to the Code of Criminal Procedure (“the CCP”). ( f ) Transfer of the case to the Shepetivka City Court and the first applicant's retrial 73. In August and September 2005 the lawyer representing the victims requested the Supreme Court to transfer the case from the Khmelnytskyy City Court to a court in a different region. He noted that Judge P. under whose presidency the case had earlier been examined (see paragraph 60 above), was the Deputy President of the Khmelnytskyy City Court and that he would therefore influence the proceedings regardless of the panel's composition. 74. On 20 September 2005 the First Deputy President of the Supreme Court, while finding no grounds to transfer the case to a different region, instructed the Khmelnytskyy Regional Court to consider transferring it to another court within the Khmelnytskyy region. 75. On 29 September 2005 the Khmelnytskyy Regional Court transferred the case to the Shepetivka City Court (“the Shepetivka Court ”), within the Khmelnytskyy region. 76. On 21 November 2005 the Shepetivka Court held a preparatory hearing, during which the victims unsuccessfully sought a change of preventive measure in respect of the defendants. 77. On 4 January 2006 the Shepetivka Court again rejected the victims'request for pre-trial detention of the co-defendants instead of an undertaking not to abscond. The court noted that the co-defendants had not been evading or impeding the investigation. 78. On 10 July 2006 the Shepetivka Court remitted the case to the KCPO for additional investigation, indicating thirty-seven shortcomings in the investigation previously undertaken, which could not be remedied in the course of the trial. 79. The court noted, inter alia, that the defendants'confessions lacked consistency, as did the statements by the witnesses and the victim ( Mr I., the son of Ms I.). It observed in particular that Mr I. had initially stated on several occasions that he and his mother had been attacked by their business competitors. Later in the trial, he changed both his description of the perpetrators'appearance (which then contradicted that given by some other witnesses) and his version as to who they might have been. Furthermore, the case file contained a report from the police, according to which one of the taxi drivers had heard from a neighbour of Ms I. that the latter had been receiving threatening telephone calls because she had reduced the prices of her products. There was no further investigation into the matter. 80. The court also noted that the investigator had given no reasoning for having changed the charges against the applicant from murder to inflicting grievous bodily harm causing death, with a new charge of illegal possession of weapons added. 81. The Shepetivka Court next expressed its concern over the way the investigation had received the statements by the taxi driver Mr K. ( according to the court's ruling – a key witness in the case), who had recognised the applicant as one of his two passengers whom he had driven to the building where the crime was committed, around the time of the murder, had waited for there for about half an hour and had then driven to a café. The court noted that on 22 March 2004 the investigator had questioned Mr K. as a witness in the case concerning the murder of Ms I., while at the same time Mr K. was detained in the Khmelnytskyy ITT on suspicion of illegal drug possession. While both Mr K. and the investigator denied the above in the course of the applicant's trial, the ITT administration confirmed that on the aforementioned date, which was also the documented date of Mr K.'s questioning as a witness, he had been in detention in the ITT. Moreover, according to the register of detainees'movements, on the above- mentioned date Mr K. was in the ITT. 82. Furthermore, the court noted that the defendants'allegations that they had been ill-treated in police custody had not been duly investigated. Its critical remarks included the following: “The [KCPO] refused to open a criminal case relying on the absolutely identical explanations of the [police officers], who are interested persons and whom the defendants accuse of torture, as well as the conclusions of the internal investigation undertaken by senior [police officers] in respect of their own subordinates, which the court considers unacceptable. At the same time, the [KCPO] failed to clarify why, for what reasons, under what circumstances and in what manner [the applicant] sustained the injuries while being held in the ITT, but not in the SIZO, for over a month. ... The case file contains a forensic medical report, according to which [the applicant's] injuries might have originated from electric shocks. ... Given the discrepancies in the medical findings ..., an additional forensic medical examination should be undertaken ... ” 83. On the same day, 10 July 2006, the Shepetivka Court issued a separate ruling indicating a number of gross violations of the criminal procedural legislation in the course of the pre-trial investigation, similar to those mentioned in the separate ruling of the Khmelnytskyy City Court of 5 May 2005. The court again criticised the investigation undertaken into the allegations of both defendants about their ill-treatment in police custody. It made, in particular, the following observation: “ The prosecutor entrusted the official investigation into the use of force on the defendants directly to the supervisors of the officers whom the defendants accuse of torture, and that investigation yielded a decision that there had been nothing criminal in the actions of those officers. The court considers this unacceptable .” 84. Furthermore, the court noted that the investigators had imposed on the applicant an appointed lawyer, although the applicant had already been represented by a lawyer of his own choosing, who remained uninformed about the investigative measures undertaken. ( g ) Repeated transfer of the case to the Ternopil Court 85. The victims appealed against the aforementioned rulings of the Shepetivka Court. At the same time, they opposed the examination of the case by the Khmelnytskyy Regional Court. 86. On 28 July 2006 the First Deputy President of the Supreme Court again instructed the Khmelnytskyy Regional Court to transfer the case to the Ternopil Court, referring to the reasoning given in support of such transfer in his letter of 23 June 2005. 87. On 4 August 2006 the Khmelnytskyy Regional Court sent the case file to the Ternopil Court. 88. On 4 October 2006 the Ternopil Court quashed, on formal grounds, the separate ruling of the Shepetivka Court of 10 July 2006 and upheld the decision of the KCPO of 18 June 2004 refusing to institute criminal proceedings against police officers on the first applicant's complaint that he had been ill-treated. The Ternopil Court concluded that the requirements of Article 236-1 of the CCP had not been complied with: there had been no written application for quashing the refusal of 18 June 2004, and, in any event, such an application would have had to be lodged with the Khmelnytskyy City Court. 89. The Ternopil Court also excluded from the Shepetivka Court's ruling of 10 July 2006 remitting the case for additional investigation all issues other than those concerning the classification of the defendants'actions under the Criminal Code and assessment of the testimony of the son of Ms I. Thus, the Ternopil Court noted in its ruling as follows : “In the light of all the materials of the case, namely, the collected evidence, the nature of the criminal actions, the instrument of the crime being a firearm, the conclusions of the forensic medical expert on the location and nature of the wounds, the bench considers that the victim's ... life was taken deliberately and thus there is every ground to classify the defendants'actions under a different criminal provision envisaging liability for a more grievous crime”. ( h ) The first applicant's remand in custody from 22 to 23 November 2006 90. On 22 November 2006, at 10. 50 a.m., the first applicant was arrested by the investigator on suspicion of premeditated murder. The investigator substantiated this decision with the standard wording of the arrest report template, which read as follows: “the eyewitnesses, including the victims, directly indicate this person as the one who committed the crime”. 91. On 23 November 2006 the KCPO ordered the applicant's release with a reference to the criminal procedure provisions concerning a replacement of one preventive measure by another. 92. On the same date the first applicant complained to the KRPO about the alleged unlawfulness of his detention during the aforementioned period. (i) Joinder of the first applicant's complaint about his alleged ill-treatment to his own criminal case 93. In line with the aforementioned ruling of the Ternopil Court of 4 October 2006 (see paragraph 88 above), the first applicant challenged the KCPO's ruling of 18 July 2004 before the Khmelnytskyy City Court. 94. On 26 February 2007 the Khmelnytskyy City Court quashed the ruling of 18 June 2004 and remitted the case to the KCPO, allowing the complaint. 95. On 28 March 2007 the Khmelnytskyy Regional Court quashed the aforementioned ruling of 26 February 2007 on the KCPO's appeal and ruled that the investigation into the alleged ill-treatment was to take place within the first applicant's own criminal case, which was being examined by the Ternopil Court. (j ) The first applicant's detention from 18 December 2006 to 31 August 2007 96. On 30 November 2006 the investigator brought formal charges against the first applicant on two counts of premeditated murder for profit (considering that he had also attempted to kill the son of Ms I. and failed for reasons beyond his control), violent robbery and illegal possession of weapons. 97. On the same day the investigator applied to the Khmelnytskyy City Court for replacement of the preventive measure in respect of the first applicant from the undertaking not to abscond to pre-trial detention. Referring to the seriousness of the charges as advanced on the same date and the inherent risk of absconding, the investigator submitted that detention was a more appropriate preventive measure. 98. On 18 December 2006 the Khmelnytskyy City Court – at the hearing with the participation of the first applicant and his lawyer – examined the aforementioned application of the investigator as well as the first applicant's complaint about the alleged unlawfulness of his detention from 22 to 2 3 November 2006. The court lifted the applicant's undertaking not to abscond and remanded him in custody at the prosecutor's request. It dismissed as unsubstantiated the applicant's complaint about his arrest of 22 November 2006. The court gave as the reasons for the new preventive measure the fact that the applicant was suspected of serious crimes and that he could abscond or hinder the establishment of the truth. The court referred to unspecified statements made by the victims. As regards the applicant's complaint about his detention from 22 to 23 November 2006, it noted that there were no reasons to consider it unlawful. 99. The first applicant's father and lawyer appealed, submitting that the applicant had always complied with the investigator's summons while under the undertaking not to abscond and that the allegations of the victim's family about his attempts to influence their testimony had been confined to their suspicion that “somebody had been following them”. Furthermore, they noted that the first applicant had health problems, referring to the fact that at the time of the arrest order he was undergoing in - patient treatment in a neurological hospital, of which he provided documentary evidence. They also submitted that he had a permanent place of residence, no criminal record in the past, had a small baby to support, and was studying at a university. They therefore insisted that there were no reasons to believe that he would abscond. The first applicant's representatives also challenged the finding of the Khmelnytskyy City Court concerning his detention from 22 to 23 November 2006. They did not make any comments or complaints regarding their or the applicant's access to the case-file materials prior to the examination of the prosecutor's appeal by the court on 18 December 2006. 100. On 21 December 2006 the Khmelnytskyy Regional Court of Appeal, following a hearing with the participation of the first applicant's lawyer and father, rejected the applicant's appeal and upheld his detention with a reference to the gravity of the charges against him and “the witnesses'fears for their safety”. It also dismissed the applicant's complaint concerning his detention from 22 to 23 November 2006 having found “ no significant grounds for recognising [it] unlawful”. 101. On the same date the Khmelnytskyy Regional Court extended the first applicant's pre-trial detention, on the investigator's application, to five months ( to 23 January 2007 – with his detention from 23 May to 22 September 2004 included therein ). The court referred to the gravity of the charges against the applicant and his unspecified attempts to impede establishment of the truth, as well as to the significant volume of the case file. 102. On 23 January 2007 the investigator applied to the Khmelnytskyy Regional Court for another extension of the first applicant's pre-trial detention, referring to the scope of the remaining investigative work. 103. In January 2007 (the date is illegible) the Khmelnytskyy Regional Court extended the applicant's pre-trial detention to six months (to 23 February 2007). It founded its decision on the time required for the applicant to study the case file, the seriousness of the charges, and his “ negative behaviour when at large ”. 104. On 19 February 2007 the first applicant was indicted, and the case was sent to the Khmelnytskyy Regional Court of Appeal. (k ) The first applicant's retrial and conviction by the Ternopil Court as the court of first instance 105. On an unspecified date in 2007 it was decided that the Ternopil Court would try the case as a court of first instance. 106. On 21 March 2007 the Ternopil Court held a preparatory hearing. The court upheld the first applicant's detention, having found that “there [were] no grounds for changing the preventive measure”. It did not set any time-limits for the detention. 107. On 31 August 2007 the Ternopil Court found the first applicant guilty of premeditated murder for profit committed following a conspiracy with a group of persons, assault with intent to rob, and illegal possession of weapons, and sentenced him to fifteen years'imprisonment. 108. The court relied, inter alia, on the statements by the taxi driver Mr K., according to which he had taken two passengers to the building where the crime was committed, waited for them there for about half an hour and then driven them away. He recognised the applicant “by the features of his face, shape of the nose and his hair” as being one of those passengers. Mr K. denied that any pressure had been put on him by the police. He mentioned that he had been questioned in the prosecutor's office, but did not remember any details about that questioning. The investigator who had questioned Mr K. stated that the questioning had taken place in the prosecutor's office and on a different date than that mentioned in the questioning report, with the discrepancy in the dates being a typing error. Mr K. denied as inaccurate the first applicant's allegation that he had admitted to the latter having slandered him under pressure from the police. The court noted as follows: “There is no information from which it could be discerned that unlawful investigation methods were applied to witness [Mr K.] entailing his incriminating statements against the defendants as they allege. The allegation of [the first applicant] that [Mr K.] was arrested on 19 March 2004, remained in police custody until 22 March 2004 and that is why he recognised [the first applicant as the offender] is unfounded. It is not corroborated by the materials of the case and cannot be interpreted as an indication of any pressure on [Mr K.] with a view to incriminating the defendants. The witness [Mr K.] denied this fact during the court hearing in a categorical manner, as well as denying the allegation that he had admitted to [the first applicant] having incriminated him under pressure from the police, as [the first applicant] has submitted many times. The panel considers the statements of [Mr K.] given during the pre-trial investigation and the trial to be truthful, as both during the pre-trial investigation and during the judicial proceedings they were identical, consistent in detail and without any considerable discrepancies as alleged by the defendants and their defence. The court therefore takes them into consideration in the basis of the conviction as proof of the defendants'... guilt, being concordant with the other evidence.” 109. The court also took into account the testimony of the son of Ms I., who thought he had recognised the first applicant and the other co-defendant by their postures and gestures, having seen them together in the street. It further took note of statements from several witnesses who had seen two persons wearing masks close to the crime scene. The Ternopil Court relied on the defendants'confessions given at the initial stages of the pre-trial investigation. It attributed some discrepancies between the defendants'versions to the voluntary nature of their confessions. The police officers allegedly involved in the defendants'ill-treatment were questioned in the trial and denied those allegations. The court also noted that the first applicant had not complained about his ill-treatment to the ITT or to the SIZO authorities. It questioned the doctors who had examined the first applicant in May and June 2004, and they again concluded that his injuries were not typical of the effects of electric current. Furthermore, the court relied on the ruling of the KCPO of 18 June 2004 refusing to open a criminal case in respect of the first applicant's complaint. In the light of those considerations, the trial court found the first applicant's allegation that he had been ill-treated unsubstantiated. 110. The term of the first applicant's imprisonment was to be calculated from 18 December 2006 and included his detention from 23 May 2004 to 5 May 2005 and from 22 to 23 November 2006. 111. The first applicant lodged a cassation appeal, alleging, inter alia, that his guilt had never been proven and that his conviction was primarily based on his confessions extracted by torture and in the absence of legal assistance. He noted that the forensic medical report corroborating his allegation of having been tortured by electric shocks had remained ignored. 112. Furthermore, the first applicant stressed that the statements of Mr K., on which the trial court had relied as proof of his guilt, had drastically changed over time to his disadvantage and in suspicious circumstances. He submitted in particular that Mr K. had initially stated that he did not remember any features of his passengers of 13 March 2004. The first applicant further noted that on 19 March 2004 the police had apprehended Mr K. for being drunk. During his subsequent body-search a package of substance of “plant origin” had been discovered on him, and Mr K. had been arrested. It was during his administrative detention that he had “remembered” some general features of one of his passengers. The first applicant referred to specific pages in the case file quoting Mr K. as having stated during the trial that “there [was] a significant difference between those to whom [he] had given a lift [on 13 March 2004] and the defendants” and that the investigator had included some untruthful information in the records of his questioning during the pre-trial investigation. The applicant also submitted that the case file contained a transcript (by a technical expert) of his conversation with Mr K. made in 2006 ( apparently during the period when the first applicant had been at large ), in which Mr K. had stated that the police had forced him to incriminate the defendants under threat of being accused himself of the murder of Ms I., that drugs had been planted on him and that he had made the incriminatory statements while being detained in the ITT. The first applicant stressed that Mr K. had admitted in court that he had indeed met him in 2006 and that their conversation could have been recorded. He further complained that although the defence had sought the examination of the aforementioned audiotape in the hearing and putting questions in that respect to Mr K., the trial court had dismissed that motion without any explanations. It was also mentioned in the cassation appeal that the case file contained a copy of the investigator's ruling of 31 August 2004 about refusal to open a criminal case against Mr K. without reference to any provision of the Criminal Code – a fact, which, according to the first applicant, had remained without assessment. 113. On 20 March 2008 the Supreme Court upheld the first applicant's conviction. It referred mainly to his confessions during the pre-trial investigation, including those given in the presence of his lawyer, which it found to be corroborated by other evidence in the case. As to the first applicant's allegation that he had been ill-treated in police custody, the court noted that it had studied the videotape of the investigative activities and found that the applicant had given his confessional account of the events in a free and detailed manner and that there were no injuries on his body. Furthermore, according to the above ruling of the Supreme Court, the first applicant “had never referred to any specific persons who had allegedly ill ‑ treated him” and that he “had always replied that he was well when asked about his health”. The court considered that all the persons involved in the investigation of the applicant's allegation of ill-treatment had been questioned in the course of the trial and all the respective medical reports had been studied. In the light of all the aforementioned, it found the complaint of ill-treatment to be wholly unsubstantiated. 114. As regards the statements of witness Mr K., the Supreme Court noted that he “had been examined many times both during the pre-trial investigation and the trial” and that he had recognised the first applicant “without any hesitation”. It further noted as follows: “There is no information from which it could be discerned that the law-enforcement authorities applied unlawful methods to this witness, and therefore his statements were rightly taken into consideration in the basis of the conviction ”. C. Facts concerning the second applicant 115. The second applicant worked at a factory run by the victim's family. At the end of May 2004 she was in her eighth month of pregnancy. 116. On 21 May 2004, at about 4. 00 p.m., the second applicant was at her workplace. The manager asked her to come in for a work-related conversation, when two plain-clothes police officers, allegedly without any explanation and not allowing her to change out of her uniform into her own clothes, took her to the Pivdenno-Zakhidna Police Station. The second applicant was placed there in a room she described as very cold. The police officers, as well as the widower of Ms I., who was also present at the police station, allegedly shouted at her, threatened her with imprisonment and pushed her in the back, pressurising her to testify against her husband. 117. The second applicant wrote that her husband (the first applicant) had been with her at home at the time of the murder. 118. After the questioning, which lasted for about four hours, the second applicant was taken back to the factory. She had to wait there for some time until the door was opened so that she could change into her own clothes. 119. On 22 May 2004 the second applicant complained to the prosecution authorities about the alleged unlawfulness of her detention on 21 May 2004. 120. On 11 June 2004 the prosecution office wrote to her that the police had not violated any criminal procedure legislation. | The first applicant complained in particular about the unfairness of the proceedings against him, notably that his conviction for a number of offences, including premeditated murder for profit committed following a conspiracy with a group of persons, had been based on statements made without the assistance of a lawyer. |
786 | Organ transplantation | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1969 and lives in Sigulda. She is the widow of Mr Egils Elberts ( “ the applicant ’ s husband ” ), a Latvian national who was born in 1961 and who died on 19 May 2001. A. Events leading to the applicant knowing that tissue had been removed from her husband ’ s body 6. On 19 May 2001 the applicant ’ s husband was involved in a car accident in the parish of Allaži. An ambulance transported him to Sigulda Hospital but he died on the way there as a result of his injuries. He was placed in the mortuary at Sigulda Hospital. The applicant ’ s mother-in-law, who worked at Sigulda Hospital and thereby learned about her son ’ s death immediately, stayed with his body at Sigulda Hospital until it was transported to the State Centre for Forensic Medical Examination ( Valsts tiesu medicīnas expertīžu centrs – “ the Forensic Centre ”) in Riga. 7. At 5 a.m. on 20 May 2001 the body was delivered to the Forensic Centre in order to establish the cause of death. Between 1 p.m. and 3 p.m. an autopsy was carried out and numerous injuries were found to the deceased ’ s head and chest, including several broken ribs and vertebrae. There were bruises on his right shoulder, thigh and knee. A forensic medical expert, N.S., classified the injuries as serious and life-threatening and established a causal link between them and his death. 8. According to the Government, after the autopsy, N.S. had verified that there was no stamp in Mr Elberts ’ passport denoting his objection to the use of tissue from his body and he had removed a 10 cm by 10 cm piece of dura mater ( the outer layer of the meninges) from Mr Elberts ’ body. According to the applicant, N.S. could not have checked whether or not there was a stamp in Mr Elberts ’ passport because at that time it had been at their home in Sigulda. The applicant submitted that the area of tissue removed was larger than 10 cm by 10 cm and that it was not only dura mater that had been removed. 9. On 21 May 2001 the prosecutor ’ s office issued a permit to bury the body. According to the applicant, on 21 or 22 May 2001 her sister had arrived at the Forensic Centre with a view to obtaining the certificate showing the cause of death, in relation to which she had signed the Forensic Centre ’ s registration log. On 22 May 2001 her sister submitted that document, together with Mr Elberts ’ passport, to the relevant authority in Sigulda to obtain the death certificate. 10. According to the Government, on 25 May 2001 the body of Mr Elberts had been handed over to a relative. According to the applicant, his body had been handed over to another person who was merely helping with its transportation prior to the funeral. 11. On 26 May 2001 the funeral took place in Sigulda. The applicant first saw her deceased husband when his remains were transported back from the Forensic Centre for the funeral. She saw that his legs had been tied together. He was buried that way. The applicant herself was pregnant at the time with their second child. 12. The applicant was not aware that tissue had been removed from her husband ’ s body until about two years later, when the security police ( Drošības Policija ) informed her that a criminal inquiry had been opened into the illegal removal of organs and tissue, and that tissue had been removed from her husband ’ s body. B. Criminal inquiry into the illegal removal of organs and tissue 13. On 3 March 2003 the security police opened a criminal inquiry into the illegal removal of organs and tissue for supply to a pharmaceutical company based in Germany (“the company”) between 1994 and 2003. The following sequence of events was established. 14. In January 1994 the predecessor institution of the Forensic Centre concluded an agreement with the company to cooperate for the purpose of scientific research. Under the agreement, various types of tissue were to be removed from deceased persons ‒ selected by the Forensic Centre in accordance with international standards ‒ and sent to the company for processing. The company transformed the tissue received into bio - implants and sent them back to Latvia for transplantation purposes. The Ministry of Welfare agreed to the content of the agreement, reviewing its compliance with domestic law on several occasions. The prosecutor ’ s office issued two opinions on the compatibility of the agreement with domestic law and, in particular, with the Law on the protection of the body of a deceased person and the use of human organs and tissue (“the Law”). 15. Any qualified member of staff (“expert”) of the Forensic Centre was allowed to carry out the removal of tissue on his or her own initiative. The Head of the Thanatology Department of the Forensic Centre was responsible for their training and the supervision of their work. He was also responsible for sending the tissue to Germany. The experts received remuneration for their work. Initially, the tissue removal was performed at forensic divisions located in Ventspils, Saldus, Kuldīga, Daugavpils and Rēzekne. After 1996, however, tissue removal was carried out only at the Forensic Centre in Riga and the forensic division in Rēzekne. 16. Under the agreement, experts could remove tissue from deceased persons who had been transported to the Forensic Centre for forensic examination. Each expert was to verify whether the potential donor had objected to the removal of organs or tissue during his or her lifetime by checking his or her passport to make sure that there was no stamp to that effect. If relatives objected to the removal, their wishes were respected, but the experts themselves did not attempt to contact relatives or to establish their wishes. Tissue was to be removed within twenty-four hours of the biological death of a person. 17. Experts were obliged to comply with domestic law but, according to their own testimonies, not all of them had read the Law. However, the content of it was clear to them as the Head of the Thanatology Department of the Forensic Centre had explained that removal was allowed only if there was no stamp in the passport denoting a refusal for organs or tissue to be removed and if the relatives did not object to the removal. 18. In the course of the inquiry, the investigators questioned specialists in criminal law and the removal of organs and tissue. It was concluded that, generally speaking, two legal systems exist for regulating the removal of organs and tissue – “informed consent” and “presumed consent”. On the one hand, the Head of the Forensic Centre, the Head of the Thanatology Department of the Forensic Centre and the experts at the Forensic Centre were of the opinion that at the relevant time (that is to say, after the Law ’ s entry into force on 1 January 1993) there had existed a system of “presumed consent” in Latvia. These persons were of the view that the system of presumed consent meant that “ everything which is not forbidden is allowed”. The investigators, on the other hand, were of the opinion that section 2 of the Law gave a clear indication that the Latvian legal system relied more on the concept of “informed consent” and, accordingly, removal was permissible only when it was (expressly) allowed, that is to say when consent had been given either by the donor during his or her lifetime or by the relatives. 19. More particularly, as regards the removal of tissue from the applicant ’ s husband ’ s body, on 12 May 2003 the expert N.S. was questioned. Subsequently, on 9 October 2003 the applicant was recognised as an injured party ( cietušais ) and she was questioned on the same date. 20. On 30 November 2005 it was decided to discontinue the criminal inquiry into the activities of the Head of the Forensic Centre, the Head of the Thanatology Department of the Forensic Centre and the Head of the Rēzekne Forensic Division in respect of the removal of tissue. The above considerations were noted down in the decision ( lēmums par kriminālprocesa izbeigšanu ) and differences concerning the possible interpretations of domestic law were resolved in favour of the accused. Moreover, the 2004 amendments to the Law were to be interpreted to mean that there was a system of “presumed consent” in Latvia. It was concluded that sections 2 to 4 and 11 of the Law had not been violated and that no elements of a crime as set out in section 139 of the Criminal Law had been established. 21. On 20 December 2005 and 6 January 2006 prosecutors dismissed complaints lodged by the applicant and held that the decision to discontinue the inquiry was lawful and justified. 22. On 24 February 2006 a superior prosecutor of the Prosecutor General ’s Office examined the case file and concluded that the inquiry should not have been discontinued. He established that the experts at the Forensic Centre had breached provisions of the Law and that the tissue removal had been unlawful. The decision to discontinue the inquiry was quashed and the case file was sent back to the security police. 23. On 3 August 2007 the criminal inquiry, in so far as it related to the removal of tissue from the body of the applicant ’ s deceased husband, was discontinued owing to the expiry of the statutory limitation period of five years. However, the legal ground given for this discontinuation was the absence of any elements of a crime. On 13 August 2007 the applicant was informed of that decision. On 19 September and 8 October 2007, in response to complaints lodged by the applicant, the prosecutors stated that the decision had been lawful and justified. 24. On 3 December 2007 another superior prosecutor of the Office of the Prosecutor General examined the case file and concluded that the inquiry should not have been discontinued. She established that the experts at the Forensic Centre had breached provisions of the Law and that the tissue removal had been unlawful. The decision to discontinue the inquiry was once again quashed and the case file was again sent back to the security police. 25. On 4 March 2008 a new decision to discontinue the criminal inquiry was adopted, based on the legal ground of the expiry of the statutory limitation period. On 27 March 2008, in response to a complaint from the applicant, the prosecutor once again quashed the decision. 26. A fresh investigation was carried out. During the course of that investigation it was established that in 1999 tissue had been removed from 152 people; in 2000, from 151 people; in 2001, from 127 people; and in 2002, from 65 people. In exchange for the supply of tissue to the company, the Forensic Centre had organised the purchase of different medical equipment, instruments, technology and computers for medical institutions in Latvia and the company had paid for these purchases. Within the framework of the agreement, the total monetary value of the equipment for which the company had paid exceeded the value of the removed tissue that was sent to the company. In the decision of 14 April 2008 (see paragraph 27 below) it was noted that the tissue was not removed for transplantation purposes in accordance with section 10 of the Law but was actually removed for transformation into other products to be used for patients not only in Latvia, but also in other countries. 27. On 14 April 2008 the criminal inquiry was discontinued owing to the expiry of the statutory limitation period. In the decision it was noted that whenever an expert from the Rēzekne Forensic Division, for example, had interviewed the relatives prior to the removal of organs or tissue, he had never expressly informed them of such potential removal or indeed obtained their consent. According to the testimonies of all the relatives, they would not have consented to the removal of organs or tissue had they been informed and their wishes established. According to the experts ’ testimonies, they had merely checked passports for stamps and had not sought relatives ’ consent as they had not been in contact with them. It was also noted that with effect from 1 January 2002 information was to be sought from the population register, which the experts had failed to do. It was concluded that the experts, including N.S., had contravened section 4 of the Law and had breached the relatives ’ rights. However, owing to the five ‑ year statutory limitation period ( which started running on 3 March 2003), the criminal inquiry was discontinued and on 9 May and 2 June 2008 the prosecutors upheld that decision in response to complaints lodged by the applicant. The applicant lodged a further complaint. 28. In the meantime, the experts, including N.S., lodged an appeal contesting the reasons for the discontinuation of the criminal inquiry ( kriminālprocesa izbeigšanas pamatojums ). They contested their status as the persons against whom the criminal inquiry concerning unlawful tissue removal had been instigated because they had not at any stage been informed of this inquiry and argued that, accordingly, they had been unable to exercise their defence rights. On 26 June 2008, in a final decision, the Riga City Vidzeme District Court upheld their appeal (case no. 1840000303), quashed the 14 April 2008 decision and sent the case file back to the security police. The court found as follows. “ Notwithstanding the fact that a certain proportion of the transplants were not returned to be used for patients in Latvia, there is no evidence in the case file that they were used for processing into other products or for scientific or educational purposes. Therefore, the court considers that there is no evidence in the case file that the removed tissue was used for purposes other than transplantation ... There is no evidence in the case file demonstrating that the removal of tissue for transplantation purposes had been carried out in disregard of the deceased person ’ s refusal, as expressed during his lifetime and recorded in accordance with the law in force at the relevant time, or in disregard of any refusal expressed by the closest relatives. Taking into account the fact that legislative instruments do not impose any obligation on the experts who carry out the removal of tissue and organs from deceased persons ’ bodies to inform persons of their right to refuse tissue or organ removal, the court considers that the experts did not have any obligation to do so; by not informing the deceased person ’ s relatives of their intention to remove tissue, the experts did not breach the provisions of the [Law], as effective from 1994 to March 2003. Section 4 of the [Law] provides for the right of the closest relatives to refuse the removal of the deceased person ’ s organs and/or tissue, but does not impose an obligation on the expert to explain this right to the relatives. Given that there are no legislative instruments which impose an obligation on the experts to inform relatives of their intention to remove tissue and/or organs and to explain to the relatives their right to object by refusing their consent, the court considers that a person cannot be punished for a failure to comply with an obligation which is not clearly laid down in a legislative instrument in force. Therefore, the court finds that the experts, by carrying out the tissue and organ removal from the deceased, did not breach ... the [Law]. ... The court finds that the experts ’ actions did not constitute the elements of a crime proscribed by section 139 of the Criminal Law; therefore, it is possible to discontinue the criminal proceedings for exonerating reasons – namely on the grounds of section 377(2) of the Criminal Procedure Law ‒ owing to the absence of the elements of a crime. ” 29. On 2 July 2008 the superior prosecutor responded to a complaint lodged by the applicant. The superior prosecutor admitted that the inquiry had taken a long time owing to numerous complaints against the decisions. However, she did not find any particular circumstances which would indicate that it had been unduly protracted. At the same time, she informed the applicant that the court had quashed the 14 April 2008 decision upon the appeal by the experts. She further stated that a new decision to discontinue the criminal inquiry had been adopted on 27 June 2008 and that the applicant would soon be duly notified. 30. Indeed, the applicant received the 27 June 2008 decision a few days later. It was reiterated in that decision that the experts did not have any legal obligation to inform anyone about their right to consent to or refuse organ or tissue removal. Section 4 of the Law provided for the right of the closest relatives to object to the removal of the deceased person ’ s organs and tissue, but did not impose any obligation on the expert to explain these rights to the relatives. A person could not be punished for a failure to comply with an obligation which was not clearly laid down in a legal provision; the experts had therefore not breached the Law. The applicant lodged further complaints. 31. On 15 August 2008 the prosecutor replied, inter alia, that there were no circumstances indicating the desecration of a human body. At the same time, she explained that the experts had performed actions in connection with the unlawful tissue removal in order to use the tissue for medical purposes. After the removal of tissue, other material was commonly implanted to restore the visual integrity of dead bodies. Therefore, the criminal inquiry had concerned actions under section 139 of the Criminal Law and not under section 228, which proscribed desecration of a dead body. 32. On 10 September 2008 a superior prosecutor replied that there were no grounds for examining the actions of the persons who had proceeded with the tissue removal under section 228 of the Criminal Law as desecration of a dead body. The experts had proceeded in accordance with an instruction issued by the Ministry of Justice, implanting other material in the place of the removed tissue. According to the instruction, tissue was to be removed in such a way so as not to mutilate the body, and, if necessary, subsequent restoration was to be carried out. 33. On 23 October 2008 another superior prosecutor of the Prosecutor General ’s Office replied with a final negative decision. | This case concerned the removal of body tissue from the applicant’s deceased husband by forensic experts after his death, without her knowledge or consent. Unknown to the applicant, pursuant to a State-approved agreement, tissue had been removed from her husband’s body after her husband’s autopsy and sent to a pharmaceutical company in Germany for the creation of bio-implants. She only learned about the course of events two years after her husband’s death when a criminal investigation was launched in Latvia into allegations of wide-scale illegal removal of organs and tissues from cadavers. However, domestic authorities eventually did not establish any elements of crime. The applicant complained in particular that the removal of her husband’s tissue had been carried out without her prior consent. She also complained of emotional suffering as she had been left in a state of uncertainty regarding the circumstances of the removal of tissue from her husband, her husband’s body having been returned to her after the autopsy with his legs tied together. |
832 | Interception of communications, phone tapping and secret surveillance | I. the CIRCUMSTANCES OF THE CASE 6. Mr Hans W. Kopp, a Swiss national born in 1931, was formerly a lawyer and lives in Zürich (Switzerland). A. Background to the case 7. The applicant’s wife, Mrs Elisabeth Kopp, was a member of the Federal Council and head of the Federal Department of Justice and Police from 1984 until her resignation in January 1989. 1. The letter of request 8. On 28 February 1988 a Mr Hauser, a member of the law firm Kopp & Partners, was asked by a client to verify the legality of a request for judicial assistance sent to Switzerland by the United States authorities concerning a tax matter. After studying the file, Mr Hauser declined to accept the work, referring to a standing instruction to members of the applicant’s firm to refuse all cases concerning the Federal Department of Justice and Police, for which his wife was at that time responsible. The file was accordingly transferred to the law firm Niederer, Kraft & Frey in Zürich. 9. On 10 June 1988 Niederer, Kraft & Frey asked the Federal Office of Police if they could inspect the letter of request. On 23 August 1988 the Federal Office sent the firm an abridged ( gestrippte ) version of the document, withholding a confidential section which concerned organised crime. 2. Mrs Kopp’s resignation 10. In November 1988, in a separate development, the media reported allegations that a company, Shakarchi Trading AG, and Mr Kopp, who was at the relevant time the vice-chairman of its board of directors, were implicated in money laundering. At the end of 1988 Mr Kopp lodged a complaint against a newspaper. 11. At his wife’s request, the applicant had resigned as vice-chairman of the board in October 1988. His wife then came under suspicion of disclosing confidential information obtained in an official capacity. As her husband was also suspected of other offences, she was obliged to resign. 3. The establishment of a parliamentary commission of inquiry 12. On 31 January 1989 the Swiss parliament set up a parliamentary commission of inquiry to look into the way Mrs Kopp had performed her duties, and the circumstances of her resignation. 13. In February 1989 the chairman of the parliamentary commission of inquiry, Mr Leuenberger, was informed that a Mr X, an American citizen, had obtained from the applicant a document which the Federal Office of Police and the Federal Court had refused to communicate to him, in exchange for a payment of 250,000 Swiss francs. Mr Leuenberger was given this information by a Mr Y, who had himself obtained it from the initial informant, a Mr Z. 14. It subsequently transpired that Mr X was named in the American letter of request, which contained confidential information about his role in organised crime. Suspicion therefore arose that a member of the Federal Department of Justice and Police might have passed on confidential documents relating to the request, thus breaching the duty not to disclose official secrets. B. The course of the inquiry and monitoring of the applicant’s telephone lines 15. On 21 November 1989 the Federal Public Prosecutor opened an investigation against a person or persons unknown in order to question the informant Y and to identify the person working at the Federal Department of Justice and Police who might have disclosed official secrets. 16. He also ordered monitoring of the telephone lines of the informants Y and X, and of those of Mr Kopp and his wife. The applicant was monitored as a “third party”, not as a suspect. 17. The monitoring began on 21 November 1989 and ended on 11 December 1989. 18. On 23 November 1989 the President of the Indictment Division of the Federal Court allowed an application by the Federal Public Prosecutor for monitoring of thirteen telephone lines in total, including the applicant’s private and professional lines and those of his wife, and in particular a secret line allocated to her as a former member of the Federal Council. The order expressly mentioned that “the lawyers’ conversations [were] not to be taken into account”. 19. On 24 November 1989 the parliamentary commission of inquiry published its report. It concluded that Mrs Kopp had performed her duties with competence, diligence and circumspection, and that the rumours to the effect that she had allowed external influences to affect the way she performed her duties were unfounded. In February 1990 the Federal Court acquitted Mrs Kopp of disclosing official secrets. 20. On 1 December 1989 the Federal Public Prosecutor’s Office interviewed the informant Y, in the presence of the chairman of the parliamentary commission, Mr Leuenberger. 21. On 4 December 1989 Mr Leuenberger contacted the informant Z, who was interviewed by the Federal Public Prosecutor’s Office on 8 December. 22. On 12 December 1989, having concluded that the suspicions regarding the disclosure of official secrets were unfounded, the Federal Public Prosecutor’s Office discontinued monitoring of all Mr and Mrs Kopp’s telephone lines. 23. On 14 December 1989 the Federal Public Prosecutor’s Office submitted its final report on the investigation, which stated that in 1988 Mr Hauser had passed on to the firm of Niederer, Kraft & Frey a file relating to the letter of request (see paragraph 8 above) and that there was no evidence that the applicant and his wife had been directly involved in that case. 24. On 6 March 1990 the Federal Public Prosecutor’s Office decided to close the investigation, on the ground that there was no evidence to corroborate the suspicions that the applicant’s wife or a member of the Federal Department of Justice and Police had disclosed official secrets, namely certain passages of the letter of request which had been classified as confidential. 25. In a letter of 9 March 1990 the Federal Public Prosecutor’s Office informed Mr Kopp that a judicial investigation had been opened, pursuant to Articles 320 and 340 § 1 (7) of the Criminal Code (see paragraph 34 below), in connection with the suspected disclosure of official secrets, and that his private and professional telephone lines had been tapped, in accordance with sections 66 et seq. of the Federal Criminal Procedure Act (see paragraphs 35–38 below). The letter stated that the monitoring had lasted from 21 November to 11 December 1989 and that “conversations connected with his professional activities as a lawyer [had not been] monitored”. It also stated that, pursuant to section 66(1 ter ) of the Federal Criminal Procedure Act, all the recordings had been destroyed. 26. On 12 March 1990 the parliamentary commission of inquiry issued a communiqué concerning the monitoring of Mr Kopp’s telephone lines in connection with the judicial investigation concerning him. It stated in particular: “In the course of its inquiries, in connection with which it obtained authorisation to intercept telephone communications, the [Federal] Public Prosecutor’s Office discovered that the American citizen’s Swiss representatives had tried to obtain the confidential document in the file by applying to [the applicant]. They were hoping for privileged access to the Federal Department of Justice and Police on account of the fact that he was the husband of the Federal Councillor then responsible for that Department. For a fee, a lawyer from [the applicant]’s law firm studied the file in order to decide whether to take on the case, but turned it down. An attempt was then made to obtain the confidential part of the file through another lawyer. The American letter of request was in the end disclosed, but only after the confidential passages had been blotted out. On the basis of these findings, the Federal Public Prosecutor’s Office discontinued the investigation… The suspicion that there had been a disclosure of official secrets thus proved to be unfounded. The police investigation did, however, reveal how the rumour that led to the information and the suspicion arose.” 27. On 13 March 1990 a number of Swiss newspapers commented on the above communiqué. They mentioned the applicant among the persons implicated and mentioned that telephones had been tapped. C. The proceedings brought by the applicant 1. The complaint to the Federal Department of Justice and Police 28. On 10 April, 3 September and 10 October 1990 Mr Kopp lodged complaints with the Federal Department of Justice and Police about breaches of the legislation on telephone tapping and of Article 8 of the Convention. 29. On 2 November 1992 the Federal Department dismissed the applicant’s complaints. Considering that they were to be classified as complaints to a higher authority, it refused him unrestricted access to his file. 2. The administrative appeal to the Federal Council 30. On 2 December 1992 Mr Kopp lodged an administrative appeal with the Federal Council against the decision taken on 2 November 1992 by the Federal Department of Justice and Police. He complained, among other matters, of unlawful telephone tapping and of the refusal to give him free access to the file. Under the heading “Violation of Article 8 of the Convention”, he made the following submission in particular: “In that context, it should also be noted that the telephone lines of [the applicant]’s law firm, which included a number of partners, were tapped. Section 66(1 bis ) of the Federal Criminal Procedure Act expressly prohibits the interception of such telephone conversations. Interception of telephone conversations with [the applicant]’s law firm was therefore likewise illegal under the above-mentioned provision of Swiss law.” 31. On 30 June 1993 the Federal Council dismissed the administrative appeal. It observed that, where telephone tapping was concerned, a complaint to a higher authority, even one which had no basis in law, was to be treated as a normal administrative appeal. It held that it had jurisdiction to determine whether monitoring of the applicant’s telephone lines had been unlawful, whether that measure had been in breach of the Convention and whether the applicant’s right to inspect his file had been infringed. If his personal rights had been infringed, the applicant could claim damages. He could also rely on the Federal Council’s decision in order to seek redress ( Genugtuung ) from the Federal Court. (a) The right to inspect the file The Federal Council considered that the applicant should have access only to those documents in the file which were directly relevant to the fact that he had had his telephone tapped as a “third party”. It noted that he had had restricted access to the documents, some of which had been censored, particularly as regards the informants’ names. Others, which concerned, for instance, the telephone tapping, had not been made available to him, but he had been orally informed of their existence and content. Several documents concerning third parties had not been handed over to him because their interests prevailed over his. (b) The lawfulness of the telephone tapping According to the Federal Council, section 66 of the Federal Criminal Procedure Act authorised monitoring the telephones of third parties, such as the applicant, if there was evidence giving rise to a presumption that they were receiving information from an offender or imparting information to him. It considered that in the period of general uncertainty due to rumours of subversion which had then obtained ( eine durch Unterwanderungsgerüchte verunsicherte Zeit ) there had been specific evidence pointing to a disclosure of official secrets by someone within the Federal Department of Justice and Police. The document in question contained confidential information about which guarantees had been given to the United States. The credibility of Switzerland had therefore been at stake. An apparent risk had been identified when the name of the applicant, who was the husband of the former head of the Department of Justice and Police, was mentioned. According to the Federal Council, it had been necessary to tap the telephone lines at the beginning of the investigation, before contacts were established with Mr Y and Mr Z. The civil servants concerned had therefore not immediately looked into the informants’ credibility, considering that any further contact would have compromised the investigation. The Federal Council observed that the applicant had had his telephone tapped not as a suspect but as a “third party” within the meaning of section 66(1 bis ) of the Federal Criminal Procedure Act. The conversations he had had in the capacity of lawyer had been expressly excluded. As he was not a civil servant, he could not have been guilty of the offence concerned. His wife had been one of the theoretically possible suspects, but there was no real evidence implicating her or anyone else. The fact that the applicant’s telephone lines had been monitored did not mean, therefore, that he had been under suspicion in the criminal sense. Moreover, the fact that the police investigation had been initiated in respect of “a person or persons unknown” was not simply a ploy to preserve appearances. Lastly, the investigation had not been ordered for political reasons and the chairman of the parliamentary commission had not been in a position to influence it. In conclusion, the Federal Council observed that the conversations recorded had been of no interest to the investigators and no report on them had been made. Be that as it may, even if such a report had been sent to the parliamentary commission, it could not have been used improperly because its members were bound by the duty not to disclose official secrets. 3. The administrative-law appeal to the Federal Court 32. The applicant also lodged with the Federal Court an administrative-law appeal against the decision taken on 2 November 1992 by the Federal Department of Justice and Police (see paragraph 29 above). He asked the Federal Court to rule that the telephone tapping had been unlawful and accordingly to order the institution of criminal proceedings against those responsible. 33. On 8 March 1994 the Federal Court gave judgment against the applicant. It first considered whether he should have been permitted to inspect the whole of the file when the case had been brought before the Federal Department of Justice and Police. It noted that he had been able to inspect those passages in the document which had determined the decision ( entscheidungswesentlich ) and that the decision not to disclose the informants’ names had been justified. It held that the above conclusion was also consistent with the parliamentary commission of inquiry’s decision to guarantee the informants’ anonymity. Moreover, on the basis of even a partial inspection of the file ( gestützt auf die ihm zugestellten “gestrippten” Akten ), the applicant had been able to lodge appeals. The Federal Court then considered whether criminal proceedings should be brought in connection with the monitoring of the applicant’s telephone lines. It held that it was not required to provide a conclusive ( abschliessend ) answer to the question whether the telephone tapping constituted a violation of Article 8 of the Convention, having regard in particular to the fact that the applicant had already appealed to the Federal Council. It noted that criminal proceedings had been instituted for a presumed disclosure of official secrets on the basis of information passed on by the chairman of the parliamentary commission of inquiry. The applicant’s firm was involved inasmuch as one of his partners had looked into the case in order to decide whether he should take it on. The presumption by the Federal Public Prosecutor’s Office that the first informant or the disloyal civil servant would contact the applicant did not seem to have been wholly unjustified. | This case concerned the monitoring of the applicant’s law firm’s telephone lines on orders of the Federal Public Prosecutor. |
176 | Right to life (Article 2 of the European Convention on Human Rights) | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1955 and lives in İzmir. 6. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 7. The applicant ’ s daughter, Gülperi O. , worked as a nurse at the Aegean University Hospital in İzmir. She was married to O.O., who worked in the pharmacy at the same hospital. 8. According to the applicant, the couple had frequent rows and O.O. used violence against Gülperi O. on a number of occasions. 9. At 5. 3 0 p.m. on 18 July 2005 O.O. brought Gülperi O. to the accident and emergency department of the Aegean University Hospital and told the doctors and nurses at the hospital that she had taken an overdose of two medicines called “Prent” and “Muscoril”. 10. A police officer at the hospital took a statement from O.O. at 6. 45 p.m. In his statement O.O. was reported as having stated that he and Gülperi O. had had a row earlier in the day; she had attacked him and he had hit her. He had then left home and some time after his return at 3.00 p.m. Gülperi O. had felt unwell. He had then brought her to the hospital. 11. It was stated in a report prepared by police officers that a police officer had spoken to the prosecutor over the telephone at 6. 50 p.m. and that the prosecutor had instructed that police officer to question Gülperi O. and her husband, O.O. 12. At the time of her admission to the hospital, Gülperi O. was conscious but drowsy. Doctors and nurses, who had been informed about O.O. ’ s assertion that she had taken an overdose of the two medicines, pumped her stomach. When her pulse slowed down the doctors unsuccessfully tried to resuscitate her. Gülperi O. died at 10.10 p.m. 13. The doctor and the prosecutor who subsequently examined her body were unable to establish the cause of death and they decided, in view of the fact that the deceased ’ s husband, O.O., had told the police officers that he had hit her, that a post-mortem examination was necessary. 14. The post-mortem examination was carried out the following day and samples taken from Gülperi O. ’ s body were sent for forensic analysis. 15. On 20 July 2005 the police prepared a report summing up their inquiry. It was stated in this report that Gülperi O. had committed suicide by taking an “overdose of medicines”. 16. On 22 July 2005 the applicant ’ s husband, Mr Elaattin Kanter, lodged an official complaint with the İzmir prosecutor against O.O., and alleged that O.O. had been responsible for the death of his daughter. Mr Kanter stated in his complaint petition that O.O. had beaten Gülperi O. up on a number of occasions and, as a result, she had been thinking of divorcing him. However, O.O. had apologized and had persuaded her to change her mind by promising to her that he would not be violent towards her again. Mr Kanter informed the prosecutor that Gülperi O. had telephoned her sister during the afternoon of the day of her death, and that they had had a normal conversation; she had not been suicidal at all. 17. Mr Kanter alleged that O.O. had forced Gülperi O. to take the medicines and had subsequently dumped her body at the hospital. The family had heard nothing from O.O. since that date and he had not even attended the funeral. 18. On 25 July 2005 the İzmir prosecutor questioned the applicant and her husband. The applicant told the prosecutor that O.O. had beaten up her daughter before and that as a result she had had to be hospitalised twice with suspected head injuries. Mr Kanter told the prosecutor that his daughter had never been suicidal and that in his opinion O.O. had been responsible for her death. 19. On 29 July 2005 police officers forwarded photographs of Gülperi O. ’ s body to their head office with a covering letter stating “ ... find attached photographs of Gülperi O. who committed suicide by taking an overdose of medicines ”. 20. Also on 29 July 2005 the İzmir prosecutor questioned the hospital personnel who had been on duty on the day in question and had tried to resuscitate Gülperi O. A doctor told the prosecutor that O.O. had told him that Gülperi O. had taken “Muscoril” and “Prent”. 21. On 19 December 2005 the İzmir prosecutor informed the Registry Office for births, marriages and deaths that Gülperi O. had taken an overdose on 18 July 2005 and had killed herself and that her death could be entered in the records. 22. According to a report drawn up by the Forensic Medicine Institute on 30 December 2005, no medicines, other drugs or alcohol had been found in the blood and other bodily samples taken from Gülperi O. ’ s body. 23. On 30 January 2006 the Forensic Medicine Institute published its report on the post-mortem examination and other forensic examinations carried out on the samples taken from Gülperi O. ’ s body. According to the report, there was advanced oedema in her lungs and there were no drugs or other foreign substances in her body. The cause of death was established as “acute alveolar swelling and intra-alveolar haemorrhage ” in the lungs. 24. On 13 February 2006 the İzmir prosecutor in charge of the investigation sent a letter to the Forensic Medicine Institute and asked whether suicide or some form of illness could have been the cause of death. 25. In its response to the İzmir prosecutor the Forensic Medicine Institute confirmed on 24 February 2006 that there had been no foreign substances or medicines ‒ including “ Prent ” and “ Muscaril ” (see paragraph 9 above) ‒ in Gülperi O. ’ s body. The Institute also stated in its letter that, should the judicial authorities conclude that Gülperi O. had committed suicide by taking an overdose, then those judicial authorities should also conclude that the medicines she had used were of a type which could not be detected in forensic examinations of samples taken from internal organs. 26. On 28 February 2006 the İzmir prosecutor decided to close the investigation. In the decision the prosecutor stated that “the post-mortem report of 30 January 2006 states that Gülperi O. died as a result of lung complications caused by medicinal intoxication”. In the opinion of the prosecutor, Gülperi O. had committed suicide because she had had an argument with her husband. 27. On 4 April 2006 the applicant lodged an objection with the Karşıyaka Assize Court against the prosecutor ’ s decision. The applicant drew the Assize Court ’ s attention to the prosecutor ’ s failure to question O.O., despite the fact that by his own admission he had beaten Gülperi O. up on the day of her death. She also argued that the prosecutor ’ s conclusion that her daughter had committed suicide by taking an overdose ran contrary to the conclusions set out in the two reports issued by the Forensic Medicine Institute. She added that the prosecutor had not visited the flat where Gülperi O. used to live with O.O., even though they had informed the prosecutor that the flat had been a mess and that windows had been broken. She alleged in her petition that the prosecutor had accepted from the outset that Gülperi O. had committed suicide and that that had been the reason why she had not conducted an investigation into the allegations brought to her attention. 28. On 20 June 2006 the applicant and her husband, assisted by a lawyer, submitted another petition to the Assize Court in which they set out additional arguments in support of their request for the prosecutor ’ s decision to be set aside. 29. The objection was dismissed by the Karşıyaka Assize Court on 11 July 2006. The Assize Court considered that the prosecutor ’ s decision had been correct and in accordance with domestic law and procedure. 30. When notice of the application was given to the respondent Government, the Court asked the Government ‒ pursuant to the parties ’ duty to cooperate with the Court under Article 38 of the Convention ‒ to invite the Forensic Medicine Institute to prepare a report, based on the above - mentioned existing medical reports and the prosecutor ’ s decision of 28 February 2006, and to render an expert opinion as to whether there exist medicines which cannot be detected in forensic examinations of samples taken from internal organs and which could nevertheless have caused the fatal lung problems. The Government were also asked, should the Institute ’ s answer be in the negative, to invite the Institute to elaborate, on the basis of the documents in the investigation file, on the cause of the lung problems which, according to the report of 30 January 2006, caused the death. 31. The Government complied with that request and submitted to the Court two reports prepared by the Forensic Medicine Institute on 16 April 2013 and 15 July 2013. 32. In these two reports, three experts working for the Forensic Medicine Institute confirmed that the samples taken from Gülperi O. ’ s body had been checked against the list of known substances in their database ‒ including the two medicines named specifically by Gülperi O. ’ s husband, O.O. ( see above in paragraph 9 ) ‒ and stated that she had not died as a result of having taken any of those substances. It was also stated in the report that the possibility could not be completely ruled out that she might have taken another toxic substance which was not in their database. 33. The experts at the Forensic Medicine Institute also stated in their reports that they did not agree with the conclusion reached in the autopsy report of 30 January 2006, namely that Gülperi O. had died as a result of “acute alveolar swelling and intra-alveolar haemorrhage ” in the lungs. In their opinion, the “acute alveolar swelling and intra-alveolar haemorrhage ” was a histopathological finding often caused by anoxia (total oxygen depletion), and could thus not be stated as the cause of death. In the opinion of the three experts, it should have been stated in the autopsy report of 30 January 2006 that the cause of Gülperi O. ’ s death could not be established. | The applicant’s daughter died in hospital after her husband had taken her to the emergency department, informing the doctors that she had taken an overdose of medicines. When questioned by the police, he also stated that the couple had had a row on the same day and he had hit her. The deceased’s father subsequently lodged a complaint with the prosecutor, stating that she had not been suicidal, and alleging that her husband was responsible for her death. The investigation by the prosecutor concluded that she had committed suicide. An objection by the applicant was dismissed by the domestic courts. Before the Court, the applicant complained that the investigation into the death of her daughter had been ineffective. |
590 | Right to life and right to respect for private life | I. THE CIRCUMSTANCES OF THE CASE 10. The applicants, who are all French nationals, are Mr Pierre Lambert and his wife Mrs Viviane Lambert, who were born in 1929 and 1945 respectively and live in Reims, Mr David Philippon, who was born in 1971 and lives in Mourmelon, and Mrs Anne Tuarze, who was born in 1978 and lives in Milizac. They are the parents, a half-brother and a sister respectively of Vincent Lambert, who was born on 20 September 1976. 11. Vincent Lambert sustained serious head injuries in a road-traffic accident on 29 September 2008, which left him tetraplegic and in a state of complete dependency. According to the expert medical report ordered by the Conseil d ’ État on 14 February 2014, he is in a chronic vegetative state (see paragraph 40 below). 12. From September 2008 to March 2009 he was hospitalised in the resuscitation wing, and subsequently the neurology ward, of Châlons ‑ en ‑ Champagne Hospital. From March to June 2009 he was cared for in the heliotherapy centre in Berck ‑ sur ‑ Mer, before being moved on 23 June 2009 to the unit in Reims University Hospital providing follow-up and rehabilitative care to patients in a vegetative or minimally conscious state, where he remains to date. The unit accommodates eight patients. Vincent Lambert receives artificial nutrition and hydration which is administered enterally, that is, via a gastric tube. 13. In July 2011 Vincent Lambert was assessed by a specialised unit of Liège University Hospital, the Coma Science Group, which concluded that he was in a chronic neuro-vegetative state characterised as “minimally conscious plus”. In line with the recommendations of the Coma Science Group he received daily sessions of physiotherapy from September 2011 to the end of October 2012, which yielded no results. He also received eighty-seven speech and language therapy sessions between March and September 2012, in an unsuccessful attempt to establish a code of communication. Attempts were also made to sit the patient in a wheelchair. A. First decision taken under the Law of 22 April 2005 on patients’ rights and end-of-life issues 14. As Vincent Lambert ’ s carers had observed increasing signs in 2012 of what they believed to be resistance on his part to daily care, the medical team initiated in early 2013 the collective procedure provided for by the Law of 22 April 2005 on patients ’ rights and end-of-life issues ( the so-called “Leonetti Act” – see paragraph 5 4 below). Rachel Lambert, the patient ’ s wife, was involved in the procedure. 15. The procedure resulted in a decision by Dr Kariger, the doctor in charge of Vincent Lambert and head of the department in which he is hospitalised, to withdraw the patient ’ s nutrition and reduce his hydration. The decision was put into effect on 10 April 2013. B. Injunction of 11 May 2013 16. On 9 May 2013 the applicants applied to the urgent-applications judge of the Châlons ‑ en ‑ Champagne Administrative Court on the basis of Article L. 521-2 of the Administrative Courts Code (urgent application for protection of a fundamental freedom ( référé liberté ) ), seeking an injunction ordering the hospital, subject to a coercive fine, to resume feeding and hydrating Vincent Lambert normally and to provide him with whatever care his condition required. 17. In an order dated 11 May 2013, the urgent-applications judge granted their requests. The judge held that, since no advance directives had been drawn up by Vincent Lambert, and in the absence of a person of trust within the meaning of the relevant provisions of the Public Health Code, the collective procedure should be continued with his family, despite the fact that the latter was divided as to what should become of the patient. The judge noted that, while Vincent Lambert ’ s wife had been involved in the procedure, it was clear from examination of the case that his parents had not been informed that it had been applied, and that the decision to withdraw nutrition and limit hydration, the nature of and reasons for which had not been disclosed to them, had not respected their wishes. 18. The judge held accordingly that these procedural shortcomings amounted to a serious and manifestly unlawful breach of a fundamental freedom, namely the right to respect for life, and ordered the hospital to resume feeding and hydrating Vincent Lambert normally and to provide him with whatever care his condition required. C. Second decision taken under the Leonetti Act 19. In September 2013 a fresh collective procedure was initiated. Dr Kariger consulted six doctors, including three from outside the hospital (a neurologist, a cardiologist and an anaesthetist with experience in palliative medicine) chosen by Vincent Lambert ’ s parents, his wife and the medical team respectively. He also had regard to a written contribution from a doctor in charge of a specialised extended - care facility within a nursing home. 20. Dr Kariger also convened two meetings with the family, on 27 September and 16 November 2013, which were attended by Vincent Lambert ’ s wife and parents and his eight siblings. Rachel Lambert and six of the eight brothers and sisters spoke in favour of discontinuing artificial nutrition and hydration, while the applicants were in favour of continuing it. 21. On 9 December 2013 Dr Kariger called a meeting of all the doctors and almost all the members of the care team. Following that meeting Dr Kariger and five of the six doctors consulted stated that they were in favour of withdrawing treatment. 22. On completion of the consultation procedure Dr Kariger announced on 11 January 2014 his intention to discontinue artificial nutrition and hydration on 1 3 January, subject to an application to the administrative court. His decision, comprising a reasoned thirteen-page report, a seven ‑ page summary of which was read out to the family, observed in particular that Vincent Lambert ’ s condition was characterised by irreversible brain damage and that the treatment appeared to be futile and disproportionate and to have no other effect than to sustain life artificially. According to the report, the doctor had no doubt that Vincent Lambert had not wished, before his accident, to live under such conditions. Dr Kariger concluded that prolonging the patient ’ s life by continuing his artificial nutrition and hydration amounted to unreasonable obstinacy. D. Administrative Court judgment of 16 January 2014 23. On 13 January 2014 the applicants made a further urgent application to the Châlons ‑ en ‑ Champagne Administrative Court for protection of a fundamental freedom under Article L. 521-2 of the Administrative Courts Code, seeking an injunction prohibiting the hospital and the doctor concerned from withdrawing Vincent Lambert ’ s nutrition and hydration, and an order for his immediate transfer to a specialised extended - care facility in Oberhausbergen run by the association Amréso ‑ Bethel (see paragraph 8 above). Rachel Lambert and François Lambert, Vincent Lambert ’ s nephew, intervened in the proceedings as third parties. 24. The Administrative Court, sitting as a full court of nine judges, held a hearing on 15 January 2014. In a judgment of 16 January 2014, it suspended the implementation of Dr Kariger ’ s decision of 11 January 2014. 25. The Administrative Court began by observing that Article 2 of the Convention did not prevent States from making provisions for individuals to object to potentially life-prolonging treatment, or for a doctor in charge of a patient who was unable to express his or her wishes and whose treatment the doctor considered, after implementing a series of safeguards, to amount to unreasonable obstinacy, to withdraw that treatment, subject to supervision by the Medical Council, the hospital ’ s ethics committee, where applicable, and the administrative and criminal courts. 26. The Administrative Court went on to find that it was clear from the relevant provisions of the Public Health Code, as amended following the Leonetti Act and as elucidated by the parliamentary proceedings, that artificial enteral nutrition and hydration – which were subject, like medication, to the distribution monopoly held by pharmacies, were designed to supply specific nutrients to patients with impaired functions and which required recourse to invasive techniques to administer them – constituted a form of treatment. 27. Observing that Dr Kariger ’ s decision had been based on the wish apparently expressed by Vincent Lambert not to be kept alive in a highly dependent state, and that the latter had not drawn up any advance directives or designated a person of trust, the Administrative Court found that the views he had confided to his wife and one of his brothers had been those of a healthy individual who had not been faced with the immediate consequences of his wishes, and had not constituted the formal manifestation of an express wish, irrespective of his professional experience with patients in a similar situation. The court further found that the fact that Vincent Lambert had had a conflictual relationship with his parents, since he did not share their moral values and religious commitment, did not mean that he could be considered to have expressed a clear wish to refuse all forms of treatment, and added that no unequivocal conclusion as to his desire or otherwise to be kept alive could be drawn from his apparent resistance to the care provided. The Administrative Court held that Dr Kariger had incorrectly assessed Vincent Lambert ’ s wishes. 28. The Administrative Court also noted that, according to the report drawn up in 2011 by Liège University Hospital (see paragraph 1 3 above), Vincent Lambert was in a minimally conscious state, implying the continuing presence of emotional perception and the existence of possible responses to his surroundings. Accordingly, the administering of artificial nutrition and hydration was not aimed at keeping him alive artificially. Lastly, the court considered that, as long as the treatment did not cause any stress or suffering, it could not be characterised as futile or disproportionate. It therefore held that Dr Kariger ’ s decision had constituted a serious and manifestly unlawful breach of Vincent Lambert ’ s right to life. It issued an order suspending the implementation of the decision while rejecting the request for the patient to be transferred to the specialised extended-care facility in Oberhausbergen. E. Conseil d ’ État ruling of 14 February 2014 29. In three applications lodged on 31 January 2014, Rachel Lambert, François Lambert and Reims University Hospital appealed against that judgment to the urgent-applications judge of the Conseil d ’ État. The applicants lodged a cross-appeal, requesting Vincent Lambert ’ s immediate transfer to the specialised extended-care facility. The National Union of Associations of Head Injury and Brain Damage Victims ’ Families (UNAFTC, see paragraph 8 above) sought leave to intervene as a third party. 30. At the hearing on the urgent application held on 6 February 2014, the President of the Judicial Division of the Conseil d ’ État decided to refer the case to the full court, sitting as a seventeen-member Judicial Assembly. 31. The hearing before the full court took place on 13 February 2014. In his submissions to the Conseil d ’ État, the public rapporteur cited, inter alia, the remarks made by the Minister of Health to the members of the Senate examining the bill known as the “ Leonetti Bill ” : “While the act of withdrawing treatment ... results in death, the intention behind the act [is not to kill; it is] to allow death to resume its natural course and to relieve suffering. This is particularly important for care staff, whose role is not to take life.” 32. The Conseil d ’ État delivered its ruling on 14 February 2014. After joining the applications and granting UNAFTC leave to intervene, the Conseil d ’ État defined in the following terms the role of the urgent ‑ applications judge called upon to rule on the basis of Article L. 521 ‑ 2 of the Administrative Courts Code. “Under [Article L. 521-2], the urgent-applications judge of the administrative court, when hearing an application of this kind justified by particular urgency, may order any measures necessary to safeguard a fundamental freedom allegedly breached in a serious and manifestly unlawful manner by an administrative authority. These legislative provisions confer on the urgent-applications judge, who normally decides alone and who orders measures of an interim nature in accordance with Article L. 511-1 of the Administrative Courts Code, the power to order, without delay and on the basis of a ‘ plain and obvious ’ test, the necessary measures to protect fundamental freedoms. However, the urgent-applications judge must exercise his or her powers in a particular way when hearing an application under Article L. 521-2 ... concerning a decision taken by a doctor on the basis of the Public Health Code which would result in treatment being discontinued or withheld on grounds of unreasonable obstinacy and the implementation of which would cause irreversible damage to life. In such circumstances the judge, sitting where applicable as a member of a bench of judges, must take the necessary protective measures to prevent the decision in question from being implemented where it may not be covered by one of the situations provided for by law, while striking a balance between the fundamental freedoms in issue, namely the right to respect for life and the patient ’ s right to consent to medical treatment and not to undergo treatment that is the result of unreasonable obstinacy. In such a case, the urgent ‑ applications judge or the bench to which he or she has referred the case may, as appropriate, after temporarily suspending the implementation of the measure and before ruling on the application, order an expert medical report and, under Article R. 625-3 of the Administrative Courts Code, seek the opinion of any person whose expertise or knowledge are apt to usefully inform the court ’ s decision. ” 33. The Conseil d ’ État found that it was clear from the very wording of the relevant provisions of the Public Health Code (Articles L. 1110 ‑ 5, L. 1111 ‑ 4 and R. 4127 ‑ 37) and from the parliamentary proceedings that the provisions in question were general in scope and applied to Vincent Lambert just as they did to all users of the health service. The Conseil d ’ État stated as follows. “It is clear from these provisions that each individual must receive the care most appropriate to his or her condition and that the preventive or exploratory acts carried out and the care administered must not subject the patient to disproportionate risks in relation to the anticipated benefits. Such acts must not be continued with unreasonable obstinacy and may be discontinued or withheld where they appear to be futile or disproportionate or to have no other effect than to sustain life artificially, whether or not the patient is in an end - of - life situation. Where the patient is unable to express his or her wishes, any decision to limit or withdraw treatment on the ground that continuing it would amount to unreasonable obstinacy may not be taken by the doctor, where such a measure is liable to endanger the life of the patient, without the collective procedure defined in the Code of Medical Ethics and the rules on consultation laid down in the Public Health Code having been followed. If the doctor takes such a decision he or she must in any event preserve the patient ’ s dignity and dispense palliative care. Furthermore, it is clear from the provisions of Articles L. 1110-5 and L. 1111 -4 of the Public Health Code, as elucidated by the parliamentary proceedings prior to the passing of the Law of 22 April 2005, that the legislature intended to include among the forms of treatment that may be limited or withdrawn on grounds of unreasonable obstinacy all acts which seek to maintain the patient ’ s vital functions artificially. Artificial nutrition and hydration fall into this category of acts and may accordingly be withdrawn where continuing them would amount to unreasonable obstinacy.” 34. The Conseil d ’ État went on to find that its task was to satisfy itself, having regard to all the circumstances of the case, that the statutory conditions governing any decision to withdraw treatment whose continuation would amount to unreasonable obstinacy had been met. To that end it needed to have the fullest information possible at its disposal, in particular concerning Vincent Lambert ’ s state of health. Accordingly, it considered it necessary before ruling on the application to order an expert medical report to be prepared by practitioners with recognised expertise in neuroscience. The experts – acting on an independent and collective basis, after examining the patient, meeting the medical team and the care staff and familiarising themselves with the patient ’ s entire medical file – were to give their opinion on Vincent Lambert ’ s current condition and provide the Conseil d ’ État with all relevant information as to the prospect of any change. 35. The Conseil d ’ État decided to entrust the expert report to a panel of three doctors appointed by the President of the Judicial Division on proposals from the President of the National Medical Academy, the Chair of the National Ethics Advisory Committee and the President of the National Medical Council respectively. The remit of the panel of experts, which was to report within two months of its formation, read as follows. “(i) To describe Mr. Lambert ’ s current clinical condition and how it has changed since the review carried out in July 2011 by the Coma Science Group of Liège University Hospital; (ii) To express an opinion as to whether the patient ’ s brain damage is irreversible and as to the clinical prognosis; (iii) To determine whether the patient is capable of communicating, by whatever means, with those around him; (iv) To assess whether there are any signs to suggest at the present time that Mr Lambert reacts to the care being dispensed to him and, if so, whether those reactions can be interpreted as a rejection of that care, as suffering, as a desire for the life-sustaining treatment to be withdrawn or, on the contrary, as a desire for the treatment to be continued.” 36. The Conseil d ’ État also considered it necessary, in view of the scale and the difficulty of the scientific, ethical and deontological issues raised by the case and in accordance with Article R. 625-3 of the Administrative Courts Code, to request the National Medical Academy, the National Ethics Advisory Committee and the National Medical Council, together with Mr Jean Leonetti, the rapporteur for the Law of 22 April 2005, to submit general written observations by the end of April 2014 designed to clarify for it the application of the concepts of unreasonable obstinacy and sustaining life artificially for the purposes of Article L. 1110-5, with particular regard to individuals who, like Vincent Lambert, were in a minimally conscious state. 37. Lastly, the Conseil d ’ État rejected the applicants ’ request for Vincent Lambert to be transferred to a specialised extended-care facility (see paragraph 29 above). F. Expert medical report and general observations 1. Expert medical report 38. The experts examined Vincent Lambert on nine occasions. They familiarised themselves with the entire medical file, and in particular the report of the Coma Science Group in Liège (see paragraph 1 3 above), the treatment file and the administrative file, and had access to all the imaging tests. They also consulted all the items in the judicial case file of relevance for their expert report. In addition, between 24 March and 23 April 2014, they met all the parties ( the family, the medical and care team, the medical consultants and representatives of UNAFTC and the hospital) and carried out a series of tests on Vincent Lambert. 39. On 5 May 2014 the experts sent their preliminary report to the parties for comments. Their final report, submitted on 26 May 2014, provided the following replies to the questions asked by the Conseil d ’ État. ( a) Vincent Lambert ’ s clinical condition and how it had changed 40. The experts found that Vincent Lambert ’ s clinical condition corresponded to a vegetative state, with no signs indicating a minimally conscious state. Furthermore, they stressed that he had difficulty swallowing and had seriously impaired motor functions of all four limbs, with significant retraction of the tendons. They noted that his state of consciousness had deteriorated since the assessment carried out in Liège in 2011. ( b) Irreversible nature of the brain damage and clinical prognosis 41. The experts pointed out that the two main factors to be taken into account in assessing whether or not brain damage was irreversible were, firstly, the length of time since the accident which had caused the damage and, secondly, the nature of the damage. In the present case they noted that five and a half years had passed since the initial head injury and that the imaging tests showed severe cerebral atrophy testifying to permanent neuron loss, near-total destruction of strategic regions such as both parts of the thalamus and the upper part of the brain stem, and serious damage to the communication pathways in the brain. They concluded that the brain damage was irreversible. They added that the lengthy period of progression, the patient ’ s clinical deterioration since July 2011, his current vegetative state, the destructive nature and extent of the brain damage and the results of the functional tests, coupled with the severity of the motor impairment of all four limbs, pointed to a poor clinical prognosis. ( c) Vincent Lambert ’ s capacity to communicate with those around him 42. In the light of the tests carried out, and particularly in view of the fact that the course of speech and language therapy carried out in 2012 had not succeeded in establishing a code of communication, the experts concluded that Vincent Lambert was not capable of establishing functional communication with those around him. ( d) Existence of signs suggesting that Vincent Lambert reacted to the care provided, and interpretation of those signs 43. The experts observed that Vincent Lambert reacted to the care provided and to painful stimuli, but concluded that these were non ‑ conscious responses. In their view, it was not possible to interpret them as conscious awareness of suffering or as the expression of any intent or wish with regard to the withdrawal or continuation of treatment. 2. General observations 44. On 22 and 29 April and 5 May 2014 the Conseil d ’ État received the general observations of the National Medical Council, Mr Jean Leonetti, rapporteur for the Law of 22 April 2005, the National Medical Academy and the National Ethics Advisory Committee. The National Medical Council made clear in particular that, in using the expression “ no other effect than to sustain life artificially” in Article L. 1110 ‑ 5 of the Public Health Code, the legislature had sought to address the situation of patients who not only were being kept alive solely by the use of methods and techniques replacing key vital functions, but also, and above all, whose cognitive and relational functions were profoundly and irreversibly impaired. It emphasised the importance of the notion of temporality, stressing that where a pathological condition had become chronic, resulting in the person ’ s physiological deterioration and the loss of his or her cognitive and relational faculties, obstinacy in administering treatment could be regarded as unreasonable if no signs of improvement were apparent. Mr Leonetti stressed that the Law of 22 April 2005 was applicable to patients who had brain damage and thus suffered from a serious condition which, in the advanced stages, was incurable, but who were not necessarily “at the end of life”. Accordingly, the legislature had referred in its title to “patients ’ rights and end ‑ of ‑ life issues” rather than “patients ’ rights in end ‑ of ‑ life situations ”. He outlined the criteria for unreasonable obstinacy and the factors used to assess it and stated that the reference to treatment having “ no other effect than to sustain life artificially”, which was stricter than the wording originally envisaged (namely, treatment “which prolongs life artificially”) was more restrictive and referred to artificially sustaining life “in the purely biological sense, in circumstances where, firstly, the patient has major irreversible brain damage and, secondly, his or her condition offers no prospect of a return to awareness of self or relationships with others”. He pointed out that the Law of 22 April 2005 gave the doctor sole responsibility for the decision to withdraw treatment and that it had been decided not to pass that responsibility on to the family, in order to avoid any feelings of guilt and to ensure that the person who took the decision was identified. The National Medical Academy reiterated the fundamental prohibition barring doctors from deliberately taking another ’ s life, which formed the basis for the relationship of trust between doctor and patient. The Academy reiterated its long-standing position according to which the Leonetti Act was applicable not only to the various “end-of-life” situations, but also to situations raising the very difficult ethical issue of the “ending of life” in the case of patients in “survival” mode, in a minimally conscious or chronic vegetative state. The National Ethics Advisory Committee conducted an in ‑ depth analysis of the difficulties surrounding the notions of unreasonable obstinacy, treatment and sustaining life artificially, summarised the medical data concerning minimally conscious states, and addressed the ethical issues arising out of such situations. It recommended, in particular, a process of reflection aimed at ensuring that the collective discussions led to a genuine collective decision-making process and that, where no consensus could be reached, there was a possibility of mediation. G. Conseil d ’ État judgment of 24 June 2014 45. A hearing took place on 20 June 2014 before the Conseil d ’ État. In his submissions the public rapporteur stressed, in particular, the following : “ ... [ T ]he legislature did not wish to impose on those in the caring professions the burden of bridging the gap which exists between allowing death to take its course when it can no longer be prevented and actively causing death by administering a lethal substance. By discontinuing treatment, a doctor is not taking the patient ’ s life, but is resolving to withdraw when there is nothing more to be done.” The Conseil d ’ État delivered its judgment on 24 June 2014. After granting leave to Marie ‑ Geneviève Lambert, Vincent Lambert ’ s half-sister, to intervene as a third party, and reiterating the relevant provisions of domestic law as commented on and elucidated in the general observations received, the Conseil d ’ État examined in turn the applicants ’ arguments based on the Convention and on domestic law. 46. On the first point the Conseil d ’ État reiterated that, where the urgent ‑ applications judge was called on to hear an application under Article L. 521-2 of the Administrative Courts Code (urgent application for protection of a fundamental freedom) concerning a decision taken by a doctor under the Public Health Code which would result in treatment being discontinued or withheld on the ground of unreasonable obstinacy, and implementation of that decision would cause irreversible damage to life, the judge was required to examine any claim that the provisions in question were incompatible with the Convention (see paragraph 32 above). 47. In the case before it the Conseil d ’ État replied in the following terms to the arguments based on Articles 2 and 8 of the Convention. “Firstly, the disputed provisions of the Public Health Code defined a legal framework reaffirming the right of all persons to receive the most appropriate care, the right to respect for their wish to refuse any treatment and the right not to undergo medical treatment resulting from unreasonable obstinacy. Those provisions do not allow a doctor to take a life-threatening decision to limit or withdraw the treatment of a person incapable of expressing his or her wishes, except on the dual, strict condition that continuation of that treatment would amount to unreasonable obstinacy and that the requisite safeguards are observed, namely that account is taken of any wishes expressed by the patient and that at least one other doctor and the care team are consulted, as well as the person of trust, the family or another person close to the patient. Any such decision by a doctor is open to appeal before the courts in order to review compliance with the conditions laid down by law. Hence the disputed provisions of the Public Health Code, taken together, in view of their purpose and the conditions attaching to their implementation, cannot be said to be incompatible with the requirements of Article 2 of the Convention ..., or with those of Article 8 ... ” The Conseil d ’ État also rejected the applicants ’ arguments based on Articles 6 and 7 of the Convention, finding that the role entrusted to the doctor under the provisions of the Public Health Code was not incompatible with the duty of impartiality flowing from Article 6, and that Article 7, which applied to criminal convictions, was not relevant to the case before it. 48. Regarding the application of the relevant provisions of the Public Health Code, the Conseil d ’ État held as follows. “Although artificial nutrition and hydration are among the forms of treatment which may be withdrawn in cases where their continuation would amount to unreasonable obstinacy, the sole fact that a person is in an irreversible state of unconsciousness or, a fortiori, has lost his or her autonomy irreversibly and is thus dependent on such a form of nutrition and hydration, does not by itself amount to a situation in which the continuation of treatment would appear unjustified on grounds of unreasonable obstinacy. In assessing whether the conditions for the withdrawal of artificial nutrition and hydration are met in the case of a patient with severe brain damage, however caused, who is in a vegetative or minimally conscious state and is thus unable to express his or her wishes, and who depends on such nutrition and hydration as a means of life support, the doctor in charge of the patient must base his or her decision on a range of medical and non-medical factors whose relative weight cannot be determined in advance but will depend on the circumstances of each patient, so that the doctor must assess each situation on its own merits. In addition to the medical factors – which must cover a sufficiently long period, be assessed collectively and relate in particular to the patient ’ s current condition, the change in that condition since the accident or illness occurred, his or her degree of suffering and the clinical prognosis – the doctor must attach particular importance to any wishes the patient may have expressed previously, whatever their form or tenor. In that regard, where such wishes remain unknown, they cannot be assumed to consist in a refusal by the patient to be kept alive in the current conditions. The doctor must also take into account the views of the person of trust, where the patient has designated such a person, of the members of the patient ’ s family or, failing this, of another person close to the patient, while seeking to establish a consensus. In assessing the patient ’ s particular situation, the doctor must be guided primarily by a concern to act with maximum beneficence towards the patient ... ” 49. The Conseil d ’ État went on to find that it was its task, in the light of all the circumstances of the case and the evidence produced in the course of the adversarial proceedings before it, in particular the expert medical report, to ascertain whether the decision taken by Dr Kariger on 11 January 2014 had complied with the statutory conditions imposed on any decision to withdraw treatment whose continuation would amount to unreasonable obstinacy. 50. In that connection the Conseil d ’ État ruled as follows. “Firstly, it is clear from the examination of the case that the collective procedure conducted by Dr Kariger ..., prior to the taking of the decision of 11 January 2014, was carried out in accordance with the requirements of Article R. 4127-37 of the Public Health Code and involved the consultation of six doctors, although that Article simply requires that the opinion of one doctor and, where appropriate, of a second be sought. Dr Kariger was not legally bound to allow the meeting of 9 December 2013 to be attended by a second doctor designated by Mr Lambert ’ s parents in addition to the one they had already designated. Nor does it appear from the examination of the case that some members of the care team were deliberately excluded from that meeting. Furthermore, Dr Kariger was entitled to speak with Mr François Lambert, the patient ’ s nephew. The fact that Dr Kariger opposed a request for him to withdraw from Mr Lambert ’ s case and for the patient to be transferred to another establishment, and the fact that he expressed his views publicly, do not amount, having regard to all the circumstances of the present case, to a failure to comply with the obligations implicit in the principle of impartiality, which Dr Kariger respected. Accordingly, contrary to what was argued before the Châlons-en-Champagne Administrative Court, the procedure preceding the adoption of the decision of 11 January 2014 was not tainted by any irregularity. Secondly, the experts ’ findings indicate that ‘ Mr Lambert ’ s current clinical condition corresponds to a vegetative state ’, with ‘ swallowing difficulties, severe motor impairment of all four limbs, some signs of dysfunction of the brainstem ’ and ‘ continued ability to breathe unaided ’. The results of the tests carried out from 7 to 11 April 2014 to assess the patient ’ s brain structure and function ... were found to be consistent with such a vegetative state. The experts found that the clinical progression, characterised by the disappearance of the fluctuations in Mr Lambert ’ s state of consciousness recorded during the assessment carried out in July 2011 by the Coma Science Group at Liège University Hospital and by the failure of the active therapies recommended at the time of that assessment, were suggestive of ‘ a deterioration in the [patient ’ s] state of consciousness since that time ’. Furthermore, according to the findings set out in the experts ’ report, the exploratory tests which were carried out revealed serious and extensive brain damage, as evidenced in particular by ‘ severe impairment of the structure and metabolism of the sub-cortical regions of crucial importance for cognitive function ’ and ‘ major structural dysfunction of the communication pathways between the regions of the brain involved in consciousness ’. The severity of the cerebral atrophy and of the damage observed, coupled with the five-and-a-half-year period that had elapsed since the initial accident, led the experts to conclude that the brain damage was irreversible. Furthermore, the experts concluded that ‘ the lengthy period of progression, the patient ’ s clinical deterioration since 2011, his current vegetative state, the destructive nature and the extent of the brain damage, the results of the functional tests and the severity of the motor impairment of all four limbs ’ pointed to a ‘ poor clinical prognosis ’. Lastly, while noting that Mr Lambert was capable of reacting to the care administered and to certain stimuli, the experts indicated that the characteristics of those reactions suggested that they were non-conscious responses. The experts did not consider it possible to interpret these behavioural reactions as evidence of ‘ conscious awareness of suffering ’ or as the expression of any intent or wish with regard to the withdrawal or continuation of the treatment keeping the patient alive. These findings, which the experts reached unanimously following a collective assessment in the course of which the patient was examined on nine separate occasions, thorough cerebral tests were performed, meetings were held with the medical team and care staff involved and the entire file was examined, confirm the conclusions drawn by Dr Kariger as to the irreversible nature of the damage and Mr Lambert ’ s clinical prognosis. The exchanges which took place in the adversarial proceedings before the Conseil d ’ État subsequent to submission of the experts ’ report do nothing to invalidate the experts ’ conclusions. While it can be seen from the experts ’ report, as just indicated, that Mr Lambert ’ s reactions to care are not capable of interpretation and thus cannot be regarded as expressing a wish as to the withdrawal of treatment, Dr Kariger in fact indicated in the impugned decision that the behaviour concerned was open to various interpretations, all of which needed to be treated with great caution, and did not include this aspect in the reasons for his decision. Thirdly, the provisions of the Public Health Code allow account to be taken of a patient ’ s wishes expressed in a form other than advance directives. It is apparent from the examination of the case, and in particular from the testimony of Mrs Rachel Lambert, that she and her husband, both nurses, had often discussed their respective professional experiences in dealing with patients under resuscitation and those with multiple disabilities, and that Mr Lambert had on several such occasions clearly voiced the wish not to be kept alive artificially if he were to find himself in a highly dependent state. The tenor of those remarks, reported by Mrs Rachel Lambert in precise detail and with the corresponding dates, was confirmed by one of Mr Lambert ’ s brothers. While these remarks were not made in the presence of Mr Lambert ’ s parents, the latter did not claim that their son could not have made them or that he would have expressed wishes to the contrary, and several of Mr Lambert ’ s siblings stated that the remarks concerned were in keeping with their brother ’ s personality, past experience and personal opinions. Accordingly, in stating among the reasons for the decision at issue his certainty that Mr Lambert did not wish, before his accident, to live under such conditions, Dr Kariger cannot be regarded as having incorrectly interpreted the wishes expressed by the patient before his accident. Fourthly, the doctor in charge of the patient is required, under the provisions of the Public Health Code, to obtain the views of the patient ’ s family before taking any decision to withdraw treatment. Dr Kariger complied with this requirement in consulting Mr Lambert ’ s wife, parents and siblings in the course of the two meetings referred to earlier. While Mr Lambert ’ s parents and some of his brothers and sisters opposed the discontinuing of treatment, Mr Lambert ’ s wife and his other siblings stated their support for the proposal to withdraw treatment. Dr Kariger took these different opinions into account. In the circumstances of the case, he concluded that the fact that the members of the family were not unanimous as to what decision should be taken did not constitute an impediment to his decision. It follows from all the above considerations that the various conditions imposed by the law before any decision can be taken by the doctor in charge of the patient to withdraw treatment which has no effect other than to sustain life artificially, and whose continuation would thus amount to unreasonable obstinacy, may be regarded, in the case of Mr Vincent Lambert and in the light of the adversarial proceedings before the Conseil d ’ État, as having been met. Accordingly, the decision taken by Dr Kariger on 11 January 2014 to withdraw the artificial nutrition and hydration of Mr Vincent Lambert cannot be held to be unlawful. ” 51. Accordingly, the Conseil d ’ État set aside the Administrative Court ’ s judgment and dismissed the applicants ’ claims. II. In the cases contemplated in the fifth paragraph of Article L. 1111-4 and the first paragraph of Article L. 1111-13, the decision to limit or withdraw the treatment administered may not be taken unless a collective procedure has first been implemented. The doctor may set the collective procedure in motion on his or her own initiative. He or she shall be required to do so in the light of any advance directives given by the patient and submitted by one of the persons in possession of them mentioned in Article R. 1111-19, or at the request of the person of trust, the family or, failing this, another person close to the patient. The persons in possession of the patient ’ s advance directives, the person of trust, the family or, where appropriate, another person close to the patient shall be informed as soon as the decision has been taken to implement the collective procedure. The decision to limit or withdraw treatment shall be taken by the doctor in charge of the patient, after consultation with the care team where this exists, and on the basis of the reasoned opinion of at least one doctor acting as a consultant. There must be no hierarchical link between the doctor in charge of the patient and the consultant. The reasoned opinion of a second consultant shall be sought by these doctors if either of them considers it necessary. The decision to limit or withdraw treatment shall take into account any wishes previously expressed by the patient, in particular in the form of advance directives, if drawn up, the views of the person of trust the patient may have designated and those of the family or, failing this, of another person close to the patient. ... Reasons shall be given for any decision to limit or withdraw treatment. The opinions received, the nature and tenor of the consultations held within the care team and the reasons for the decision shall be recorded in the patient ’ s file. The person of trust, if one has been designated, the family or, failing this, another person close to the patient, shall be informed of the nature of and the reasons for the decision to limit or withdraw treatment. III. Where it has been decided to limit or withdraw treatment under Article L. 1110 ‑ 5 and Article L. 1111-4 or L. 1111-13, in the circumstances provided for in points I and II of the present Article, the doctor, even if the patient ’ s suffering cannot be assessed on account of his or her cerebral state, shall put in place the necessary treatment, in particular pain relief and sedation, to support the patient in accordance with the principles and conditions laid down in Article R. 4127-38. He or she shall also ensure that the persons close to the patient are informed of the situation and receive the support they require.” 55. Article R. 4127-38 of the Code provides: “The doctor must support the dying person until the moment of death, ensure, through appropriate treatment and measures, the quality of life as it nears its end, preserve the patient ’ s dignity, and comfort those close to him or her. Doctors do not have the right to take life intentionally .” B. Private members ’ bill of 21 January 2015 56. Two members of Parliament (Mr Leonetti and Mr Claeys) tabled a bill before the National Assembly on 21 January 2015 proposing in particular the following amendments to the Law of 22 April 2005: – section 2 of the bill specifies that artificial nutrition and hydration constitute a form of treatment; – advance directives are to be binding on the doctor and there will no longer be a time-limit on their validity (they are currently valid for three years), their drafting will be subject to a prescribed procedure and they will be more accessible. Where there are no advance directives, the role of the person of trust is spelled out ( the latter ’ s task is to express the patient ’ s wishes, and his or her testimony takes precedence over any other ); – the bill expressly acknowledges that every individual has “the right to refuse or not to undergo any treatment” and that the doctor cannot insist on continuing with it (previous wording). Nevertheless, the doctor must continue to provide support to the patient, particularly in the form of palliative care; – the right not to suffer is recognised (the doctor must put in place all available pain relief and sedation to deal with suffering in the advanced or terminal stages, even if these may have the effect of shortening the time left to live); – the right of patients in the terminal stages to deep, continuous sedation until death is also recognised: the withdrawal of treatment (including artificial nutrition and hydration) must always be accompanied by sedation. Where the patient is incapable of expressing his or her wishes the bill provides – subject to account being taken of the patient ’ s wishes and in accordance with a collective procedure – that the doctor is required to discontinue or withhold treatment which “has no other effect than to sustain life artificially” (in the current wording, the doctor may discontinue such treatment). If these criteria are met, the patient has the right to deep, continuous sedation until death occurs. The bill was adopted on 17 March 2015 by the National Assembly and is currently being examined in the Senate. C. Administrative Courts Code 57. Article L. 521 ‑ 2 of the Administrative Courts Code, concerning urgent applications for protection of a fundamental freedom, reads as follows: “Where such an application is submitted to him or her as an urgent matter, the urgent-applications judge may order whatever measures are necessary to protect a fundamental freedom which has allegedly been breached in a serious and manifestly unlawful manner by a public - law entity or an organisation governed by private law responsible for managing a public service, in the exercise of their powers. The urgent ‑ applications judge shall rule within forty-eight hours.” 58. Article R. 625 ‑ 3 of the same Code provides: “The bench examining the case may call on any person whose expertise or knowledge might usefully inform its determination of the case to submit general observations on the points in issue. The opinion shall be submitted in writing. It shall be communicated to the parties ... ” III. COUNCIL OF EUROPE MATERIALS A. The Oviedo Convention on Human Rights and Biomedicine 59. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (known as the Oviedo Convention on Human Rights and Biomedicine), which was adopted in 1997 and entered into force on 1 December 1999, has been ratified by twenty ‑ nine of the Council of Europe member States. Its relevant provisions read as follows: Article 1 – Purpose and object “Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine. ... ” Article 5 – General rule “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.” Article 6 – Protection of persons not able to consent “1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit. ... 3. Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The individual concerned shall as far as possible take part in the authorisation procedure. 4. The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5. 5. The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.” Article 9 – Previously expressed wishes “The previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account.” B. The “ Guide on the decision-making process regarding medical treatment in end-of-life situations ” 60. This Guide was drawn up by the Committee on Bioethics of the Council of Europe in the course of its work on patients ’ rights and with the intention of facilitating the implementation of the principles enshrined in the Oviedo Convention. Its aims are to propose reference points for the implementation of the decision-making process regarding medical treatment in end-of-life situations, to bring together both normative and ethical reference works and elements relating to good medical practice which may be useful to health-care professionals dealing with the implementation of the decision ‑ making process, and to contribute, through the clarification it provides, to the overall discussion on the subject. 61. The Guide cites as the ethical and legal frames of reference for the decision-making process the principles of autonomy (free, informed and prior consent of the patient), beneficence and non-maleficence, and justice (equitable access to health care). It specifies that doctors must not dispense treatment which is needless or disproportionate in view of the risks and constraints it entails. They must provide patients with treatment that is proportionate and suited to their situation. They also have a duty to take care of their patients, ease their suffering and provide them with support. Treatment covers interventions which aim to improve a patient ’ s state of health by acting on the causes of the illness, but also interventions which have no bearing on the aetiology of the illness but act on the symptoms, or which are responses to an organ dysfunction. Under the heading “Disputed issues”, the Guide states as follows. “ The question of limiting, withdrawing or withholding artificial hydration and nutrition Food and drink given to patients who are still able to eat and drink themselves are external contributions meeting physiological needs, which should always be satisfied. They are essential elements of care which should be provided unless the patient refuses them. Artificial nutrition and hydration are given to a patient following a medical indication and imply choices concerning medical procedures and devices (perfusion, feeding tubes). Artificial nutrition and hydration are regarded in a number of countries as forms of treatment, which may therefore be limited or withdrawn in the circumstances and in accordance with the guarantees stipulated for limitation or withdrawal of treatment (refusal of treatment expressed by the patient, refusal of unreasonable obstinacy or disproportionate treatment assessed by the care team and accepted in the framework of a collective procedure). The considerations to be taken into account in this regard are the wishes of the patient and the appropriate nature of the treatment in the situation in question. In other countries, however, it is considered that artificial nutrition and hydration do not constitute treatment which can be limited or withdrawn, but a form of care meeting the individual ’ s basic needs, which cannot be withdrawn unless the patient, in the terminal phase of an end-of-life situation, has expressed a wish to that effect. The question of the appropriate nature, in medical terms, of artificial nutrition and hydration in the terminal phase is itself a matter of debate. Some take the view that implementing or continuing artificial hydration and nutrition are necessary for the comfort of a patient in an end-of-life situation. For others, the benefit of artificial hydration and nutrition for the patient in the terminal phase, taking into account research in palliative care, is questionable.” 62. The Guide concerns the decision-making process regarding medical treatment as it applies to end ‑ of ‑ life situations (including its implementation, modification, adaptation, limitation or withdrawal). It does not address the issues of euthanasia or assisted suicide, which some national legislations authorise. 63. While other parties are involved in the decision-making process, the Guide stresses that the principal party is the patient himself or herself. When the patient cannot or can no longer take part in making decisions, they will be taken by a third party according to the procedures laid down in the relevant national legislation. However, the patient should nonetheless be involved in the decision-making process by means of any previously expressed wishes. The Guide lists the various forms these may take: the patient may have confided his or her intentions orally to a family member, a close friend or a person of trust designated as such; or they may be set down formally, in advance directives or a living will or as powers granted to another person, sometimes referred to as powers of future protection ( mandat de protection future ). 64. Other persons involved in the decision-making process may include the patient ’ s legal representative or a person granted a power of attorney, family members and close friends, and the carers. The Guide stresses that doctors have a vital, not to say primary, role because of their ability to appraise the patient ’ s situation from a medical viewpoint. Where patients are not, or are no longer, able to express their wishes, doctors are the people who, in the context of the collective decision-making process, having involved all the health-care professionals concerned, will take the clinical decision guided by the best interests of the patient. To this end, they will have taken note of all the relevant elements (consultation of family members, close friends, the person of trust, and so on ) and taken into account any previously expressed wishes. In some systems the decision is taken by a third party, but in all cases doctors are the ones to ensure that the decision-making process is properly conducted. 65. The Guide reiterates that the patient should always be at the centre of any decision-making process, which takes on a collective dimension when the patient is no longer willing or able to participate in it directly. The Guide identifies three main stages in the decision-making process: an individual stage (each party forms his or her arguments on the basis of the information gathered), a collective stage (the various parties take part in exchanges and discussions) and a concluding stage (when the actual decision is taken). 66. The Guide points out that sometimes, where positions diverge significantly or the question is highly complex or specific, there may be a need to make provision to consult third parties either to contribute to the debate, to overcome a problem or to resolve a conflict. The consultation of a clinical ethics committee may, for example, be appropriate. At the end of the collective discussion, agreement must be reached. A conclusion must be drawn and validated collectively and then formalised in writing. 67. If the decision is taken by the doctor, it should be taken on the basis of the conclusions of the collective discussion and be announced, as appropriate, to the patient, the person of trust and/or the entourage of the patient, the care team and the third parties concerned who have taken part in the process. The decision should also be formalised (in the form of a written summary of the reasons) and kept in an identified place. 68. The Guide highlights the disputed nature of the use of deep sedation in the terminal phase, which may have the effect of shortening the time left to live. Lastly, it suggests an evaluation of the decision-making process after its application. C. Committee of Ministers Recommendation 69. In Recommendation CM/Rec(2009)11 on principles concerning continuing powers of attorney and advance directives for incapacity, the Committee of Ministers recommended to member States that they promote these practices, and defined a number of principles to assist member States in regulating them. D. Parliamentary Assembly materials 70. In Recommendation 1418 (1999) on protection of the human rights and dignity of the terminally ill and the dying, the Parliamentary Assembly recommended to the Committee of Ministers that it encourage the member States to respect and protect the dignity of terminally ill or dying persons in all respects, including their right to self-determination, while taking the necessary measures: (i) to ensure that patients ’ advance directives or living wills refusing specific medical treatments are observed, where the patients are no longer able to express their wishes; (ii) to ensure that ‑ notwithstanding the physician ’ s ultimate therapeutic responsibility ‑ the wishes they have expressed with regard to particular forms of treatment are taken into account, provided this does not violate their human dignity. 71. Parliamentary Assembly Resolution 1859 (2012) entitled “ Protecting human rights and dignity by taking into account previously expressed wishes of patients ” reiterates the principles of personal autonomy and consent enshrined in the Oviedo Convention (see paragraph 5 9 above), according to which no one can be compelled to undergo any medical treatment against his or her will. The Resolution lays down guidelines for national parliaments in relation to advance directives, living wills and continuing powers of attorney. | The applicants are the parents, a half-brother and a sister of Vincent Lambert who sustained a head injury in a road-traffic accident in 2008 as a result of which he is tetraplegic. They complained in particular about the judgment delivered on 24 June 2014 by the French Conseil d’État which, relying on, among other things, a medical report drawn up by a panel of three doctors, declared lawful the decision taken on 11 January 2014, by the doctor treating Vincent Lambert, to discontinue his artificial nutrition and hydration. The applicants submitted in particular that withdrawing his artificial hydration and nutrition would be contrary to the State’s obligations under Article 2 (right to life) of the European Convention on Human Rights. |
144 | Unaccompanied foreign minor | THE CIRCUMSTANCES OF THE CASE 6. The applicant was born on 1 January 2004 and lives in Birmingham. Background to the case 7. The applicant referred to the report by the Défenseur des droits under the title “Displaced persons and fundamental rights: the situation on the territory of Calais”, published on 6 October 2015. 8. The report showed that for several years many individuals wishing to seek the protection of the United Kingdom had congregated in the Calais area. 9. A reception centre had been opened near Calais, at Sangatte, in 1999. It had been closed, however, in 2002 and according to the Défenseur des droits this had led to the dispersion of the migrants over a wider area and to the development of makeshift camps which had become known as the “jungle”. 10. A number of operations aimed at clearing and demolishing the makeshift camps had been carried out by the authorities. The Défenseur des droits thus noted that, for a long time, the authorities’ wish not to create any focal points around Calais had led to an increase in evictions. However, in March 2015 the authorities had opened a day reception centre, the “Jules Ferry Centre”, outside the town. Under the management of an association commissioned by the authorities, the centre’s main task was to serve about 2,500 meals per day to the migrants and to provide them with facilities to charge their mobile telephones and to wash their laundry, as well as placing sixty shower units and thirty toilets at their disposal. It also allowed them access to nursing care for two hours per day on weekdays and included a shelter for women and children. A new “jungle” comprising several thousand migrants had quickly emerged near the centre, on a piece of land commonly known as “ la lande ” (the heath), some of which had been made available to the State by the municipality of Calais. 11. The report of the Défenseur des droits impugned the living conditions prevailing on the heath and the ensuing violations of fundamental rights, in particular with regard to unaccompanied minors. 12. Describing the heath area as a “shantytown”, he reported that the majority of migrants were forced to live in “inhumane conditions”. He highlighted their “extremely precarious” living conditions: apart from the hundred women and children who took shelter at night in the Jules Ferry Centre, the vast majority of the migrants lived in cramped conditions, sleeping in rudimentary tents and shelters (made of planks or plastic tarpaulins), some without any protection at all. He further noted that the lack of infrastructure contributed to the hostile environment and the squalid living conditions: 2,500 meals were distributed only once a day, even though more than 3,500 people were living on the heath, in poor material conditions (a 500-metre queue outdoors, long waiting times without any guarantee of a meal, police surveillance and insufficient sheltered eating places). Apart from the taps and showers at the Jules Ferry Centre, which was open only from 12 noon to 7 pm, there were just three water taps on the heath; the waste collection facilities were insufficient and represented a major health risk. The report also mentioned the migrants’ state of physical and mental exhaustion, pointing out that, after travelling for several months or years, they were forced to adopt a way of life that was “more like a survival experiment”. They were showing signs of conditions that were characteristic of people in situations of very serious instability, combined with disorders specific to migrants and were suffering from post-traumatic syndromes linked to police violence or pressure. The report added that there was insufficient medical care available to cater for all the health needs. 13. The report of the Défenseur des droits pointed out that the many minors present on the heath were thus living in “deplorable material conditions” and were frequently exposed to danger. He criticised the lack of educational facilities and the saturation and inadequacy of the protection offered to minors. In the specific case of unaccompanied foreign minors, he noted that there were four rooms in a children’s home, run as a social facility, for the emergency accommodation of children under fifteen years of age for a maximum of eight days, pending the examination of their situation and their orientation to the most appropriate placement. However, he considered this system to be unsuitable, as the minors concerned often refused to go to other places because of their distance from the heath, whilst they still wanted to reach England. He made the same observation with regard to unaccompanied foreign minors over fifteen years of age, their accommodation being provided for in a centre catering for thirty, located 45 km away from Calais. The report also pointed out that the unaccompanied foreign minors without supervision were left to their own devices, with the development of risky behaviour among teenagers that was mainly linked to increased alcohol consumption. Decisions of 2 and 23 November 2015 14. In a decision of 2 November 2015 the urgent applications judge of the Lille Administrative Court, hearing a case under Article L. 521-2 of the Code of Administrative Justice (urgent applications for the protection of a fundamental freedom), brought in particular by non-governmental organisations, ordered the prefect of the Pas-de-Calais département to proceed, within forty-eight hours, with the enumeration of unaccompanied minors in distress and to arrange with the authorities of that département for their placement. The judge also ordered the prefect, together with the municipality of Calais, to set up on the site ten additional water access points and fifty pit or watertight latrines, to introduce a waste collection system with the installation of large-capacity mobile refuse containers or additional rubbish bins, to clean the site and to clear access routes for the emergency services. 15. An appeal against this decision by the Ministry of the Interior was dismissed on 23 November 2015 by a decision of the urgent applications judge of the Conseil d’État, based on the following reasoning: “... 6. ... it is not seriously disputed that, despite major actions by the public authorities, the current conditions of accommodation, food, access to water, sanitation and safety of the population living on the heath, which is home to approximately 6,000 people, including 300 women and 50 children, as shown by the investigation and the numerous documents in the file, especially the report of the Défenseur des droits drafted in October 2015, reveal a serious emergency situation. ... 10. ... while the investigation has shown that the Jules Ferry Centre organises only one distribution of 2,500 meals per day, between 3 pm and 5.30 pm, when the population on the heath is 6,000, it is not disputed that the meals served are designed to provide the necessary number of daily calories, that many migrants provide for their own food needs either through the on-site associations or by their own means, and it has not been established that the migrants are suffering from malnutrition; .... thus, it does not appear that a grave and serious deficiency can, on this point, be attributed to the public authorities. 11. ... however, ... the investigation has revealed, first, that the Jules Ferry Centre makes available to the migrants, from 10.30 am to 7.30 pm, only four water access points, sixty showers, fifty toilets, of which ten are for women, and washbasins; ... moreover, on the heath can be found only four water access points, three of which have five taps, and sixty-six latrines, together with twenty-two other latrines that have only recently been added in compliance with the decision under appeal; ... the distance to access these facilities may be up to two kilometres; ... access to drinking water and toilets is, under these conditions, clearly insufficient. 12. ... the investigation has also revealed that no rubbish collection is carried out within the site, that the five rubbish bins installed on the edge of the site are not used because of their distance, that the occupants of the site have created collection points in the form of holes dug one metre deep, in which the waste is burned, releasing fumes and unpleasant odours, that the site is overrun by rats and, finally, that neither waste water nor excrement from ‘rudimentary toilets’ is removed; and that, even though more rubbish bins have been added and additional collections made since the impugned decision, migrants living on the heath are thus exposed to high risks of poor sanitation. 13. ... it has been established, lastly, that emergency, fire and rescue vehicles cannot circulate within the site in the absence of the development of any roadway, even a basic one, given the haphazard proliferation of tents and various shelters. 14. ... the living conditions described above show that the public authorities’ response to the basic needs of migrants living on the site, with regard to their access to sanitation and drinking water, remains manifestly inadequate and reveals a deficiency of such a nature as to expose them, to a severe degree, to inhuman or degrading treatment, thus causing a serious and manifestly unlawful breach of a fundamental freedom. Consequently, the urgent applications judge of the Lille Administrative Court has rightly ordered the State, since the measures to be taken to deal with the massive influx of migrants from the whole of the national territory to the site of the heath exceed the general policing powers vested in the mayor of the municipality, and also – in so far as its intervention is required, in its capacity as owner of some of the buildings concerned and pursuant to its agreements with the State, to enable the implementation of the orders, the municipality of Calais – to set up on the heath ten additional water access points, each comprising five taps, fifty pit or watertight latrines given the sandy nature of the land on which the camp is situated, to introduce a waste collection system with the installation of large-capacity mobile refuse containers inside the site and/or additional rubbish bins, to clean up the site and, lastly, to create one or more access routes inside the camp for the emergency services and, where necessary, the removal of the refuse containers. The measures thus prescribed must start to be implemented within a period of eight days, subject to a penalty of 100 euros per day of delay in respect of each measure ...” 16. The Government stated that the facilities and the health and safety measures ordered by the urgent applications judge had been fully implemented. The applicant pointed out that as a result of the general recommendation of 20 April 2016 by the Défenseur des droits (see paragraph 39 below) an enumeration of unaccompanied minors had been carried out from January 2016 onwards, but that it had not been followed by the effective protection of the individuals concerned. The same document showed that the Conseil général (local authority for the département ) had confined itself to organising outreach efforts to make contact with minors, but being conducted by under-trained individuals and without any translators, those efforts had not been sufficient to arrange for placements. He observed that, as a result, the context which had justified the intervention of the administrative judge for urgent applications in November 2015 had not changed in 2016; the number of unaccompanied foreign minors living on the heath in huts or tents had actually increased. Clearance of the Calais heath area 17. On 12 February 2016 the prefect of Pas-de-Calais announced at a press conference that she had decided to order the clearance of the southern part of the heath area. On 19 February 2016, taking the view that “for reasons of security, health and human dignity, there [was] an urgent need to reduce the area of the ‘heath’ camp in order to limit its occupation to the northern zone, around the reception facilities organised by the State”, she issued an order requiring the “undocumented occupants” of the southern part of the heath to “leave and vacate it of all persons and property” by 23 February at 8 p.m. The order specified that, after this period, the eviction would be enforced, if necessary with police assistance. 18. On 18 and 19 February 2016, migrants and non-governmental organisations filed applications with the Lille Administrative Court for the annulment of the above-mentioned decision and order. They also made an application to the urgent applications judge of that court under Article L. 521-1 of the Code of Administrative Justice (application for immediate suspension) for the suspension of the clearance decision. In particular, they argued that this measure infringed their right to housing as guaranteed by Article 8 of the Convention and Article 31 of the European Social Charter, together with their right to respect for their private life and the best interests of the child. They also argued that the measure was disproportionate given the number of people concerned and the lack of appropriate and sufficient social assistance measures, particularly in terms of relocation. 19. In submissions registered on 23 February 2016 (not produced before the Court), the applicant and other occupants of the heath intervened in the proceedings before the urgent applications judge. It appears from the decision of 25 February 2016 (see paragraph 20 below) that they asked the judge to instruct the prefect of Pas-de-Calais to identify the minors present on the heath and to offer them appropriate accommodation, support and information on their rights, commensurate with their vulnerability and needs. 20. On 25 February 2016 the urgent applications judge ordered the suspension of the clearance in so far as it would have resulted in the destruction of libraries, schools and places of worship that had been set up in the area to be vacated, pending a decision on the merits as to the legality of the measure. He dismissed the application for the remainder, together with the submissions from the third-party interveners. 21. On 26 February 2016 the claimants appealed on points of law before the Conseil d’État. However, they withdrew their appeal on 13 April 2016, as the Conseil d’État had not ruled by that date, whereas the clearance of the southern zone, which had begun on 29 February 2016, had been completed on 16 March 2016. 22. In a decision of 19 April 2016, the Conseil d’État, emphasising that the proceedings had been discontinued as a result of this withdrawal, took the view that there was no need to rule on the above-mentioned third-party submissions by the applicant and other occupants of the heath, as they had become devoid of purpose. 23. The parties have not provided any information on the status of the proceedings on the merits before the Lille Administrative Court. 24. The Government pointed out that the vast majority of the shelters and tents removed had already been abandoned. The few migrants who were still living there had been made aware of the clearance beforehand by the outreach efforts of the local Department of Social Cohesion, the French Immigration and Integration Office and two associations, and had gone of their own accord to take up the places available in the temporary reception centre for 1,500 recently opened on another part of the heath, or in one of the reception and orientation centres set up from October 2015 throughout France, or had opted for the tents made available by the civil protection authority. The Government added that the migrants concerned had not been prevented from retrieving personal belongings from their shelters. 25. The Government also stated that social outreach campaigns had been conducted to identify minors and find alternative accommodation for them: either in the context of child welfare facilities, in Calais, in the Georges Brassens Hostel for minors under 15 years of age, and in Saint Omer, in the Young Refugees Hostel for minors of 15 and over; or in the temporary reception centre on the heath, where four 48-place containers had been reserved for minors; or in civil protection tents or in reception and orientation centres where specific places had been reserved for them. 26. The northern zone of the Calais heath was cleared at the end of October 2016. 27. In a document entitled “Observation report: clearance of camps and placement of former occupants; Calais – Stalingrad (Paris)”, dated 20 December 2016, the Défenseur des droits noted that the authorities welcomed the fact that they had conducted a large-scale humanitarian operation, taking to shelter several thousand people and more than 1,700 unaccompanied minors in Calais and Paris in just a few days, and stepping up calls for the UK authorities to take responsibility for receiving these young people. But he stated that he did not share this satisfaction and that he could not endorse a view of the situation which suggested that anything was better than keeping people in shantytowns, especially in the case of minors. He pointed out that clearance operations had to be anticipated, planned and coordinated in order to prevent them from further violating the fundamental rights of the migrants concerned. In particular, he submitted that the interests of minors had not been of primary concern in the operation. In his view, the solutions implemented by the authorities, even when they were purportedly humanitarian, were more influenced by considerations related to the control of migration flows than by the need to ensure respect for the fundamental rights of those concerned. The applicant’s situation 28. The applicant stated that he had left Afghanistan at the end of August 2015 after his father’s disappearance in order to travel to the United Kingdom to seek asylum. In particular, he had crossed Iran, where he claimed to have been physically abused by people smugglers. He added that after arriving in France in September 2015 he had made his way to Calais following other migrants he had met on the journey, hoping to find a means of reaching the United Kingdom. He had settled in a hut in the same month in the southern part of the Calais heath. He pointed out that he had “come into contact” with non-governmental organisations, including the Calais Women and Children’s Centre and Cabane juridique. 29. On 19 February 2016 Cabane juridique had lodged an application with the Youth Judge for his provisional placement. It had also requested the appointment of an ad hoc guardian to assist him in applying for asylum application. The same process was put in place for 300 unaccompanied foreign minors. 30. In a decision of 19 February 2016, the Youth Judge of the Boulogne-sur-Mer tribunal de grande instance, noting that the applicant had no legal representatives in France, appointed an ad hoc guardian “to take any steps in his interest”. 31. In a decision of 22 February 2016, the same judge ordered that the applicant, “without family ties in France” should be temporarily placed in the care of the Child and Family Protection Department in Calais from 23 February 2016. Pointing out that his decision was automatically enforceable, on a provisional basis, pursuant to Article 514 of the Code of Civil Procedure, the judge emphasised as follows: “The minor is not accompanied by family members in France; he has hitherto been living in the Calais ‘jungle’; the prefecture has announced the clearance of that camp in the coming days; the minor is thus exposed to an even greater situation of danger; it is appropriate to place him in the care of the child welfare authority in order to take him to shelter with a view to his reunion with family members living in the United Kingdom within a period of one month.” 32. The applicant stated that neither the Pas-de-Calais authorities nor the prefecture had acted to take him to shelter. Even though his hut had been demolished when the southern part of the heath was cleared, and he had lived through the operation, which had been particularly brutal, in an anxious and worried state, no alternative accommodation had been offered to him. In particular, the child welfare services had not invited him to go to a children’s home. He added that the reception facilities in the northern zone of the heath, for children accompanied by a parent and for women, had not been accessible to unaccompanied minors; consequently, like many occupants of the southern zone of the heath, he had been forced to take refuge in a “makeshift shelter” located in the northern zone. He pointed out that life in the northern zone was difficult; since the people displaced from the southern zone had gathered there, while others were already settled there, this had accentuated the overcrowding and significantly worsened the sanitary and living conditions. 33. The Government stated that the child welfare services had been unable to implement the placement measure; they had prepared the placement but the applicant had not made contact with them, and neither his lawyer, nor his ad hoc guardian, nor the association following his case, had informed them of his whereabouts. 34. During the week of 20 March 2016 the applicant left the heath and reached England by clandestine means. He was taken into care by the British child protection services. He now lives in a children’s home. 35. On 8 April 2016, noting that the applicant “[had] fled and [had] given no further news”, the Youth Judge of the Boulogne-sur-Mer tribunal de grande instance lifted the placement measure. RELEVANT DOMESTIC LAW AND PRACTICE 36. Articles L. 112-3 and L. 112-4 of the Code on Social Action and Families read as follows: Article L. 112-3 “Child protection seeks to guarantee due consideration of the fundamental needs of children, to support their physical, emotional, intellectual and social development and to preserve their health, safety, morality and education, ensuring respect for their rights. It encompasses preventive actions for the benefit of children and their parents, organising the identification of and response to situations of danger or risk of danger for children and the administrative and judicial decisions taken for their protection. Telephone helplines are to be set up within the relevant services. The implementation of those decisions must be tailored to each situation and based on objective observation through mandatory visits to the places where the children spend their time, in their presence, working with the family’s resources and the child’s environment. They will take account of any difficulties that the parents may be facing in the fulfilment of their educational responsibilities and will involve tailored support actions, ensuring if need be a partial or total placement of the child. In all cases, children must be associated with the decisions concerning them, according to the child’s degree of maturity. ... Child protection also seeks to prevent any difficulties that may be encountered by minors who are temporarily or permanently deprived of the protection of their family and to ensure their placement. ...” Article L. 112-4 “The children’s interest and due regard for their fundamental, physical, intellectual, social and emotional needs, together with respect for their rights, must guide any decisions concerning them.” 37. Article 375 of the Civil Code reads as follows: “If the health, safety or morality of a dependent minor are at risk, or if the conditions of his education or his physical, emotional, intellectual and social development are seriously endangered, measures of educational assistance may be judicially ordered at the request of the father and mother jointly, or of one of them, of the person or body to whom the child was entrusted or of the guardian, of the minor himself or of the Public Prosecutor’s office. In the cases where the Public Prosecutor’s office has been advised by the President of the conseil départemental, it shall verify that the situation of the minor falls within the scope of Article L. 226-4 of the Code on Social Action and Families. Exceptionally, the court may examine the case of its own motion. ...” RELEVANT INTERNATIONAL LAW 38. Articles 2, 3, 20 and 22 of the Convention on the Rights of the Child of 20 November 1989 (ratified by France on 7 August 1990) read as follows: Article 2 “1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.’ 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 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 22 “1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. 2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or nongovernmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.” DOCUMENTS CONCERNING THE SITUATION IN THE CALAIS HEATH AREA AT THE MATERIAL TIME 39. The situation of migrants in general and of unaccompanied minors in particular, in the Calais heath area, before, during and after the clearance of the southern zone, is described in a number of documents including the following: – the reports of the Défenseur des droits entitled “Displaced persons and fundamental rights: the situation on the territory of Calais” (6 October 2015, cited above) and “Observation report: clearance of camps and placement of former occupants; Calais – Stalingrad (Paris)” (20 December 2016, cited above), and his general recommendation under section 25 of the Law of 29 March 2011 (20 April 2016, cited above); – the opinion of the Commission nationale consultative des droits de l’homme (“CNCDH” – National Advisory Commission on Human Rights) “on the situation of migrants in Calais and its surroundings” (2 July 2015), its follow-up opinion “on the situation of migrants in Calais and its surroundings” (7 July 2016) and its statements on “the clearance of the Calais shantytown and its consequences: the case of minors” (8 November 2016) and “on the situation of unaccompanied minors placed in a CAOMI following the clearance of the shantytown in Calais” (26 July 2017); – the “Report of the fact-finding mission on the situation of migrants and refugees in Calais and Grande-Synthe, France” of the Special Representative of the Secretary General on migration and refugees (12 October 2016); – the report of the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA) “concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by France, Second Evaluation Round” (adopted 31 March 2017); – the document published by UNICEF entitled “Neither safe nor sound: investigation into unaccompanied minors in northern France” (June 2016). | This case concerned the failure by the French authorities to provide an unaccompanied foreign minor with care before and after the dismantling of the makeshift camps set up in the southern section of the “lande de Calais" (“Calais heath”). Large numbers of people hoping to seek asylum in the United Kingdom had for many years been living there in tents or huts, in overcrowded conditions without even the most basic sanitation. The applicant complained in particular of the authorities’ failure to comply with their duty to protect unaccompanied foreign minors and that the order provisionally placing him in the child welfare centre had not been enforced. |
180 | The definition of idem | 2. The applicant was born in 1957 and lives in Zagreb. He was represented before the Court by Ms T. Milanković Podbrežnički, a lawyer practising in Zagreb. 3. The Croatian Government were represented by their Agent, Ms Š. Stažnik. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 4 July 2007 the Zagreb Municipal Court ( Općinski sud u Zagrebu ) found the applicant guilty in criminal proceedings concerning domestic violence and neglect and abuse of a minor child for the period between March 2002 and the end of February 2005. He was sentenced to two years’ imprisonment suspended for a period of five years. That judgment was upheld on appeal and the suspended sentence was subsequently revoked (see paragraph 33 below). The minor-offence proceedings 6. Meanwhile, on 6 October 2006 the Zagreb Minor Offences Court ( Prekršajni sud u Zagrebu ) found the applicant guilty of a minor offence of domestic violence under section 4 of the Protection against Domestic Violence Act (see paragraph 68 below) against his minor daughter Z.G., committed on 5 October 2006. He was sentenced to fifty days’ imprisonment suspended for one year. 7. On 2 February 2007 the Zagreb Minor Offences Court found the applicant guilty of a minor offence of domestic violence against his wife Mi.G. and his son H.G committed on 30 January 2007. He was sentenced to ten days’ imprisonment, whereas his previous suspended sentence had been revoked (see paragraph 6 above) and he was sentenced to a total of fifty ‑ nine days’ imprisonment. 8. On 3 April 2007 the same court found the applicant guilty of a minor offence of domestic violence against his wife Mi.G., his son H.G. and his minor daughter Z.G. committed earlier that same day. He was sentenced to forty days’ imprisonment suspended for ten months. 9. On 16 January 2008 the Zagreb Minor Offences Court found the applicant guilty of a minor offence of domestic violence, in that on 10 January 2008 he had verbally insulted his daughters Z.G. and M.G. and his wife Mi.G. The applicant was given a suspended sentence of seventy-six days’ imprisonment, taking into account a previously imposed suspended sentence (see paragraph 8 above), with a one-year probation period. That judgment was upheld on appeal. 10. On 4 November 2008 the Kutina Social Welfare Centre received a complaint from Mi.G. She alleged that on 3 November 2008 the applicant had behaved violently in their family home, had blamed her for the loss of his job and had been threatening to kill her since 2005. She produced medical documentation of the same day, indicating that she had sustained injuries to her head. The Kutina Social Welfare Centre lodged a criminal complaint with the police. 11. On 4 November 2008 the police instituted minor-offence proceedings against the applicant before the Zagreb Minor Offences Court for the minor offence of domestic violence under section 4 and section 18(3) of the Protection against Domestic Violence Act committed on 3 November 2008 against Mi.G. – who by that time was his former spouse – and his daughter M.G. 12. On the same day the applicant was arrested and placed in detention. 13. On 17 November 2008 the Zagreb Minor Offences Court found the applicant guilty of violent behaviour within the family towards Mi.G. and his older daughter M.G. and sentenced him to thirty days’ imprisonment. At the same time it revoked the applicant’s previous suspended sentence (see paragraphs 8 and 9 above), and imposed a sentence of 112 days’ imprisonment in total. The relevant part of that judgment read as follows: “The accused, Miljenko Galović, ... is guilty in that on 3 and 4 November 2008 at 10.02 a.m. in [his] family house in ... while being under the influence of alcohol, he behaved violently within [his] family, in that on 3 November 2008 at about 4 p.m. he verbally insulted his daughter M.G. and former spouse Mi.G. by saying to them ‘Whores, sluts, I have lost my job because of you!’, after which his daughter M. left the house, and after her return at about 8.30 p.m. he continued to insult her by saying ‘Slut, whore, you and your mother, I have lost my job because of you!’, after which she locked herself in a room while the accused banged at the door of her room, continuing to insult her by saying ‘Slut, whore, get out of the house, go to your lover, go away!’, and on 3 November 2008 at 5 p.m. he verbally assaulted his former spouse Mi.G. by saying ‘Whore, do you know that I got fired today because of you. I will throw you out of the house, I will kill you. Now you have no alimony, the bank will take your assets. See how stupid you are, a whore from Moslavina-Zagorje!’, after which he went to sleep and when he woke up at 6.30 p.m. he went to the room where his former spouse was and continued to verbally insult her by saying ‘Whore, I lost my job today’, after which he physically assaulted her by approaching the bed on which she was sitting, grabbing her by the hair with both hands and throwing her onto the bed. He [continued to] hold her by the hair with his left hand and with his right hand he slapped her several times on the left cheek and ear while saying to her ‘Come on, shout, shout, I will kill you before the police arrive. If you put me in prison, after two years I will find you, you are mine!’ ... The court inspected ... the record of examination of blood alcohol [of 4 November 2008].” 14. By a judgment of 28 January 2009, the High Minor Offences Court altered the legal characterisation of the offence and held that it was an offence under section 18(1) of the Protection against Domestic Violence Act, and not section 18(3) of that Act. Otherwise, it dismissed an appeal by the applicant and upheld the first-instance judgment, which thus became final. The proceedings on indictment 15. On 4 November 2008 Mi.G. lodged a criminal complaint against the applicant with the Kutina police, concerning the events of 3 November 2008. On 2 December 2008 the police supplemented Mi.G.’s criminal complaint with previous events covering the period between February 2005 and 4 November 2008 and forwarded it to the Zagreb Municipal State Attorney’s Office. 16. On 2 December 2008 the applicant was transferred from detention for minor offences to criminal detention, on suspicion of having committed criminal offences: domestic violence against his spouse, his two daughters and his son; and child neglect and abuse against his younger daughter. 17. On 3 December 2008, referring among other things to documents on the basis of which the previous minor offence proceedings had been conducted, the Zagreb Municipal State Attorney’s Office requested the investigating judge to conduct investigative activities in respect of the applicant in relation to criminal offences: four counts of domestic violence perpetrated against his former spouse, his two daughters and his son, and one count of child neglect and abuse against his younger daughter Z.G. On the same day the applicant was heard by an investigating judge of the same court, in the presence of E.H, a defence lawyer of his own choosing. He denied the charges against him. The investigating judge ordered that the applicant be detained for forty-eight hours on the grounds that there was a danger that he would suborn witnesses. 18. The applicant’s detention was subsequently extended throughout the investigation and his trial. 19. On 12 December 2008 the applicant sent his written defence to the investigating judge. 20. On 15 December 2008 the investigating judge heard evidence from: an expert witness in psychiatry who had carried out a psychiatric examination of the applicant in 2005, a lawyer from the Social Welfare Centre in charge of the applicant and his family, and the applicant’s former spouse Mi.G. Neither the applicant nor his defence lawyer was present. 21. On 20 January 2009 the investigating judge heard evidence from the applicant’s son H.G and his older daughter M.G. The applicant’s defence lawyer was present. 22. On 21 January 2009 the investigating judge heard evidence from the applicant’s younger daughter Z.G. Neither the applicant nor his defence lawyer was present. 23. On 26 January 2009 the Zagreb State Attorney’s Office indicted the applicant before the Zagreb Municipal Criminal Court ( Općinski kazneni sud u Zagrebu, hereinafter “the Municipal Court”) for criminal offences: four counts of domestic violence as defined in Article 215a of the Criminal Code, perpetrated against his former spouse, his two daughters and his son; and one count of child neglect and abuse as defined in Article 213 of the Criminal Code, committed against his minor daughter Z.G. According to the indictment, these offences were perpetrated in the period between February 2005 and 3 November 2008. 24. On 10 February 2009 the Municipal Court ordered a psychiatric assessment of the applicant. 25. On 23 February 2009 the applicant submitted an additional written defence. 26. On 10 March 2009 a psychiatrist submitted a report on the applicant, finding that at the time of the alleged offences his capacity to understand his actions had been reduced, but not significantly. 27. On 11 March 2009 the applicant submitted an additional written defence. 28. On 17 March 2009 the applicant submitted his written “closing arguments”. 29. At a hearing held before the Municipal Court on 24 March 2009, the applicant and three witnesses gave evidence. 30. On 19 May 2009 the applicant submitted an additional written defence. 31. Further hearings were held on 2 and 23 June, and on 7 and 14 July 2009. Several witnesses and an expert in psychiatry gave evidence. 32. On 15 June 2009 the applicant asked the court to allow him to consult the case file. His request was granted. 33. By a judgment of 14 July 2009, the Municipal Court found the applicant guilty of one count of child neglect and abuse in respect of his then minor daughter Z.G. and imposed a sentence of ten months’ imprisonment. He was also found guilty of four counts of domestic violence in total in respect of: his daughter Z.G., for which a prison term of six months was imposed; his daughter M.G., for which a prison term of nine months was imposed; his son H.G., for which a prison term of seven months was imposed; and his former spouse Mi.G., for which a prison term of one year was imposed. At the same time his suspended sentence of two years which had been imposed in a previous set of criminal proceedings was revoked (see paragraph 5 above), and he was sentenced cumulatively to five years’ imprisonment. A security measure of compulsory treatment for alcohol addiction was also imposed on him. The relevant part of the judgment read: “The accused, Miljenko Galović, ... is guilty in that in the period between February 2005 and 3 November 2008 in ..., in the flat where he lived in the same household with his daughter Z., a minor, ..., adult daughter M. ... and adult son H., as the common-law spouse of Mi.G., [while] frequently under the influence of alcohol in the presence of Z., a minor, even though he knew that he could put her psycho-physical development at risk, he was verbally and physically assaulting his spouse Mi. and adult children, in that he was calling his common-law spouse ugly names: ‘whore, slut’, and cursing her mother, threatening to kill and sell her, and was physically attacking her by slapping her, pulling her hair and throwing her to the ground, all this in the presence of Z., a minor, and his daughter M. and son H., and [was threatening to] throw his common-law spouse Mi. and the children out of the flat, and threatening to kill them, and on one occasion in December 2007 he took a kitchen knife and put it to the throat of his common-law spouse Mi. and told her that she had to send the agents of the [prosecuting authorities for organised crime] to search for him in bars, and he charged at [his common-law spouse] while brandishing the knife, while he insulted his daughter M. by telling her that she was a ‘whore, slut and a whore from Moslavina’, and to go to her lover, and he also insulted his son H. by telling him that he was ‘an imbecile, an idiot’, and cursed his mother, and said to him ‘give me a blowjob’, and at the same time he pushed H. This caused H. to move out of the flat at the beginning of 2007. [The accused] was frequently telling Z., a minor, that she was a ‘fat pig’, that ‘nobody would fuck her’, and that she was ‘a fat slut’. He grabbed her by the head and pushed her out of the flat, and continued to treat Z. in the same manner when she became an adult ... This behaviour culminated in [the events] on 3 November 2008 when the accused verbally assaulted his common-law spouse Mi. and daughter M. by telling them that they were ‘whores and sluts’, and when his common-law spouse Mi. stayed in the flat with him alone he verbally assaulted her again by telling her that she was a whore and that he had been fired because of her, [and] that he would throw her out of the house and kill her. He then physically assaulted her, in that he grabbed her hair, threw her onto a bed and hit her on the head, and continued to insult her by telling her that she was a ‘stupid whore from Moslavina and Zagorje’. Those blows made her ear bleed, and [the accused] threatened her by saying that if she called the police then he would kill her. When their daughter M. came home on the same day he entered her room and said to her ‘slut, whore, I lost my job because of you, get out of the house’, after which he followed her around the house and continued to insult her. This behaviour caused frequent police interventions and the accused, through his behaviour, put the proper psycho-physical development of his minor daughter Z. at risk. [Z.] is in psychiatric treatment owing to the accused’s behaviour ... while [his behaviour] caused his daughter M., son H. and common-law spouse Mi. to fear for their life and health [and] to experience anxiety [in this respect]. ... In the course of the proceedings, the court inspected ... record of examination of blood alcohol [of 4 November 2008]..., the Zagreb Minor Offences Court judgment [of 4 November 2008] ..., medical documentation concerning Mi.G. [relating to the incident of 3 November 2008]... ... In relation to the criminal offences of domestic violence from Article 215a of the Criminal Code committed against Z.G., M.G., Mi.G and H.G., the court has established that in the incriminating period the [applicant], through his extremely rude, aggressive and ruthless behaviour, put the members of his family in a humiliating position by verbally and physically endangering them, attacking, threatening, which transpires from the statements of all heard witnesses and from the material evidence in the case file. The gravity of the [applicant’s] behaviour is also visible from the fact that [his family members] have been suffering such behaviour since 1995, that his older daughter M.G. said that she thought that [his conduct] had not been punishable as long as he was not beating them, and the fact that the victims called the police only when ‘the water came to their neck’ since they are in permanent fear due to the aggressive behaviour of the [applicant]. Not even a whole series of minor offence convictions, nor a previous criminal conviction for the same criminal offences did not result in a change in the [applicant’s] behaviour, but instead it culminated on 3 November 2008 when Mi.G. left the family home in fear of her own life. ... The [above] prison penalty shall include the period [the applicant] had served on the basis of the Zagreb Minor Offences Court’s decision [of 10 January 2008] between 11 and 16 January 2008 and [on the basis of its decision of 17 November 2008] between 5 November until 2 December 2008 ...” 34. The first-instance judgment was served on the applicant’s lawyer E.H. on 13 August 2009. 35. The applicant remained in detention. 36. On 19 August 2009 the applicant appealed against the first-instance judgment and asked that a hearing be held. He complained at length about the wrongful assessment of the facts and application of the domestic law in his case. 37. By a letter of the same date, which was received by the first instance court a day later, the applicant revoked the power of attorney which had been issued to E.H., his lawyer. 38. On 24 August 2009 the applicant sent a letter to the Municipal Court stating that he needed a new defence lawyer. He submitted a list of eight lawyers and asked to be able to contact them by telephone. This letter was received by the Municipal Court on 25 August 2009. 39. By another letter of 25 August 2009, the applicant informed the Municipal Court that he had revoked the power of attorney given to E.H. and asked to be allowed to contact four other lawyers by telephone. That letter was received by the Municipal Court on 26 August 2009. The applicant made the same request in a letter of 26 August 2009. 40. On 31 August 2009 E.H. lodged an appeal against the first-instance judgment on the applicant’s behalf. 41. On 7 September 2009 the applicant asked for permission to consult part of the case file. 42. On 9 September 2009 the President of the Municipal Court appointed S.A. to act as a defence lawyer for the applicant and sent the applicant a copy of the part of the case file which he had requested to consult. 43. On 14 September the applicant informed the Municipal Court that he did not trust S.A., and he complained that a request which he had made to contact three lawyers by telephone had not been complied with properly. He explained that he had written to two lawyers and sent letters by registered mail but had not received any confirmation of receipt. As regards the third lawyer, the number on which he had been allowed to call him had been incorrect. 44. On 16 September the applicant contacted E.H. again. On the same day D.L., another lawyer, visited the applicant in prison. 45. On 23 September 2009 the presiding judge of the trial panel allowed the applicant to contact two lawyers. 46. On 27 September 2009 the applicant himself lodged an additional appeal against his conviction. 47. On 29 September 2009 the applicant contacted a lawyer J.M. 48. On 7 October 2009 two lawyers, J.M. and A.D. visited the applicant in prison. 49. On 23 October 2009 the president of the trial panel of the Municipal Court informed Zagreb County Court ( Županijski sud u Zagrebu, hereinafter “the County Court”) that the applicant had asked to consult the case file. 50. The County Court informed only the applicant’s former counsel E.H. of a session scheduled for 2 November 2009 at which the appeal was to be examined. 51. By a judgment of 2 November 2009 issued at that session, the County Court examined all appeals lodged both by the applicant and his defence lawyer E.H. It accepted in part their arguments and reduced his sentence to four years and three months’ imprisonment, without holding a hearing and in the absence of the applicant and the lawyers E.H. and S.A. The remainder of the appeals was dismissed, and in that part the first ‑ instance judgment was upheld. 52. On 19 November 2009 the applicant was taken from the detention facility to prison, where he started to serve his sentence. 53. The applicant then lodged a request for extraordinary review of a final judgment ( zahtjev za izvanredno preispitivanje pravomoćne presude ) with the Supreme Court ( Vrhovni sud Republike Hrvatske ). He argued, inter alia, that he had not been notified of the session at which the County Court had examined his appeal and issued its judgment, even though under the rules of criminal procedure an accused who demanded a hearing before a second-instance court had to be informed of such a session. Only his former counsel E.H. had been notified, even though he had no longer represented him at the time. 54. On 20 January 2010 the Supreme Court quashed the second-instance judgment and remitted the case. It held that the County Court had breached the rules of criminal procedure by informing the applicant’s former defence lawyer E.H. of the session of 2 November 2009, rather than his current defence lawyer S.A., who had been officially appointed. 55. On 5 February 2010 the applicant was transferred from prison to a detention facility in Zagreb. On the same day, the decision of the Supreme Court of 20 January 2010 was served on him. 56. On 9 February 2010 the applicant asked the County Court to be allowed to contact five lawyers by telephone. That request was registered with the County Court on 10 February 2010 and forwarded to the Municipal Court, which received it on 15 February 2015. 57. In the meantime, on 12 February 2010, the County Court had notified the applicant and his officially appointed defence lawyer S.A. that the session before that court, at which the applicant’s appeal was to be examined, was scheduled for 16 February 2010. 58. By a letter received by the County Court a day before the session, the applicant asked the court to adjourn the session for a week and to grant him leave to represent himself. He explained that he had been informed of the session only four days in advance, on the afternoon of Friday, 12 February 2010, and thus had not had enough time to prepare his defence or contact anyone. He stressed that while in prison, he had written to three lawyers. At the same time, he asked for leave to represent himself, since he had “participated in the events [in respect of which] he had been charged” and was an administrative lawyer by profession. As regards the lawyer S.A., the applicant said that he did not know him and that he had never talked to him about his case. He reiterated that he had asked to be present at the session in order to give more details about the relevant facts and his former spouse’s motives for allegedly giving false statements and manipulating their children. He also enclosed submissions on the charges against him. 59. On 16 February 2010 the presiding judge of the trial panel of the Municipal Court allowed the applicant to contact the five lawyers mentioned in his request by telephone. 60. The session of the County Court was held as scheduled on 16 February 2010. The applicant, who was still in detention at the time, was not invited and his officially appointed defence lawyer S.A. was not present. The competent State Attorney was not present at the session either. 61. After the session, the County Court issued a judgment identical to its previous judgment of 2 November 2009 – it reduced the applicant’s sentence to four years and three months’ imprisonment and dismissed the remainder of his appeal. The relevant part of that judgment reads as follows: “The presence of the accused – Miljenko Galović, who is in detention and is represented by counsel – at the session before the panel was not secured, because the panel considered that his presence had not been necessary.” 62. On 17 February 2010 the applicant himself lodged another request for extraordinary review of a final judgment with the Supreme Court, which he supplemented on 30 March and on 18 and 22 April 2010. He argued, inter alia, that: (a) he had been notified of the County Court’s session of 16 February 2010 only four days in advance, and thus had not had enough time to prepare his defence; (b) his officially appointed counsel had never contacted him and had not attended the session; (c) due to time constraints and transfers from prison to a detention facility, he had not had enough time to hire counsel of his own choosing to represent him before the County Court; (d) he had not been invited to the session before the appeal court; and (e) in view of his previous convictions for domestic violence in proceedings on indictment and in several sets of minor-offence proceedings, his criminal conviction in the impugned judgment constituted a second conviction for the same offence. 63. By a judgment of 27 April 2010, the Supreme Court dismissed the applicant’s request. It addressed only the issue of ne bis in idem in connection with the Zagreb Minor Offences Court’s judgment of 17 November 2008 (see paragraph 13 above). The relevant part of the judgment reads: “The factual background of the minor offence of which [the applicant] was found guilty by the judgment of the Minor Offences Court is not the same as the factual background of the criminal offences of which [he] had been found guilty by a final judgment of the Zagreb Municipal Criminal Court of 14 July 2009 ... Miljenko Galović has been found guilty of one criminal offence under Article 213 §§ 1 and 2 of the Criminal Code and four criminal offences under Article 215a of the Criminal Code committed in the period between February 2005 and 3 November 2008. The fact that [his] behaviour also constituted a minor offence under section 18(1) of the Protection Against Domestic Violence Act in respect of the same victims during that same period – [a minor offence] of which he had been found guilty by a judgment of the Minor Offences Court – cannot be seen as a matter which has already been judged, and there has therefore been no violation of the Criminal Code under Article 368 § 3 of the Code on Criminal Procedure.” 64. By a decision of 27 January 2011, the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared a subsequent constitutional complaint lodged by the applicant inadmissible. It held that the Supreme Court’s decision following a request for extraordinary review of a final judgment was not susceptible to constitutional review. 65. On 16 March 2012 the applicant was conditionally released from prison. | This case concerned the applicant’s convictions for domestic violence in several sets of minor-offence proceedings and in criminal proceedings on indictment. |
8 | Exclusion from an official witness protection programme | I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant, Mr R.R., is a Serbian national who was born in 19... and lives in Hungary. The second applicant, Ms H.H., a Hungarian national, is his common-law wife who was born in 19.... The other three applicants are their minor children. 6. On 12 June 2007 the first applicant, once active in a drug-trafficking mafia run by Serbians in a European country and subsequently in hiding in Hungary under a false identity, was apprehended by the Hungarian police. It is disputed whether he turned himself in or was arrested. He admitted to various offences he had committed and gave information, secretly, about the activities of the mafia in question, enabling prosecution against it. He was offered a plea bargain which he accepted. Subsequently the Hungarian prosecution, despite his complaints, joined his own case to the one conducted against the criminals he had been informing about. This required him to appear in open court, disclose his identity and act publicly as a collaborator of justice. 7. Since this event apparently resulted in the applicants being exposed to vengeance from the Serbian mafia, the family was enrolled in the Witness Protection Scheme on 28 August 2007. The agreement on their enrolment contained a clause to the effect that if it was cancelled on account of a breach of the rules of the Scheme by the first applicant, the whole family would be excluded from the Scheme. 8. Within the framework of the Scheme, the following measures of special protection were introduced, in compliance with section 16(1a–c) of Act no. LXXXV of 2001 on the Protection Programme for Participants in Criminal Proceedings and Collaborators of Justice (“the Protection Act 2001”). The applicants were issued with new personal documents as part of providing them with new identities. Ms H.H. and the children were accommodated in a three-room, then in a four-room ‘safe flat’ and finally in a five-room family house. The two elder children attended school, while the youngest child – who suffers from medium-grade autism – attended a crèche providing special care, then a kindergarten. The applicants submitted that, in any case, no adequate care was provided in respect of this child’s condition – an assertion disputed by the Government. They further alleged that during this time the Scheme’s operatives insisted that the first and second applicant should break up their relationship. 9. On or some time after their admission to the Scheme, the family – having otherwise no regular income in excess of the various welfare allowances due under the law – started to receive a monthly subsistence allowance. Their rent, public utility bills, health care and schooling costs (including those related to the situation of the youngest child, in particular the fee of a teacher specialised in developing pedagogy) were wholly or partly paid by the Scheme. Resources were allotted to the children’s clothing, the maintenance of the family’s car and their travel costs incurred when visiting the first applicant, who was in detention. The latter also received a sort of allowance with regard to his participation in the Scheme. The amounts of these disbursements were raised several times. 10. During this time, the first applicant was imprisoned in an unspecified jail. As to his contact history during the programme, the Government submitted that the family had kept regular contact with him through emailing, phone calls and in the form of monthly visits (an hour per month as per the witness protection agreement). If a visit was, for some reason, omitted, it was substituted either by another occasion or by prolonging the next visit. The last time the first applicant and his family met while the programme was running was on 26 January 2012. The next visit, scheduled for 9 February 2012, was cancelled due to the illness of the youngest child. Arrangements for a substitute visit could not be made, since on 28 February 2012 the first applicant was found in the possession of prohibited articles (see paragraph 14 below) and subjected to a 30-day, then a 10-day confinement; and on 12 April 2012 the applicants’ enrolment in the programme was cancelled altogether. A month or so after his enrolment in the Scheme in 2007, the first applicant’s whereabouts were communicated to his lawyer; the latter subsequently attended several of his meetings with operatives of the National Bureau of Investigations. 11. The first applicant submitted that during his trial his mother was assaulted at her home in Serbia and the perpetrators made it clear to him, in an unknown manner, that the assault was in connection with him being a collaborator of justice. He emphasised that he did not change his mind about becoming a collaborator of justice although a significant sum of ‘blood money’ had been set by the Serbian mafia on his head because of this, and his parents had been – and still were – being harassed by the Serbian authorities and the mafia. 12. The Government submitted that the operatives of the Scheme carried out, as is the standard practice, a careful assessment of potential threats to the applicants, including interviewing some of the first applicant’s relatives. However, although the first applicant repeatedly mentioned the setting of ‘blood money’ of 200,000 euros on his head by Serbian mafia men, no evidence corroborated this allegation in the eyes of the authorities. In the applicants’ view, the gathering of information in this respect was insufficient. 13. After numerous hearings held between 5 November 2007 and 9 February 2009, on 23 February 2009 the Budapest Regional Court convicted the first applicant, as a member of a criminal organisation consisting of another 18 persons, of aggravated abuse of narcotics and of firearms and other offences and sentenced him to 14 years of imprisonment. In the reasoning of its 187-page judgment, the Regional Court relied inter alia on testimonies given by numerous experts and witnesses, including that of the first applicant, physical evidence, documents and information obtained through secret surveillance. On 6 January 2010 the Budapest Court of Appeal reduced the first applicant’s sentence to six years. On 6 October 2010 the Supreme Court aggravated the first applicant’s sentence to nine years. Some of the persons who, in the authorities’ perception, represented a threat to the applicants were convicted in the same proceedings. 14. During his ensuing detention, on 28 February 2012 a laptop computer and a mobile internet device, held without authorisation, were found by the guards in his cell. He was caught in the act of communication using a voice-over-internet service. It could not be established how the prohibited devices had been smuggled into the penitentiary. The identities of the person or persons the first applicant had communicated with could not be determined with certainty either. The authorities nevertheless deduced from the first applicant’s oral statements and the circumstances that he might have maintained contacts with criminal circles. 15. As a sanction, the entire family was excluded from the Scheme on 12 April 2012. This was explained by the fact that, by carrying out illicit communications, the first applicant had seriously breached the clauses of the agreement with the Scheme. It was found that, by virtue of this exposure, he had become a source of danger in the first place for his family and also for the operatives of the Scheme. It was also recalled that the co-operation between him and the Scheme operatives had gradually become very difficult, since he had kept complaining about various matters and demanded advantages not provided in the protection agreement or their better implementation. 16. On the same day, the Scheme’s operatives visited Ms H.H. and informed her about the termination of the programme and of the protection measures, and about the fact that their original identities would simultaneously be restored. 17. The Government submitted that the agreement with the first applicant had been cancelled because of him having repeatedly breached its provisions, rather than because the threat to him and his family had diminished. In any case, in their view, this threat had indeed decreased on account of the apprehension of those persons who represented a danger for the applicants. The applicants contested this view, submitting that, despite these incarcerations, the criminal organisation which was after the first applicant was still active and posing a real threat. 18. The Government further submitted that after the applicants’ exclusion from the programme, another scheme called “personal protection” had been put in place for them, in application of section 4(5) of Government Decree no. 34/1999. (II.26.). They had continued benefiting from the house, the car, the telephone line and the computer and other items as well as the allowances during the transitional period of one month or so. The Witness Protection Scheme had arranged for returning their original documents and the withdrawal of cover documents, and taken the requisite steps with regard to the maintenance, under their original names, of the family’s health and social care and the children’s schooling. The family’s public utility bills due for April 2012 had been paid by the Scheme, which had also assisted them in moving house, including the provision of free transport and free temporary storage facilities. For the first applicant, “personal protection” consisted of his relocation to the strict-regime department of S. Prison which is physically separated from the rest of the institution. Here, he has been placed in a cell of 6 square metres; the view from the window is blocked; he is entitled to have an open-air walk once a day for an hour. 19. The applicants submitted that, the programme having been terminated irrespective of the persistent threat, no real care had been taken of Ms H.H. and the children. The latter were bound to return to school under their real names; and, inevitably, the fact that the family had been in witness protection for five years must have been revealed as a consequence of this. The measures of “special protection” had included nothing but an emergency phone number available to Ms H.H. and scarce visits paid to the family by police officers enquiring if anything was wrong. The family’s personal particulars and whereabouts became accessible to anyone. III. WORK OF THE COUNCIL OF EUROPE 21. Recommendation Rec(2005)9 of the Committee of Ministers to Member States on the protection of witnesses and collaborators of justice (adopted by the Committee of Ministers on 20 April 2005 at the 924th meeting of the Ministers’ Deputies) reads as follows: “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, ... Recommends that governments of member states: i. be guided, when formulating their internal legislation and reviewing their criminal policy and practice, by the principles and measures appended to this Recommendation; I. Definitions For the purposes of this Recommendation, the term: - “witness” means any person who possesses information relevant to criminal proceedings about which he/she has given and/or is able to give testimony (irrespective of his/her status and of the direct or indirect, oral or written form of the testimony, in accordance with national law), who is not included in the definition of “collaborator of justice”; - “collaborator of justice” means any person who faces criminal charges, or has been convicted of taking part in a criminal association or other criminal organisation of any kind, or in offences of organised crime, but who agrees to cooperate with criminal justice authorities, particularly by giving testimony about a criminal association or organisation, or about any offence connected with organised crime or other serious crimes; - “intimidation” means any direct or indirect threat carried out or likely to be carried out to a witness or collaborator of justice, which may lead to interference with his/her willingness to give testimony free from undue interference, or which is a consequence of his/her testimony; - “anonymity” means that the identifying particulars of the witness are not generally divulged to the opposing party or to the public in general; - “people close to witnesses and collaborators of justice” includes the relatives and other persons in a close relationship to the witnesses and the collaborators of justice, such as the partner, (grand)children, parents and siblings; - “protection measures” are all individual procedural or non-procedural measures aimed at protecting the witness or collaborator of justice from any intimidation and/or any dangerous consequences of the decision itself to cooperate with justice; - “protection programme” means a standard or tailor-made set of individual protection measures which are, for example, described in a memorandum of understanding, signed by the responsible authorities and the protected witness or collaborator of justice. ... III. Protection measures and programmes ... 18. Any decision to grant anonymity to a witness in criminal proceedings will be made in accordance with domestic law and European human rights law. ... 20. Any decision to grant anonymity should only be taken when the competent judicial authority finds that the life or freedom of the person involved, or of the persons close to him or her, is seriously threatened, the evidence appears to be significant and the person appears to be credible. ... 22. Where appropriate, witness protection programmes should be set up and made available to witnesses and collaborators of justice who need protection. The main objective of these programmes should be to safeguard the life and personal security of witnesses/collaborators of justice, and people close to them, aiming in particular at providing the appropriate physical, psychological, social and financial protection and support. 23. Protection programmes implying dramatic changes in the life/privacy of the protected person (such as relocation and change of identity) should be applied to witnesses and collaborators of justice who need protection beyond the duration of the criminal trials where they give testimony. Such programmes, which may last for a limited period or for life, should be adopted only if no other measures are deemed sufficient to protect the witness/collaborator of justice and persons close to them. 24. The adoption of such programmes requires the informed consent of the person(s) to be protected and an adequate legal framework, including appropriate safeguards for the rights of the witnesses or collaborators of justice according to national law. 25. Where appropriate, protection measures could be adopted on an urgent and provisional basis before a protection programme is formally adopted. 26. Given the essential role that collaborators of justice may play in the fight against serious offences, they should be given adequate consideration. Where necessary, protection programmes applicable to collaborators of justice serving a prison sentence may also include specific arrangements such as special penitentiary regimes. 27. Protection of collaborators of justice should also be aimed at preserving their credibility and public security. Adequate measures should be undertaken to protect against the risk of the collaborators of justice committing further crimes while under protection and therefore, even involuntarily, jeopardising the case in court. The intentional perpetration of an offence by a collaborator of justice under protection should, according to the relevant circumstances, imply the revocation of protection measures. ...” | The case concerned the exclusion of a family (a Serbian national living in Hungary, his common-law, a Hungarian national, and their three minor children) from an official witness protection programme on the ground that the father, in prison, had remained in contact with criminal groups. The family alleged in particular that their exclusion from the witness programme had put their lives at risk from mafia retribution. |
726 | Environmental risks and access to information | I. The Circumstances of the case A. The Enichem agricoltura factory 12. The applicants all live in the town of Manfredonia (Foggia). Approximately one kilometre away is the Enichem agricoltura company’s chemical factory, which lies within the municipality of Monte Sant’Angelo. 13. In 1988 the factory, which produced fertilisers and caprolactam (a chemical compound producing, by a process of polycondensation, a polyamide used in the manufacture of synthetic fibres such as nylon), was classified as “high risk” according to the criteria set out in Presidential Decree no. 175 of 18 May 1988 (“ DPR 175/88”), which transposed into Italian law Directive 82/501/EEC of the Council of the European Communities (the “Seveso” directive) on the major-accident hazards of certain industrial activities dangerous to the environment and the well-being of the local population. 14. The applicants said that in the course of its production cycle the factory released large quantities of inflammable gas – a process which could have led to explosive chemical reactions, releasing highly toxic substances – and sulphur dioxide, nitric oxide, sodium, ammonia, metal hydrides, benzoic acid and above all, arsenic trioxide. These assertions have not been disputed by the Government. 15. Accidents due to malfunctioning have already occurred in the past, the most serious one on 26 September 1976 when the scrubbing tower for the ammonia synthesis gases exploded, allowing several tonnes of potassium carbonate and bicarbonate solution, containing arsenic trioxide, to escape. One hundred and fifty people were admitted to hospital with acute arsenic poisoning. 16. In a report of 8 December 1988 a committee of technical experts appointed by Manfredonia District Council established that because of the factory’s geographical position, emissions from it into the atmosphere were often channelled towards Manfredonia. It was noted in the report that the factory had refused to allow the committee to carry out an inspection and that the results of a study by the factory itself showed that the emission treatment equipment was inadequate and the environmental-impact assessment incomplete. 17. In 1989 the factory restricted its activity to the production of fertilisers, and it was accordingly still classified as a dangerous factory covered by DPR 175/88. In 1993 the Ministry for the Environment issued an order jointly with the Ministry of Health prescribing measures to be taken by the factory to improve the safety of the ongoing fertiliser production, and of caprolactam production if that was resumed (see paragraph 27 below). 18. In 1994 the factory permanently stopped producing fertiliser. Only a thermoelectric power station and plant for the treatment of feed and waste water continued to operate. B. The criminal proceedings 1. Before the Foggia Magistrates’ Court 19. On 13 November 1985 420 residents of Manfredonia (including the applicants) applied to the Foggia Magistrates’ Court ( pretore ) complaining that the air had been polluted by emissions of unknown chemical composition and toxicity from the factory. Criminal proceedings were brought against seven directors of the impugned company for offences relating to pollution caused by emissions from the factory and to non-compliance with a number of environmental protection regulations. Judgment was given on 16 July 1991. Most of the defendants escaped a prison sentence, either because the charges were covered by an amnesty or were time-barred, or because they had paid an immediate fine ( oblazione ). Only two directors were sentenced to five months’ imprisonment and a fine of two million lire and ordered to pay damages to the civil parties, for having had waste dumps built without prior permission, contrary to the relevant provisions of DPR 915/82 on waste disposal. 2. In the Bari Court of Appeal 20. On appeals by the two directors who had been convicted and by the Public Electricity Company ( ENEL ) and Manfredonia District Council, which had both joined the proceedings as civil parties claiming damages, the Bari Court of Appeal acquitted the directors on 29 April 1992 on the ground that the offence had not been made out but upheld the remainder of the impugned decision. The court held that the errors which the directors were alleged to have made in the management of the waste were in fact attributable to delays and uncertainties in the adoption and interpretation, particularly by the Region of Apulia, of regulations implementing DPR 915/82. Consequently, there was no damage that gave rise to a claim for compensation. C. The approach of the authorities concerned 21. A joint committee of representatives from the State and the Region of Apulia was set up within the Italian Ministry for the Environment to implement the Seveso directive. The committee ordered a technical survey, which was carried out by a panel established by an order of the Minister for the Environment of 19 June 1989. The panel had the following remit: (a) to report on whether the factory conformed to environmental regulations as regards discharge of waste water, treatment of liquid and solid waste, emissions of gases, and noise pollution; to report on safety aspects; and to check what authorisations had been granted to the factory to those ends; (b) to report on whether the factory site was compatible with its environment, having particular regard to the problems of protecting the health of the local population and the fauna and flora and of making appropriate use of the land; (c) to suggest what action should be taken to obtain any missing data required to complete the reports under (a) and (b) above and to identify measures to be taken to protect the environment. 22. On 6 July 1989 the factory submitted the safety report required by Article 5 of DPR 175/88. 23. On 24 July 1989 the panel presented its report, which was sent to the State/Regional Joint Committee. The latter published its conclusions on 6 July 1990 and fixed 30 December 1990 as the date on which the report required by Article 18 of DPR 175/88 on the risk of major accidents should be submitted to the Minister for the Environment. It also recommended: (a) commissioning studies of the factory’s safety and compatibility with its environment, additional analyses of disaster scenarios and of the preparation and implementation of emergency procedures; (b) introducing a number of changes designed to reduce the atmospheric emissions drastically and to improve the treatment of waste water, making radical alterations to the production cycles for urea and nitrogen and carrying out studies on the pollution of the subsoil and on the hydrogeological structure of the factory site. These steps were to be taken within three years. The panel also referred to the need to solve the problems of liquid combustion and the reuse of sodium salts. The panel further called for a public industrial-pollution monitoring centre, to be set up by 30 December 1990, to carry out periodic checks on the factory’s practices in relation to public health and environmental protection and to act as an epidemiological observatory. 24. On 20 June 1989 the problems relating to the operation of the factory were raised in a parliamentary question to the Minister for the Environment. On 7 November 1989, in the European Parliament, a question on the same point was put to the Commission of the European Communities. Replying to the latter question, the relevant Commissioner stated that (1) Enichem had sent the Italian Government the safety report requested pursuant to Article 5 of DPR 175/88; (2) on the basis of that report the Government had opened an investigation, as required by Article 18 of DPR 175/88 to check safety at the factory and, if appropriate, to identify any further safety measures needed; and (3) so far as the application of the Seveso directive was concerned, the Government had taken the requisite measures with regard to the factory. D. Steps taken to inform the local population 25. Articles 11 and 17 of DPR 175/88 require the relevant mayor and prefect to inform local inhabitants of the hazards of the industrial activity concerned, the safety measures taken, the plans made for emergencies and the procedure to be followed in the event of an accident. 26. On 2 October 1992 the Coordinating Committee for Industrial Safety Measures gave its opinion on the emergency plan that had been drawn up by the prefect of Foggia, in accordance with Article 17 § 1 of DPR 175/88. On 3 August 1993 the plan was sent to the relevant committee of the Civil Defence Department. In a letter of 12 August 1993 the under-secretary of the Civil Defence Department assured the prefect of Foggia that the plan would be submitted promptly to the Coordinating Committee for its opinion and expressed the hope that it could be put into effect as quickly as possible, given the sensitive issues raised by planning for emergencies. 27. On 14 September 1993 the Ministry for the Environment and the Ministry of Health jointly adopted conclusions on the factory’s safety report of July 1989, as required by Article 19 of DPR 175/88. Those conclusions prescribed a number of improvements to be made to the installations, both in relation to fertiliser production and in the event of resumed caprolactam production (see paragraph 17 above) and provided the prefect with instructions as to the emergency plan for which he was responsible and the measures required for informing the local population under Article 17 of DPR 175/88. In a letter of 7 December 1995 to the European Commission of Human Rights, however, the mayor of Monte Sant’Angelo indicated that the investigation for the purpose of drawing up conclusions under Article 19 was still continuing and that he had not received any documents relating to them. He pointed out that the District Council was still awaiting direction from the Civil Defence Department before deciding what safety measures should be taken and what procedures should be followed in the event of an accident and communicated to the public. He said that if the factory resumed production, the measures for informing the public would be taken as soon as the conclusions based on the investigation were available. III. work by the Council of Europe 34. Of particular relevance among the various Council of Europe documents in the field under consideration in the present case is Parliamentary Assembly Resolution 1087 (1996) on the consequences of the Chernobyl disaster, which was adopted on 26 April 1996 (at the 16th Sitting). Referring not only to the risks associated with the production and use of nuclear energy in the civil sector but also to other matters, it states “public access to clear and full information ... must be viewed as a basic human right”. | The applicants all lived about a kilometre away from a chemical factory producing fertilisers. Accidents due to malfunctioning had already occurred in the past, the most serious one in 1976 when the scrubbing tower for the ammonia synthesis gases exploded, allowing several tonnes of potassium carbonate and bicarbonate solution, containing arsenic trioxide, to escape. One hundred and fifty people were admitted to hospital with acute arsenic poisoning. The applicants alleged in particular that the lack of practical measures, in particular to reduce pollution levels and major-accident hazards arising out of the factory’s operation, had infringed their right to respect for their lives and physical integrity. They also complained that the relevant authorities’ failure to inform the public about the hazards and about the procedures to be followed in the event of a major accident had infringed their right to freedom of information. |
792 | Conditions of detention | 1. The applicant was born in 1985 and lives in Aarhus. He was represented by Mr Tobias Stadarfeld Jensen, a lawyer practising in Aarhus. 2. The Government were represented by their Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their Co-Agent, Mrs Nina Holst ‑ Christensen, from the Ministry of Justice. 3. In 1999 the applicant was diagnosed with paranoid schizophrenia. 4. On 28 June 2005 he was convicted under the Penal Code of five incidents of violence against a civil servant acting in his official function and threats of violence. He was sentenced to committal to a psychiatric hospital. 5. From 2007 to 2011 the applicant was in a high-security psychiatric unit under a so-called “dangerousness decree”. Subsequently, he was treated in an open psychiatric ward, but was moved to a closed ward, called P4, in September 2012. 6. On 3 January 2013, while in P4, the applicant was strapped to a restraint bed with a belt and wrist and ankle straps (also called a five-point restraint ( fempunktsfiksering ). The case before the Court does not concern that coercive measure. 7. On 8 February 2013 at 1.15 p.m. the applicant was once again strapped to a restraint bed with a belt and wrist and ankle straps, and he was restrained until 9 February 2013 at 12.05 p.m., thus for twenty-two hours and fifty minutes. The case before the Court concerns this coercive measure. 8. The applicant appealed to the Psychiatric Patients ’ Complaints Board ( det Psykiatriske Patientklagenævn ) in respect of both incidents when he had been restrained, and the board heard him on 19 March 2013. 9. H.H., the chief physician who had decided on the measures, had made a brief written statement on15 March 2013. Owing to illness, she could not attend the meeting before the board on 19 March 2013. 10. On 21 March 2013 the Psychiatric Patients ’ Complaints Board, basing itself on the applicant ’ s written complaint and oral statement as well as H.H. ’ s written statement, found that both measures had been unlawful. It stated as follows: “The Psychiatric Patients ’ Complaints Board has reviewed the case and the statements made at the meeting. [The board] has found that the conditions for physical restraint with a belt and straps were not fulfilled. ... Concerning the [use of] physical restraint on 8 February 2013, the board has taken into account that you [the applicant] did not want to participate in a medical consultation with the doctor and that you have been described as very angry. Based on the above, the board has found that it has not been documented that you exposed yourself or others to an immediate risk of harm to body or health [ legeme eller helbred ]” 11. On 7 November 2013, referring to the decision of the Psychiatric Patients ’ Complaints Board, the applicant requested that the State Administration award him compensation for non-pecuniary damage. Additionally, he claimed that there had been a violation of Article 3 of the Convention. 12. On 5 December 2013 the State Administration dismissed the applicant ’ s claim, finding that no violation of Article 3 of the Convention had occurred. 13. On 13 June 2014 the applicant lodged a complaint against H.H. with the Health Authority ( Sundhedsstyrelsen ) in respect of, inter alia, the measures of physical restraint at issue. 14. On 30 August 2014 H.H. made the following written statement to the Health Authority: “While [the applicant] was in the psychiatric ward, restraint [measures were] used three times. ... The second time that a restraint measure was used was on 8 February 2013, when [the applicant] had a lot of pent-up anger because [I] went against him because I insisted on telling him that he could not go on day release when he was so angry. I approached him three times; his anger remained the same, so I decide to use a restraint measure before anyone got hurt. That decision was declared unlawful by the Patients ’ Complaints Board. The third time was when I decided to use a restraint measure in order to raise [the applicant ’ s] clozapine treatment to an efficient level. The board accepted unanimously [that I was justified in doing so]. As a forensic psychiatrist, I must, of course, pursue the optimal treatment; however, I must also consider civil rights and due process considerations in my treatment, and I must make sure that I minimise the risk of recidivism. Reoffending will always prolong the time period during which a patient is treated in the forensic psychiatric system, and that is not to the advantage of either the patient or any of the victims.” 15. On 19 December 2014 the Health Authority sent a letter to H.H., concluding as follows: “... the Health Authority does not find grounds for deciding that you acted with a lack of care or conscientiousness.” 16. In the meantime, on 20 June 2014 the applicant had brought an action before the City Court ( Retten i Roskilde ), claiming that the State Administration should acknowledge having violated his rights under Article 3 of the Convention and therefore pay him 50,000 Danish Kroner (DKK) or a lower amount determined by the court. 17. The applicant ’ s daily records were submitted to the City Court. In so far as relevant, they included the following. 18. On 7 February 2013 at 7.38 p.m. (the evening before the measure of physical restraint at issue was applied) Doctor S.S. wrote: “This evening, [the applicant] has been very frustrated and has expressed his anger and indignation about the treatment, in front of the group. This has led to other patients feeling insecure and the staff feeling abused ...” On 7 February 2013 at 7.56 p.m. M.K., an educator ( pædagog ), wrote: “[Description of what had happened between 5 and 6 p.m.] ... [the applicant] came into the dining room as the patient from room 6 sat talking loudly about his frustration about everything. [The applicant] made some negative comments. I asked him to stop, [but] he did not comply and continued [by saying] ‘ We need to do something about her [H.H.] ’. I informed him that this could be understood as a threat and [the applicant] replied ‘ Go and write a lie. ’ ...” On 7 February 2013 at 9.34 p.m. M.H.L., a social and healthcare assistant, wrote: “From the beginning of the shift [the applicant] (and the other patient from his room) seemed negative and ready to argue about restrictions in the ward. My colleague heard [the applicant] make remarks about H.H., the chief physician, which could be understood as threats against her. See the note from 7.56 p.m. H.H. was informed and she subsequently got in touch with the doctor on call, S.S., who had a conversation with [the applicant] afterwards, in the presence of my colleague. See the doctor ’ s note. After the conversation with the doctor [the applicant] seemed to be calm and quiet, and he made no further comments about the doctor or the staff or [demonstrated] frustration/anger towards them. ...” 19. The following day, on 8 February 2013 at 1.15 p.m. H.H. wrote: “At the start of today, last night ’ s situation was discussed among the staff. It was decided that it was not safe for [the applicant] to be allowed to go out on his own [only] accompanied by one of the staff when he was so angry. It was decided that he should be told about this and that his [medication] should be increased. [The applicant] was asked to go into the consultation room. He did not want to sit down. [Still] standing, he leaned over the table and said that he did not want to talk to us. [The applicant] was very white in the face, his mouth was set in a straight line, and one sensed a lot of pent-up anger. [The applicant] walked out and I just managed to tell him that his [permission to go on] day release had been revoked. We went after him with the aim of entering into a dialogue ( vi går efter mhp. at få en dialog i gang ) and [the applicant] said that we should not put him under pressure. This happened again at 11.30 a.m., and when we tried again later [the applicant] said that he did not want to talk to us and he did not want to be put under pressure. After one and a half hours [the applicant] was still extremely angry, [and] we decided to summon the staff from Enggården, as [he] was considered to be dangerous to those around him. He was very angry, it was not possible to correct him, and the slightest approach seemed to provoke him severely. Hence, it was decided that [the applicant] should be physically restrained with a belt, because of his dangerousness. He came to the belt room voluntarily and lay down on his own. ... I informed him that his behaviour made us afraid and that I had to increase his medication. ...”. 20. At 3.30 p.m. the applicant ’ s guardian [ bistandsværge ] was informed that the applicant had been restrained with a belt. 21. From the daily records it appears that throughout the period when the applicant was restrained there was always a social and healthcare assistant present with him. They regularly entered their observations in the daily records. For example, on 8 February 2013 at 9.11 p.m. E.F., a carer, wrote that the applicant felt that he was being unfairly treated, but the tone of his voice was calm and quiet, and on 9 February 2013 at 6 a.m. M.O., another carer, wrote that the evening had been quiet and the applicant had slept throughout the night. 22. After the belt restraint measure had been implemented at 1.15 p.m., doctors checked on the applicant four times. 23. During the first check on the applicant at 2.45 p.m., H.H. tried to engage him in a dialogue. She decided that the applicant still had a great deal of pent-up anger and appeared to have some latent aggression. 24. There was a second check at 6.55 p.m., carried out by Doctor B.E., who noted that the applicant still did not comprehend why he had been restrained. He appeared to be more “quiet” and “talkative”, and for that reason B.E. agreed to release one foot strap and to also release the applicant in connection with toilet visits and personal hygiene. 25. The third check on the applicant was at 10.46 p.m., and was carried out by B.E., who noted that the applicant had made progress but he was still potentially dangerous to other people because of his instinctive anger. 26. The following day, on 9 February 2013 at 10.30 a.m. B.E. checked on the applicant again. As the applicant was cooperative and had complied with all requests and instructions from the staff, B.E. assessed that it was safe to release him from the restraint bed. B.E. subsequently conferred with H.H., and it was decided that the applicant should be released at 12.05 p.m. 27. Before the City Court, the Medico-Legal Council ( Retslægerådet ) was consulted. On 2 June 2016 it stated the following: “... on the basis of the documents available, including the statement of 30 August 2014 from H.H., the chief physician, the Medico-Legal Council [observes] that since 1999 [the applicant] has been suffering from schizophrenia characterised by delusions. Because of violence in 2005, he was sentenced to placement in a psychiatric ward. In 2013 the High Court upheld the measure. From 2007 to 2011 [the applicant] was placed in the high-security psychiatric unit ... under a dangerousness decree. Subsequently, he was treated in an open psychiatric ward, but owing to [his] irritability and threatening behaviour, he was moved to a closed ward in September 2012. Afterwards, despite treatment with a potent anti-psychotic drug, [his] condition was described as fluctuating, with [the applicant having] a tendency to be aggressive [and] paranoid, and to overrate himself in an unrealistic manner. [The applicant had] no understanding of [his] illness, and his ability to have contact [with people] was compromised. ... On the evening of 7 February 2013 [the applicant] made threatening remarks about the chief physician responsible for the treatment. When she talked to him on 8 February 2013 he was completely dismissive, would not sit down, would not answer, and was white-faced and kept his mouth tightly shut, and he seemed to be affected by pent-up anger. Conversation with him was unsuccessful and, apart from being aggressive, he displayed a lack of logic, owing to [his] paranoid misinterpretation of hostility from the chief physician. He was considered to be dangerous, and at 1 p.m. the decision about physical restraints was made. Once he had the belt strapped around him he appeared to be very vocal and angry at first glance, but after a few hours he calmed down more, and consequently a foot strap was released and toilet visits were allowed. However, at around 11 p.m. he was still considered to be full of pent-up anger and potentially dangerous. At 12 noon on the following day he was released from the belt. The Medico-Legal Council must thus answer the given questions [as follows]: Question 1: The Medico-Legal Council is asked to give a statement concerning the physical restraints applied to [the applicant] in the period from 3 January 2013 at 7.08 p.m. to 5 January 2013 at 3.15 p.m., and from 8 February 2013 at 1.15 p.m. to 9 February 2013 at 10.30 a.m. In this connection, the Medico-Legal Council is asked to assess whether the material conditions for physical restraints were present in relation to each incident. The Medico-Legal Council finds that the conditions for physical restraints were present in the given periods, as it was necessary to avoid [the applicant] subjecting others to an immediate risk of harm to body or health. Question 2: For each of the periods in question, the Medico-Legal Council is asked to state whether a sufficient assessment of the continued presence of the conditions for physical restraints was made, including whether [the applicant] was assessed with the required frequency. The Medico-Legal Council finds that during the periods when [the applicant] was restrained, medical assessments were made with the required frequency to assess if the conditions for the restraint continued to be present. Question 3: For each of the periods in question, the Medico-Legal Council is also asked to state whether the assessment of the continued presence of the conditions for physical restraints made by the chief physician could give grounds for the chief physician being blamed for reckless treatment, or if the responsible doctor was justified in assessing that the conditions for physical restraints were present in the above ‑ mentioned periods. The Medico-Legal Council finds that the chief physician ’ s assessment of the conditions for physical restraints was correct, and thus that the chief physician ’ s assessment was justified. Question 4: For each of the periods in question, the Medico-Legal Council is asked to state whether the case gives grounds for any other comments from the Medico-Legal Council and, if so, which? No.” 28. Before the City Court, the applicant, the chief physician H.H., and two social and healthcare assistants were heard. 29. The applicant stated, among other things: “... in general, there were major problems with H.H. She was keen on using power and, almost from day one, she took away my day release, and instead of staying in the ward for a month I ended up staying one and a half years. There was to be a meeting between me and H.H. ..., [who] made me anxious ... She informed me that my [permission to go on] day release had been revoked. I went back, sat down, and continued eating. I was asked to come back to the meeting, but I refused. I wanted to make a call from a phone box. I wanted to talk to M. and my mother. Suddenly, ten people were outside and I was told that I was going to be restrained by a belt, which happened subsequently. The physical restraint was [employed] as usual. I knew that I should stay calm and quiet and then I would get justice later. I did not utter any threats ...” 30. H.H., the chief physician, explained that she had worked in psychiatry since 1983. In November 2012 she had become the chief physician at P4 (the closed ward where the applicant had been placed). “On 7 February 2013, the previous evening, the staff had called me on the phone. This was because [the applicant] had once again been very angry. He had made threats against me personally and had been very abrasive towards the staff. During patient rounds the following day, it was discussed whether [he] should be allowed to go on day release outside the ward. It was decided that he should not be granted permission to go on day release, as he had so much anger inside him. As the chief physician responsible, I had to tell [the applicant] that he would not go on day release. [The applicant] did not want to speak to me, but I had to inform him that there would be no day release [for him]. [The applicant] became extremely angry. He seemed to have a lot of pent-up anger and seemed aggressive. [The applicant] was in his room and I left the room to give him a time-out. This was in order to avoid my presence increasing his aggression. However, his aggression and tension was building up to such an extent that I did not dare to [leave] him [un]restrained by a belt. I feared that [everything] would go terribly wrong and escalate into violence, and that someone would get hurt. I decided that there was a significant risk of [the applicant] resorting to violence, and there was also [the applicant] himself to consider, so that there would not be a risk of him ending up assaulting someone else. The threats against me were ‘ We have to do something about her ’. [The applicant] had said this and the staff had perceived this to be threats against me. I knew that [the applicant] did not like me. [He] had a lot of anger inside him which was directed against me, and the threat might mean that there was a risk of me being assaulted. I already knew the details of the course of [the applicant ’ s] illness and treatment over the years, and I knew that [he] had previously assaulted staff and other patients in psychiatric wards, which was, in part, what he had been sentenced for. Among other things, there had been an aggravated assault on a carer. Thus, I knew that [the applicant] might react violently if he was feeling bad. I have since decided that in the period January to February [2013] [the applicant] was probably not correctly medicated. It is likely that there was a failure in the medication at the beginning of 2013. In March 2013 I applied for permission to increase [his] dosage, which was given. It is probable that [the applicant] did not receive sufficient medical treatment until the summer of 2013. It was also problematic that there was some medicine that he did not tolerate, and that he might not have been taking everything. From the summer of 2013 onwards and in the following months there was a decisive improvement, after the medication had been increased. I was ill on the day when the Patients ’ Complaints Board dealt with [the applicant ’ s] complaint. Hence, I did not come to the meeting of the Patients ’ Complaints Board. To assist the board with that procedure, I had made a statement, although it was a very brief statement. I heard from a nurse who was present [at the meeting] that [the person] who attended the meeting with the board on behalf of the psychiatric hospital did not say anything, so [the applicant ’ s] version of the events was unchallenged. If I had been present, I would have had an opportunity to elaborate on my rather brief statement. I no longer work at P4. I am now employed at ... Being presented with [the applicant ’ s] statement about [me] being power-hungry, I would say that I am very aware of the power given to me as the treating chief physician. I have always tried to manage this in a proper way. A major characteristic of the history of [the applicant ’ s] illness has been his difficulty to relate to being ill and needing help ... In general, [the applicant] was very angry at the system. ... [for continued physical restraint, the issue of whether the person in question has insight into the course of the events ] is not [decisive, what is decisive is the danger]. The danger must have ended before the restraints are released. It was not the first time in the course of [the applicant ’ s] illness that people had been very afraid of him and he had had no understanding of it. It is also all right to be angry, and that, in itself, cannot lead to physical restraint. I also understand that one can be angry about the situation. However, when the anger is of such a nature and extent that there is a fear that someone will be hurt, you must physically restrain a patient. Before this happens, there is a time when you try to talk to the person in question and try to avert the anger. Physical restraint is a last resort in order to calm the situation, and only if no other measure is possible. It is also all right that a patient and a doctor have different opinions on a course of events. This is not, in itself, a reason for continued restraint. ... On 8 February 2013 when I was at work there was an immediate risk to others, and that was the reason for deciding to use physical restraint. Of course, I also had [the applicant] himself in mind and the fact that he should be prevented from using violence against other people. Physical restraint is not a treatment measure. Physical restraint only happens when you cannot use other measures and when you are afraid that something serious will happen if you do not use it. [The applicant ’ s] behaviour was seriously aggressive, threatening and worrying. It was his body language and attitude. When [the applicant] was so angry, the wrong remark might easily have led to [him] using physical violence. This is also the reason why I chose to walk away as a kind of time-out when I had informed him that he would not go on day release. When I returned to him one and a half hours later his fierceness and aggression had not changed, and the smallest remark could result in the risk of physical violence. I am also entirely sure that [the applicant] was offered a sedative before being physically restrained with the belt.” 31. M.H.L., a social and healthcare assistant, explained: “... I was also working on 7 and 8 February 2013. I remember that [the applicant] was very angry with the chief physician. He believed that everything was her fault. He made remarks about her being an idiot and [said] that she should have ‘ a bullet through her head ’. I also heard him say directly ‘ We have to do something about her ’. I wrote the remarks down in the medical record and also contacted the chief physician. [The applicant] seemed very convinced when he said that something should be done about her. It would usually be like this when he had those thoughts, and then he would be completely convinced that this was the way it should be. The decision about physical restraint itself was made by the doctor. Other colleagues apart from myself heard [the applicant] say on 7 and 8 February 2013 that the chief physician should have a bullet through her head and that someone should do something about her. I interpreted this as meaning that [the applicant] wanted to get at the chief physician, not that she should be fired.” 32. The other social and healthcare assistant who testified before the City Court gave an explanation about the incident on 3 January 2013. 33. On 24 March 2017 the City Court found against the applicant. It stated as follows: “It appears from section 14(2)( i ) of the Act on the Use of Coercion in Psychiatry – see the wording of Act no. 1729 of 2 December 2010 applicable at the time of the decision made by the Patients ’ Complaints Board on 21 March 2013 – that physical restraint can only be used to the extent necessary in order to prevent a patient from exposing himself or others to an immediate risk of harm to body or health. In accordance with section 4(2) of the Act, the use of coercion must be proportionate to the purpose sought [ through the use of that coercion]. If less intrusive measures are sufficient, they must be used. It appears from the statement made to the Health Authority by H.H., the chief physician, on 30 August 2014 that ... [see paragraph 14 above] It further appears from the statement that on 8 February 2013 [the applicant] had a lot of pent-up anger because the chief physician had gone against him and insisted on telling him that he could not go on day release while he was so angry. It appears from the letter of 19 December 2014 from the Health Authority that the authority stated that there was no basis for assuming that the chief physician had acted negligently or with a lack of conscientiousness. ... It appears from the medical records of the evening of 7 February 2013, among other things, that [the applicant] was described as very frustrated and he expressed his anger and indignation about the treatment in front of the group. The patients felt insecure and the staff felt abused. Further, it appears that later on [the applicant] said ‘ We have to do something about her ’. It appears from the medical records of 8 February 2013 that he did not want to sit down in the interview room. ‘ His face was white, his mouth was set in a straight line, and one sensed a lot of pent-up anger ’. Dialogue was not possible. After one and a half hours he was still very angry and unable to modify his behaviour. As regards the applicant ’ s mental state, he was assessed as ‘ having mental capacity, objectively speaking. [He was] alert and awake, paranoid with an inverted [sense of] logic, very angry, with latent aggression, and threatening. ’ It further appears from the medical records that he continued to be very angry and vocal while he was restrained by the belt. At 2.45 p.m. it was noted that ‘ a lot of pent-up anger and feelings of injustice appeared, [the applicant] seemed to be seriously deteriorating and had latent aggression ’. The foot strap was released after a few hours and visits to the toilet were permitted. At around 11.00 p.m. it was decided that he was still potentially dangerous to other people and [still] had pent-up anger. After a conversation with the doctor on 9 February 2013 he was assessed as being calm and cooperative, and he was freed on the same day at 12.05 p.m. ... Concerning the course of the events leading up to the use of physical restraint on 7 February 2013, the witness [H.H.] stated, among other things, that there had been threats against her personally from [the applicant] and he had been very abusive towards the staff. [The applicant] was seriously angry; he seemed to have a lot of pent-up anger and was very aggressive. His aggression and tension were of a nature which caused the witness to fear that [everything] would go terribly wrong and escalate into violence and that someone would get hurt. The witness decided that there was a significant risk of [the applicant] resorting to violence. The witness stated that she already had a detailed knowledge of the course of [the applicant ’ s] illness and treatment over the years, and she knew that [he] had previously assaulted staff and other patients in psychiatric wards, which was, in part, what he had been sentenced for. Among other things, there had been an aggravated assault on a carer. Thus, she knew that [the applicant] might react violently if he was feeling bad. ... Likewise, on 8 February 2013 there was, according to H.H., the chief physician, a course of events leading up to the physical restraint, during which time she tried to withdraw in order not to increase [the applicant ’ s] aggression. Furthermore, on the basis of the medical records [and] the statements of M.H.L. and the chief physician H.H. about [the applicant ’ s] behaviour in the course of the events leading up to and during the two instances of physical restraint, together with the Medico-Legal Council ’ s statement, the court considers that the instances of physical restraint and the duration [of those instances] were necessary in order to avoid [the applicant] subjecting others to an immediate risk of [harm to] body or health. Consequently, [the State Administration ] has documented that the conditions under section 14(2)( i ) of Act no. 1729 of 2 December 2010 on [the Use of] Coercion in Psychiatry were fulfilled for both the instance of physical restraint from 3 January 2013 to 5 January 2013, and the instance of physical restraint from 8 February 2013 to 9 February 2013, and likewise it has been documented that measures less intrusive than physical restraint were not possible, see the principle of the least intrusive measure in section 4 of the Act.” 34. The applicant appealed against the judgment, but only in respect of the instance of restraint on 8 February 2013. 35. By a judgment of 9 November 2017 the High Court of Eastern Denmark ( Østre landsret ) approved the measure whereby the applicant had been restrained, finding that there were no reasons to disregard the chief physician ’ s assessment at the time of the incident, that it had been necessary to strap the applicant to a restraint bed in order to avoid an imminent risk to others, and that while he had been restrained the staff had assessed with sufficient frequency whether the conditions for keeping him restrained were still present. In particular, the court stated: “ ... Based on the information before it, including the statement from the Medico ‑ Legal Council, the High Court finds no reasons to overrule the chief physician ’ s assessment, according to which it was necessary to physically restrain [the applicant] to prevent him from subjecting other people to an immediate risk of harm to body or health. Based on the same, the High Court finds that while [the applicant] was physically restrained, medical evaluations were made with sufficient frequency to assess whether the conditions for the measure were still present. Hence, the physical restraint of [the applicant] with a belt as well as wrist and foot straps from 8 February 2013 at 1.15 p.m. to 9 February 2013 at 10.30 a.m. was legal under section 14 of the Act on the Use of Coercion in Psychiatry.” 36. Leave to appeal to the Supreme Court ( Højesteret ) was refused on 15 March 2018. 37. In the meantime, on 12 April 2016 the High Court had found that the applicant ’ s sentence could be changed to treatment at a psychiatric hospital (instead of committal), with the possibility of hospitalisation if the chief physician made a decision in this regard. 38. On 10 December 2018 the High Court revoked the applicant ’ s sentence. | The applicant, who was schizophrenic, complained about being strapped to a restraint bed in a psychiatric hospital for nearly 23 hours, one of the longest periods of such immobilisation ever examined by the European Court. He argued in particular that there had been no imminent danger requiring physical restraint, that the measures should only have been used as a last resort after all other reasonable options had been exhausted, and that he had been restrained longer than had been strictly necessary. |
77 | Parental authority, child custody and access rights | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1958 and lives in Fulda. A. Background to the case 6. From 2001 onwards Mr and Mrs H., a married couple, lived in different places as Mr H. was working in the United Kingdom while Mrs H. remained in Germany. The spouses have a daughter born in 1997. In May 2002 Mrs H. and the applicant entered into a relationship. Mrs H. became pregnant in June 2003. 7. The applicant claimed that he was the father of the child to be born, and that the birth had been planned by Mrs H. and him. This was contested by the Government and the third party interveners. 8. In September 2003 Mrs H. left the applicant and subsequently went to live with her husband in the United Kingdom. 9. On 25 November 2003 the applicant acknowledged paternity of the child to be born before the Heidelberg Youth Office. 10. On 6 March 2004 Mrs H. gave birth to a boy, F., in the United Kingdom. Mr and Mrs H. have been living in the United Kingdom since then; they raise F. together with their daughter. They acknowledged that the applicant might be F.’s biological father. They claimed, however, that it could just as well be Mr H. as they had also had intimate relations at the relevant time. The latter allegation is contested by the applicant. The spouses preferred not to verify paternity in the interest of their family relationship. B. The proceedings at issue 1. The proceedings before the District Court 11. On 20 October 2005 the Fulda District Court dismissed the applicant’s requests of 24 August 2004 for access to F. twice per month and for regular information on the boy’s development. 12. The District Court noted that the applicant claimed to be F.’s biological father. The applicant had submitted that he and Mrs H. – who at the time was considering a divorce – had planned to have the child. When Mrs H. had become pregnant, the applicant had accompanied her to her medical consultations as the child’s father. Mr and Mrs H., for their part, had not contested that there had been an intimate relationship between the applicant and Mrs H. at the relevant time. However, Mrs H. had not planned to have a child and Mr H. could equally be F.’s biological father. 13. The District Court found that the applicant, even assuming that he was F.’s biological father, did not fall within the group of persons who had a right of access and information under Article 1684 or Article 1685 of the Civil Code (see paragraphs 32-33 below). He did not have a right of access under Article 1684 of the Civil Code as he was not F.’s legal father. According to Article 1592 of the Civil Code (see paragraph 35 below) the boy’s legal father was Mr H., the husband of the child’s mother. The applicant’s acknowledgement of paternity before the Youth Office was not valid under Article 1594 § 2 of the Civil Code as Mr H.’s paternity prevailed (see paragraph 36 below). Nor was he entitled to challenge Mr H.’s paternity as the conditions of Article 1600 § 2 of the Civil Code (see paragraph 37 below) were not met. He had no right to contest Mr H.’s paternity because there was a social and family relationship between Mr H. and F., who was living with Mr and Mrs H. 14. The District Court further found that the applicant did not have a right of access under Article 1685 § 2 of the Civil Code either. He claimed to be F.’s biological father, but whether this was in fact the case was unclear. Moreover, he was not a person with whom the child had close ties and there was no social and family relationship between them. The fact that in the applicant’s submission, Mrs H. and he had planned to have the child and had wanted to live together did not alter that conclusion. The applicant had never lived with Mrs H. or the child. The child had lived with Mr and Mrs H., a married couple, since his birth. During that time there had been no possibility for the applicant to build up a social and family relationship with F. 2. The proceedings before the Court of Appeal 15. On 9 February 2006 the Frankfurt am Main Court of Appeal, without hearing the parties in person, dismissed the applicant’s appeal as well as his request to be allowed to offer F. presents on special occasions. 16. The Court of Appeal confirmed the District Court’s finding that the applicant did not have a right of access and information under Article 1684 and Article 1686 of the Civil Code (see paragraph 34 below) as those provisions conferred rights only on a child’s legal parents. Under Article 1592 no. 1 of the Civil Code it was Mr H., who was married to Mrs H. at the time of F.’s birth, who was F.’s legal father. The applicant’s acknowledgement of paternity of F. did not alter that fact as it was not valid (Article 1594 § 2 of the Civil Code). 17. Furthermore, the applicant did not have a right of access and information under Article 1685 of the Civil Code. There was no social and family relationship between the applicant and F. as the applicant had so far never even seen F., let alone built up a relationship with him. 18. The Court of Appeal considered that the fundamental right to respect for one’s family life under Article 6 § 1 of the Basic Law (see paragraph 30 below) and Article 8 of the Convention did not afford the applicant more far-reaching rights. It was not even established that the applicant was F.’s biological father. Paternity could, however, only be determined in separate proceedings and under certain conditions, which the applicant was most probably unable to meet. In any event, even assuming that the applicant was F.’s biological father, he would still not have a right of access and information, for lack of a social and family relationship with F. The case of Keenan v. Ireland, in which the European Court of Human Rights had strengthened the rights of biological fathers who had not yet built up a social and family relationship with their child, was not comparable to the present case. The facts of that case, in which the child’s mother had given up the child for adoption, were not comparable to those of the present case as the interests of all persons concerned had to be weighed in the balance. In the present case, the applicant’s right in his position as biological father could not outweigh the protection of the family, the mother and the child under Article 6 § 2 of the Basic Law (see paragraph 30 below). In this conflict of interests, anything which could upset a child’s trust in his family had to be prevented. It was preferable that F. grew up in his family without learning about the problematic circumstances of his origin. 19. The Court of Appeal’s decision was served on the applicant’s counsel on 14 February 2006. 20. On 18 April 2006 the Frankfurt am Main Court of Appeal dismissed the applicant’s objection alleging a violation of the right to be heard ( Anhörungsrüge ). 3. The proceedings before the Federal Constitutional Court 21. In his constitutional complaint dated 14 March 2006 the applicant claimed that the decisions of the family courts refusing him contact with and information about the personal circumstances of his child had violated, in particular, his right to respect for his family life under Article 6 of the Basic Law and Article 8 of the Convention and his right to equal treatment under Article 3 §§ 1 and 2 of the Basic Law (see paragraph 29 below) and Articles 8 and 14 of the Convention. He argued that for a biological father to relate closely to his child, so as to have a right of access and information, it was sufficient that the father was willing to take responsibility for the child. Otherwise, the child’s mother would have the right to prevent any contact between father and child. Such contact, and knowledge of his own origins, were in the child’s best interest. The applicant further claimed that the family courts’ refusal to determine whether he was F.’s biological father and their failure to examine, with regard to the circumstances of his case and by taking evidence, whether contact with him would be in F.’s best interest had disproportionately interfered with his right to respect for his family life. Moreover, the domestic courts’ decisions had discriminated against him in his right of access and information compared to fathers of children born in or out of wedlock, mothers, grandparents and siblings. 22. On 20 September 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 1 BvR 1337/06). It held that the complaint had no prospect of success as it was, in any event, ill-founded. 23. In so far as the applicant had complained about the family courts’ failure to determine paternity of F., his complaint was inadmissible owing to the subsidiarity of a constitutional complaint. The applicant should have contested Mr H.’s paternity in separate proceedings under Article 1600 § 1 of the Civil Code prior to lodging his constitutional complaint. 24. In so far as the applicant complained about the family courts’ refusal to grant him access to and information about F., his rights under Article 6 §§ 1 or 2 and Article 3 § 1 of the Basic Law had not been breached. 25. The parental rights guaranteed by Article 6 § 2 of the Basic Law afforded protection to the person having parental responsibility, irrespective of whether that person was the biological or the legal parent of the child. In the present case, this provision thus protected Mr H. and not the applicant. Neither Article 1684 nor Article 1686 of the Civil Code, which provided for rights of access and information only for legal parents, nor the decisions of the family courts which were based on those provisions, were in breach of Article 6 § 2 of the Basic Law. 26. The family courts’ refusal to grant the applicant access under Article 1685 § 2 of the Civil Code had not violated his rights under Article 6 § 1 of the Basic Law either. Article 6 § 1 protected the relationship between a biological, but not legal, father and his child only where there was a social relationship between them which was based on the fact that the father had borne actual responsibility for the child at least for some time. Conversely, the (presumed) biological father’s wish to take over responsibility or to build up a social and family relationship with the child was not sufficient to attract the protection of Article 6 § 1. As there had never been a social and family relationship between F. and the applicant, the family courts had complied with Article 6 § 1 of the Basic Law in denying the applicant a right of access pursuant to Article 1685 § 2 of the Civil Code. 27. Furthermore, the fact alone that the presumed biological father, unlike the biological mother, had no right of access to the child did not render the decisions of the family courts arbitrary and thus in breach of Article 3 § 1 of the Basic Law. 28. The decision was served on the applicant’s counsel on 4 October 2006. | This case concerned the refusal of German courts to allow the applicant to have contact with a boy who, he claimed, was his biological son. The child’s legitimate father was married to the mother. |
766 | Access to experimental treatment or drug | I. THE CIRCUMSTANCES OF THE CASE 7. The applicants were born in 1977, 1954, 1948, 1947, 1948, 1973, 1948, 1966, 1935 and 1947 respectively, and live(d) in Plovdiv, Godech, Dobrich, Kazanlak, Plovdiv, Ruse, Samokov and Sofia respectively. 8. The first applicant in application no. 47039/11 and all eight applicants in application no. 358/12 have or had various types of terminal cancer. The second applicant in application no. 47039/11 is the first applicant’s mother. Four of them succumbed to the illness shortly after lodging their applications (see paragraph 4 above). 9. Having either tried a host of conventional treatments (including surgery, chemotherapy, radiotherapy and hormone therapy), or obtained a medical opinion that such forms of treatment would not work in their respective cases or were not available in Bulgaria, all of them approached a private clinic in Sofia, the Medical Centre for Integrative Medicine OOD ( Медицински център Интегративна Медицина ООД ), where they were told about an experimental anti-cancer product (MBVax Coley Fluid) which was being developed by a Canadian company, MBVax Bioscience Inc. According to information from that company, their product has not been authorised in any country, but has been allowed for “compassionate use” (for a definition of that term and comparable terms, see paragraphs 50, 56 and 57 below) in a number of countries (the Bahamas, China, Germany, Ireland, Israel, Mexico, Paraguay, South Africa, Switzerland, the United Kingdom, and the United States of America). In a letter of 9 January 2011 to the Bulgarian Ministry of Health, the company said that as part of its pre ‑ clinical development of the product it would be willing to provide the product free of charge to the Medical Centre for Integrative Medicine OOD, for use on cancer patients who could no longer benefit from conventional treatments, in return for data on the treatment’s adverse and beneficial effects on each patient. It appears that the Medical Centre for Integrative Medicine OOD has on a number of occasions in the past few years applied for permission to import and use the product, but to no avail. 10. The parties were in dispute as to whether MBVax Coley Fluid had recently started undergoing clinical trials. The applicants said that, according to data extracted on 18 April 2012 from the website of the United States National Cancer Institute and a website maintained by the United States National Library of Medicine, Mixed Bacteria Vaccine (MBV) was undergoing a phase one clinical trial in Germany. On that basis, they argued that it complied with the requirements of Article 83 § 2 of Regulation (EC) no. 726/2004 (see paragraph 50 below). The Government disputed that assertion, and submitted that it was not acceptable to establish the existence of clinical trials in Germany through information from websites in the United States of America. 11. The Government further submitted that MBVax Coley Fluid could not be described as a medicinal product within the meaning of the applicable European Union and domestic provisions. The applicants replied that the fact that it had not been authorised did not mean that it was not a medicinal product within the meaning of those provisions. 12. According to the applicants, MBVax Coley Fluid has been used with some success on patients in clinics in Germany, Ireland, the United Kingdom, and the United States of America. In support of that assertion the applicants submitted a number of letters and electronic mail messages from medical practitioners. 13. It appears that on 23 July 2011 one of the applicants, Mr Petrov, travelled to Germany, where he obtained the product from MBVax Bioscience Inc. free of charge and it was administered to him seven times. However, shortly afterwards he returned to Bulgaria because he could no longer afford to pay his living expenses in Germany or the fees of the health-care institution which administered the treatment. 14. Each of the applicants, including Ms Staykova ‑ Petermann, who was acting on behalf of her sick son – applied to the authorities for permission to use MBVax Coley Fluid. In letters of 20 June, 15 July and 1 and 31 August 2011 the Director of the Medicines Executive Agency ( Изпълнителна агенция по лекарствата ), the authority in charge of supervising the quality, safety and efficacy of medicinal products, pointed out that MBVax Coley Fluid was an experimental product not yet authorised or undergoing clinical trials in any country, which meant that it could not be authorised for use in Bulgaria under Regulations no. 2 of 2001 (see paragraphs 25 and 26 below). He went on to say that Bulgarian law made no provision for the use of unauthorised medicines outside clinical trials, and that, unlike the situation obtaining in other European countries, in Bulgaria compassionate use of unauthorised products was not possible. Under the law of the European Union there was no obligation to have a harmonised approach in this area. In some of the letters the Director added, without going into detail, that the information the applicants had about MBVax Coley Fluid was incorrect. 15. Some of the applicants appealed to the Minister of Health, who in a letter of 13 July 2011 fully agreed with the position expressed by the Medicines Executive Agency. 16. Three of the applicants in application no. 358/12 applied to the Ombudsman of the Republic. By letters of 22 July and 4 and 14 September 2011 the Ombudsman also informed them that MBVax Coley Fluid had not been authorised in any country, which meant that the only way in which they could obtain access to it in Bulgaria was as part of a clinical trial. 17. The applicants did not seek judicial review. 18. On 27 October 2011 the Sofia Regional Health Directorate decided to strike the Medical Centre for Integrative Medicine OOD out of the register of health institutions, on the ground that it was engaging in activities in breach of established medical standards. The clinic sought judicial review of the decision in the Sofia Administrative Court. A hearing was held on 8 December 2011. A second hearing was listed for 24 February 2012, but was adjourned to 14 June, then to 5 October, and then to 12 October 2012. The case is still pending before the Sofia Administrative Court. | The ten applicants were cancer sufferers who complained that they had been denied access to an unauthorised experimental anti-cancer drug. Bulgarian law stated that such permission could only be given where the drug in question had been authorised in another country. While the drug was permitted for “compassionate use” in a number of countries, nowhere had it been officially authorised. Accordingly, permission was refused by the Bulgarian authorities. |
815 | Prohibition of discrimination (Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1969 and lives in Samobor. A. Background to the case 7. The applicant owned a flat in Zagreb situated on the third floor of a residential building, where he lived with his wife and two children. 8. In 2003, three years after he had bought the flat, the applicant ’ s wife gave birth to their third child. The child was born with multiple physical and mental disabilities. 9. After the birth the child underwent a number of medical treatments and his condition was under the constant supervision of the competent social care services. In April 2008 an expert commission diagnosed him with incurable cerebral palsy, grave mental retardation and epilepsy. In September 2008 the social services declared the child 100% disabled. 10. In the meantime, in September 2006, the applicant bought a house in Samobor, and in October 2008 he sold his flat. According to the applicant, the reason for buying the house was the fact that the building in which his flat was situated had no lift and for that reason did not meet the needs of his disabled child and his family. In particular, it was very difficult to take his son out of the flat to see a doctor, or to take him for physiotherapy and to kindergarten or school, and to meet his other social needs. B. Proceedings concerning the applicant ’ s request for tax exemption 11. On 19 October 2006, after he had bought the house in Samobor, the applicant submitted a tax exemption request to the tax authorities. He relied on section 11(9) of the Real Property Transfer Tax Act, which provided for the possibility of tax exemption for a person who was buying a flat or a house in order to solve his or her housing needs, if he or she, or his or her family members, did not have another flat or house meeting their housing needs (see paragraph 24 below). In his request the applicant argued that the flat which he owned did not meet the housing needs of his family since it was very difficult, and in fact becoming impossible, to take his disabled child out of the flat from the third floor without a lift, given that he was in a wheelchair. The applicant therefore submitted that he had bought the house in order to cater for his son ’ s needs. 12. On 6 May 2009 the Samobor Tax Office ( Ministarstvo Financija – Porezna uprava, Područni ured Zagreb, Ispostava Samobor ) dismissed the applicant ’ s request, giving the following reasons. “Section 11(9) of the Real Property Transfer Tax Act ... provides for tax exemption for citizens who are buying their first real property in order to meet their housing needs, under conditions which must be cumulatively satisfied, including the requirement that the taxpayer in question, or his or her family members, do not have another flat or a house meeting their housing needs. During the proceedings it was established that the taxpayer Joško Guberina had owned a flat measuring 114.49 square metres, in Zagreb ..., which he had sold on 25 November 2008 ... Given that the surface of that real property, and in view of the number of the taxpayer ’ s immediate family members (five), satisfied the housing needs of the taxpayer and his immediate family, within the meaning of section 11(9.3) of the Real Property Transfer Tax Act, and given that it satisfied all housing needs in terms of hygiene and technical requirements as well as the basic infrastructure (electricity, water and [access to] other public utilities), under section 11(9.5) of the Real Property Transfer Tax Act, the taxpayer does not meet the cumulative conditions provided under section 11(9) of the Real Property Transfer Tax Act. It was therefore decided as noted in the operative part [of the decision].” 13. The Samobor Tax Office ordered the applicant to pay 83,594.25 Croatian kunas (HRK) (approximately 11,250 euros (EUR)) in tax. 14. The applicant appealed against the above decision to the Finance Ministry ( Ministarstvo Financija, Samostalna služba za drugostupanjski upravni postupak – “the Ministry”), and on 6 July 2009 the Ministry dismissed his appeal as ill-founded, endorsing the reasoning of the Samobor Tax Office. The relevant part of the decision reads as follows. “Section 11(9) of the Real Property Transfer Tax Act (Official Gazette, nos. 69/07-153/02) provides for tax exemption for citizens who are buying their first real property in order to meet their housing needs. It further lays down conditions which the citizen must meet in order to demonstrate that he or she is buying his or her first real property in order to meet his or her housing needs. In this connection, one of the conditions laid down under subsection (9.5) is that the citizen and the members of his or her immediate family must not have another real property (flat or house) meeting their housing needs; and subsection (9.6) also provides that the citizen and the members of his or her immediate family must not own a flat, a holiday house, or property of a significant value (other property of a significant value can include a piece of land where construction is allowed) or a business premises where the citizen or his or her immediate family members do not exercise a registered [business] activity, whereby the value of the real property is similar to that of the real property (flat or house) which the citizen is purchasing. Given the rationale of the cited provisions and the facts of the case as established beyond doubt during the proceedings, [the Ministry] considers that the first-instance authority was justified in rejecting the appellant ’ s request for tax exemption ... The right to tax exemption exists if the citizen, or his or her immediate family members, at the time of purchase [of the real property], do not own, or did not own, another real property meeting their housing needs or a flat, a holiday house or other real property of a significant value. As this is not the situation in the present case, given that the appellant, at the time of purchase [of the house], owned a flat in Zagreb ... larger than the real property he was buying and in respect of which he sought tax exemption, it cannot be said that by buying the house the appellant was purchasing his first real property in order to meet his housing needs.” 15. On 7 September 2009 the applicant lodged an administrative action with the High Administrative Court ( Visoki upravni sud Republike Hrvatske ), arguing that in their decisions the lower bodies had ignored his specific family situation and, in particular, his child ’ s disability and therefore the housing needs of his family. In the applicant ’ s view, it was necessary to recognise that in his particular case the availability of a lift in the building was an infrastructural requirement on the same level as access to water and electricity in general. He also emphasised that the house was the first real property in respect of which he had sought a real property transfer tax exemption. 16. On 21 March 2012 the High Administrative Court dismissed the applicant ’ s administrative action as ill-founded, endorsing the reasoning of the lower administrative bodies. The relevant part of the judgment reads as follows. “Given that the surface area of the flat [which the applicant owned] satisfied the needs of five members of the plaintiff ’ s family (subsection (9.3)) and that the flat in issue was equipped with the basic infrastructure and hygiene and technical requirements, the defendant correctly concluded that the plaintiff, in the given case, did not meet the conditions for a tax exemption set out in section 11(9) of the Real Property Transfer Tax Act. The arguments regarding the administrative action are ineffective in changing the decision in this administrative matter, and therefore the court considers that the impugned decision did not breach the law to the plaintiff ’ s detriment.” 17. On 25 May 2012 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) relying on Article 14 of the Constitution, contending, inter alia, that, given the specific accommodation needs of his family due to his child ’ s disability, he had been discriminated against by unfair application of the relevant tax legislation. He argued, in particular, that the competent administrative authorities had failed to correct the factual inequality inherent in his particular situation with regard to the ordinary meaning of the term basic infrastructural requirements meeting the housing needs of his family. 18. On 26 September 2012 the Constitutional Court, endorsing the reasoning of the lower bodies, dismissed the applicant ’ s constitutional complaint as ill-founded on the ground that there was no violation of his constitutional rights. In particular, having examined his complaints from the angle of the right to a fair trial, the Constitutional Court held that no issue arose with regard to the other complaints relied upon by the applicant. 19. The decision of the Constitutional Court was served on the applicant ’ s representative on 11 October 2012. C. Other relevant information 20. The Government provided a report by the Ministry of Social Policy and Youth ( Ministarstvo socijalne politike i mladih ) of 6 November 2013, according to which the applicant ’ s child had been in receipt of monthly monetary allowances of HRK 1,000 (approximately EUR 130) in the period between 19 January 2006 and 10 September 2012, and allowances of HRK 625 (approximately EUR 80) from 11 September 2012 onwards. In addition, he had taken part in various therapeutic and social-assistance activities, and for the period between 29 June 2010 and 2 October 2011 the applicant ’ s wife had been granted special status related to her child ’ s disability and had received, inter alia, monthly payments of HRK 2,500 (approximately EUR 300). 21. According to the applicant, the annual expenses relating to his son ’ s special needs amounted to some HRK 80,000 (approximately EUR 10,400). This included HRK 28,800 for physiotherapy, HRK 4,500 for speech therapy, HRK 900 for a child neurologist, HRK 7,200 for drugs, HRK 21,175 for a wheelchair (with additional State support of HRK 8,900); HRK 7,200 for swimming therapy; and HRK 9,150 for daily transport to the day-care centre for ten months. III. Basic elements of accessibilitySection 7 “The basic elements of accessibility are: A. the elements of accessibility for overcoming differences in height, ...” Section 9 “In order to overcome differences in height in the premises used by persons with reduced mobility, the following elements of accessibility can be used: ... a lift ...” Section 12 Lifts “A lift shall be used as an element of accessibility for overcoming height differences, and must be used for overcoming height differences of more than 120 centimetres inside or outside the building. ...” 5. Prevention of Discrimination Act 26. The relevant parts of the Prevention of Discrimination Act ( Zakon o suzbijanju diskriminacije, Official Gazette no. 85/2008) provide the following. Section 1 “(1) This Act ensures the protection and promotion of equality as the highest value of the constitutional order of the Republic of Croatia; creates conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour, gender, language, religion, political or other conviction, national or social origin, state of wealth, membership of a trade union, education, social status, marital or family status, age, health, disability, genetic inheritance, gender identity, expression or sexual orientation. (2) Discrimination within the meaning of this Act means putting any person in a disadvantageous position on any of the grounds under subsection (1) of this section, as well as his or her close relatives. ...” Section 8 “This Act shall be applied in respect of all State bodies ... legal entities and natural persons ...” Section 16(1) “Anyone who considers that, owing to discrimination, any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue, and may also seek protection in separate proceedings under section 17 of this Act.” Section 17 “(1) A person who claims that he or she has been a victim of discrimination in accordance with the provisions of this Act may bring a claim and seek: 1. a ruling that the defendant has violated the plaintiff ’ s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff ’ s right to equal treatment (claim for an acknowledgment of discrimination); 2. a ban on (the defendant ’ s) undertaking acts which violate or may violate the plaintiff ’ s right to equal treatment or an order for measures aimed at removing discrimination or its consequences to be taken (claim for a ban or for removal of discrimination); 3. compensation for pecuniary and non-pecuniary damage caused by the violation of the rights protected by this Act (claim for damages); 4. an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant ’ s expense.” 27. In 2009 the Croatian Government Office for Human Rights ( Ured za ljudska prava Vlade Republike Hrvatske ) published a “Manual on implementation of the Prevention of Discrimination Act” ( Vodič uz Zakon o suzbijanju diskriminacije – “the Manual”). The Manual explains, inter alia, that section 16 of the Prevention of Discrimination Act provides two alternative avenues which an individual can pursue. Accordingly, an individual may raise his or her complaint of discrimination in proceedings concerning the main subject matter of a dispute, or he or she may opt for separate civil proceedings, as provided under section 17 of the Act. 6. Administrative Disputes Act 28. The relevant provision of the Administrative Disputes Act ( Zakon o upravnim sporovima, Official Gazette nos. 20/2010, 143/2012 and 152/2014) provides the following. Section 76 “(1) Proceedings terminated by a judgment shall be reopened at the party ’ s request: 1. if, in a final judgment, the European Court of Human Rights has found a violation of fundamental rights and freedoms in a manner differing from the [Administrative Court ’ s] judgment, ...” B. Relevant practice 1. Relevant practice concerning discrimination 29. On 9 November 2010, in case no. U-III-1097/2009, the Constitutional Court declared a constitutional complaint of discrimination under a Parliamentary decision regarding the political affiliation of a deputy inadmissible for non-exhaustion of legal remedies. The Constitutional Court found that the appellant had failed to pursue both the relevant administrative remedies and the remedies provided under the Prevention of Discrimination Act. However, it declined to determine what the relationship between several possible avenues in a case concerning allegations of discrimination was, on the ground that it was primarily for the competent courts to determine that matter. 30. In its decisions nos. U-III-815/2013 of 8 May 2014 concerning alleged discrimination in obtaining social benefit, and U-III-1680/2014 of 2 July 2014 concerning alleged discrimination in employment, the Constitutional Court confirmed its case-law as to the availability of remedies under the Prevention of Discrimination Act. 31. The Government referred to the judgments of the Supreme Court, nos. Gž -41/11-2 of 28 February 2012, Gž -25/11-2 of 28 February 2012 and Gž -38/11-2 of 7 March 2012, which had accepted actions under the Prevention of Discrimination Act alleging discrimination on the ground of sexual orientation. 2. Relevant practice concerning the application of tax legislation 32. The Government also cited case-law of the Administrative Court ( Upravni sud Republike Hrvatske ) and the High Administrative Court by which they dismissed actions challenging the refusal of a real property transfer tax exemption on the ground of the appellants ’ failure to cumulatively meet the requirements under section 11(9.5) and (9.6) of the Real Property Transfer Tax Act (judgments in cases nos. Us-4028/2009-4 of 1 June 2011, Us-14106/2009-4 of 16 May 2012, and Us ‑ 3042/2011-4 of 19 September 2013; and a judgment of the High Administrative Court, no. Usž -269/2012-4 of 23 January 2013, by which it upheld a decision on tax exemption under section 11(9.3), (9.5) and (9.6) of the Real Property Transfer Tax Act). 33. In each of these cases the administrative authorities conducted a thorough assessment of the comparable values of properties when deciding whether the appellant had a real property of significant value within the meaning of section 11(9.6) of the Real Property Transfer Tax Act. | This case concerned the complaint by the father of a severely handicapped child about the tax authorities’ failure to take account of the needs of his child when determining his eligibility for tax exemption on the purchase of property adapted to his child’s needs. |
249 | Recent judgments and decisions of the Court | I. PRELIMINARY CONSIDERATIONS REGARDING THE ESTABLISHMENT OF THE FACTS II. EVIDENCE BEFORE THE COURT III. BACKGROUND TO THE CASE A. Terrorist attacks of which the applicant has been suspected 1. USS Cole bombing in 2000 2. MV Limburg bombing in 2002 B. The so-called “High-Value Detainee Programme” 1. The establishment of the HVD Programme (a) The US President ’ s memoranda (i) Memorandum of 17 September 2001 (ii) Memorandum of 7 February 2002 (b) Abu Zubaydah ’ s capture and transfer to a CIA covert detention facility in March 2002 (c) Setting up the CIA programme “to detain and interrogate terrorists at sites abroad” 2. Enhanced Interrogation Techniques (a) Description of legally sanctioned standard and enhanced interrogation techniques (b) Expanding the use of the EITs beyond Abu Zubaydah ’ s interrogations 3. Standard procedures and treatment of “high-value detainees” in CIA custody (combined use of interrogation techniques) 4. Conditions of detention at CIA “black sites” 5. The scale of the HVD Programme 6. Closure of the HVD Programme C. The United States Supreme Court ’ s judgment in Rasul v. Bush D. Role of Jeppesen Dataplan, Richmor Aviation and other air companies in the CIA rendition operations 1. Jeppesen Dataplan Inc. 2. Richmor Aviation 3. Other companies E. 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 4. Publicly expressed concerns regarding the procedure before the military commission F. Review of the CIA ’ s activities involved in the HVD Programme in 2001-2009 by the US Senate 1. Course of the review 2. Findings and conclusions IV. THE PARTICULAR CIRCUMSTANCES OF THE CASE A. The applicant ’ s capture, transfer to the CIA ’ s custody, his secret detention and transfers from mid-October 2002 to 6 June 2003, as established by the Court in Al Nashiri v. Poland and supplemented by the 2014 US Senate Committee Report B. The applicant ’ s transfers and detention between his rendition from Poland on 6 June 2003 and his alleged rendition to Romania on 12 April 2004 as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 1. Transfer from Poland to Morocco and detention in Morocco (from 6 June to 23 September 2003) 2. Transfer from Morocco to Guantánamo and detention in Guantánamo (from 23 September 2003 to 12 April 2004) C. The applicant ’ s alleged secret detention at a CIA “black site” in Romania from 12 April 2004 to 6 October or 5 November 2005 as described by the applicant, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 1. The applicant ’ s initial submissions 2. The applicant ’ s alleged rendition to Romania on the plane N85VM on 12 April 2004 3. Detention and treatment to which the applicant was subjected 4. The applicant ’ s alleged rendition from Romania on 6 October or 5 November 2005 D. The applicant ’ s further transfers during CIA custody (until 5 September 2006) as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 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. Psychological effects of the HVD Programme on the applicant G. Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts H. “Detention Site Black” in the 2014 US Senate Committee Report I. Parliamentary inquiry in Romania J. Criminal investigation in Romania 1. Submission by the Government of confidential documents from the investigation file 2. The course of the investigation according to documentary evidence produced by the Government VII. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME IN 2002-2005 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 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. 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 C. International non-governmental 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 VIII. SELECTED MEDIA REPORTS AND ARTICLES A. International media B. Romanian media C. Der Spiegel ’ s publications in 2014 and 2015 IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING ROMANIA 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 6. The 2015 European Parliament Resolution 7. LIBE delegation ’ s visit to Romania (24-25 September 2015) 8. Follow-up to the visit 9. The 2016 European Parliament Resolution C. The 2007 ICRC Report D. United Nations 1. The 2010 UN Joint Study 2. The 2015 UN Committee against Torture ’ s Observations X. TRANSCRIPTS OF WITNESS EVIDENCE PRODUCED BY THE GOVERNMENT A. Transcript of witness X ’ s statement made on 18 September 2013 B. Transcript of testimony given by witness Y on 4 May 2015 C. Transcript of witness Z ’ s statement made on 17 September 2013 D. Transcript of testimony given by witness Z on 18 June 2015 E. Transcripts of statements from other witnesses 1. Witness A 2. Witness B 3. Witness C 4. Witness D 5. Witness E 6. Witness F 7. Witness G 8. Witness H 9. Witness I 10. Witness J 11. Witness K 12. Witness L 13. Witness M 14. Witness N 15. Witness O 16. Witness P 17. Witness Q 18. Witness R XI. OTHER DOCUMENTARY EVIDENCE BEFORE THE COURT A. RCAA letter of 29 July 2009 B. List of twenty-one “suspicious flights” produced by the Government C. Documents concerning the N313P rendition mission on 16-28 January 2004 produced by Senator Marty and Mr J.G.S. in the course of the PowerPoint presentation D. The 2010 Findings of the Lithuanian Seimas Committee on National Security and Defence (extracts) E. Mr Hammarberg ’ s affidavit of 17 April 2013 Affidavit of Thomas Hammarberg F. Dossier (Memorandum) of 30 March 2012 provided by Mr Hammarberg to the Romanian Prosecutor General (extracts) G. Mr Hammarberg ’ s replies to questions put to him in writing by the Court and the parties 1. The Court ’ s questions 2. The Romanian Government ’ s questions 3. The applicant ’ s questions H. Senator Marty ’ s affidavit of 24 April 2013 I. The 2015 LIBE Briefing XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE COURT A. Mr Fava B. Presentation by Senator Marty and Mr J.G.S. “Distillation of available documentary evidence, including flight data, in respect of Romania and the case of Al Nashiri” C. Senator Marty D. Mr J.G.S. E. Mr Black | The applicant in this case was facing capital charges in the US for his alleged role in terrorist attacks. The case concerned his allegations that Romania had let the United States Central Intelligence Agency (CIA) transport him under the secret extraordinary rendition programme onto its territory and had allowed him to be subjected to ill-treatment and arbitrary detention in a CIA detention “black site”. He also complained that Romania had failed to carry out an effective investigation into his allegations. |
149 | Embryo donation and scientific research | I. THE CIRCUMSTANCES OF THE CASE 11. The applicant was born in 1954 and lives in Rome. 12. In 2002 she had recourse to assisted reproduction techniques, undergoing in vitro fertilisation (IVF) treatment with her partner at the Centre for reproductive medicine at the European Hospital (“the centre”) in Rome. The five embryos obtained from the IVF treatment were placed in cryopreservation. 13. Before the embryos could be implanted the applicant’s partner died, on 12 November 2003, in a bomb attack in Nasiriya (Iraq) while he was reporting on the war. 14. After deciding not to have the embryos implanted, the applicant sought to donate them to scientific research and thus contribute to promoting advances in treatment for diseases that are difficult to cure. 15. According to the information provided at the hearing before the Grand Chamber, the applicant made a number of unsuccessful verbal requests for release of the embryos at the centre where they were being stored. 16. In a letter of 14 December 2011, the applicant asked the Director of the centre to release the five cryopreserved embryos so that they could be used for stem-cell research. The Director refused to comply with her request on the ground that this type of research was banned and punishable as a criminal offence in Italy under section 13 of Law no. 40 of 19 February 2004 (“Law no. 40/2004”). 17. The embryos in question are currently stored in the cryogenic storage bank at the centre where the IVF treatment was carried out. III. COUNCIL OF EUROPE DOCUMENTS A. Recommendation 1046 (1986) of the Parliamentary Assembly of the Council of Europe on the use of human embryos and foetuses for diagnostic, therapeutic, scientific, industrial and commercial purposes “... 6. Aware that the progress [of medical science and technology] has made the legal position of the embryo and foetus particularly precarious, and that their legal status is at present not defined by law; 7. Aware that adequate provisions governing the use of living or dead embryos and foetuses do not at present exist; 8. Convinced that, in view of scientific progress which makes it possible to intervene in developing human life from the moment of fertilisation, it is urgent to define the extent of its legal protection; 9. Having regard to the variety of ethical opinions on the question of using the embryo or the foetus or their tissues, and to the conflicts between values which arise; 10. Considering that human embryos and foetuses must be treated in all circumstances with the respect due to human dignity, and that use of materials and tissues therefrom must be strictly limited and regulated ... to purposes which are clearly therapeutic and for which no other means exist; ... 13. Stressing the need for European co-operation, 14. [The Parliamentary Assembly r]ecommends that the Committee of Ministers: a. call on the governments of the member states: ... 14.1.2. to limit the use of human embryos and foetuses and materials and tissues therefrom in an industrial context to purposes which are strictly therapeutic and for which no other means exist, according to the principles set out in the appendix, and to bring their legislation into line with these principles or to enact rules in accordance therewith which should inter alia specify the conditions in which removal and use may be undertaken for a diagnostic or therapeutic purpose; 14.1.3. to forbid any creation of human embryos by fertilisation in vitro for the purposes of research during their life or after death; 14.1.4. to forbid anything that could be considered as undesirable use or deviations of these techniques, including: ... research on viable human embryos; experimentation on living human embryos, whether viable or not; ...” B. Recommendation 1100 (1989) of the Parliamentary Assembly of the Council of Europe on the use of human embryos and foetuses in scientific research “... 7. Considering that the human embryo, though displaying successive phases in its development ... displays also a progressive differentiation as an organism and none the less maintains a continuous biological and genetic identity; 8. Recalling the need for European co-operation and for the widest possible regulation in order to overcome the contradictions, risks and foreseeable shortcomings of exclusively national standards in these fields, ...” 54. The relevant passages of the Appendix to that Recommendation read as follows. “B. On live pre-implantation embryos: 4. In accordance with Recommendations 934 (1982) and 1046 (1986), investigations of viable embryos in vitro shall only be permitted: for applied purposes of a diagnostic nature or for preventive or therapeutic purposes; if their non-pathological genetic heritage is not interfered with. 5. ... research on living embryos must be prohibited, particularly: if the embryo is viable; if it is possible to use an animal model; if not foreseen within the framework of projects duly presented to and authorised by the appropriate public health or scientific authority or, by delegation, to and by the relevant national multidisciplinary committee; if not within the time-limits laid down by the authorities mentioned above. ... H. Donation of human embryological material 20. The donation of human embryological material shall be authorised solely for scientific research on diagnostic, prevention or therapeutic purposes. Its sale shall be prohibited. 21. The intentional creation and/or keeping alive of embryos or foetuses whether in vitro or in utero for any scientific research purpose, for instance to obtain genetic material, cells, tissues or organs therefrom, shall be prohibited. 22. The donation and use of human embryological material shall be conditional on the freely given written consent of the donor parents. 23. The donation of organs shall be devoid of any commercial aspect. The purchase or sale of embryos or foetuses or parts thereof by their donor parents or other parties, and their importation or exportation, shall also be prohibited. 24. The donation and use of human embryological material for the manufacture of dangerous and exterminatory biological weapons shall be forbidden. 25. For the whole of this recommendation, ‘viable’ embryos shall be understood to mean embryos which are free of biological characteristics likely to prevent their development; however, the non-viability of human embryos and foetuses shall be determined solely by objective biological criteria based on the embryo’s intrinsic defects.” C. Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (Oviedo Convention) of 4 April 1997 Article 2 – Primacy of the human being “The interests and welfare of the human being shall prevail over the sole interest of society or science.” Article 18 – Research on embryos in vitro “1. Where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo. 2. The creation of human embryos for research purposes is prohibited.” Article 27 – Wider protection “None of the provisions of this Convention shall be interpreted as limiting or otherwise affecting the possibility for a Party to grant a wider measure of protection with regard to the application of biology and medicine than is stipulated in this Convention.” D. Additional Protocol to the Convention on Human Rights and Biomedicine concerning Biomedical Research, of 25 January 2005 Article 2 – Scope “1. This Protocol covers the full range of research activities in the health field involving interventions on human beings. 2. This Protocol does not apply to research on embryos in vitro. It does apply to research on foetuses and embryos in vivo. ...” E. Report by the Working Party on the Protection of the Human Embryo and Fetus of the Steering Committee on Bioethics, published on 19 June 2003 – Conclusion “This report aimed at giving an overview of current positions found in Europe regarding the protection of the human embryo in vitro and the arguments supporting them. It shows a broad consensus on the need for the protection of the embryo in vitro. However, the definition of the status of the embryo remains an area where fundamental differences are encountered, based on strong arguments. These differences largely form the basis of most divergences around the other issues related to the protection of the embryo in vitro. Nevertheless, even if agreement cannot be reached on the status of the embryo, the possibility of re-examining certain issues in the light of the latest developments in the biomedical field and related potential therapeutic advances could be considered. In this context, while acknowledging and respecting the fundamental choices made by the different countries, it seems possible and desirable with regard to the need to protect the embryo in vitro on which all countries have agreed that common approaches be identified to ensure proper conditions for the application of procedures involving the creation and use of embryos in vitro. The purpose of this report is to aid reflection towards that objective.” F. Resolution 1352 (2003) of the Parliamentary Assembly of the Council of Europe on human stem cell research “... 3. Human stem cells may be derived from a growing number of tissues and fluids from humans of any age and are not limited to embryonic sources. ... 5. The harvesting of embryonic stem cells for the time being necessitates the destruction of human embryos. ... 7. The Assembly points out that a number of embryonic human stem cell lines suitable for scientific research are already available worldwide. ... 10. The destruction of human beings for research purposes is against the right to life of all humans and against the moral ban on any instrumentalisation of humans. 11. Therefore the Assembly calls on member states: 11.1. to promote stem cell research as long as it respects the life of human beings in all states of their development; 11.2. to encourage scientific techniques that are not socially and ethically divisive in order to advance the use of cell pluripotency and develop new methods in regenerative medicine; 11.3. to sign and ratify the Oviedo Convention to make effective the prohibition of the production of human embryos for research; 11.4. to promote common European basic research programmes in the field of adult stem cells; 11.5. to ensure that, in countries where it is allowed, any research on stem cells involving the destruction of human embryos is duly authorised and monitored by the appropriate national bodies; 11.6. to respect the decision of countries not to take part in international research programmes which are against ethical values enshrined in national legislation and not to expect such countries to contribute either directly or indirectly to such research; 11.7. to give priority to the ethical aspects of research over those of a purely utilitarian and financial nature; 11.8. to promote the establishment of bodies where scientists and representatives from civil society can discuss different kinds of projects on human stem cell research with a view to strengthening transparency and democratic accountability.” G. Recommendation Rec(2006)4 of the Committee of Ministers to member states on research on biological materials of human origin, adopted by the Committee of Ministers on 15 March 2006 55. This Recommendation, which does not apply to embryonic and foetal tissues (see Article 2, paragraph 3), aims to protect the fundamental rights of persons whose biological material might be used for a research project after having been removed and stored (i) for a specific research project prior to adoption of the Recommendation; (ii) for future unspecified research; or (iii) as residual material originally removed for clinical or forensic purposes. This Recommendation seeks, inter alia, to promote the establishment of practice guidelines on the part of the member States and to reduce to a minimum the risks related to research activities for the private life of the persons concerned. It also lays down rules about obtaining and collecting biological materials. H. Resolution 1934 (2013) of the Parliamentary Assembly of the Council of Europe on ethics in science and technology “... 2. ... [T]he Assembly holds that more concerted ethical consideration should be given – at national, supraregional and global levels – to the goals and purposes pursued by science and technology, to the instruments and methods they employ, to their possible consequences and side effects, and to the overall system of rules and behaviour within which they operate. 3. The Assembly believes that having a permanent structure for ethical reflection at the global level would make it possible to address ethical issues as a ‘moving target’, rather than fixing an ‘ethical code’, and enable a periodic re-questioning of even basic assumptions, such as the definition of ‘human identity’ or ‘human dignity’. 4. The Assembly welcomes the initiative of UNESCO in setting up the World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) with a view to engaging in ongoing ethical reflection and exploring the possibilities of drafting and periodically reviewing a set of fundamental ethical principles based on the Universal Declaration of Human Rights. It believes that the Council of Europe should contribute to this process. 5. In this respect, the Assembly recommends that the Secretary General of the Council of Europe consider establishing a flexible and informal structure for ethical reflection, through co-operation between relevant Assembly committees and members of relevant expert committees, including the Committee on Bioethics (DH-BIO), with a view to identifying emerging ethical issues and main ethical principles that could guide political and legal action in Europe. 6. To reinforce the common European framework of ethics in science and technology, the Assembly recommends that member States, which have not yet done so, sign and ratify the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (ETS No. 164, ‘Oviedo Convention’) and its protocols and fully engage in the work of the Committee on Bioethics. ... 10. The Assembly invites the European Union and UNESCO to co-operate with the Council of Europe to reinforce the common European framework of ethics in science and technology and, to this end: 10.1 create European and regional platforms to regularly exchange experiences and best practice covering all fields of science and technology, using the experience acquired in the framework of the European Conference of National Ethics Committees (COMETH) initiated by the Council of Europe, and more recently the Forum of National Ethics Councils (NEC Forum) funded by the European Commission, and the meetings of the Council of Europe Committee on Bioethics; 10.2 draft and periodically review a set of fundamental ethical principles to be applied to all fields of science and technology; 10.3 provide further guidance to help member States harmonise ethical rules and monitoring procedures, building on the positive impact of ethical requirements under the European Commission’s Seventh Framework Programme for Research and Technological Development (2007-2013) (FP7).” | This case concerned a ban under Italian Law no. 40/2004, preventing the applicant from donating to scientific research embryos obtained from an in vitro fertilisation which were not destined for a pregnancy. Under Article 1 (protection of property) of Protocol No. 1 to the Convention, the applicant complained that she was unable to donate her embryos, conceived through medically assisted reproduction, to scientific research and was obliged to keep them in a state of cryopreservation until their death. The applicant also considered that the prohibition in question amounted to a violation of her right to respect for her private life, protected by Article 8 of the Convention. |
883 | Public or political figures | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant, who is the eldest daughter of Prince Rainier III of Monaco, was born in 1957. Her official residence is in Monaco but she lives in the Paris area most of the time. As a member of Prince Rainier ’ s family, the applicant is the president of certain humanitarian or cultural foundations, such as the Princess Grace Foundation or the Prince Pierre of Monaco Foundation, and also represents the ruling family at events such as the Red Cross Ball or the opening of the International Circus Festival. She does not, however, perform any function within or on behalf of the State of Monaco or any of its institutions. A. Background to the case 9. Since the early 1990s the applicant has been trying – often through the courts – in a number of European countries to prevent the publication of photos about her private life in the tabloid press. 10. The photos that were the subject of the proceedings described below were published by the Burda publishing company in the German magazines Bunte and Freizeit Revue, and by the Heinrich Bauer publishing company in the German magazine Neue Post. 1. The first series of photos (a) The five photos of the applicant published in Freizeit Revue magazine ( issue no. 30 of 22 July 1993 ) 11. These photos show her with the actor Vincent Lindon at the far end of a restaurant courtyard in Saint-Rémy-de-Provence. The first page of the magazine refers to “ The most tender photos of her romance with Vincent” (“ Die zärtlichsten Fotos Ihrer Romanze mit Vincent ”) and the photos themselves bear the caption “These photos are evidence of the most tender romance of our time” ( “ Diese Fotos sind der Beweis für die zärtlichste Romanze unserer Zeit ” ). (b) The two photos of the applicant published in Bunte magazine ( issue no. 32 of 5 August 1993 ) 12. The first photo shows her on horseback with the caption “Caroline and the blues. Her life is a novel with innumerable misfortunes, says the author Roig” (“ Caroline und die Melancholie. Ihr Leben ist ein Roman mit unzähligen Unglücken, sagt Autor Roig ” ). The second photo shows her with her children Pierre and Andrea. The photos are part of an article entitled “I don ’ t think I could be a man ’ s ideal wife ” ( “ Ich glaube nicht, dass ich die ideale Frau für einen Mann sein kann ” ). (c) The seven photos of the applicant published in Bunte magazine ( issue no. 34 of 19 August 1993 ) 13. The first photo shows her canoeing with her daughter Charlotte, the second shows her son Andrea with a bunch of flowers in his arms. The third photo shows her doing her shopping with a bag slung over her shoulder, the fourth with Vincent Lindon in a restaurant and the fifth alone on a bicycle. The sixth photo shows her with Vincent Lindon and her son Pierre. The seventh photo shows her doing her shopping at the market, accompanied by her bodyguard. The article is entitled “ Pure happiness” (“ Vom einfachen Glück ”). 2. The second series of photos (a) The ten photos of the applicant published in Bunte magazine ( issue no. 10 of 27 February 1997 ) 14. These photos show the applicant on a skiing holiday in Zürs/Arlberg. The accompanying article is entitled “Caroline ... a woman returns to life” (“ Caroline... eine Frau kehrt ins Leben zurück ”). (b) The eleven photos of the applicant published in Bunte magazine ( issue no. 12 of 13 March 1997 ) 15. Seven photos show her with Prince Ernst August von Hannover at a horse show in Saint-Rémy-de-Provence. The accompanying article is entitled “The kiss. Or: they are not hiding anymore ” (“ Der Kuss. Oder : jetzt verstecken sie sich nicht mehr ” ). Four other photos show her leaving her house in Paris with the caption “Out and about with Princess Caroline in Paris ” (“ Mit Prinzessin Caroline unterwegs in Paris ”). (c) The seven photos of the applicant published in Bunte magazine ( issue no. 16 of 10 April 1997 ) 16. These photos show the applicant on the front page with Prince Ernst August von Hannover and on the inside pages of the magazine playing tennis with him or both putting their bicycles down. 3. The third series of photos 17. The sequence of photos published in Neue Post magazine ( issue no. 35/97 ) shows the applicant at the Monte Carlo Beach Club, dressed in a swimsuit and wrapped up in a bathing towel, tripping over an obstacle and falling down. The photos, which are quite blurred, are accompanied by an article entitled “Prince Ernst August played fisticuffs and Princess Caroline fell flat on her face ” (“ Prinz Ernst August haute auf den Putz und Prinzessin Caroline fiel auf die Nase ”). B. The proceedings in the German courts 1. The first set of proceedings (a) Judgment of the Hamburg Regional Court of 4 February 1993 18. On 13 August 1993 the applicant sought an injunction in the Hamburg Regional Court ( Landgericht ) against any further publication by the Burda publishing company of the first series of photos on the ground that they infringed her right to protection of her personality rights ( Persönlichkeitsrecht ), guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law ( Grundgesetz ), and her right to protection of her private life and to the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright (Arts Domain ) Act ( Kunsturhebergesetz – “the Copyright Act” – see paragraphs 40-41 below). 19. In a judgment of 4 February 1993, the Regional Court granted the application only in respect of the distribution of the magazines in France, in accordance with the rules of private international law (section 38 of the Introductory Act to the Civil Code – Einführungsgesetz in das bürgerliche Gesetzbuch ) read in conjunction with Article 9 of the French Civil Code. With regard to the distribution of the magazines in Germany, however, the Regional Court reiterated that it was German law which applied. Under section 23(1) no. 1 of the Copyright Act, the applicant, as a figure of contemporary society “ par excellence ” ( eine “absolute” Person der Zeitgeschichte ), had to tolerate this kind of publication. The Regional Court held that she had failed to establish a legitimate interest ( berechtigtes Interesse ) justifying an injunction against further publication because, where figures of contemporary society “ par excellence ” were concerned, the right to protection of private life stopped at their front door. All the photos of the applicant had been taken exclusively in public places. (b) Judgment of the Hamburg Court of Appeal of 8 December 1994 20. The applicant appealed against that judgment. 21. In a judgment of 8 December 1994, the Hamburg Court of Appeal ( Oberlandesgericht ) dismissed the applicant ’ s appeal and set aside the injunction against subsequent publications in France. Indeed, like the Regional Court, the Court of Appeal found that the applicant was a contemporary figure “ par excellence ” and therefore had to tolerate publication without her consent of the photos in question, which had all been taken in public places. Even if the constant hounding by photographers made her daily life difficult, it arose from a legitimate desire to inform the general public. (c) Judgment of the Federal Court of Justice of 19 December 1995 22. The applicant appealed on points of law against that judgment. 23. In a judgment of 19 December 1995, the Federal Court of Justice ( Bundesgerichtshof ) allowed the applicant ’ s appeal in part, granting her an injunction against any further publication of the photos that had appeared in Freizeit Revue magazine ( issue no. 30 of 22 July 1993) showing her with Vincent Lindon in a restaurant courtyard on the ground that the photos interfered with her right to respect for her private life. The Federal Court held that even figures of contemporary society “ par excellence ” were entitled to respect for their private life and that this was not limited to their home but also covered the publication of photos. Outside their home, however, they could not rely on the protection of their privacy unless they had retired to a secluded place – away from the public eye ( in eine örtliche Abgeschiedenheit ) – where it was objectively clear to everyone that they wanted to be alone and where, confident of being away from prying eyes, they behaved in a given situation in a manner in which they would not behave in a public place. Unlawful interference with the protection of that privacy could therefore be made out if photos were published that had been taken secretly and/or by catching unawares a person who had retired to such a place. That was the position here, where the applicant and her male companion had withdrawn to the far end of a restaurant courtyard with the clear aim of being out of the public eye. However, the Federal Court dismissed the remainder of her appeal on the ground that, as a figure of contemporary society “ par excellence ”, the applicant had to tolerate the publication of photos in which she appeared in a public place even if they were photos of scenes from her daily life and not photos showing her exercising her official functions. The public had a legitimate interest in knowing where the applicant was staying and how she behaved in public. (d) Judgment of the Federal Constitutional Court of 15 December 1999 24. The applicant then appealed to the Federal Constitutional Court ( Bundesverfassungsgericht ), submitting that there had been an infringement of her right to the protection of her personality rights ( Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law). In the applicant ’ s submission, the criteria established by the Federal Court of Justice regarding the protection of privacy in respect of photos taken in public places did not effectively protect the free development of the personality, be it in the context of private life or family life. Those criteria were so narrow that in practice the applicant could be photographed at any time outside her home and the photos subsequently published in the media. Given that the photos were not used genuinely to inform people, but merely to entertain them, the right to control the use of one ’ s image in respect of scenes from private life, which had been recognised by the case-law of the Federal Constitutional Court, prevailed over the right – also guaranteed by the Basic Law – to freedom of the press. 25. In a landmark judgment of 15 December 1999, delivered after a hearing, the Constitutional Court allowed the applicant ’ s appeal in part on the ground that the publication of the three photos in issues nos. 32 and 34 of Bunte magazine, dated 5 August 1993 and 19 August 1993, featuring the applicant with her children had infringed her right to the protection of her personality rights guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, reinforced by her right to family protection under Article 6 of the Basic Law. It referred the case to the Federal Court of Justice on that point. However, the Constitutional Court dismissed the applicant ’ s appeal regarding the other photos. The relevant extract of the judgment reads as follows: “The appeal is well- founded in part. ... II. The decisions being appealed do not fully satisfy the requirements of Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law. 1. The provisions of sections 22 and 23 of the KUG [ Kunsturhebergesetz – Copyright Act] on which the civil courts based their decisions in the present case are, however, compatible with the Basic Law. Under Article 2 § 1 of the Basic Law, general personality rights are guaranteed only within the framework of the constitutional order. The provisions concerning the publication of photographical representations of persons listed in sections 22 and 23 of the KUG are part of that constitutional order. They derive from an incident which at the time caused a scandal ( photos of Bismarck on his deathbed ... ) and from the ensuing politico-legal debate sparked off by this incident ..., and aim to strike a fair balance between respect for personality rights and the community ’ s interest in being informed ... Under section 22, first sentence, of the KUG, pictures can only be disseminated or exposed to the public eye with the express approval of the person represented. Pictures relating to contemporary society are excluded from that rule under section 23(1) of the KUG ... Under section 23(2) of the KUG, however, that exception does not apply where the dissemination interferes with a legitimate interest of the person represented. The protection by degrees under these rules ensures that they take account of the need to protect the person being represented as well as the community ’ s desire to be informed and the interest of the media which satisfy that desire. That much has already been established by the Federal Constitutional Court ... ... (b) In the instant case regard must be had, in interpreting and applying sections 22 and 23 of the KUG, not only to general personality rights, but also to the freedom of the press guaranteed by Article 5 § 1, second sentence, of the Basic Law in so far as the provisions in question also affect those freedoms. ... The fact that the press fulfils the function of forming public opinion does not exclude entertainment from the functional guarantee under the Basic Law. The formation of opinions and entertainment are not opposites. Entertainment also plays a role in the formation of opinions. It can sometimes even stimulate or influence the formation of opinions more than purely factual information. Moreover, there is a growing tendency in the media to do away with the distinction between information and entertainment both as regards press coverage generally and individual contributions, and to disseminate information in the form of entertainment or mix it with entertainment ( ‘ infotainment ’ ). Consequently, many readers obtain information they consider to be important or interesting from entertaining coverage ... Nor can mere entertainment be denied any role in the formation of opinions. That would amount to unilaterally presuming that entertainment merely satisfies a desire for amusement, relaxation, escapism or diversion. Entertainment can also convey images of reality and propose subjects for debate that spark off a process of discussion and assimilation relating to philosophies of life, values and behaviour models. In that respect, it fulfils important social functions ... When measured against the aim of protecting press freedom, entertainment in the press is neither negligible nor entirely worthless and therefore falls within the scope of application of fundamental rights ... The same is true of information about people. Personalisation is an important journalistic means of attracting attention. Very often it is this which first arouses interest in a problem and stimulates a desire for factual information. Similarly, interest in a particular event or situation is usually stimulated by personalised accounts. Additionally, celebrities embody certain moral values and lifestyles. Many people base their choice of lifestyle on their example. They become points of crystallisation for adoption or rejection and act as examples or counter-examples. This is what explains the public interest in the various ups and downs occurring in their lives. As regards politicians, this public interest has always been deemed to be legitimate from the point of view of transparency and democratic control. Nor can it in principle be disputed that it exists in respect of other public figures. To that extent it is the function of the press to show people in situations that are not limited to specific functions or events and this also falls within the sphere of protection of press freedom. It is only when a balancing exercise has to be done between competing personality rights that an issue arises as to whether matters of essential interest for the public are involved and treated seriously and objectively or whether private matters, designed merely to satisfy the public ’ s curiosity, are being disseminated ... (c) The decision of the Federal Court of Justice largely stands up to an examination of its compatibility with the constitutional rules. (aa) The Federal Court of Justice cannot be criticised under constitutional law for assessing the conditions of application [ Tatbestandsvoraussetzungen ] of section 23(1) no. 1 of the KUG according to the criterion of the community ’ s interest in being informed and deciding on that basis that the photos showing the appellant outside her representative function in the Principality of Monaco were lawful. Under section 23(1) no. 1 of the KUG, the publication of pictures portraying an aspect of contemporary society are exempted from the obligation to obtain the consent of the person concerned within the meaning of section 22 of the KUG. Judging from the drafting history of the Act ... and from the meaning and purpose of the words used, the provision in question takes into consideration the community ’ s interest in being informed and the freedom of the press. Accordingly, the interpretation of this element [ Tatbestandsmerkmal ] must take account of the interests of the public. Pictures of people who are of no significance in contemporary society should not be made freely accessible to the public: they require the prior consent of the person concerned. The other element that is affected by fundamental rights, that of a ‘ legitimate interest ’ for the purposes of section 23(2) of the KUG, concerns only – and this must be stressed at the outset – figures of contemporary society and cannot therefore take sufficient account of the interests of the freedom of the press if these have previously been neglected when the circle of the persons concerned was defined. It is in keeping with the importance and scope of the freedom of the press, and not unreasonably restrictive of the protection of personality rights, that the concept of contemporary society referred to in section 23(1) no. 1 of the KUG should not only cover, in accordance with a definition given by the courts, events of historical or political significance, but be defined on the basis of the public interest in being informed ... The kernel of press freedom and the free formation of opinions requires the press to have, within legal limits, sufficient margin of manoeuvre to allow it to decide, in accordance with its publishing criteria, what the public interest demands, and the process of forming opinion to establish what amounts to a matter of public interest. As has been stated, entertaining coverage is no exception to these principles. Nor should the Federal Court of Justice be criticised for including in the ‘ domain of contemporary society ’, within the meaning of section 23(1) no. 1 of the KUG, pictures of people who have not only aroused public interest at a certain point on the occasion of a particular historical event but who, on account of their status and importance, attract the public ’ s attention in general and not just on the odd occasion. Account should also be taken in this regard of the fact that, compared to the situation at the time the Copyright Act was passed, increased importance is given today to illustrated information. The concept of a ‘ figure of contemporary society “ par excellence ” ’ [ ‘ absolute ’ Person der Zeitgeschichte ], often employed in this respect in the case-law and legal theory, does not conclusively derive from statute or the Constitution. If, as was done by the Court of Appeal and the Federal Court of Justice, it is interpreted as a shortened expression designating people whose image is deemed by the public to be worthy of respect out of consideration for the people concerned, it is irreproachable from the point of view of constitutional law at least as long as a balancing exercise is carried out, in the light of the circumstances of the case, between the public ’ s interest in being informed and the legitimate interests of the person concerned. General personality rights do not require publications that are not subject to prior consent to be limited to pictures of figures of contemporary society in the exercise of their function in society. Very often the public interest aroused by such figures does not relate exclusively to the exercise of their function in the strict sense. It can, on the contrary, by virtue of the particular function and its impact, extend to information about the way in which these figures behave generally – that is, also outside their function – in public. The public has a legitimate interest in being allowed to judge whether the personal behaviour of the individuals in question, who are often regarded as idols or role models, convincingly tallies with their behaviour on their official engagements. If, on the other hand, the right to publish pictures of people considered to be figures of contemporary society were to be limited to their official functions, insufficient account would be taken of the public interest properly aroused by such figures and this would, moreover, favour a selective presentation that would deprive the public of certain necessary judgmental possibilities in respect of figures of socio-political life, having regard to the function of role model of such figures and the influence they exert. The press is not, however, allowed to use every picture of figures of contemporary society. On the contrary, section 23(2) of the KUG gives the courts adequate opportunity to apply the protective provisions of Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law ... (bb) In theory the criteria established by the Federal Court of Justice for interpreting the concept of ‘ legitimate interest ’ used in section 23(2) of the KUG are irreproachable from the point of view of constitutional law. According to the decision being appealed, the privacy meriting protection that must also be afforded to ‘ figures of contemporary society “ par excellence ” ’ presupposes that they have retired to a secluded place with the objectively recognisable aim of being alone and where, confident of being alone, they behave in a manner in which they would not behave in public. The Federal Court of Justice accepted that there had been a breach of sections 22 and 23 of the KUG where this type of picture was taken secretly or by catching the person unawares. The criterion of a secluded place takes account of the aim, pursued by the general right to protection of personality rights, of allowing the individual a sphere, including outside the home, in which he does not feel himself to be the subject of permanent public attention – and relieves him of the obligation of behaving accordingly – and in which he can relax and enjoy some peace and quiet. This criterion does not excessively restrict press freedom because it does not impose a blanket ban on pictures of the daily or private life of figures of contemporary society, but allows them to be shown where they have appeared in public. In the event of an overriding public interest in being informed, the freedom of the press can even, in accordance with that case-law authority, be given priority over the protection of the private sphere ... The Federal Court of Justice properly held that it is legitimate to draw conclusions from the behaviour adopted in a given situation by an individual who is clearly in a secluded spot. However, the protection against dissemination of photos taken in that context does not only apply where the individual behaves in a manner in which he would not behave in public. On the contrary, the development of the personality cannot be properly protected unless, irrespective of his behaviour, the individual has a space in which he can relax without having to tolerate the presence of photographers or cameramen. That is not in issue here, however, since, according to the findings on which the Federal Court of Justice based its decision, the first of the conditions to which protection of private life is subject has not been met. Lastly, there is nothing unconstitutional, when balancing the public interest in being informed against the protection of private life, in attaching importance to the method used to obtain the information in question ... It is doubtful, however, that the mere fact of photographing the person secretly or catching them unawares can be deemed to infringe their privacy outside the home. Having regard to the function attributed to that privacy under constitutional law and to the fact that it is usually impossible to determine from a photo whether the person has been photographed secretly or caught unawares, the existence of unlawful interference with that privacy cannot in any case be made out merely because the photo was taken in those conditions. As, however, the Federal Court of Justice has already established in respect of the photographs in question that the appellant was not in a secluded place, the doubts expressed above have no bearing on the review of its decision. (cc) However, the constitutional requirements have not been satisfied in so far as the decisions of which the appellant complains did not take account of the fact that the right to protection of personality rights of persons in the appellant ’ s situation is strengthened by Article 6 of the Basic Law regarding those persons ’ intimate relations with their children. (dd) The following conclusions can be drawn from the foregoing considerations with regard to the photographs in question: The decision of the Federal Court of Justice cannot be criticised under constitutional law regarding the photos of the appellant at a market, doing her shopping at a market accompanied by her bodyguard or dining with a male companion at a well-attended restaurant. The first two cases concerned an open location frequented by the general public. The third case admittedly concerned a well - circumscribed location, spatially speaking, but one in which the appellant was exposed to the other people present. It is for this reason, moreover, that the Federal Court of Justice deemed it legitimate to ban photos showing the appellant in a restaurant garden, which were the subject of the decision being appealed but are not the subject of the constitutional appeal. The presence of the appellant and her companion there presented all the features of seclusion. The fact that the photographs in question were evidently taken from a distance shows that the appellant could legitimately have assumed that she was not exposed to public view. Nor can the decision being appealed be criticised regarding the photos of the appellant alone on horseback or riding a bicycle. In the Federal Court of Justice ’ s view, the appellant had not been in a secluded place, but in a public one. That finding cannot attract criticism under constitutional law. The appellant herself describes the photos in question as belonging to the intimacy of her private sphere merely because they manifest her desire to be alone. In accordance with the criteria set out above, the mere desire of the person concerned is not relevant in any way. The three photos of the appellant with her children require a fresh examination, however, in the light of the constitutional rules set out above. We cannot rule out the possibility that the review that needs to be carried out in the light of the relevant criteria will lead to a different result for one or other or all the photos. The decision must therefore be set aside in that respect and remitted to the Federal Court of Justice for a fresh decision. (d) The decisions of the Regional Court and the Court of Appeal resulted in a violation of fundamental rights by limiting to the home the privacy protected by Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law in accordance, moreover, with a rationale that was in keeping with the case-law at the time. The decisions in question do not need to be set aside, however, since the violation complained of has been remedied in part by the Federal Court of Justice and the remainder of the case remitted to that court. ... ” (e) Sequel to the proceedings 26. Following the remittal of the case to the Federal Court of Justice in connection with the three photos that had appeared in Bunte magazine ( issue no. 32 of 5 August 1993 and no. 34 of 19 August 1993 ) showing the applicant with her children, the Burda publishing company undertook not to republish the photos ( Unterlassungserklärung ). 2. The second set of proceedings (a) Judgment of the Hamburg Regional Court of 26 September 1997 27. On 14 May 1997 the applicant reapplied to the Hamburg Regional Court, seeking an injunction preventing the Burda publishing company from republishing the second series of photos on the ground that they infringed her right to protection of her personality rights, guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, and her right to protection of her private life and to the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright Act. 28. In a judgment of 26 September 1997, the Hamburg Regional Court rejected the application, referring in particular to the grounds of the Federal Court of Justice ’ s judgment of 19 December 1995. (b) Judgment of the Hamburg Court of Appeal of 10 March 1998 29. The applicant appealed against that judgment. 30. In a judgment of 10 March 1998, the Hamburg Court of Appeal dismissed the applicant ’ s appeal for the same reasons. (c) Decision of the Federal Constitutional Court of 4 April 2000 31. As the Court of Appeal did not grant leave to appeal on points of law to the Federal Court of Justice, the applicant lodged a constitutional appeal directly with the Federal Constitutional Court, relying on her earlier submissions. 32. In a decision of 4 April 2000, the Federal Constitutional Court, ruling as a panel of three judges, refused to entertain the appeal. It referred in particular to the Federal Court of Justice ’ s judgment of 19 December 1995 and to its own landmark judgment of 15 December 1999. 3. The third set of proceedings (a) Judgment of the Hamburg Regional Court of 24 April 1998 33. On 5 November 1997 the applicant reapplied to the Hamburg Regional Court, seeking an injunction preventing the Heinrich Bauer publishing company from republishing the third series of photos on the ground that they infringed her right to protection of her personality rights, guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, and the right to protection of her private life and to the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright (Arts Domain) Act. The applicant submitted, among other things, a sworn attestation by the director of the Monte Carlo Beach Club to the effect that the swimming baths in question were a private establishment, access to which was subject to a high fee and strictly controlled and from which journalists and photographers were debarred unless they had the express permission of the owner of the establishment. The fact that the photos were very blurred showed that they had been taken secretly, at a distance of several hundred metres, from the window or roof of a neighbouring house. 34. In a judgment of 24 April 1998, the Hamburg Regional Court rejected the application, referring in particular to the grounds of the Federal Court of Justice ’ s judgment of 19 December 1995. The court stated that the Monte Carlo Beach Club had to be considered as an open-air swimming pool that was open to the public, even if an entry fee was charged and access restricted. (b) Judgment of the Hamburg Court of Appeal of 13 October 1998 35. The applicant appealed against that judgment. 36. In a judgment of 13 October 1998, the Hamburg Court of Appeal dismissed the applicant ’ s appeal for the same reasons. The Court of Appeal found that a swimming pool or beach was not a secluded place and that the photos showing the applicant tripping over an obstacle and falling down were not such as to denigrate or demean her in the public ’ s eyes. (c) The decision of the Federal Constitutional Court of 13 April 2000 37. As the Court of Appeal did not grant the applicant leave to appeal on points of law to the Federal Court of Justice, the applicant lodged a constitutional appeal directly with the Federal Constitutional Court, relying on her earlier submissions. 38. In a decision of 13 April 2000, the Federal Constitutional Court, ruling as a panel of three judges, refused to entertain the appeal. It referred in particular to the Federal Court of Justice ’ s judgment of 19 December 1995 and to its own landmark judgment of 15 December 1999. The Constitutional Court held that the ordinary courts had properly found that the Monte Carlo Beach Club was not a secluded place and that the photos of the applicant wearing a swimsuit and falling down were not capable of constituting an infringement of her right to respect for her private life. | The applicant, Princess Caroline von Hannover, had applied to the German courts for an injunction preventing any further publication of two series of photographs relating to her private life which had appeared in German magazines, on the ground that they infringed her right to protection of her private life and of her own image. The photographs were the subject of three sets of proceedings before the German courts, resulting in particular in landmark judgments delivered by the Federal Court of Justice in 1995 and by the Federal Constitutional Court in 1999 in which the applicant’s claims were dismissed. The applicant alleged before the European Court of Human Rights that those decisions had infringed her right to respect for her private life as they had failed to afford her adequate protection from the publication of photographs taken without her knowledge by paparazzi on the ground that, in view of her origins, she was a figure of contemporary society “par excellence”. |
245 | The definition of idem | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1975 and lives in Tulnici. 9. During the night of 2 to 3 May 2008 the applicant was stopped by the police while driving on the public highway, as a preventive control measure. He underwent a breath test. As the test appeared to be positive, the police officers asked the applicant to accompany them to a hospital to give a biological sample in order to establish his blood alcohol level. The applicant refused. 1. Opening of criminal proceedings against the applicant 10. In a decision ( rezoluţie ) of 17 July 2008 the public prosecutor ’ s office at the Focşani District Court instituted criminal proceedings against the applicant for refusing to give a biological sample in order to determine his blood alcohol level, an offence provided for and punishable under Article 87 § 5 of Government Emergency Ordinance no. 195/2002 on road traffic (“Ordinance no. 195/2002”). 11. After being questioned by the public prosecutor, the applicant admitted that he had consumed alcohol and had refused to give a biological sample. 12. Evidence was also heard from a witness, G.D. 2. Discontinuance of criminal proceedings against the applicant and imposition of an administrative penalty 13. In an order of 7 August 2008 based on Article 10 (b 1 ) and Article 11 of the Code of Criminal Procedure (“the CCP”) in conjunction with Article 91 of the Criminal Code, as in force at the material time, the public prosecutor ’ s office discontinued the criminal proceedings against the applicant ( scoaterea de sub urmărire penală ). In accordance with the aforementioned legal provisions, a prosecution could not be brought unless the act committed was serious enough to constitute a criminal offence (see paragraph 33 below). The prosecutor stated the following: “Given that it appears from the criminal case file that in the present case the provisions of Article 10 (b 1 ) of the CCP are applicable, since the act committed does not attain the [degree of] danger to society of a criminal offence, and that the infringement of social values protected by the law was minimal; Having regard to the honesty of the perpetrator ( făptuitor ), to the fact that he was driving on a day when there was little road traffic, to the short distance driven and to the fact that [he] was being prosecuted for the first time; [I HEREBY] ORDER: The discontinuance of the criminal proceedings ( scoaterea de sub urmărire penală ) against the suspect for the acts set out in Article 87 § 5 of Government Emergency Ordinance no. 195/2002 ... and the imposition of an administrative penalty consisting of a fine of 1,000 Romanian lei (RON) [approximately 250 euros (EUR)], to be enforced pursuant to the provisions of Article 441 1 of the CCP in conjunction with Article 442 of the CCP. Court fees of RON 20 [approximately EUR 5] ... are payable by the suspect and will be levied in accordance with [the provisions] of Article 443 CCP. The suspect shall be notified of the decision.” 14. The order issued by the public prosecutor ’ s office on 7 August 2008 (see paragraph 13 above) was not challenged by means of a remedy such as an appeal under Article 249 1 of the CCP (see paragraph 34 below). 15. There is no indication in the case file of the precise date on which the applicant was notified of the order of 7 August 2008. In any event, he took cognisance of its contents and on 15 August 2008 paid the fine and the court fees. He submitted the receipts confirming payment of those sums as evidence in the criminal proceedings. 3. Setting aside by the higher-ranking prosecutor ’ s office of the order discontinuing the criminal proceedings 16. In an order of 7 January 2009, relying on Article 270 § 1 and Article 273 § 2 of the CCP as in force at the material time (see paragraph 34 below), the public prosecutor ’ s office at the Vrancea County Court, as the higher-ranking prosecutor ’ s office in relation to the public prosecutor ’ s office at the Focşani District Court, set aside the order of 7 August 2008 (see paragraph 13 above) of its own motion. 17. In the order of 7 January 2009 the public prosecutor ’ s office at the Vrancea County Court gave the following reasons: “Following an examination of the evidence on file, it must be concluded that in view of the degree of general and specific danger to society associated with the acts committed, the type of the social values disregarded by the suspect and the specific circumstances in which he committed the acts, the administrative penalty imposed was not justified. The suspect justified his firm refusal to give a biological sample in order to determine his blood alcohol level by the fact that before being stopped by the police he had consumed alcoholic beverages. The statement written by the suspect himself indicated that he had acted in this manner [refusing to give the sample] ‘ because of his intoxicated state ’, a circumstance that emphasises the danger posed to society by the acts and by the suspect himself, who nevertheless was not appropriately punished. The act committed by the suspect entails a high degree of danger to society, which the law itself intended to penalise more severely than other road traffic offences, with the aim of preventing the commission of more serious acts causing physical injury or material damage; because the real reason for refusing to give biological samples is, precisely, the sometimes excessive consumption of alcoholic beverages which may also give rise to criminal liability for other, more serious consequences. The high upper limits and the nature of the criminal penalty (exclusively imprisonment, excluding any kind of fine) highlight the intention of the law to severely punish anyone committing such reprehensible acts. That being the case, the administrative fine imposed on the suspect Erik Aurelian Mihalache does not fulfil the preventive aim pursued by the law. It should be borne in mind that the suspect, who was in a manifestly intoxicated state while driving a motor vehicle, was about to go to a discothèque in the village of Lepsa (a place where alcohol is frequently consumed), and the consequences of his acts could have been even worse than he realises. Having regard to all those circumstances, the imposition of an administrative penalty was unjustified ( nejustificată ). Accordingly, the decision to discontinue proceedings in the case is set aside, and the criminal proceedings [are to be] reopened in order to continue the investigation and prepare the case for trial. Having regard also to the provisions of Article 273 § 2 and Article 270 § 1 (c) of the CCP, [I HEREBY] ORDER 1. the setting aside of the decision taken in the present case ...; 2. the quashing of the administrative penalty of a 1,000 lei fine imposed on the suspect Erik Aurelian Mihalache for having committed the offence defined in Article 87 § 5 of Ordinance no. 195/2002, as well as the order for him to pay court fees of 20 lei to the State; 3. the reopening of the criminal proceedings against the suspect Erik Aurelian Mihalache for having committed the offence defined in Article 87 § 5 of Ordinance no. 195/2002 and the continuation of the investigation in accordance with this order; 4. the return of the case file to the public prosecutor ’ s office at the Focşani District Court in order to execute [the present order]. ” 18. The case file was sent back to the public prosecutor ’ s office with a view to continuing the criminal investigation in respect of the applicant. 4. The applicant ’ s committal for trial and criminal conviction 19. On 18 February 2009 the applicant was informed of the reopening of the criminal proceedings and questioned about the charges against him. On 19 February 2009 the public prosecutor presented the applicant with the criminal file. The applicant confessed to having committed the acts of which he stood accused, and did not seek to adduce any further evidence. 20. The witness G.D. gave a statement. 21. In an indictment of 24 March 2009 the public prosecutor ’ s office committed the applicant for trial on charges of refusing to give a biological sample for determining his blood alcohol level. The indictment stated that during the night of 2 to 3 May 2008, at around 1 a.m., the applicant had been stopped by the police while driving on the public highway, as a preventive control measure. As the breath test had appeared to be positive the police officers had asked the applicant to accompany them to a hospital to give a biological sample in order to establish his blood alcohol level, but the applicant had refused to do so. The indictment cited in evidence the report of the discovery of the offence, the applicant ’ s confession, G.D. ’ s witness statement, and the document informing the applicant of the accusations against him and his defence rights. 22. In a judgment of 18 November 2009, having assessed the evidence in the file, the Focşani District Court sentenced the applicant to one year ’ s imprisonment, suspended, on the charges set out in the indictment. Analysing the factual circumstances of the case, it held that a shorter sentence than the statutory minimum was sufficient. 23. In a judgment of 10 February 2010 the Vrancea County Court dismissed an appeal by the applicant against the aforementioned judgment. 24. The applicant lodged an appeal on points of law ( recurs ) against that judgment. He submitted, inter alia, that the referral of his case to the District Court had been incurably null and void because it was in breach of the ne bis in idem principle. He argued that in its order of 7 August 2008 the public prosecutor ’ s office had discontinued the criminal proceedings against him and imposed an administrative fine on him, thus terminating the criminal investigation. Subsequently, the public prosecutor ’ s office at the Vrancea County Court had wrongfully set aside the discontinuance order of its own motion, and no appeal had been lodged against the order of 7 August 2008 under Article 249 1 § 3 of the CCP (see paragraph 14 above and paragraph 34 below). 25. In a final judgment of 14 June 2010 the Galați Court of Appeal dismissed the applicant ’ s appeal on points of law against the judgment delivered on appeal and confirmed that it was well-founded. As regards the applicant ’ s plea alleging non-compliance with the ne bis in idem principle, the Court of Appeal held: “Pursuant to Article 4 § 1 of Protocol No. 7 to the European Convention on Human Rights, no one may be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. This principle is also set out in the Romanian Code of Criminal Procedure, Article 10 § 1 (j) of which provides that criminal proceedings cannot be instituted or continued where there has been a decision constituting res judicata. Therefore, in order for the defendant to be entitled to rely on a breach of the ne bis in idem principle, a previous set of proceedings must have been concluded with a final judgment entailing a conviction or acquittal. However, the order of 7 August 2008 by which the public prosecutor closed the criminal proceedings cannot be characterised as a judicial decision constituting res judicata, since this is not equivalent to a final judgment ( hotărâre judecătorească ). The public prosecutor ’ s right to resume criminal proceedings where they have been reopened, pursuant to Article 270 § 1 (c) and Article 273 § 1 of the Code of Criminal Procedure, is not subject to any time-limit or to the absence of a complaint against the discontinuance order, such that the reopening of the criminal proceedings against the defendant Erik Aurelian Mihalache on the basis of the order of 7 January 2009 complied with the relevant legal provisions. Noting, on the one hand, that the ne bis in idem principle is immaterial to the present case, and on the other, that the criminal proceedings were resumed and conducted in compliance with the [statutory provisions], the court rejects the defendant ’ s arguments to the effect that the referral of the case to the District Court was incurably null and void.” 26. With regard to the applicant ’ s criminal responsibility, the Court of Appeal held that, according to the evidence in the file, the lower courts had correctly determined the facts, their legal classification and the corresponding sentence. 5. Other factual information relevant to the case (a) Survey on the application of Article 18 1 of the Criminal Code 27. On 17 January 2013 the Prosecutor General of Romania issued a memorandum to all public prosecutors ’ offices across the country asking them to investigate how the provisions of Article 18 1 of the Criminal Code were applied, inter alia, to road traffic offences. The memorandum sought to identify the criteria used by the courts and public prosecutors ’ offices to assess the degree of danger to society associated with a particular act, and referred specifically to the offences set out in Ordinance no. 195/2002. The Prosecutor General also invited the lower-level public prosecutors ’ offices to send him the results of the reviews which they had carried out in 2011 and 2012 and the measures ordered following the reviews. According to the memorandum, the aim of the exercise was to identify the criteria used to justify the application of Article 18 1 of the Criminal Code by the courts and public prosecutors ’ offices. (b) Steps required to be taken by the applicant to secure reimbursement of sums paid by way of execution of the order of 7 August 2008 28. On 10 March 2013 the Chief Prosecutor of the Focşani public prosecutor ’ s office requested the tax authorities to reimburse the fine paid by the applicant pursuant to the order of 7 August 2008 (see paragraph 15 above). 29. On 3 October 2013 the public prosecutor ’ s office informed the Vrancea Directorate General of Public Finance (“DGFP”) that the amounts paid by the applicant pursuant to the order of 7 August 2008 were to be reimbursed to him. On 4 October 2013 a police officer went to the applicant ’ s home to inform him that he had to submit a request to the Vrancea DGFP in order to secure reimbursement of the amounts paid in respect of the administrative fine and the court fees. The applicant signed the record drawn up on that occasion. 30. According to the documents in the file, the applicant has not asked to be reimbursed the sums paid. III. EXPLANATORY REPORT ON PROTOCOL No. 7 TO THE CONVENTION 36. The Explanatory Report on Protocol No. 7 was prepared by the Steering Committee for Human Rights and submitted to the Committee of Ministers of the Council of Europe. It explains from the outset that the text of the report itself “does not constitute an instrument providing an authoritative interpretation of the Protocol, although it might be of such a nature as to facilitate the application of the provisions contained therein”. 37. The parts of the report of relevance to the present case read as follows: “22. ... According to the definition contained in the explanatory report of the European Convention on the International Validity of Criminal Judgments, a decision is final “if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them. ... Article 4 ... 27. The words ‘ under the jurisdiction of the same State ’ limit the application of the article to the national level. Several other Council of Europe conventions, including the European Convention on Extradition (1957), the European Convention on the International Validity of Criminal Judgments (1970) and the European Convention on the Transfer of Proceedings in Criminal Matters (1972), govern the application of the principle at international level. ... 29. The principle established in this provision applies only after the person has been finally acquitted or convicted in accordance with the law and penal procedure of the State concerned. This means that there must have been a final decision as defined above, in paragraph 22. 30. A case may, however, be reopened in accordance with the law of the State concerned if there is evidence of new or newly discovered facts, or if it appears that there has been a fundamental defect in the proceedings, which could affect the outcome of the case either in favour of the person or to his detriment. 31. The term ‘ new or newly discovered facts ’ includes new means of proof relating to previously existing facts. Furthermore, this article does not prevent a reopening of the proceedings in favour of the convicted person and any other changing of the judgment to the benefit of the convicted person.” | The applicant in this case submitted that he had been prosecuted twice for having refused to undergo a blood test in the framework of a police control with a view to determining his alcohol blood level and that the reopening of the proceedings against him had been inconsistent with the criteria set out in Article 4 of Protocol No. 7. |
231 | The definition of idem | I. CIRCUMSTANCES OF THE CASE 6. Mr Gradinger is an Austrian citizen who lives at St Pölten ( Lower Austria ). 7. On 1 January 1987 at about 4 a.m., while driving his car, he caused an accident which led to the death of a cyclist. At the hospital where he was taken for treatment a specimen of his blood was taken. This showed that he then had a blood alcohol level of 0.8 grams per litre. 8. On 15 May 1987 the St Pölten Regional Court ( Landesgericht ) convicted him of causing death by negligence ( fahrlässige Tötung ) and sentenced him to 200 day-fines of 160 Austrian schillings (ATS) with 100 days' imprisonment in default of payment (Article 80 of the Criminal Code ( Strafgesetzbuch ) - see paragraph 13 below). According to the applicant, an expert, Dr Psick, had stated at his trial that in view of the shortness of the interval between the last drink the applicant had had and the collision, he could not have absorbed an amount of alcohol exceeding the prescribed limit. In the judgment, as set out in the court record ( Protokolls - und Urteilsvermerk ), it was held that the applicant had indeed been drinking before the accident but not to such an extent as to be caught by Article 81 para. 2 of the Criminal Code, which prescribed a heavier penalty for causing death by negligence while under the influence of drink (see paragraph 14 below). 9. On 16 July 1987 the St Pölten district authority ( Bezirkshauptmannschaft ) issued a "sentence order" ( Straferkenntnis ) imposing on Mr Gradinger a fine of ATS 12,000, with two weeks' imprisonment in default, for driving under the influence of drink. It made this order pursuant to sections 5(1) and 99(1)(a) of the Road Traffic Act 1960 ( Straßenverkehrsordnung - see paragraphs 15 and 16 below) and on the basis of a different medical report, of 5 February 1987, according to which, in view of the time that had elapsed between the collision and the taking of the blood specimen, Mr Gradinger's blood alcohol level when the accident had occurred must have been at least 0.95 grams per litre. 10. The applicant appealed to the Lower Austria regional government (Amt der Landesregierung ), which dismissed his appeal on 27 July 1988 on the basis of a further expert opinion, of 16 June 1988, to the effect that the blood alcohol level had been 0.9 grams per litre. 11. On 11 October 1988 the Constitutional Court ( Verfassungsgerichtshof ) declined to accept for adjudication an appeal by the applicant, on the ground that it did not have sufficient prospects of success. 12. A further appeal, to the Administrative Court, was dismissed as ill-founded on 29 March 1989. It was held that the regional authorities had not in any way misconstrued the law in finding that at the material time Mr Gradinger had been under the influence of drink for the purposes of section 5(1) of the Road Traffic Act. That finding had been based on an expert opinion of 16 June 1988 in which it had been assumed that all the alcohol consumed by the applicant had passed into his bloodstream by the time of the accident, a point which Mr Gradinger had not contested. He was therefore wrong in asserting that the expert report had not analysed the effects of the last drink he had had before the accident. Furthermore, the authorities had acted in accordance with the law in appointing an official expert ( Amtssachverständiger ) rather than a sworn court expert ( gerichtlich beeideter Sachverständiger ) to report on Mr Gradinger's blood alcohol level. In the case under consideration there had been no special factor to justify their doing otherwise. Nor, contrary to the applicant's assertions, had they appointed as expert the person already called upon at first instance by the district authority (see paragraph 9 above). As for Article 14 para. 7 of the International Covenant on Civil and Political Rights, embodying the "non bis in idem" principle, this was not directly applicable in the Austrian legal system. Accordingly, the authorities had not misconstrued the law by punishing the applicant after a criminal court had acquitted him (see paragraph 8 above). III. AUSTRIA 'S RESERVATIONS 28. The instrument of ratification of the Convention deposited by the Austrian Government on 3 September 1958 contains, inter alia, a reservation worded as follows: "The provisions of Article 5 (art. 5) of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl [Federal Official Gazette] No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution." 29. The instrument of ratification of Protocol No. 7 (P7) deposited by the Austrian Government on 14 May 1986 contains, inter alia, the following declaration: "Articles 3 and 4 (P7-3, P7-4) exclusively relate to criminal proceedings in the sense of the Austrian Code of Criminal Procedure." | In January 1987, while driving his car, the applicant caused an accident which led to the death of a cyclist. At the hospital where he was taken for treatment a specimen of his blood was taken. This showed that he then had a blood alcohol level of 0.8 grams per litre. The applicant maintained in particular that, by fining him pursuant to the Road Traffic Act, the district authority and the regional government had punished him in respect of facts that were identical with those on the basis of which the Regional Court had decided that he did not have a case to answer under the Criminal Code. |
972 | Internet | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant company operates a popular online news portal in Hungary called 444.hu, which averages approximately 250,000 unique users per day. The online news portal has a staff of twenty-four and publishes approximately seventy-five articles per day on a wide range of topics, including politics, technology, sport and popular culture. 7. On 5 September 2013 a group of apparently intoxicated football supporters stopped at an elementary school in the village of Konyár, Hungary, while travelling by bus to a football match. The students at the school were predominantly Roma. The supporters disembarked from the bus, and proceeded to sing, chant and shout racist remarks and make threats against the students who were outside in the playground. The supporters also waved flags and threw beer bottles, and one of them reportedly urinated in front of the school building. To protect the children, the teachers called the police, took the children inside and made them hide under tables and in the bathroom. The football supporters boarded the bus and left the area only after the police arrived. 8. On 5 September 2013 J.Gy., the leader of the Roma minority local government in Konyár, gave an interview, in the company of a pupil of the elementary school and his mother, to Roma Produkciós Iroda Alapítvány, a media outlet with a focus on Roma issues. While describing the events, and referring to the arrival of the football supporters in Konyár, J.Gy. stated that “Jobbik came in [1] ” ( Bejött a Jobbik ). He added: “They attacked the school, Jobbik attacked it”, and “Members of Jobbik, I would add, they were members of Jobbik, they were members of Jobbik for sure.” On the same day the media outlet uploaded the video of the interview to YouTube. 9. On 6 September 2013 the applicant company published an article on the incident in Konyár on the 444.hu website with the title “Football supporters heading to Romania stopped to threaten Gypsy pupils”, written by B.H., a journalist for the Internet news portal. The article contained the following passages: “By all indications, a bus full of Hungarian football supporters heading to a Romania-Hungary game left a highway in order to threaten mostly Gypsy pupils at a primary school in Konyár, a village close to the Romanian border. According to our information and witnesses’ statements, the bus arrived in the village on Thursday morning. The supporters were inebriated and started insulting Gypsies and threatening the pupils. Teachers working in the building locked the doors and instructed the smallest children to hide under the tables. Mr J.Gy., president of the local Gypsy [ cigány ] municipality, talked to us about the incident. A phone conversation with Mr Gy. and a parent has already been uploaded to YouTube.” The words “uploaded to YouTube” appeared in green, indicating that they served as anchor text to a hyperlink to the YouTube video. By clicking on the green text, readers could open a new web page leading to the video hosted on the youtube.com website. 10. The article was subsequently updated three times – on 6 and 12 September and 1 October 2016 – to reflect newly available information, including an official response from the police. 11. The hyperlink to the YouTube video was further reproduced on three other websites, operated by other media outlets. 12. On 13 October 2013 the political party Jobbik brought defamation proceedings under Article 78 of the Civil Code before the Debrecen High Court against eight defendants, including J.Gy., Roma Produkciós Iroda Alapítvány, the applicant company, and other media outlets which had provided links to the impugned video. It argued that by using the term “Jobbik” to describe the football supporters and by publishing a hyperlink to the YouTube video, the defendants had infringed its right to reputation. 13. On 30 March 2014 the High Court upheld the plaintiff’s claim, finding that J.Gy.’s statements falsely conveyed the impression that Jobbik had been involved in the incident in Konyár. It also found it established that the applicant company was objectively liable for disseminating defamatory statements and had infringed the political party’s right to reputation, ordering it to publish excerpts of the judgment on the 444.hu website and to remove the hyperlink to the YouTube video from the online article. 14. The judgment of the High Court contains the following relevant passages: “... The Court has established that the first defendant, J.Gy., violated the plaintiff Jobbik Magyarorszagért Mozgalom’s inherent right to protection against defamation by falsely claiming in his statements given to the second defendant on 5 September 2013 and uploaded to youtube.com, and to the sixth defendant on 7 September and uploaded to haon.hu, that the events that had taken place on 5 September 2013 in front of the primary school in Konyár had been carried out by the plaintiff party, and that the people who had taken part in them were individuals associated with the plaintiff party. The Court has established that the second defendant, Roma Produkciós Iroda Alapítvány; the fourth defendant, I.V.; the fifth defendant, Magyar Jeti; the sixth defendant, Inform Média Kft; and the eighth defendant HVG Kiadó Zrt. also violated the plaintiff’s inherent right to be protected against defamation as the second defendant uploaded the first defendant’s false statement to youtube.com, and the fourth defendant made it available and disseminated it on romaclub.hu, the fifth defendant on 444.hu, the sixth defendant on haon.hu and the eighth defendant on hvg.hu. ... The Court obliges the first and second defendants to make the first and second paragraphs of this judgment publicly available within 15 days and for a period of 30 days on youtube.com at their own expense, and for the fourth defendant to make them publicly available on romaclub.hu, the fifth defendant on 444.hu, the sixth defendant on haon.hu, and the eighth defendant on hvg.hu. It also obliges the fifth defendant to delete the link to the first defendant’s statement uploaded to youtube.com in its article ‘Football supporters heading to Romania stopped to threaten Gypsy pupils’, published on 6 September 2013, within 15 days. Defamation can be constituted not only by the stating of a falsehood but also by the publication and dissemination of a falsehood that pertains to another person (see Article 78 § 2 of the Civil Code). When establishing the occurrence of a violation, it does not matter whether the persons concerned acted in good or bad faith, [but] whether the violation can be imputable to them or not. With regard to the foregoing, the Court has established that the second, fourth, fifth [the applicant company], sixth and eighth defendants also violated the plaintiff’s inherent right to be protected against defamation by publishing and publicly disseminating the first defendant’s defamatory statement. ... The objective sanctions for the violation of inherent rights: Pursuant to paragraph 1 of Article 84 of the Civil Code, a person whose inherent rights have been violated has the following options under civil law, depending on the circumstances of the case: (a) demand a court declaration of the occurrence of the violation; (c) demand that the perpetrator make restitution in a statement or by some other suitable means and, if necessary, that the perpetrator, at his own expense, make an appropriate public disclosure by way of restitution; (d) demand the termination of the injurious situation and the restoration of the previous state of affairs by and at the expense of the perpetrator and, furthermore, to have the effects of the violation nullified or deprived of their injurious nature. The above-mentioned sanctions [Article 84 § 1 of the Civil Code] for the violation of inherent rights are objective in nature, [and] therefore are independent from the imputability of fault to the perpetrator or the lack thereof. The violation itself forms the basis for the application of an adequate objective sanction. With regard to the foregoing, the Court has established that the defendants violated the plaintiff’s inherent rights, on the basis of paragraph 1 (a) of Article 84 of the Civil Code. With regard to restitution in accordance with paragraph 1 (c) of Article 84 of the Civil Code, the Court has ordered the defendants – with reference to the violation they have caused through their actions – to make public on the websites concerned the first and second paragraphs of the judgment that contain the establishment of the violation and at the same time concern the plaintiff, and to declare the falseness of the statement that was made publicly available, just as with the first defendant’s declaration that contained untrue statements. Since the harm caused to the plaintiff can be repaired within the framework of objective sanctions under the provision in question, the Court has rejected the part of the plaintiff’s claim that referred to the public dissemination of a declaration with a different content. On the basis of paragraph 1 (d) of Article 84 of the Civil Code, the Court has ordered the fifth defendant to deprive its related report of its injurious nature, but it has rejected the same claim submitted by the plaintiff against the eighth defendant, since it can be established from the facts of the case that the eighth defendant’s report available on hvg.hu merely links to the report that appeared on the website 444.hu maintained by the fifth defendant; therefore, depriving the latter of its injurious nature effectively results in depriving the report on hvg.hu of its injurious nature. The subjective sanctions for a violation of inherent rights: In accordance with paragraph 1 (e) of Article 84 of the Civil Code, a person whose inherent rights have been violated should bring an action for punitive damages in accordance with the liability regulations under civil law. Pursuant to paragraph 1 of Article 339 of the Civil Code, a person who causes damage to another person in violation of the law is liable for such damage. He is to be relieved of liability if he is able to prove that he has acted in a manner that can generally be expected in the given situation. Pursuant to paragraphs 1 and 4 of Article 355 of the Civil Code, the person responsible for the damage must compensate the aggrieved party for any non-pecuniary damage. The four conjunctive conditions for compensation for non-pecuniary damage are: (1) the breach of the law through the violation of inherent rights; (2) imputability of fault; (3) non-pecuniary disadvantage; (4) a causal link between the violation of inherent rights and the non-pecuniary disadvantage. With regard to legal entities, non-pecuniary damage is any non-pecuniary disadvantage or loss manifested in the assessment of the legal entity, and in adverse changes in its business turnover, in its participation in other relations and in the situation and quality of its existence and operations. The occurrence of the disadvantage can be established not just on the basis of evidence but by publicly known facts as well, in accordance with paragraph 3 of Article 163 of the Code of Civil Procedure (BH.2001.178.) In the case in question, the Court has established it as a publicly known fact that the first defendant’s statement, which presented the plaintiff political party as having caused an aggressive, threatening and racist event, and which was later publicly disseminated by the other defendants, caused non-pecuniary damage in the assessment of the plaintiff political party. Such events are rejected and regarded with disdain by a wide layer of society, and force the legal entity ‘associated’ with the events to explain and clarify its role (or in this case, its lack of role). In the case of a political party with parliamentary representation, this kind of non-pecuniary damage can especially be caused by such a violation of inherent rights committed nearly six months prior to the parliamentary elections. With regard to the first defendant, the Court has established the fact of imputability out of the conditions for compensation for non-pecuniary damage ... In the case of the other defendants, the Court did not establish any fault with regard to the breach of the law, and consequently the Court has rejected the plaintiff’s claim for compensation for non-pecuniary damage against the other defendants, in the following manner: In their own online news websites maintained by the fifth [the applicant company], sixth and eight defendants, the defendants in question published reports that presented the events of 5 September in the most realistic way, and they used the available information channels and forms of control in the expected manner. They presented contradictory information and opinions in an objective manner, remaining true to the information and the given opinions. The fact that the defendants also included [Mr J.Gy.’s statements] does not infringe the procedure expected of the staff of press outlets in such a situation, [is] not regarded as a deliberately false publication, and therefore does not call for the establishment of whether the employees of the defendants in question failed to examine the veracity of the facts, and in relation to this, failed to act with the precision necessary for the responsible exercise of the constitutional right to freedom of expression. In contrast with this, it can explicitly be established from the content of the testimonies and the reports submitted that the employees of the defendants concerned acted with the precision necessary for the responsible performance of their work[:] they examined, exposed and presented the veracity of the facts[;] therefore they acted in a manner that would generally be expected of them in the given situation. ...” 15. The applicant company appealed, arguing that public opinion associated the notion of “Jobbik” not so much with the political party but with anti-Roma ideology, and the name had become a collective noun for anti-Roma organisations. According to the applicant company, the content of the statement had not been offensive towards the political party, since it was publicly known that Jobbik had been engaged in hatred-inciting activities. The applicant company also emphasised that by making the interview with the first defendant available in the form of a link but not associating the applicant company with the video’s content, it had not repeated the statements and had not disseminated falsehoods. 16. On 25 September 2014 the Debrecen Court of Appeal upheld the first-instance decision. It held that the statement by J.Gy. had qualified as a statement of fact because it had given the impression to the average audience that the football supporters had been organisationally linked to the political party. The court found that the statement had been injurious to the political party since it had associated the latter with socially reprehensible conduct. As regards the applicant company in particular, it held: “... With regard to the fifth defendant’s [the applicant company’s] reference in its appeal, the court of first-instance correctly established that making a false statement available through a link, even without identifying with it, qualified as dissemination of facts. Dissemination (or circulation) is the sharing of a piece of news as thought-based content and making it available for others. Contrary to the fifth defendant’s viewpoint as expressed in its appeal, an infringement of the law by dissemination occurs even if the disseminator does not identify with the statement, and even if the disseminator’s trust in the veracity of the statement is ungrounded. Making lawful content available in any form qualifies as dissemination; and the disseminator bears objective responsibility for sharing another person’s unlawful statement owing to the occurrence of the sharing. Based on the grammatical and taxonomical interpretation of dissemination as defined in Article 78 § 2 of the Civil Code, it occurs by means of the sharing of information, which makes the content in question accessible to anyone. The essence of dissemination is the sharing of information, and owing to the objective legal consequence, it does not matter what the goal of the sharing was, or whether the disseminator acted in good or bad faith; nor do the scope of publicity or the gravity of the infringement have any relevance. ...” 17. On 1 December 2014 the applicant company lodged a constitutional complaint under Act no. CLI of 2011 on the Constitutional Court (“the Constitutional Court Act”), arguing in essence that under the Civil Code, media outlets assumed objective liability for dissemination of false information, which according to judicial practice meant that media outlets were held liable for the veracity of statements that clearly emanated from third parties. Thus, even if a media organ prepared a balanced and unbiased article on a matter of public interest, it could still be found to be in violation of the law. This would result in an undue burden for publishers, since they could only publish information whose veracity they had established beyond any doubt, making reporting on controversial matters impossible. The applicant company argued that the judicial practice was unconstitutional since it did not examine whether a publisher’s conduct had been in compliance with the ethical and professional rules of journalism, but only whether it had disseminated an untrue statement. In the area of the Internet, where the news value of information was very short-lived, there was simply no time to verify the truthfulness of every statement. 18. Two of the defendants also lodged a petition for review with the Kúria. The applicant company argued that the second-instance judgment restricted the freedom of the press in a disproportionate manner, as the company had only reported on an important issue of public concern, in compliance with its journalistic duties. It emphasised that, as established by the lower-level courts, its report on the issue had been balanced. It further maintained that the statement of J.Gy. qualified as an opinion rather than a fact. In any event, the company had not been engaged in dissemination but had merely fulfilled its journalistic obligation of reporting. 19. The Kúria upheld the second-instance judgment in a judgment of 10 June 2015 (served on the applicant company on 4 September 2015), reiterating that J.Gy.’s statements were statements of fact and that the defendants had failed to prove their veracity. Although the term jobbikos was used in colloquial language, in the case at issue J.Gy. had explicitly referred to the political party and its role in the incident. As regards the question of whether the applicant company’s activity constituted dissemination of information, the Kúria found: “Both in criminal law and other cases of civil law, the Kúria has taken the legal standpoint ... that dissemination is carried out by sharing or making public any information, as a result of which anyone can have access to the given content. The Internet is only one possible alternative for publishing; it is a forum for dissemination, meaning that information and facts are shared through a computer network. An Internet link to one’s own publication serves as an appendix; it becomes accessible and readable with a single click. The Civil Code has established objective liability for dissemination, irrespective of the good or bad faith of the disseminator. In the Kúria ’s view, requiring media outlets not to make injurious statements accessible does not constitute a restriction of freedom of the press or freedom of expression; nor is it an obligation on them which in practice cannot be satisfied.” 20. On 19 December 2017 the Constitutional Court dismissed the applicant company’s constitutional complaint. It emphasised the second-instance court’s finding that providing a hyperlink to content qualified as dissemination of facts. Furthermore, dissemination was unlawful even if the disseminator had not identified itself with the content of the third party’s statement and even if it had wrongly trusted the truthfulness of the statement. 21. The Constitutional Court also reiterated its previous case-law concerning reporting about public figures’ press conferences, stating that such conduct did not qualify as dissemination if the report was unbiased and objective, the statement concerned a matter of public interest, and the publisher provided the source of the statement and gave the person concerned by the potentially injurious statement the opportunity to react. In such cases, according to the Constitutional Court, journalists neither made their own statements, nor did they intend to influence public opinion with their own thoughts. Therefore, the liability of the press for falsehoods was to be distinguished from situations where media content was merely defined by the editors’ and journalists’ own choices and decisions. Specifically, in these situations the aim of a publication was neither to enrich nor to influence public debate with the journalists’ own arguments, but to provide an up-to-date and credible report on the statements of third parties participating in public debates. The interest in a public debate required accurate reporting about press conferences. 22. Concerning the present case, the Constitutional Court found that the dissemination of a falsehood did not concern a statement expressed at a press conference. The statement in question had related to a media report about an event which the press had presented according to its own assessment. The press report had summarised information concerning an event of public interest. A press report fell outside the definition of dissemination only if the aim of the publication was to provide a credible and up-to-date presentation of statements by third parties in a public debate. However, in the present case the Kúria found that the aim of the publication had not been to present J.Gy.’s statements, but to present contradictory information concerning the event. Thus, the press report qualified as dissemination. | This case concerned the applicant company being found liable for posting a hyperlink to an interview on YouTube which was later found to contain defamatory content. The applicant company complained that by finding it liable for posting the hyperlink on its website the domestic courts had unduly restricted its rights. |
549 | Discriminatory statements or publications | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant, who is of Roma origin, was born in 1931 and lives in Ankara. A. Application no. 4149/04 1. The book The Gypsies of Turkey ( Türkiye Çingeneleri ) 10. In 2000 the Ministry of Culture published 3,000 copies of a book entitled The Gypsies of Turkey, written by Associate Professor Ali Rafet Özkan. Before its publication, a publications advisory board approved the content of the book. The preface to the book states as follows: “... Gypsies live in peace on Turkish territory today, just as they have throughout history, but now they are left entirely to their own devices, without regulation, supervision or attention. Their unregulated way of life, in which they are abandoned entirely to their own fate, is a failing on Turkey’s part. The Gypsies’ current unordered way of life, and the fact that it is considered quite unnecessary to venture into their closed world in any way despite the long history we share, is a further shortcoming. Associated with this is the fact that while Gypsies have indeed lived for many years among us, they have been ostracised by local people and targeted by vilifying remarks which have, for the most part, been unenlightened and prejudiced. The negative response and distressing accusations which they encounter wherever they go have driven Gypsies, who already have a societal structure which is closed off from the outside world, to live in still narrower confines. We felt that there was a need to step into the unknown world of these people who have lived among us for centuries and have now become part of contemporary Turkish culture. My aim was thus to get to know them closely using an empirical approach, and to present the Gypsies of Turkey as they are, in all their aspects, on the basis of the principles of scientific objectivity. This study comprises an introduction and two sections. The introduction provides information about the Gypsy as a concept and the origins of the Gypsies, as well as detailed information about their migration, and considers their history in Turkey in the light of various archive documents and scholarly sources. In the first section, the socio-cultural characteristics of Gypsies are considered in broad terms. This section examines in particular the home life and travels of Gypsies, their music, dance, language, traditions and customs. The second section deals with the beliefs and practices of the Gypsies. This study – which I present without any pretensions, but merely in a bid to fill a significant gap (it being the first study of its kind), and to provide guidance to others working on the Gypsies in the future – was prepared using descriptive, comparative and phenomenological methods, in addition to participant observation and interview techniques. ...” 11. In the introduction, the author went on to state: “... Gypsies have spread throughout the world but they have been unable to escape their status as a marginal group which is excluded and despised everywhere. Apart from the differences in their way of life, the characteristic which most obviously distinguishes Gypsies from others is the colour of their skin, which is darker, swarthier. In typological terms, most Gypsies are of medium height, of agile build, with large dark black (occasionally hazel or blue) eyes and long thick eyelashes; the men have long moustaches. The mouth is slender and elegant, the teeth white and even, with a round jaw. They have a narrow forehead and temples and a small cranium. Their hair is curly, black, long and thick. Beyond middle age, the women are broad and corpulent. The younger people are slim, with firm and powerful muscles (see Carmen by Prosper Mérimée, Gypsy Stories of our own and from around the world by Tahir Alangu and The sieve-making of the Gypsies of Posalar by Esat Uras). ... This research is intended to present the identity of the Gypsies, these people who have lived among us for centuries and have become an integral part of contemporary Turkish culture, but about whom no comprehensive scientific study has as yet been conducted because their cultural identity has been largely ignored as a result of the difficulties in identifying and defining them. This study will give an account of their socio-cultural characteristics, beliefs, mythologies, festivals and celebrations in all their aspects. For the purpose of this study, an initial survey was conducted of information, documentation and materials concerning Gypsies, from Turkey and elsewhere. The information and documents thus identified were then classified on the basis of their scientific reliability, using validity criteria. Next, an empirical study involving observation of the participants was carried out by going among the Gypsy population and living with them. Visits were made to all the areas of Turkey with a Gypsy population – both nomadic and settled – and in this way an effort was made to establish the facts about their way of life, traditions, beliefs, forms of worship and practices, not only by gathering data and documentary and other material, but also by the empirical method of living among them.” 12. In the book, the author devoted a chapter to the “Gypsies of Contemporary Turkey”. In this chapter he stated: “Today’s Gypsies are scattered all over Turkey. They are principally located in the Marmara, Aegean and Mediterranean regions, with a lower concentration in the Black Sea, central Anatolia and south-east Anatolia regions. The distribution of Gypsies in Turkey will be dealt with here. ... So far no general population census has included separate records for Gypsies; hence, the size of the Gypsy population in Turkey is not known with certainty. Rather than using estimated figures, we obtained information from Gypsies themselves, from local people living nearby and from local administrators. We attempted to clarify this information by making a comparison with the overall district population figures which we received from the district chiefs [ muhtar ]. ... Istanbul ... Gypsies living within the provincial borders of Istanbul generally make their living from music, flower-selling, scrap-metal dealing, rubbish and paper collection, blacksmithing and ironworking, portering, fortune-telling, cleaning, working with a horse and cart, coppersmithing, slug-collecting and door-to-door selling. There are also some, albeit few in number, who make a living from pickpocketing, stealing and selling narcotics. Tekirdağ ... The Roma (Gypsies) of Tekirdağ make their livelihood from playing music, portering and shoe-shining. Women work as domestic cleaners and handle bricks at the brick factory. Those in Çorlu and Lüleburgaz earn their living from music, portering, horse trading (livestock dealing), construction work and running lotteries, and the women earn their living from cleaning. Kırklareli ... The Roma of Kırklareli generally make their living from music, working with a horse and cart, street vending, portering, cleaning and scrap-metal dealing. Edirne ... Those who live in Edirne city centre generally earn their living from working with a horse and cart, scrap-metal dealing and street vending, while the women contribute to the family economy with cleaning work. Nearly all of the inhabitants of the Yukarı Zaferiye district of Keşan earn their livelihood from music. The rest of them work in various sectors such as labouring in the rice fields, concrete-pouring on construction sites, portering, working with a horse and cart, collecting frogs and slugs, scrap-metal dealing, paper collection, house painting and selling simit [a type of bread roll]. Those in Uzunköprü live from scrap-metal dealing, tinsmithing and basket-making. ... Ankara ... The Gypsies of the central district of Ankara earn their living from stealing, begging, door-to-door selling, fortune-telling, zercilik [robbing jewellery stores] and making magical charms. A small number are also involved in tinsmithing, working with leather harnesses, sieve-making and basket-making. There are also many who work as musicians in nightclubs. It is reported that most of those who trade in ironmongery around Altındağ and Hamamönü are Gypsies from Çankırı. ... We attempted to visit every province and district where Gypsies were located. The figures which we have given for each province were obtained by comparing information, noting the exaggerated figures given by the Gypsies and then talking to the district chiefs [ muhtar ], and where necessary the district police. ...” Similar remarks to the ones quoted above were made in respect of the Roma population living in other parts of Turkey such as İzmir, Manisa, Konya, Adana and Antalya. 13. The closing paragraphs of the conclusion to The Gypsies of Turkey read as follows: “The most important links connecting the Gypsies to each other are their family and social structures as well as their traditions. Despite the fact that they have led a nomadic life for more than a thousand years, they have managed to protect their traditional way of living thanks to the practice of marrying within the group. Their attachment to these traditions begins at birth and continues till death. Doubtless, tradition is the most significant factor in the Gypsy way of life. The elderly members of Gypsy society bear the heaviest responsibility for protecting and sustaining the traditions. However, due to ever-changing circumstances and needs, the social structure of the Gypsies has become difficult to preserve. In particular “ Natia ”, one of these social structures, can no longer be sustained in today’s Turkey. The most striking characteristic of Gypsies is their way of living. Hence, all branches of socio-cultural activity, consisting of migration and settlement, dance, music, language, eating and drinking, fortune-telling, sorcery and occupations, constitute the true nature of Gypsy life. That is to say, these elements form the visible part of the iceberg. Other persons usually recognise Gypsies through these phenomena. Nevertheless, the way to truly know Gypsies is to mingle with their society and fully analyse their traditions and beliefs. The secret world of the Gypsies reveals itself through their beliefs, in particular through their superstitions and taboos. Gypsies, like everyone, feel the need to have faith and to worship. In addition to adopting the religion of the country they live in, they also perpetuate the traditional beliefs specific to their culture. Consequently, it is observed that Gypsies have genuine feasts and celebrations stemming from their beliefs, which can be partly traced to Hinduism. In our opinion these people, who suffer from humiliation and rejection everywhere, could be transformed into citizens who are an asset to our State and our nation once their educational, social, cultural and medical problems are addressed. This simply entails focusing on this issue with patience and determination.” 2. The domestic proceedings initiated by the applicant 14. On 15 June 2001 the applicant filed a petition with the Ministry of Culture on behalf of the Turkish Roma/Gypsy associations. In his petition he submitted that in the book the author had stated that Gypsies were engaged in illegal activities, lived as “thieves, pickpockets, swindlers, robbers, usurers, beggars, drug dealers, prostitutes and brothel keepers” and were polygamist and aggressive. The applicant also submitted that the book contained several other remarks that humiliated and debased Gypsies. Claiming that these remarks constituted a criminal offence, he requested that the sale of the book be stopped and all copies seized. 15. On the same day the Head of the publications unit at the Ministry of Culture ordered that the remaining 299 copies of the book be returned to the publications unit. 16. On 11 October 2001 the applicant wrote a letter to the Ministry of Culture enquiring whether the copies of the book had been seized. 17. On 17 October 2001 the Head of the publications unit at the Ministry of Culture informed the applicant that the publications advisory board of the Ministry, composed of seven professors, had decided that the book was a piece of scientific research and did not contain any insults or similar remarks. The applicant was also informed that the author of the book would not permit any amendments to the text and that, at the author’s request, the Ministry had transferred copyright of the book to him. 18. On 4 February 2002 the applicant sent letters to the Ministry of Culture and to Associate Professor Ali Rafet Özkan, repeating his initial request. He received no reply. 19. Subsequently, on 30 April 2002 the applicant brought proceedings in his own name against the Ministry of Culture and the author of the book before the Ankara Civil Court of General Jurisdiction, claiming compensation for the non-pecuniary damage he had sustained on account of the remarks contained in the book. He alleged that these remarks constituted an attack on his identity as a Roma/Gypsy and were insulting. The applicant also asked for the copies of the book to be confiscated and for its publication and distribution to be banned. 20. The author of the book submitted, in reply, that his reference materials had been the records of the Adana police headquarters and books written by other authors on Gypsies, and that he had not intended to insult or humiliate Gypsies. The author further stated that the passages referred to by the applicant should not be considered in isolation, but in the context of the whole book. 21. On 24 September 2002 the Ankara Civil Court dismissed the applicant’s requests in so far as they concerned the author of the book. It considered that the book was the result of academic research, was based on scientific data and examined the social structures of Roma/Gypsies in Turkey. The first-instance court therefore held that the remarks in question did not insult the applicant. As to the applicant’s case against the Ministry, the Civil Court decided that it lacked jurisdiction and that the administrative courts were competent to decide on the applicant’s claim. 22. On 25 October 2002 the applicant appealed. In his petition, he submitted that the book could not be considered as scientific research and that therefore the Ministry of Culture should not have published it. 23. On 21 April 2003 the Court of Cassation upheld the judgment of the first-instance court. It noted that the remarks objected to by the applicant were of a general nature. It therefore found no grounds for concluding that they concerned all Roma/Gypsies or that they constituted an attack on the applicant’s identity. 24. On 8 December 2003 a request by the applicant for rectification of the decision was dismissed. 25. Subsequently, on an unspecified date the applicant initiated proceedings against the Ministry of Culture before the Ankara Administrative Court. He requested non-pecuniary compensation, alleging that the content of the book published by the Ministry of Culture had been offensive and insulting towards the Roma/Gypsy community. On 7 April 2004 the Administrative Court dismissed the applicant’s case. It held that before its publication the book in question had been examined by a rapporteur appointed by the publications advisory board. Following his approval, the advisory board had agreed to publish the book. In the wake of the applicant’s allegations the advisory board, composed of seven professors, had examined the book again on 25 September 2001 and had decided that it was an academic study based on scientific research and that no inconvenience would be caused by continuing its distribution and sale. The Administrative Court therefore concluded that the applicant’s allegations were unsubstantiated. The applicant did not appeal against this decision. B. Application no. 41029/04 26. In 1991 and 1998 respectively the Language Association, a non-governmental organisation, published two dictionaries entitled Turkish Dictionary for Pupils ( Öğrenciler için Türkçe Sözlük ) and Turkish Dictionary ( Türkçe Sözlük ). Apart from their titles, both dictionaries had exactly the same content. The publication of these dictionaries was part-financed by the Ministry of Culture. 27. On 30 April 2002 the applicant sent a letter to the Executive Board of the Language Association on behalf of the Confederation of Roma/Gypsy Cultural Associations. In his letter, the applicant submitted that certain entries in the dictionaries were insulting to and discriminatory against Roma/Gypsies. 28. On page 279 of both dictionaries, the following entries were made regarding the word “Gypsy” ( çingene ): “‘Gypsy’ ( Çingene ): 1. an ethnic group or person belonging to an ethnic group originating from India, whose members lead a nomadic way of life and are widely dispersed in the world. 2. (metaphorically) miserly. ‘Gypsy debt’ ( Çingene borcu ): an unimportant debt which consists of several small debts. ‘Gypsy plays Kurd dances’ ( Çingene çalar Kürt oynar ): a place where there is a lot of commotion and noise. ‘Gypsy tent’ ( Çingene çergesi ) (metaphorically): a dirty and poor place. ‘Gypsy wedding’ ( Çingene düğünü ): a crowded and noisy meeting. ‘Gypsy fight’ ( Çingene kavgası ): a verbal fight in which vulgar language is used. ‘Gypsy money’ ( Çingene parası ): coins. ‘Gypsy pink’ ( Çingene pembesi ): pink. ‘Gypsy language’ ( Çingenece ): language used by Gypsies. ‘Gypsiness’ ( Çingenelik ): 1. being a Gypsy 2. (metaphorically) being miserly or greedy. ‘Becoming a Gypsy’ ( Çingeneleşmek ): displaying miserly behaviour.” 29. In the applicant’s opinion, the entries regarding the Gypsy community had negative, discriminatory and prejudiced connotations. The applicant further submitted that the Ministry of Education and the Turkish Language Society had amended their dictionaries at his request, and likewise asked the Language Association to correct the above-mentioned definitions and to remove any discriminatory expressions from the dictionaries. He received no reply to his letter. 30. Subsequently, on 15 July 2002 the applicant sent a further letter to the Language Association, repeating his request. He added that he would bring a case against the Association if his request was not granted by 20 August 2002. 31. On 16 April 2003 the applicant brought proceedings in the Ankara Civil Court of General Jurisdiction against the Language Association, requesting that the above-mentioned definitions and expressions be removed from the dictionaries. The applicant also requested compensation for the non-pecuniary damage he had sustained on account of the expressions contained in the dictionaries. In that connection he alleged that the dictionary definitions constituted an attack on his identity as a Roma/Gypsy and an insult to him personally. 32. In its submissions in reply, the Language Association maintained, inter alia, that the definitions and expressions contained in the dictionaries were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group. It further submitted that the dictionaries contained expressions and definitions that were commonly used in society and that there were other similar expressions in Turkish which concerned Albanians, Jews and Turks. 33. On 16 July 2003 the Ankara Civil Court dismissed the applicant’s case. It held that the definitions and expressions in the dictionaries were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group. It further noted that there were similar expressions in Turkish concerning other ethnic groups, which appeared in dictionaries and encyclopaedias. 34. The applicant appealed. On 15 March 2004 the Court of Cassation upheld the judgment of 16 July 2003. III. DOCUMENTS OF THE EUROPEAN COMMISSION AGAINST RACISM AND INTOLERANCE (ECRI) 38. In its fourth report on Turkey (CRI(2011)5), published on 8 February 2011, ECRI welcomed the fact that in order to discourage negative stereotyping, connotations which might have been perceived as discriminatory in the dictionary definition of the term “Gypsy” had been removed. It further encouraged the Turkish authorities to pursue and strengthen their efforts to combat negative stereotyping of the Roma and to build a constructive dialogue with the Roma community. 39. In its General Policy Recommendation No. 10 on combating racism and racial discrimination in and through school education, adopted on 15 December 2006, ECRI also recommended that member States ensure that school education played a key role in the fight against racism and racial discrimination in society “by promoting critical thinking among pupils and equipping them with the necessary skills to become aware of and react to stereotypes or intolerant elements contained in [the] material they [used]”. | The applicant, of Roma origin, alleged that three government-funded publications (a book about Roma and two dictionaries) included remarks and expressions that reflected anti-Roma sentiment. |
136 | Sexual abuse | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1993 and 1974 respectively and live in Lublin. 6. On 9 April 2008 the first applicant went with a friend to the Public University Health Care Unit in Lublin. She said that she had been raped on 8 April 2008 by a boy of her own age. The medical staff told her that they could neither examine her nor provide medical assistance because she was a minor and the consent of her legal guardian was necessary. Dr E.D. reported the case to the police and notified the first applicant’s parents. 7. Later that day, after reporting that an offence of rape had been committed, the applicants attended at Public University Hospital no. 4 in Lublin, accompanied by a female police officer. The second applicant gave her consent for an examination of her daughter to be carried out. The first applicant was in a state of emotional shock. At the hospital, psychological help was offered to her. Bruises on her body were confirmed by a family doctor several days after the alleged event took place, between 9 and 14 April 2008. 8. The rape resulted in pregnancy. The applicants decided together that an abortion would be the best option, considering that the first applicant was a very young minor, that the pregnancy was the result of forced intercourse, and that she wanted to pursue her education. 9. On 19 May 2008 the first applicant was questioned by the police. Her mother and the alleged perpetrator’s defence lawyer were present during the questioning. The first applicant stated that the perpetrator had used force to hold her down and to overcome her resistance. 10. On 20 May 2008 the District Prosecutor, referring to section 4 (a) item 5 in fine of the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) (“the 1993 Act”) (see paragraph 54 below) issued a certificate stating that the first applicant’s pregnancy had resulted from unlawful sexual intercourse with a minor under 15 years of age. A. Attempts to obtain an abortion in Lublin hospitals 11. The second applicant went to the Ministry of Internal Affairs and Administration Hospital in Lublin to ask for a referral for an abortion. She was advised there to contact Dr O., the regional consultant for gynecology and obstetrics. Other doctors whom the second applicant contacted privately were also of the view that a referral from the regional consultant was necessary. 12. The second applicant also went to another public hospital in Lublin (the Jan Boży hospital) and contacted a chief physician there, Dr W.S., who suggested that the applicants meet with a Catholic priest. The second applicant refused. 13. The second applicant then contacted Dr O. He told her that he was not obliged to issue a referral and advised the second applicant to “get her daughter married”. She left his office, but returned shortly afterwards as she was afraid that without the doctor’s referral it would not be possible to obtain an abortion. He told her to report to the Jan Boży hospital. 14. On 26 May 2008 the applicants reported to that hospital. They were received by the acting chief physician. They clearly stated their intention to have the pregnancy terminated. They were told that they would have to wait until the head of the gynecological ward, Dr W.S., returned from holiday. They were told that it would be best for the first applicant to be hospitalised, with a view to blood and urine tests and an ultrasound scan being carried out. On the same day the first applicant was admitted to that hospital. 15. On 30 May 2008 Dr W.S. returned from holiday and told the applicants that she needed time to make a decision. She asked them to return on 2 June. She then called the second applicant separately to her office and asked her to sign the following statement: “ I am agreeing to the procedure of abortion and I understand that this procedure could lead to my daughter’s death .” On the same day the first applicant was discharged from the hospital for the weekend. 16. On the morning of 2 June 2008 the first applicant returned to the hospital alone as her mother was working. 17. The applicants submitted that Dr W.S. took the first applicant for a talk with a Catholic priest, K.P. The first applicant was not asked what her faith was or whether she wished to see a priest. During the conversation it transpired that the priest had already been informed about the pregnancy and about the circumstances surrounding it. 18. The Government disagreed with the above account by the applicants. They stated that the girl had wished to see the priest. 19. During the conversation the priest tried to convince the first applicant that she should carry the pregnancy to term. The first applicant told him that she could not make the decision herself and that she relied on her parents in the matter. The priest asked her to give him her mobile phone number, which she did. She was given a statement written by Dr W.S. to the effect that she wanted to continue with the pregnancy and she signed it. The applicants submitted that she had signed it as she had not wanted to be impolite to the doctor and priest. 20. When the second applicant arrived later, the priest spoke to her. She told him that it was the family’s decision to terminate the pregnancy. Dr W.S. told the second applicant that she was a bad mother. She presented her with the document signed by the first applicant and told her that the first applicant had decided to continue with the pregnancy. An argument took place between the doctor and the second applicant. The first applicant, who was present in the room, started to cry. The doctor said that she would adopt both the first applicant and the baby. 21. Subsequently, Dr W.S. told the applicants that she would not perform the abortion, that under communism when abortion had been freely available no one had made her perform abortions, and that no doctor would have given permission for an abortion to be performed. According to the applicants, she also implied that none of the other doctors in the hospital would perform an abortion. 22. The applicants left the hospital. The second applicant contacted the Federation for Women and Family Planning ( Federacja na rzecz Kobiet i Planowania Rodziny - hereinafter, “the Federation”) in Warsaw for help, as after their experience in Lublin she was afraid that no one in that town would perform an abortion. 23. On an unspecified date the Jan Boży hospital issued a press release to the effect that it would not perform an abortion in the applicants’ case. Journalists who contacted the hospital were informed of the circumstances of the case. 24. The case became national news. A number of articles were published by various local and national newspapers. It was also the subject of various publications and discussions on the internet. B. Attempts to obtain an abortion in Warsaw 25. On 3 June 2008 the applicants went to Warsaw and contacted a doctor recommended by the Federation. They were informed about the procedure and about the available options. In the afternoon the first applicant was admitted to a hospital in Warsaw. She submitted to the hospital the certificate issued by the prosecutor (see paragraph 10 above), and a medical certificate issued by the national consultant in gynecology to the effect that she had a right to a lawful abortion. She signed a consent form to undergo an abortion and her parents also gave their written consent. Shortly afterwards the deputy head of the gynecological ward informed the applicants that he had received information from the Lublin hospital that the first applicant did not wish to have an abortion. 26. On 4 June 2004 the applicants were told that the first applicant was obliged by law to wait another three days before having an abortion. On the same day the first applicant received a text message from Catholic priest K.P. that he was working on her case and that people from all over the country were praying for her. She also received numerous text messages along the same lines from a number of unknown third parties. The priest came to the Warsaw hospital later in the day together with Ms H.W., an anti ‑ abortion activist. They were allowed to see the first applicant. They talked to her in her mother’s absence and tried to persuade her to change her mind. In the evening an unidentified woman came to her room and tried to convince her to continue with the pregnancy. The first applicant was upset about this and about the fact that the hospital apparently had no control over who could approach her. 27. On the same day the first applicant’s father came to the hospital, apparently as he had been informed that his consent to the abortion was also necessary. A psychologist spoke with the first applicant’s parents and then with the applicant. She apparently prepared an opinion on the case. The first applicant’s parents were not given access to it. The doctor who had admitted the first applicant to the hospital told her that a lot of pressure had been put on the hospital with a view to discouraging it from performing the abortion, and that the hospital was receiving numerous e-mails from persons criticising the applicants for having decided to allow the first applicant to have an abortion. 28. On 5 June 2008, feeling manipulated and helpless, the applicants decided to leave the hospital. As they were leaving, they were harassed by Ms H.W. and Mr M.N.-K., anti-choice activists waiting at the hospital entrance. The mother stopped a taxi but the activists told the driver that her parental rights had been taken away and that she was trying to kidnap the first applicant. The driver refused to take them. Ms H.W. called the police. The police arrived promptly and took both applicants to the police station. C. The first applicant’s placement in a juvenile shelter 29. At the police station the applicants were questioned on the same day, from approximately 4 p.m. until 10 p.m. No food was offered to them. The officers showed the applicants the family court decision which the police had received by fax at about 7 p.m. from the Warsaw hospital. That decision, given by the Lublin Family Court, restricted the second applicant’s parental rights and ordered the first applicant to be placed in a juvenile shelter immediately (see paragraph 34 below). 30. Subsequently the police took the first applicant to a car. She was driven around Warsaw in search of a juvenile shelter that would accept her. The second applicant was not permitted to accompany her daughter. As no place was found in Warsaw, the police drove the girl to Lublin, where she was placed in a shelter at approximately 4 a.m. on 6 June 2008. She was put in a locked room and her mobile phone was taken from her. On 6 June 2008 priest K.P. visited her there and told her that he would lodge an application with the court requesting it to transfer her to a single mother’s home run by the Catholic church. 31. A psychologist and an education specialist talked to her. She summarised the conversation thus: “They wanted to know the entire story and the Assistant Principal was present. I told them again about the entire affair with the hospitals and the abortion. They said that it would be better for me to give birth. They did not ask me about my view. I stayed locked in the room all day. I felt as though I was in a correctional facility, I had bars on the window and a locked door, it was not very pleasant.” 32. Later in the morning of that day the first applicant felt pain and experienced bleeding. In the late afternoon she was taken to the Jan Boży hospital in Lublin. She was admitted to the maternity ward. A number of journalists came to see her and tried to talk to her. D. Proceedings before the Family and Custody Court 33. On 3 June 2008, acting upon a letter from the Lublin III Police Station and two letters from the headmaster of the school attended by the first applicant dated 26 and 27 May, and a note drawn up by a non ‑ identified authority, apparently a court supervisor ( kurator ), also on 3 June 2008, the Lublin Family and Custody Court instituted proceedings to divest the second applicant of her parental rights. In these letters the headmaster referred to a text message sent to a friend of the first applicant in which the first applicant had expressed serious distress and said that she could not count on her mother’s assistance as she saw abortion as the only solution, and to a conversation between the first applicant and one of her teachers in which she had said that she wished to carry the pregnancy to term. She had also been concerned about the consequences, including psychological ones, that an abortion might have. The headmaster was of the view, relying on a conversation he had had with the class teacher and with the school social pedagogue, that the first applicant might be under pressure from her family. He was concerned that the second applicant had not sought psychological assistance for her daughter, who, it had been suggested by the school, might have suicidal tendencies. The second applicant had been requested to attend at the school; she had been shown the text message and told to make an appointment with a psychologist immediately and given all the necessary information for contacting a therapist. Enclosed with the letter was a print-out of a chat between the first applicant and her friend dated 7 May 2008. It transpired therefrom that in reaction to the news about the minor’s pregnancy her father had become violent and had told her that if she wanted to keep her baby she would have to move out of the house; she also said that she did not know what to do and wanted her friend to help and the school to intervene. 34. On the same date that court, sitting in camera, ordered the first applicant’s placement in a juvenile shelter as an interim measure. In its decision the court stated that the documents referred to above demonstrated that the first applicant’s parents did not take appropriate care of their daughter. She was pregnant; she had been admitted to the Lublin Jan Boży hospital, which had refused to carry out an abortion having regard to the first applicant’s statement that she did not wish to have recourse to it. The court had regard to text messages she had sent to her friend. Doctor W.S. had informed her about the consequences of an abortion. It was reported that the first applicant had travelled to Warsaw with her mother in order to have an abortion performed there. The first applicant was under pressure from her mother and was unable to take a decision independently. Her hospital stays and the atmosphere in the family were harmful to her. She had to be separated from her family in her own interest. The court relied on Article 109 para 1 (5) of the Family Code. 35. On 6 June 2008 the second applicant appealed against that decision. On 9 June 2008 she filed with the court a written consent to her daughter’s abortion, which she also submitted to the Lublin hospital. On 10 June 2008 she submitted a declaration by the first applicant stating that she wanted to have an abortion and that she was not being coerced into it. 36. On 13 June 2008 the first applicant was questioned at the hospital by a criminal judge in the presence of a prosecutor and a psychologist, in the context of proceedings concerning allegations of coercion with a view to making her terminate her pregnancy. The first applicant testified that she had been forced into a sexual act which had resulted in pregnancy and that her mother had not forced her to make the decision to have a termination. The questioning started at 7.30 p.m. and lasted for three hours. The first applicant’s parents were not permitted to be present. The first applicant did not have legal assistance or any other adult present to represent her as a minor. Later the same day the court allowed the second applicant to take her home. On 14 June 2008 she was discharged from the hospital. 37. On 18 June 2008 the Lublin Family Court quashed its decision concerning the first applicant’s placement in the shelter. 38. On 18 February 2009 the Lublin Family and Custody Court, relying mainly on an expert opinion prepared by the Family Diagnostic and Consultation Centre, held that there were no grounds on which to divest the first applicant’s parents of their parental rights. It discontinued the proceedings. E. The applicants’ contact with the Ministry of Health 39. Between 9 and 13 June 2008 the second applicant filed a complaint with the Office for Patients’ Rights of the Ministry of Health asking them to help her daughter obtain a lawful abortion, and submitted relevant documents, in particular the prosecutor’s certificate. An official of the Ministry, K.U., informed the second applicant that her daughter’s statement consenting to an abortion would have to be witnessed by three persons. When the second applicant informed him that the statement had in fact been signed in the presence of three witnesses, he told her that the witnesses’ identification numbers were required and that the faxed copy had to be notarised. 40. On 16 June 2008 the second applicant was informed by telephone by a Ministry official that the issue had been resolved and that her daughter could undergo an abortion. She was notified that she would have to go to Gdańsk, in northern Poland, approximately 500 kilometers from their home in Lublin. 41. On 17 June 2008 the Ministry of Health sent a car for the applicants and they were driven to Gdańsk. The first applicant had an abortion in a public hospital there. The applicants submitted that the trip to Gdansk and the abortion were carried out in a clandestine manner, despite the termination being lawful. When the applicants came back home, they realised that information about their journey to Gdańsk had been put on the Internet by the Catholic Information Agency that day at 9 a.m. F. Various sets of criminal proceedings 1. Against the first applicant 42. On 1 July 2008 the Lublin District Court instituted proceedings against the first applicant on suspicion that she had committed a criminal offence punishable under Article 200 § 1 of the Criminal Code (sexual intercourse with a minor under 15 years of age). The first applicant was summoned to appear in court for questioning on 25 September 2008. 43. On 20 November 2008 the proceedings were discontinued. The court held that the first applicant could only be considered the victim of a criminal offence, not the perpetrator. 2. Against the perpetrator of the alleged rape 44. On 28 August 2008 the second applicant informed the prosecutor that her daughter had been raped. According to her submissions, she was not aware that reporting the rape to the prosecuting authorities in May was not sufficient for an investigation to be instituted. The investigation against the perpetrator of the alleged rape was ultimately discontinued on 10 June 2011. 3. Against the second applicant, the first applicant’s father and two other persons 45. On 14 July 2008 the Warsaw-Śródmieście District Prosecutor discontinued proceedings against the second applicant, the first applicant’s father, Mrs W. N., and K.K., who worked for the Federation for Women and Family Planning, concerning a suspicion that the first applicant had been coerced into having an abortion against her will. The prosecutor found that they had no case to answer and observed that it was not open to doubt, in the light of the documents submitted by the applicants to the Warsaw hospital, that she had a right to a lawful abortion. 4. Against other persons 46. A second set of proceedings, discontinued on the same date, concerned a suspicion that unknown persons, including doctors from Lublin and Warsaw, Catholic priests and members of anti-abortion organisations, had exerted pressure on the first applicant to dissuade her from having an abortion. The prosecutor found that there was no case to answer, because the criminal law did not penalise attempts to persuade a pregnant woman to carry the pregnancy to term as long as no physical violence was used. 47. The second applicant appealed against that decision. 5. Against Ms H.W. and Mr M.N.-K. 48. On 21 November 2008 the Warsaw-Śródmieście District Prosecutor discontinued proceedings that had been instituted against Ms H.W. and Mr M.N.-K., finding that they had accosted the applicants when they were leaving the hospital in Warsaw on 4 June 2008, but that they had no case to answer because no physical violence had been involved. On 19 September 2009 the Warsaw ‑ Śródmieście District Court dismissed the applicants’ appeal. 6. Against the police officers 49. On 17 September 2009 the Warsaw-Śródmieście District Court dismissed the first applicant’s appeal against a decision given on 26 May 2009 by the Warsaw-Sródmieście District Prosecutor to discontinue criminal proceedings against the police officers who had detained her at the police station on the basis of the placement order. The prosecutor and the court found that the police officers had no case to answer. 7. Against various persons on charges of disclosure of confidential information 50. On 31 October 2008 the Lublin ‑ Północ District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of unlawful disclosure of the applicants’ personal data, finding that no criminal offence against the protection of personal data had been committed. No written grounds were prepared for these decisions as the law did not make it mandatory. The applicants appealed, submitting that when the first applicant had been in the Warsaw hospital, information about her real name, condition and predicament was available and discussed on many internet fora. This caused considerable stress to the applicants. The medical data were particularly sensitive and their disclosure to the general public was unlawful. It was therefore necessary to establish the identity of the persons who had leaked the information to the public. On 31 March 2009 the Lublin Regional Court dismissed the appeal, finding that the prosecutor’s decision was lawful and correct. 51. On 12 November 2008 the Lublin ‑ Północ District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of disclosure of information protected by law, an punishable under Article 266 of the Criminal Code committed by Dr W.S., possibly also by other doctors working at that hospital, ²by the director of the hospital who had spoken to the press about the applicants’ case and by priest K.P. The applicants appealed submitting that information about the applicants’ situation had been disclosed to the general public. On 5 February 2009 the Lublin District Court dismissed the complaint, holding that the first applicant had not objected to the proposal to speak to the priest; that prior to her admission to the hospital information about her pregnancy was known in her school and to her friends and that the first applicant had not obliged the priest not to disclose information about her predicament to third parties. The court was of the view that it was well known that cases of teenage pregnancy gave rise to controversy and were normally widely discussed by third parties, social and church organisations engaged in the debate about such cases. | The applicants were a daughter and her mother. In 2008, at the age of fourteen, the first applicant became pregnant after being raped. The applicants complained in particular about the absence of a comprehensive legal framework guaranteeing the first applicant’s timely and unhindered access to abortion under the conditions set out by the applicable laws, and about the disclosure of information about the case to the public. They further complained that the first applicant’s removal from the custody of her mother and placement in a juvenile shelter and later in a hospital had been unlawful, and submitted that the circumstances of the case had amounted to an inhuman or degrading treatment. |
1,087 | Freedom of expression in the employment context | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1960 and lives in Szekszárd. 6. The applicant, a retired senior police officer, was at the material time the chairperson of Tettrekész Police Trade Union. Between May 2007 and July 2009 she published a number of writings on the Trade Union’s website, which was effectively under her editorial control, concerning outstanding remunerations due to police staff, alleged nepotism and undue political influence in the force, as well as dubious qualifications of senior police staff. 7. The applicant was indicted for instigation to insubordination. On 29 April 2010 the Military Bench of the Budapest Regional Court found her guilty as charged and sentenced her to a fine and demotion. The court did not sustain the applicant’s defence according to which the publication of such allegations belonged to the core of a trade union’s activities. It held that those allegations were capable of causing insubordination and as such were hardly or not at all susceptible to any proof of their veracity. 8. The Regional Court based its judgment inter alia on the following statements published by the applicant on the Internet: (1) “The staff are regularly required to work overtime without remuneration...” “For years, clearly due allowances have not been paid to low-ranking staff...” “Currently it is almost a prerequisite of becoming a senior police officer to have a political background or to be a relative or a descendant of other senior police officers.” “The senior police officers’ obvious violations of the law set a bad example for the force.” “This is typical of senior police officers: they commit violations and infringements, and then, if we point this out, their reaction is striking back without any principles, suing and accusing of incitement in order to counter our suggestions to renew and clean up the force.” “Why are we wondering at the infringements of police officers if law-breaking and tyrannising senior police officers go unpunished?” (2) “The uninhibited infringements of the law committed by senior police officers placing themselves above the law go unpunished, and what is more, they are even decorated when, on order of the political authority in power, thousands, tens of thousands of discontented and underprivileged people are beaten by jaded police officers on the streets.” “The ‘ Tettrekész ’ Police Trade Union commiserates with those Hungarian citizens whose human dignity and human rights were violated and affronted by acts of a prostituted leadership and of our criminal ‘colleagues’ and apologises for that.” (3) “Police staff are getting more and more underprivileged and humiliated by their own leaders.” “Some senior police officers are active in trying to obtain that average citizens be punished rather than ‘served and protected’ by the police officers on the streets.” “Some well-paid senior police officers unprofessionally incite ordinary citizens and police officers against each other.” “We constantly request the review of the often unprofessional selection procedure of senior police officers, but to no avail, because there is apparently no need for a citizen-friendly police.” (4) “The senior police officers again demonstrated that they were incapable of upholding the public order in a party-neutral and politically neutral way... It is proven again that the Hungarian Police’s primary objective is first and foremost not to maintain public order for the taxpaying citizens but to uphold the reign of current political leaders who have led Hungary into economic and moral distress.” “The reputation of the Police has reached previously unseen depths because of the acts of the unprofessional and anti-national senior police officers non-complying with the spirit of the police oath.” “It is obvious that the Police’s core leadership is, in an unacceptable way, politically committed to the government of the country and that of the capital.” (5) “The Head of the National Police Department is demonstrating every day that he is much more able to write obscene poems than to lead the Police; moreover, he is considerably much better in being an obstacle to the work of ‘ Tettrekész’ Police Trade Union and in managing a police pop band than in cooperating with a representative trade union of the Police with the highest number of police officer members.” “A chaotic and highly unprofessional leadership is ruining the rest of the Police’s reputation from day to day.” 9. On 8 December 2010 the Military Bench of the Budapest Court of Appeal upheld the applicant’s conviction under section 357 of the Criminal Code. It held that the publication of the documents by the applicant had gone beyond her freedom of expression, given the particularities of the armed body to which she belonged. In the court’s opinion, the views contained in the documents constituted one-sided criticism whose truthfulness could and should not be proven. | This case concerned the fine and demotion of a police-union leader for allegations undermining police force. |
442 | Medical assistance for prisoners with a physical illness | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1952. At the time of his death he was serving his sentence at the Kosh penitentiary institution. A. The criminal proceedings against the applicant 6. On 29 November 2001 criminal proceedings were instituted in respect of the applicant on account of fraudulent acquisition of property and falsification of documents. The applicant, who had no previous convictions, was suspected of defrauding his business partner, V.G. 7. On 8 February 2002 the investigating authority ordered an opinion to be prepared by a handwriting expert. On 8 May 2002 the investigating authority ordered two accounting expert opinions to be prepared by two accounting experts V.A. and A.M. 8. On 8 July 2002 the investigating authority recognised V.G. as a victim and as the civil plaintiff. 9. On 14 March 2003 the applicant was formally charged with the above offences, and a new charge of tax evasion. 10. On 6 May 2003 the Kentron and Nork-Marash District Court of Yerevan ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան ) decided to detain the applicant. 11. On 12 June 2003 the prosecutor approved the indictment, which was then submitted to the courts. Attached to the indictment was the list of persons subject to be called to court. This list included the accused, the victim, ten witnesses, including the applicant's accountant K.S. and treasurer K.M., and the two accounting experts V.A. and A.M. 12. On 14 June 2003 the criminal case against the applicant was put before the Malatia-Sebastia District Court of Yerevan ( Երևան քաղաքի Մալաթիա-Սեբաստիա համայնքի առաջին ատյանի դատարան ). 13. On 3 December 2003 the victim lodged his civil claim seeking damages in the amounts of 34,159,008 Armenian drams (AMD) and 119,000 United States dollars (USD). 14. On 27 January 2004 the Malatia-Sebastia District Court of Yerevan found the applicant guilty as charged and sentenced him to seven years in prison. The court also fully granted the victim's civil claim for damages. The court based its judgment on, inter alia, the statements of ten witnesses examined in court, including accountant K.S. and treasurer K.M, an act prepared by the tax authority specialists, two court-ordered accounting expert opinions, the statements of accounting experts V.A. and A.M., and a handwriting expert opinion. 15. On 10 February 2004 the applicant lodged an appeal with the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան ). The applicant also submitted written explanations concerning the civil claim, in which he requested the Court of Appeal to call and examine the victim's accountant S.H. as a witness. He also requested that accountant K.S. and treasurer K.M. be called for additional examination. He further asked to call three other persons, K., H. and Z. To substantiate his request to have accountants S.H. and K.S. called and examined, the applicant submitted to the court two accounting reports prepared by them which, according to him, contained exculpatory information. 16. On 19 March 2004 the Criminal and Military Court of Appeal held its first hearing. In the courtroom the applicant was placed in a metal cage which measured about 3 sq. m. The applicant was represented by two defence counsel. At the hearing, the applicant's defence counsel filed a motion with the court, arguing that the applicant's placement in a metal cage in the presence of many people, including relatives and friends, amounted to degrading treatment and humiliated him. Furthermore, this violated the principle of equality of arms, because the applicant, being in a cage, was not able to feel equal to the other parties. The fact that the applicant was a detainee was not sufficient justification to keep him in a metal cage during the court hearings. Nor did the law on arrested and detained persons prescribe placement of a detainee in a metal cage in the courtroom. The defence counsel requested the court to release the applicant from the cage and to allow him to be seated in the seats meant for the parties, namely next to his lawyer. 17. The prosecutor objected to this motion, claiming that the law on arrested and detained persons said nothing about a defendant being released from the metal cage. Besides, the defendant was to be seated in the seat meant for him and that could not be regarded as violating his dignity. The victim's representative also objected to this motion, claiming that the applicant was a detainee, therefore he had to be kept in a metal cage. Furthermore, there were no requisite security measures in the courtroom. 18. The Court of Appeal decided to refuse this motion as unsubstantiated, finding that the placement of the defendant in the seat meant for him during the court hearings did not violate the rights invoked by the defence. The court further stated that its decision was based on security considerations. 19. During the entire proceedings before the Court of Appeal the applicant was kept in the metal cage. The proceedings lasted about two months and included at least twelve public hearings. According to the applicant, the hearings lasted on average about four hours. It appears that they were attended by the applicant's children, wife, siblings and friends, and other members of the public. 20. At the hearing of 21 May 2004 the applicant repeated his request to call witnesses, made earlier in his written explanations. The Court of Appeal refused this request on the ground that accountant K.S. and treasurer K.M. had already been examined and made detailed statements during the investigation and the proceedings in the District Court. As to the accountant S.H., the court stated that it was unnecessary to call her in this particular case. As to K., H. and Z., the court stated that their identity was unknown. 21. On 25 May 2004 the Criminal and Military Court of Appeal upheld the applicant's sentence. The Court of Appeal only partially granted the victim's civil claim, awarding him AMD 23,063,108 and USD 119,000. 22. On 4 June 2004 the applicant lodged an appeal on points of law. 23. On 30 July 2004 the Court of Cassation ( ՀՀ վճռաբեկ դատարան ) dismissed the appeal and upheld the applicant's conviction. B. The applicant's state of health and the alleged lack of requisite medical assistance in detention 24. It appears that, prior to his placement in detention, the applicant suffered from a number of diseases, including acute bleeding duodenal ulcer and diabetes. It further appears that he had suffered a heart attack in 2001. 25. On 6 May 2003 the applicant was placed in Nubarashen Detention Facility ( «Նուբարաշեն» քրեակատարողական հիմնարկ ). 26. On 7 May 2003 the applicant was examined by a doctor upon his admission to the detention facility. It was noted that he suffered from ischemic heart disease, gallstones and diabetes. 27. On 20 June 2003 the applicant was examined by a surgeon of the facility's medical unit to whom he complained of pain in the epigastric region which worsened at night and improved after eating. He further complained of loss of weight and frequent vomiting. The surgeon noted that the applicant, prior to his detention, had been diagnosed with an acute bleeding duodenal ulcer and recommended to have surgery. The applicant agreed in writing to have surgery. 28. On 26 June 2003 the applicant was transferred to the Hospital for Prisoners ( «Դատապարտյալների հիվանդանոց» քրեակատարողական հիմնարկ ). According to the applicant's treatment plan, developed upon his admission, the applicant was supposed to undergo blood and urine tests, an electrocardiogram, a gastroscopy, and consultations with a cardiologist and an endocrinologist. 29. It appears from the applicant's hospital medical file that the applicant was under regular medical observation. 30. On 27 and 28 June 2003 blood and urine tests were carried out. 31. On 30 June and 4 July 2003 an endoscopy and a gastroscopy were performed. The diagnosis of an acute, bleeding duodenal ulcer was confirmed. It appears that on the latter date the applicant also underwent haemostatic treatment of the ulcer. 32. On 3 July 2003 the applicant underwent an ultrasound scan of his abdominal area and urinary organs. 33. On 7 July 2003 the applicant's gastrointestinal problems exacerbated, causing him to feel dizzy and to collapse. Medical aid was provided. 34. By a letter of 8 July 2003 the chief of the Hospital for Prisoners informed the judge examining the applicant's case that the applicant had been admitted to the hospital as an emergency case and had been diagnosed with an acute bleeding duodenal ulcer. On 4 July 2003 a gastroscopy had been performed, accompanied by haemostatic therapy. The applicant continued to receive treatment and for the time being was unfit for trial. 35. On 11 July 2003 an electrocardiogram was performed. 36. On 23 July 2003 the applicant was examined by an endocrinologist. The endocrinologist recommended an additional glycaemia test on an empty stomach in order to decide on the applicant's further treatment. 37. On 29 July 2003 the applicant was discharged from the hospital and transferred back to the detention facility. According to the relevant discharge certificate ( էպիկրիզ ) issued by the Chief of the Hospital, M.G., and the Head of the Surgical Unit, A.D.: “Following the relevant examination and consultations carried out in the unit, [the applicant] was diagnosed as having an ulcer, acute bleeding duodenal ulcer, diabetes (type 2, medium degree, subcompensated stage) and diabetic angiopathy, for which, apart from the relevant treatment, on 4 July 2003 [the applicant] received haemostatic therapy of the ulcer and was discharged on 29 July 2003. The patient must undergo regular medical check-ups.” 38. On the same date it was noted in the applicant's medical file that he was being discharged after receiving appropriate treatment and was in satisfactory condition. 39. The Government alleged that the applicant had also undergone the recommended surgery at the hospital. The applicant contested this allegation and claimed that no surgery had been carried out. 40. On 5 August 2003 the applicant was transferred to the medical unit of the detention facility for further treatment since his state of health had deteriorated. At the medical unit, the applicant was examined by a doctor to whom he complained of, inter alia, pain in his chest, dry mouth, asthenia, headache, dizziness and occasional vomiting. Blood and urine tests were carried out. 41. From 11 to 29 August 2003, according to the records made in his medical file, the applicant was under regular medical observation and received medication. Regular check-ups were performed once every two to three days. His state of health during this period was recorded as fluctuating between stable and deteriorated. 42. On 14 August 2003 an ambulance was called to the courtroom since the applicant's heart condition worsened. He was examined by a cardiologist and diagnosed with ischemic heart disease, post-infarction cardiosclerosis and rest stenocardia. An electrocardiogram was prescribed as well as medication including validol, analgin and dimedrol. 43. On 22 August 2003 an ambulance was called to the courtroom for the same reasons. The applicant's heart diagnosis was confirmed and in-patient examination and treatment were recommended. 44. By a letter of 22 August 2003 the examining judge informed the chief of the detention facility about the events of 14 and 22 August 2003 and inquired about the applicant's state of health and whether he was receiving requisite medical assistance. 45. By a letter of 28 August 2003 the chief of the detention facility informed the judge that the applicant was suffering from ischemic heart disease, exertion and rest stenocardia, post-infarction cardiosclerosis, diabetes, diabetic angiopathy and bleeding duodenal ulcer. The letter further stated that the applicant was under constant medical observation and was receiving treatment. 46. On 9 September 2003 the applicant's counsel applied to the Head of the Criminal Corrections Department of the Ministry of Justice ( ՀՀ արդարադատության նախարարության քրեակատարողական վարչության պետ ), stating that the applicant's state of health required regular medical check-ups and requesting his transfer to the Hospital for Prisoners for treatment. It appears that no reply to this complaint was received 47. On 13 October 2003 the applicant was transferred from the medical unit back to his cell. 48. The applicant alleged that from the date of his transfer to his cell in the detention facility until his transfer to a correctional facility on 13 August 2004 he was never examined by a doctor. He had verbally applied on numerous occasions to the administration of the detention facility requesting medical assistance, but no such assistance or medication had been provided, nor any special diet prescribed. The necessary medicines and food products were provided by his relatives on a regular basis. 49. The Government confirmed that the applicant had verbally applied to the administration of the detention facility for medical assistance within the above-mentioned period, but alleged that such assistance had been provided to the applicant on each and every occasion, including necessary medicines and diet. He was regularly checked by a doctor and, if any symptoms were disclosed, he promptly received the necessary treatment. The detention facility was staffed with the following specialists: two physicians, one psychiatrist-neurologist, one dermatologist, one dentist, one tuberculosis specialist, one laboratory assistant and six doctors' assistants. The latter visited the detainees every day to check their health and the doctors were immediately alerted if there were any problems. 50. In support of this allegation the Government submitted a statement made on 27 June 2006 by the Principal Specialist of the Medical Assistance Unit of the Criminal Corrections Department of the Ministry of Justice, A.H. According to this statement, between October 2003 and August 2004 the applicant had regularly applied to the medical staff of the detention facility and had received medical consultations and out-patient treatment for ischemic heart disease, exertion and rest stenocardia, diabetes and duodenal ulcer. Medication was prescribed, including solution of analgin, papaverin, dibazol, phurosemid, validol, ranitidine, nitrong and diabeton, which the detention facility received on a quarterly basis from the Hospital for Prisoners. 51. On 18 December 2003 the applicant underwent an ultrasound scan of his abdominal area by an outside doctor invited by his relatives. 52. On 9 February 2004, as it appears from the relevant certificate, the applicant was found to be fit for work after being examined by a doctor. 53. The court hearing scheduled for 13 April 2004 was adjourned because of the applicant's poor health. 54. On 17 June 2004 the applicant's counsel applied to the Chief of Nubarashen Detention Facility, complaining that it was dangerous for the applicant, in view of his health, to be kept in a common cell. He further complained that, in spite of this, the applicant had recently been transferred to another cell where conditions were even worse. Counsel requested that the applicant be urgently transferred to a hospital for treatment. 55. On 17 July 2004 the applicant's counsel applied to the Head of the Criminal Corrections Department of the Ministry of Justice, complaining that, notwithstanding the applicant's state of health, he was kept in a common cell. He further complained that the Chief of Nubarashen Detention Facility had failed to transfer the applicant to a hospital and to provide treatment. 56. On 27 July 2004 at 1.20 a.m. an ambulance was called to the detention facility because the applicant suffered a heart attack. 57. On 28 July 2004 the applicant's counsel lodged a similar complaint to that of 17 July 2004, with a copy to the Chief of Nubarashen Detention Facility. 58. By a letter of 29 July 2004 the Head of the Criminal Corrections Department replied to counsel's complaint of 17 July 2004, stating that the applicant had already been hospitalised twice for treatment from 26 June to 29 July 2003 and from 5 August to 13 October 2003. The letter further stated that the applicant was currently under observation by the medical staff and his state of health was satisfactory. 59. On 11 and 12 August 2004 the applicant's counsel lodged two complaints with the Head of the Criminal Corrections Department and with the Minister of Justice, with a copy to the Chief of Nubarashen Detention Facility, claiming that the applicant's state of health was deteriorating daily, but no measures were being taken. He submitted that the applicant's illnesses required a special diet, regular medical check-ups and medication. In spite of this, the applicant was kept in conditions where none of this was available. 60. By a letter of 13 August 2004 the Head of the Criminal Corrections Department replied to the counsel's complaint of 28 July 2004, stating that the letter of 29 July 2004 had already answered the issues raised. 61. On 13 August 2004, after his conviction was upheld in the final instance, the applicant was transferred to Kosh correctional facility to serve his sentence. 62. On 14 August 2004 the applicant was examined by a doctor upon his admission to the correctional facility. He complained of asthenia, dizziness and of pain in his epigastric area and the left part of his back. His general state of health was found to be satisfactory. Medication was prescribed. 63. By a letter of 20 August 2004 the Head of the Criminal Corrections Department replied to the counsel's complaint of 12 August 2004, stating that the applicant had more than once received treatment in various facilities and that he was currently serving his sentence at Kosh correctional facility where his state of health was found to be satisfactory. C. Further developments 64. On 29 December 2006 the Aragatsotn Regional Court ( Արագածոտն մարզի առաջին ատյանի դատարան ) dismissed the applicant's request to be released on parole, finding that he was not entitled under the law to lodge such a request directly with the courts without the prior approval by the parole board. 65. On an unspecified date the applicant lodged an appeal. 66. On 14 March 2007 the Criminal and Military Court of Appeal reviewed the decision of the Regional Court and decided to examine and grant the applicant's request for release in view of his good behaviour. 67. This decision, though subject to appeal on points of law, was immediately enforceable, so the applicant was released from prison. 68. On 1 June 2007 the Court of Cassation quashed the decision of the Court of Appeal upon the prosecutor's appeal and decided to terminate the proceedings on the same ground as the Regional Court. 69. The applicant was taken back to prison. 70. On 20 January 2009 the applicant died in prison from a heart attack. i. staff and facilities 106. At Nubarashen Prison, the full-time health care team consisted of 7 doctors (head doctor, internist, surgeon, stomatologist, dermato-venerologist, radiologist, psychiatrist), 5 feldshers, a laboratory assistant, an X-ray technician and a dental technician. Assistance was provided by several prisoner orderlies. ... At Nubarashen Prison, the presence of a feldsher was ensured on a 24-hour basis. ... 107. As regards the complement in terms of doctors, the situation at Nubarashen ... [Prison] can be considered satisfactory. ... ... 108. The CPT is particularly concerned about the low number of qualified feldshers and the total lack of qualified nurses at the four establishments. Given the size and structure of the respective inmate populations (with rapid inmate turnover at the two pre-trial facilities and noticeable proportions of older prisoners at the two colonies), the CPT recommends that the nursing staff resources (i.e. feldshers and nurses) at the four establishments be increased. The CPT also wishes to stress that a person competent to provide first aid, preferably with a recognised nursing qualification, should always be present on prison premises, including at night and weekends. 109. In the CPT's view, the employment of inmates as orderlies should be seen as a last resort, and prisoners should under no circumstances be involved in the distribution of medicines. Further, such persons should not be given access to medical files, nor should they be present during medical examinations. The Committee recommends that the position of the prisoners working as orderlies at Nubarashen ... [Prison] (as well as other penal establishments in Armenia) be reviewed, in the light of these considerations. 110. The delegation heard very few complaints about access to the doctor (or, as in Gyumri, to the feldsher). However, at the four prisons, inmates complained about the standard of treatment and care, in particular as regards the range of medication prescribed and the quality of dental care (which appeared to be limited to extractions). At each of the establishments, the transfer of inmates to the Hospital for Prisoners in Yerevan, when required by their state of health, was said to be unproblematic. ... ... 113. The supply of basic medication and related materials was grossly insufficient at each of the establishments. This was hardly surprising, given the very limited budget for acquiring such items. In this regard, the health-care services concerned depended to a considerable extent on donations and inmates' own resources. Reference has already been made to the State's duty of care vis-à-vis persons deprived of their liberty, even in periods of serious economic difficulties ... The CPT recommends that the Armenian authorities take measures without delay to ensure the supply of appropriate medicines and related materials to the prisons visited and, if necessary, to other penitentiary establishments in Armenia .” | The applicant suffered from a number of illnesses prior to his detention, including an acute bleeding duodenal ulcer, diabetes and a heart condition. He complained in particular that he had not received adequate medical care in detention. |
194 | Prohibition of discrimination (Article 14 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 7. The facts of the case, as submitted by the applicants, may be summarised as follows. A. The background facts 1. The first applicant, J.D. 8. The applicant J.D. has lived with her adult, disabled daughter in a 3 bedroom property in the social rented sector since 1993. Her daughter has a type of brain damage associated with oxygen deprivation, severe physical and learning disabilities, is a permanent wheelchair user and is registered blind. J.D. cares for her daughter full time and their house was specifically designed to accommodate their needs including wide doors, an internal lift, a gradual slope at the front and rear to allow wheelchair access, ceiling hoists in the bathroom and bedroom, an accessible bathroom and a changing bed. 9. In 2012 the Government introduced the Housing Benefit (Amendment) Regulations 2012 (see Relevant domestic law, below). As a result the applicant’s Housing Benefit was reduced by 14%, because she is considered to have one more bedroom than that to which she is entitled (as the house has 3 bedrooms for 2 people). Because of the reduction, the applicant’s Housing Benefit no longer meets the cost of her rent. 10. The applicant applied for Discretionary Housing Payments (“DHP”) to meet the difference, which were awarded on a temporary basis. Her last award expired on 31 March 2017 and at the time of making her application she was awaiting a response to her most recent claim and had not been offered smaller accommodation which would meet her daughter’s needs. 2. The second applicant, A 11. The applicant A lives in a 3 bedroom house in the social rented sector with her son. She has lived there for more than 25 years. It appears that she was allocated a 3 bedroom house because of the shortage of 2 bedroom houses. 12. In the past the applicant had a brief relationship with a man known as X who is considered extremely dangerous and has previously served a lengthy prison sentence for attempted murder. After his release from prison in 2002 X came to A’s home and violently attacked and raped her. Her son was conceived as a result of the rape. In 2012 X contacted A again and she was referred by the police to the “Sanctuary Scheme”. The scheme aims to protect those at risk from the most severe forms of domestic violence. As provided by the rules of her placement in the scheme, the applicant’s home was adapted to include the modification of the attic to render it a “panic room” where A and her son can retreat in the event of an attempted attack by X. 13. The applicant receives Housing Benefit to rent her home. Following the change in legislation in 2012, the applicant’s Housing Benefit was reduced by 14%, because the applicant is considered to have one more bedroom than that to which she is entitled (as the house has 3 bedrooms for 2 people). Because of the reduction, the applicant’s Housing Benefit no longer meets the cost of her rent. The applicant has applied for DHPs to meet the difference, which have been awarded on a temporary basis. 14. In early 2015, her application for DHP was refused by the local authority and she received a letter threatening her with eviction. The situation was brought to the attention of the Secretary of State who intervened on A’s behalf with the local authority, which reversed its decision to refuse her application for DHP. The Secretary of State informed the applicant that the refusal was the result of an ‘error in processing’ by the local authority where the fact that the applicant’s home had been specially adapted was not taken into account when the decision to refuse DHP was made. B. The Domestic proceedings 1. The first applicant 15. On 1 March 2013 the first applicant brought proceedings for judicial review. The Divisional Court gave its judgment on 30 July 2013. It considered that the relevant Regulations did discriminate against those who had a need to occupy accommodation with a greater number of bedrooms than they were entitled to because of their own disability or that of a family or household member. However, they considered that there was no “precise class of persons” who could be identified as affected by the measure, by reason of their disability. Moreover, such discrimination would only breach Article 14 taken together with Article 8 and/or Article 1 of Protocol No. 1 of the Convention, if it were “manifestly without reasonable foundation”, and that test was not satisfied in the case. 16. The applicant together with four other claimants, appealed to the Court of Appeal, which gave its judgment on 21 February 2014. The Court of Appeal held that the Regulations discriminated against disabled people who had a need for additional accommodation as compared with comparable non-disabled people who do not have such a need. The Court of Appeal considered whether it should be classified as direct or indirect discrimination although in its view the type of discrimination was not material in light of the Strasbourg case-law. The Master of the Rolls (Lord Neuberger) giving the lead opinion concluded on this point: “47. In case the classification question is material, I shall content myself with saying that ... the discrimination in this case is one of indirect or Thlimennos discrimination. It is not necessary to distinguish between these two. As a matter of substance, Regulation B13 discriminates against disabled persons on the ground of disability ...” 17. However, applying the test of “manifestly without reasonable foundation” the Court of Appeal found that the discrimination was justified for three reasons. First, because the applicant did not form a very limited class, and to include an imprecise class to whom the Regulations would not apply would introduce more complexity into the assessment and be administratively intensive and costly. Second, discretionary payments were suitable to deal with disability-related needs as they can be imposed for shorter periods and demanded more rigorous financial discipline from local authorities. Third, the Secretary of State was entitled to take the view that there were certain groups of persons whose needs for assistance with payment of their rent are better dealt with by discretionary payments rather than Housing Benefits. 18. The applicant appealed to the Supreme Court. The proceedings were joined with that of the second applicant and a number of other claimants (see paragraphs 22-30 below). 2. The second applicant 19. The second applicant brought a claim for judicial review on the basis of gender discrimination on 24 May 2014; the High Court gave judgment on 29 January 2015. It concluded that the Regulations were prima facie discriminatory on grounds of gender but that the discrimination was justified. In its judgment, the High Court examined the system of Sanctuary Schemes, summarised as follows: “9. Sanctuary Schemes A Sanctuary Scheme provides for the adaption of a property to make it secure. In particular there may be a secured room or space. The safe room provides a place to which the person can retreat if violence occurs or they are in fear of attack whilst they call the police and wait for assistance. The address is ‘tagged’ on police computer systems to ensure a quick response to a 999 call or the activation of a panic button. Specialist, tailored support is also provided, and A has (what is termed) a "complex package of multi-agency support". 10. These Schemes have been successfully established across the country since 2006. Even a brief explanation of their aims and scope are sufficient to demonstrate what a good idea they are. One of the obvious benefits is that victims of domestic violence and the like can remain in their own homes (if they want to) rather than being forced out by the fear of violence. Leaving their home as a result of domestic violence can have serious consequences for the stability of their lives. Government statutory homelessness statistics show that domestic violence is consistently reported as the main reason for the loss of a last settled home for 12-13% of homelessness acceptances in England; see the witness statement of [ P.N.] of Women’s Aid at [C4]. [the applicant’s representative] submitted that Sanctuary Schemes are a means of homelessness prevention. Whilst the work costs money, it avoids the expense and upheaval of re-housing and (as A’s case well illustrates) of losing the support network of friends and neighbours that takes years to build up and which is so important for the continued safety and general wellbeing of people in A’s position. It is these people who help provide her with the day to day friendship and sense of community that she needs. ... 16. None of that is particularly controversial. However, there is one further piece of evidence provided by the replies to these requests which was the subject of some argument. Local authorities were asked for the number of households in Sanctuary Schemes affected by the under-occupancy provisions. The answer was 120. The average gap in funding was £16.70 per week (above the average figure). Of that group of 120, the number receiving DHPs was 24 (or 20%). The Claimant relies upon that statistic to show that DHPs are not being provided to 80% of households in Sanctuary Schemes which are affected by these regulations and who should be receiving DHPs. The Defendant says that it proves nothing of the sort. [...] I observed during the course of argument that I would need to know more about the 80% before I could draw any conclusions from these figures. That remains my view. The statistic shows that DHPs are being paid to people in Sanctuary Schemes. Indeed that is A’s experience. What we do not know is why they are not being paid. It may be that it is because applications are being refused. Or it may be because claimants are bridging the gap in other ways.” 20. The applicant appealed to the Court of Appeal who concluded on 27 January 2016 that the discrimination against the second applicant was not justified, and was unlawful. The case proceeded on the basis that Regulation B13 constituted “ prima facie discrimination on grounds of sex and disability” (see § 5). The primary question before the court was therefore whether that discrimination had been justified. The court set out the situation of the second applicant: “10. A has lived in a three bedroom house rented from the local council since 1989. In 1993-4 she had a brief, casual relationship with a man, X, who was subsequently convicted of attempted murder; he has been exceptionally violent to her. Whilst in prison he started to harass her and in 2002 he sought her out. A child was conceived as a result of his rape of her and was born in 2003. The child lives with her. The courts have refused contact between the son and X. 11. In 2012, X contacted A again and made threats of violence to her. The police and other agencies took the threats seriously and under one of the schemes which are known as the "Sanctuary Schemes" her property was adapted. She is protected under that scheme with the support of the police. In consequence of the violence of X and the continued threats from him, she suffers from PTSD and has suicidal ideation. 12. Sanctuary Schemes, which have been operating since 2006, provide for the adaptation of a house or flat to make it secure and for on-going security monitoring to enable people who have been subjected to violence, including what is often referred to a "domestic violence", to remain in their own home. There was powerful evidence before the judge from [P.N.], the Chief Executive of Women’s Aid, about the benefits and importance of Sanctuary Schemes.” In its conclusions under Article 14, the Court of Appeal commented: “ 47. A and those in a similar position to A, who have suffered from serious violence, require the kind of protection offered by the Sanctuary Schemes in order to mitigate the serious effects of such violence and the continued threats of such violence. It cannot seriously be disputed that A and those in a similar position, who are within the Sanctuary Schemes and in need of an adapted "safe" room, are few in number and capable of easy recognition. There would be little prospect of abuse by including them within the defined categories in Regulation B13 and little need for monitoring. Moreover, with careful drafting, Regulation B13 could be amended to identify them as a discernible and certain class. ... 54. In these circumstances, whilst we saw great force in the Secretary of State’s arguments, which we subjected to serious scrutiny, we feel constrained not to accept them. We acknowledge in particular that DHPs are discretionary, but that that discretion has to be exercised lawfully and in accordance with the guidance issued by the Secretary of State. If they were to be withheld inappropriately, the decision would be subject to review. We acknowledge that the evidence shows that the DHPs would cover the full deficit in Housing Benefit. We acknowledge that, even though the fund for DHPs is capped and may in theory be insufficient, there is no clear evidence that it will be; on the contrary, so far it has been sufficient. Thus, the evidence is that A has received what she would have received had those in her position been brought within a defined class in Regulation B13; she has not been disadvantaged. But that was the position in Burnip, and the same justification was not accepted. 55. Burnip obliges us also to decide that the Secretary of State was not entitled to decide that the better way of providing for A and those in a similar position was by way of DHPs, even though that would be a more flexible approach. 56. In these circumstances, we have concluded that the appeal in A must be allowed on the ground that the Secretary of State has failed to show that his reasons amount to an objective and reasonable justification for the admitted discrimination in Regulation B13.” 21. The Government appealed that decision and the second applicant’s case was joined with that of the first applicant and a number of others to be heard together, before the Supreme Court. 3. The proceedings before the Supreme Court 22. The Supreme Court gave its judgment on 9 November 2016. Both the applicants’ claims were dismissed. Lord Toulson gave the lead judgment, Lady Hale and Lord Carnwath dissented in the case concerning the second applicant. 23. Lord Toulson first addressed the question whether the lower courts had applied the right test in asking whether the discriminatory treatment complained of was “manifestly without reasonable foundation”. Where the applicants had argued that in cases such as theirs involving disability or gender discrimination, weighty reasons for justification were required, he confirmed that the lower courts were correct to apply the test of “manifestly without reasonable foundation”. Lord Toulson clarified that: “32. The fundamental reason for applying the manifestly without reasonable foundation test in cases about inequality in welfare systems was given by the Grand Chamber [of the European Court of Human Rights] in Stec (para 52). Choices about welfare systems involve policy decisions on economic and social matters which are pre-eminently matters for national authorities.” 24. He then went on to consider whether the domestic courts had misapplied that test. He found that they had not. He said: “41. ...There was certainly a reasonable foundation for the Secretary of State’s decision not to create a blanket exception for anyone suffering from a disability within the meaning of the Equality Act (which covers anyone who has a physical or mental impairment that has a more than minimal long term effect on the ability to do normal daily activities) and to regard a DHP scheme as more appropriate than an exhaustive set of bright line rules to cover every contingency. 42. However, that is not the end of the matter, for there are some people who suffer from disabilities such that they have a transparent medical need for an additional bedroom...” 25. He then went on to examine the situation of other claimants in the proceedings in light of the distinction he had identified. In examining the case of the first applicant, he concluded: “53. JD lives with [her] adult daughter, AD, who is severely disabled, in a specially constructed three-bedroom property. They have no objective need for that number of bedrooms. Because the property has been specially designed to meet [ADs] complex needs, there may be strong reasons for JD to receive state benefits to cover the full rent, but again it is not unreasonable for that to be considered under the DHP scheme.” 26. In respect of the second applicant, he considered that whilst A had a strong case for staying where she needed to be, she had no need for a three ‑ bedroom property: “59. Notwithstanding my considerable sympathy for A and other women in her predicament, I would allow the Secretary of State’s appeal in A’s case. I add that for as long as A. and others in a similar situation are in need of the protection of Sanctuary Scheme housing, they must of course receive it; but that does not require the court to hold that A has a valid claim against the Secretary of State for unlawful sex discrimination.” 27. He commented: “62... It was recognised from the time that [the Regulation (Reg B13)] was mooted that there will be some people who have a very powerful case for remaining where they are, on grounds of need unrelated to the size of the property. For reasons explained in the evidence (to which I have referred in para 40), it was decided not to try to deal with cases of personal need unrelated to the size of the property by general exemptions for particular categories but to take account of them through DHPs. ... 64. So while I agree that there would have been no insuperable practical difficulty in drafting an exemption from the size criteria for victims of gender violence who are in a sanctuary scheme and who need for that reason to stay where they are, deciding whether they really needed to stay in that particular property would at least in some cases require some form of evaluation. I leave aside the question debated in the evidence about whether some people in a sanctuary scheme might safely be able to make use of a spare room by taking in someone else such as a family member. Likewise I do not suppose that there would be insuperable practical difficulties in drafting exemptions to meet other categories of people who may justifiably claim to have a need to remain where they are for reasons unconnected with the size of the accommodation, but this would again require an evaluative process. ” 28. He considered whether the state has a positive duty to provide effective protection to victims of gender-based violence but decided not to examine the question of whether there was a duty, because this would not mandate the means by which such protection is provided. 29. Lady Hale, dissenting in respect of the second applicant’s case considered unfortunate that the cases had been joined underlining that the cases where it is clear that people need an extra room because of their disability, and the case of A are different: “72... A’s need is not for space but to stay where she is. The effect of the regulation is to deny her the benefit she needs in order to stay in the accommodation she needs. In my view this is unjustified discrimination against her on grounds of her sex. But the reasons are quite different from the reasons in the disability cases. ... 76. The state has provided Ms A with such a safe haven. It allocated her a three ‑ bedroom house when she did not need one. That was not her choice. It later fortified that house and put in place a detailed plan to keep her and her son safe. Reducing her Housing Benefit by reference to the number of bedrooms puts at risk her ability to stay there. Because of its special character, it will be difficult if not impossible for her to move elsewhere and that would certainly put the State to yet further expense. Given these very special circumstances, I am tempted to regard this as an interference with her and her son’s right to respect for their home. But in any event, denying her the benefit she needs in order to be able to stay there is discrimination in the sense described in Thlimmenos v Greece 31 EHRR 15: treating her like any other single parent with one child when in fact she ought to be treated differently. 77. Indeed, the appellant does not seriously dispute that Ms A needs to stay where she is. The Secretary of State accepts that she needs to stay in a Sanctuary Scheme and probably in this very house. The justification suggested for the interference, or the discrimination, is the availability of discretionary housing payments to make up the shortfall in her rent. But if the discretionary housing payment scheme is not good enough to justify the discrimination against the [other] households, it is not good enough to justify the discrimination against Ms A’s household either. Its deficiencies were acknowledged in the Court of Appeal’s decision in Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR 117, para 46. They are well-summed up by Mr Drabble QC [...]: it is discretionary, cash-limited and produces less certainty; it has a stricter means test; it offers different and less attractive routes of judicial challenge; it can be onerous to make applications; and it encourages short term, temporary and conditional awards. For a woman in a Sanctuary Scheme to have to endure all those difficulties and uncertainties on top of the constant fear and anxiety in which she lives cannot be justified. This is not a question of the allocation of scarce public resources: it is rightly acknowledged that public resources will have to meet this need one way or another.” 30. In relation to the first applicant’s case she commented: “78.... In the second example, the disability is indeed a status for article 14 purposes, and I have found the case of JD and [her daughter] an extremely difficult one and have been tempted to dissent in their case too. But the distinction between them and the victims of the sex discrimination entailed in gender-based violence, is that the state has a positive obligation to provide effective protection against gender-based violence and for this small group of victims this is the only way to make that protection effective.” | The second applicant in this case, being at risk of extreme domestic violence, was included in a “Sanctuary Scheme”, which also meant that there were some adaptions to her property (including the installation of a “panic room” in the attic for herself and her son with whom she lived in a three bedroom house). She submitted that new rules on housing benefit in the social housing sector (informally known as “the bedroom tax”) discriminated against her because of her particular situation as a victim of gender based violence. |
45 | Applications lodged by the parent whose child had been abducted by the other parent | I. THE CIRCUMSTANCES OF THE CASE 6. The first applicant was born in 1982 and lives in Furstenfeld, Austria. He is the father of the second applicant, who was born in 2006 and lives at an unspecified address in Romania. A. Abduction of the second applicant and proceedings conducted in Austria 7. On 13 April 2004 the first applicant married a Romanian citizen, K.T. The marriage was concluded in Salzburg, Austria. On 15 February 2006 their daughter, the second applicant, was born. The parents had joint custody of the child under Austrian law. They lived in Salzburg. 8. On 1 February 2008 K.T. and the first applicant separated. On 25 February 2008 K.T. filed a divorce petition with the Salzburg authorities. The first applicant lodged a counter petition on 25 March 2008. 9. On 29 January 2008 K.T. filed for an interim injunction against the first applicant, seeking his removal from the family home on the ground of his violent behaviour. On 8 February 2008, the Salzburg District Civil Court granted the interim injunction for a period of three months. Criminal proceedings were also initiated against the first applicant for infliction of bodily harm. 10. On 1 February 2008 K.T. lodged an action for temporary sole custody of the second applicant throughout the divorce proceedings. At the end of September 2008, while the proceedings for the award of custody were pending before the Austrian courts, K.T. left for Romania together with the second applicant. The first applicant was not informed of the departure, even though at the time the spouses had joint custody of the second applicant. 11. In the meantime, on 25 July 2008 the Salzburg District Criminal Court acquitted the first applicant of inflicting bodily harm. The Salzburg Public Prosecutor reserved the right to initiate criminal proceedings against K.T. for perjury. 12. On 25 November 2008, the Salzburg District Civil Court granted the first applicant temporary sole custody of the second applicant until the finalisation of the divorce proceedings. The court relied, inter alia, on expert opinion which concluded that the first applicant was better suited to have custody. K.T. does not appear to have appealed against the judgment. 13. Currently, the divorce proceedings between the first applicant and K.T. are pending before the Romanian courts. B. Proceedings under the Hague Convention conducted in Romania 14. On 30 September 2008 the first applicant submitted a request for the return of the second applicant to Austria under Article 3 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). He argued that the second applicant had been removed from Austrian territory in breach of the joint custody held by the spouses at the time of the removal. On 7 October 2008 the Austrian authorities submitted the request to the Romanian Ministry of Justice (“the Romanian Ministry”), the Central Authority responsible for the obligations established under the Hague Convention. 15. On 28 October 2008, at the request of the Romanian Ministry, the General Police Department ( Inspectoratul General al Poliţiei ) confirmed that the second applicant was living with her mother, in Romania, at her grandparents’ home. Furthermore, on 3 November 2008 the Department for Social Services and Child Protection ( Departamentul General de Asistenţă Socială şi Protecţia Copilului) drafted a report in relation to the second applicant. The report mainly mentioned K.T.’s statements concerning her situation in Austria, her reasons for departure as well as the maternal grandparents’ declarations concerning their commitment to provide housing and financial support to the second applicant indefinitely. It was also mentioned that the second applicant did not appear to be an abused or neglected child and that she was very attached to her mother and her maternal grandparents. The report concluded that the second applicant had appropriate living conditions, both from a material and emotional point of view. 16. On 5 December 2008 the Romanian Ministry instituted proceedings on behalf of the first applicant before the Bucharest County Court. By a judgment of 28 January 2009, communicated on 28 May 2009, the Bucharest County Court found in favour of the first applicant, ordering the return of the second applicant to Austria. The Bucharest County Court held that the request fell under Article 3 of the Hague Convention and that none of the exceptions provided for under Article 13 applied. 17. K.T. appealed. She submitted several pieces of evidence, including declarations of her parents as witnesses given before a Romanian Court in the context of the divorce and custody proceedings. She further submitted a welfare report drafted by the Custody Service within the Timişoara City Hall (Serviciul de Autoritate Tutelară din cadrul Primariei Municipiului Timişoara ). The report included information on K.T.’s family situation, living conditions, and K.T.’s declarations in relation to the circumstances of her living and departing from Austria. Finally, the report recommended that K.T. were awarded the custody over the second applicant. 18. By a final judgment delivered on 8 July 2009, and rendered in written form on 17 September 2009, the Bucharest Court of Appeal allowed the appeal on points of law, holding that the return of the second applicant to Austria would expose her to physical and psychological harm, within the meaning of Article 13 § 1 (b) of the Hague Convention. On the merits, the Bucharest Court of Appeal held that the first applicant had shown violent behaviour towards K.T., as the Salzburg District Civil Court had maintained when granting K.T. the interim injunction of 8 February 2008. The Bucharest Court of Appeal further held that the first applicant had breached the restraining order in September 2008, which determined K.T. to come to Romania. Finally, the domestic court reasoned that even if there was no evidence of a violent behaviour of the first applicant towards the child, this could be inferred from his behaviour towards K.T. and from K.T.’s departure to Romania. The Salzburg District Civil Court’s judgment of 25 November 2008 was set aside on the ground that by that time K.T. and the second applicant had already left Austria. 19. Throughout the domestic proceedings, the Romanian Ministry informed the Austrian authorities of the progress of the Hague Convention proceedings. The information included the date of the hearings and whether or not an appeal had been lodged. From the evidence adduced to the case file, it appears that the Romanian Ministry did not have any direct contact with the first applicant in connection with the Hague Convention proceedings. | This case concerned a complaint by a father and his daughter (born in 2006) about proceedings before the Romanian courts under the Hague Convention of 25 October 1980 for her return to Austria. In February 2008 the child’s mother had applied in Austria for divorce from the first applicant. A few months later, both the child and her mother had left Austria for Romania while the custody proceedings in respect of the child were still pending. The applicant had then requested the return of his daughter to Austria claiming that she had been removed unlawfully. In a final judgment of July 2009, the Romanian courts had found that the child’s return to Austria would expose her to physical and psychological harm. |
694 | Insult of State officials | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1956. At the time the application was lodged he lived in Elgoibar ( Gipuzkoa ). 7. At the time of the events, the applicant was spokesperson for Sozialista Abertzaleak, a left-wing Basque separatist parliamentary group in the Parliament of the Autonomous Community of the Basque Country. A. Background to the case 8. On 21 February 2003, following an order issued by central investigating judge no. 6 of the Audiencia Nacional, the premises of the daily newspaper Euskaldunon Egunkaria were searched and then closed, on account of the newspaper ’ s alleged links with the terrorist organisation ETA. Ten persons were arrested, including the newspaper ’ s senior managers ( members of the board and the editor-in-chief). After spending five days in secret detention the persons concerned complained that they had been subjected to ill-treatment in police custody. 9. On 26 February 2003 the President of the Autonomous Community of the Basque Country received the King of Spain at the opening of an electricity power station in the province of Biscay. 10. At a press conference held the same day in San Sebastián, the applicant, as spokesperson for the Sozialista Abertzaleak parliamentary group, outlined his group ’ s political response to the situation concerning the newspaper Euskaldunon Egunkaria. Replying to a journalist he said, with reference to the King ’ s visit to the Basque Country, that “it [was] pathetic”, adding that it was “a genuine political disgrace” for the President of the Autonomous Community of the Basque Country to be inaugurating the project with Juan Carlos of Bourbon and that “their picture [ was ] worth a thousand words ”. He went on to say that inaugurating a project with the King of the Spaniards, who was the Supreme Head of the Civil Guard ( Guardia Civil ) and the Commander-in- Chief of the Spanish armed forces, was absolutely pitiful. Speaking about the police operation against the newspaper Euskaldunon Egunkaria, he added that the King was in charge of those who had tortured the persons detained in connection with the operation. He spoke in the following terms: “How is it possible for them to have their picture taken today in Bilbao with the King of Spain, when the King is the Commander-in- Chief of the Spanish army, in other words the person who is in charge of the torturers, who defends torture and imposes his monarchical regime on our people through torture and violence?” B. The criminal proceedings in the Basque Country High Court of Justice 11. On 7 April 2003 the public prosecutor lodged a criminal complaint against the applicant for “serious insult against the King” within the meaning of Article 490 § 3 of the Criminal Code read in conjunction with Article 208, on account of his remarks made on 26 February 2003. 12. In the proceedings before the Basque Country High Court of Justice, which had jurisdiction to try the applicant because of his status as a member of parliament, the applicant argued that his remarks had constituted political criticism directed against the Head of the government of the Basque Country. He added that to say that the King of Spain was the Supreme Head of the Civil Guard did not imply any intention to undermine dignity or honour; it was merely a statement of the political reality in the Spanish State, where the King exercised supreme command over the armed forces. The applicant further argued that there was no insult or attempt to dishonour in saying that the Civil Guard had tortured the persons detained in connection with the closure of the newspaper Euskaldunon Egunkaria because that was the reality, and proceedings had been instituted in that connection before the Madrid investigating judge no. 5. Numerous public figures had also commented on the subject. In sum, the applicant, as a politician, had sought to express political criticism in the context of freedom of expression, one of the foundations of the rule of law and democracy. He pointed out in that regard that politicians had greater freedom of manoeuvre when it came to informing society about matters of public interest. 13. In a judgment of 18 March 2005, the High Court of Justice found the applicant not guilty of the charges against him. After stating that his remarks had been “clearly offensive, improper, unjust, ignominious and divorced from reality ”, the court found as follows: “... This is not an issue concerning the private life of the Head of State but one of rejection of the ties of political power deriving from the hereditary nature of the institution which he personally symbolises. ... [ C ] riticism of a constitutional institution is not excluded from the scope of the right to freedom of expression; in this case the latter has the status of a constitutional right which takes precedence over the right to honour. The Constitution does not guarantee the right to freedom of expression solely in relation to certain points of view that are considered correct, but in relation to all ideas, subject to the limits which it lays down ... ” 14. The High Court of Justice summed up as follows: “[T]he [applicant ’ s] remarks were made in a public, political and institutional setting, regard being had not only to the speaker ’ s status as a member of parliament but also to the authority to which they were addressed, namely the State ’ s highest judicial authority, and to the context of political criticism of the [ Head of the government of the Basque Country ] for his official hospitality in receiving His Majesty King Juan Carlos I in the wake of the closure of the newspaper [ Euskaldunon ] Egunkaria and the detention of its senior managers, and the latter ’ s public allegations of ill ‑ treatment. This context is therefore unconnected to the innermost core of individual dignity protected by law from any interference by third parties.” C. The appeal on points of law to the Supreme Court 15. The public prosecutor lodged an appeal on points of law, arguing firstly that the law protected the honour of the King as a specific individual possessed of personal dignity, who had been the object of the offence of insult, and secondly that the law was aimed at ensuring respect for the symbolic content of the institution of the Crown as established by the Spanish Constitution and “represented by the Head of State, the symbol of its unity and permanence”. The seriousness of the offence could be inferred from the fact that the legislature had sought to afford increased protection to the dignity of the King, including vis-à-vis other public authorities (Articles 496 and 504 of the Criminal Code). Furthermore, the inviolability of the King, as proclaimed in Article 56 § 3 of the Constitution, demonstrated the unique position occupied by the Crown in the system of the 1978 Spanish Constitution. That constitutional position highlighted the disproportionate nature of the vexatious and insulting remarks made by the applicant. In the view of the public prosecutor, who referred several times to the case-law of the Strasbourg Court, it was clear that the King had been performing official duties and that he was a figure in the public eye; however, that did not deprive him of the right to respect for his honour. In that regard, the public prosecutor pointed out that Article 20 § 1 (a) of the Constitution did not protect a supposed right to proffer insults. Drawing a parallel with the special protection to be afforded under Article 10 § 2 of the Convention to the judiciary, the public prosecutor further argued that the same protection should be afforded to the Head of State, who was the “symbol of the unity and permanence of the State” and was above party politics, from the “destructive and baseless attack” constituted by the applicant ’ s remarks. Lastly, in the public prosecutor ’ s view, the applicant ’ s remarks could be said to amount to “hate speech” within the meaning of the Court ’ s case ‑ law, given the existing situation with regard to terrorist attacks. 16. In two judgments delivered on 31 October 2005, the Supreme Court set aside the judgment of the lower court, making several references to the Court ’ s case-law. It sentenced the applicant to one year ’ s imprisonment, suspended his right to stand for election for the duration of the sentence and ordered him to pay costs and expenses, on the ground of his criminal liability for the offence of serious insult against the King. The Supreme Court considered the impugned remarks to have been value judgments rather than statements of fact. The remarks, described as “ignominious” by the lower court, had expressed contempt for the King and the institution he represented, affecting the innermost core of his dignity by accusing him of one of the most serious manifestations of criminal conduct in a State governed by the rule of law. The exercise of the right to freedom of expression had therefore been contrary to the principle of proportionality and had been unnecessary, overstepping the limits beyond which criticism could be deemed to be hurtful or upsetting. The Supreme Court further observed that the context in which the remarks had been made did nothing to alter their offensiveness. Firstly, the proceedings relating to the complaints of ill-treatment of the persons detained in connection with the operation against the newspaper Euskaldunon Egunkaria had been discontinued for lack of evidence. Secondly, the impugned remarks could not be construed as a reaction or response to a political debate with the King. In view of the seriousness of the insulting comments and the fact that the applicant had deliberately expressed them in public, the Supreme Court sentenced him to one year ’ s imprisonment. 17. Judge P.A.I. issued a dissenting opinion in which he argued that the comments complained of had been of a political nature, in view of the applicant ’ s status as a member of parliament and the context in which they had been made, namely the King ’ s visit to the Basque Country and the attitude of the Head of the government of the Basque Country in that regard. The judge agreed with the Basque Country High Court of Justice that the remarks had not targeted the King ’ s private life or his personal honour but had been directed solely at his institutional role as Commander-in-Chief of the Spanish armed forces. The applicant had not claimed that the King was responsible for actual acts of torture, only that he was strictly liable as Head of the State apparatus. The judge pointed out that the limits of freedom of expression were wider with regard to institutions since the latter did not possess honour, an attribute that was confined to individuals. D. The amparo appeal to the Constitutional Court 18. The applicant lodged an amparo appeal with the Constitutional Court alleging, inter alia, a breach of his right to freedom of expression (Article 20 § 1 (a) of the Constitution) and of his right to freedom of ideas (Article 16 of the Constitution). 19. In the applicant ’ s view, the Supreme Court ’ s judgment had incorrectly weighed the competing interests at stake, as the comments complained of had not contained any insulting or vexatious expressions, had been directed principally against the President of the Autonomous Community of the Basque Country rather than the King of Spain and, in any event, had reflected the reality of the situation and had not referred to the King ’ s private life or his attitudes. The statements in question had not been disproportionate in the context in which they had been uttered, namely the warm welcome extended to the King of Spain by the government of the Basque Country in the wake of the closure of the daily newspaper Euskaldunon Egunkaria and, in connection with that closure, the detention of several individuals who had stated before the courts and the Basque Parliament that they had been tortured. 20. In a decision ( auto ) of 3 July 2006, served on 11 July 2006, the Constitutional Court declared the applicant ’ s amparo appeal inadmissible as manifestly devoid of constitutional content. The Constitutional Court noted at the outset that the right to freedom of expression did not encompass a right to proffer insults. It pointed out in that connection that the Constitution did not prohibit the use of hurtful expressions in all circumstances. However, freedom of expression did not protect vexatious expressions which, regardless of their veracity, were offensive and ignominious and were not pertinent for the purpose of conveying the opinions or information in question. 21. The Constitutional Court considered that the weighing of the competing rights at stake had been carried out in an appropriate manner by the Supreme Court, as the latter had concluded that the impugned remarks had been disproportionate, while taking into account the context in which they had been made, the public nature of the act, the public interest in the subject in question (the use of torture) and the fact that the persons targeted (a politician and the King) were public figures. In the Constitutional Court ’ s view, there was no denying the ignominious, vexatious and derogatory nature of the impugned remarks, even when directed against a public figure. That finding was all the more valid with regard to the King, who, by virtue of Article 56 § 3 of the Constitution, was “not liable” and was a “symbol of the unity and permanence of the State”. Regard being had to his role as “arbitrator and moderator of the lawful functioning of institutions”, the King occupied a neutral position in political debate. This implied that he was owed institutional respect of a kind that was “substantively” different from that due to other State institutions. The Constitutional Court stated as follows: “... [I]n a democratic system which recognises freedom of ideas and freedom of expression, the fact that [the figure of the King] is characterised in this way does not shield him from all criticism ‘ in the exercise of his duties or on account of or in connection with them ’ ...; however, such criticism may not extend to attributing acts of public authority to the King – which, as indicated above, is prohibited by the Constitution – as a pretext for gratuitous attacks on his dignity or public esteem.” 22. Lastly, the Constitutional Court held that the applicant ’ s remarks, on account of their obviously derogatory nature, had clearly gone beyond what could be considered legitimate. It agreed with the Supreme Court that the remarks had expressed open contempt for the King and the institution he embodied, affecting the essential core of his dignity. Hence, such statements could manifestly not fall within the exercise of the right to freedom of expression. E. Enforcement of the sentence and subsequent events 23. In a decision ( auto ) of 15 May 2006, the Basque Country High Court of Justice ordered that enforcement of the applicant ’ s sentence be stayed for three years. According to the Government, his sentence was remitted on 16 July 2009. 24. The applicant was imprisoned on 8 June 2007 after the Supreme Court upheld a judgment of the Audiencia Nacional of 27 April 2006 sentencing him to fifteen months ’ imprisonment for publicly defending terrorism. 25. He is currently in pre-trial detention in connection with other criminal proceedings. II. Freedom to criticise the State or public institutions The State, the government or any other institution of the executive, legislative or judicial branch may be subject to criticism in the media. Because of their dominant position, these institutions as such should not be protected by criminal law against defamatory or insulting statements. Where, however, these institutions enjoy such a protection, this protection should be applied in a restrictive manner, avoiding in any circumstances its use to restrict freedom to criticise. Individuals representing these institutions remain furthermore protected as individuals. ... VI. Reputation of political figures and public officials Political figures should not enjoy greater protection of their reputation and other rights than other individuals, and thus more severe sanctions should not be pronounced under domestic law against the media where the latter criticise political figures. ... ... VIII. Remedies against violations by the media Political figures and public officials should only have access to those legal remedies against the media which private individuals have in case of violations of their rights by the media. ... Defamation or insult by the media should not lead to imprisonment, unless the seriousness of the violation of the rights or reputation of others makes it a strictly necessary and proportionate penalty, especially where other fundamental rights have been seriously violated through defamatory or insulting statements in the media, such as hate speech. ” 31. Parliamentary Assembly Resolution 1577 (2007), entitled “Towards decriminalisation of defamation”, is worded as follows: “ ... 11. [The Assembly] notes with great concern that in many member States the law provides for prison sentences for defamation and that some still impose them in practice – for example, Azerbaijan and Turkey. ... 13. The Assembly consequently takes the view that prison sentences for defamation should be abolished without further delay. In particular it exhorts States whose laws still provide for prison sentences – although prison sentences are not actually imposed – to abolish them without delay so as not to give any excuse, however unjustified, to those countries which continue to impose them, thus provoking a corrosion of fundamental freedoms. ... 17. The Assembly accordingly calls on the member States to: 17.1. abolish prison sentences for defamation without delay; 17.2. guarantee that there is no misuse of criminal prosecutions ...; 17.3. define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law and to ensure that civil law provides effective protection of the dignity of persons affected by defamation; ... 17.6. remove from their defamation legislation any increased protection for public figures, in accordance with the Court ’ s case - law ... ” | The applicant, the spokesperson for a left-wing Basque separatist parliamentary group, referred at a press conference to the closure of a Basque daily newspaper (on account of its suspected links with ETA) and to the alleged ill-treatment of the persons arrested during the police operation. In his statement he referred to the King of Spain as “the supreme head of the Spanish armed forces, in other words, the person in command of the torturers, who defends torture and imposes his monarchic regime on our people through torture and violence”. The applicant was sentenced to a term of imprisonment for the offence of serious insult against the King. He alleged a breach of his right to freedom of expression. |
112 | Covert filming of minors | I. THE CIRCUMSTANCES OF THE CASE 11. The applicant was born in 1987 and lives in Ludvika. 12. In September 2002, when she was 14 years old, she discovered that her stepfather had hidden a video - camera in the laundry basket in the bathroom, which was in recording mode and directed towards the spot where she had undressed before taking a shower. Immediately after the incident, the film was burned without anyone seeing it. 13. In September 2004, two years later, the applicant ’ s mother reported the incident to the police. An officially appointed counsel ( målsägandebiträde ) was assigned to the applicant on 5 October 2004. 14. On 21 October 2005 the public prosecutor indicted the applicant ’ s stepfather for sexual molestation ( sexuellt ofredande ) under Chapter 6, Article 7 § 3, of the Penal Code. He was also charged on two counts of sexual molestation of the applicant ’ s cousin, committed during the spring and summer of 2003 when the cousin was 16 years old, for having caressed her thigh and for having expressed his desire to have sex with her. He was charged on a fourth count of sexual molestation for having allegedly looked through the window of the applicant ’ s room when she was undressing in the late summer of 2003. 15. On 20 January 2006 the applicant, represented by counsel, submitted a claim for damages of 25,000 Swedish kronor (SEK): SEK 15,000 in compensation for violation of her personal integrity and SEK 10,000 for pain and suffering, to be joined to the criminal proceedings. The applicant based her private claim on “the criminal act for which her stepfather was being prosecuted”, without invoking any specific sections of the Tort Liability Act. 16. The applicant, her stepfather, her mother and her cousin gave evidence before the District Court of Falun ( Falu Tingsrätt ). The applicant explained that on the relevant day in September 2002, as she was about to take a shower, her stepfather had been doing something in the bathroom. When she discovered the camera, it was in recording mode, making a buzzing sound and flashing. She did not touch any of the buttons. She went to her mother in tears, taking the video - camera wrapped in a towel. H stepfather took the camera from her mother. Subsequently, the applicant saw her mother and stepfather burning a film, but she was not sure whether it was a recording of her. 17. The applicant ’ s mother confirmed the applicant ’ s statement and added that she did not know whether anything had been recorded since the film had been burned without her seeing it. She had not reported the incident to the police until 2004, when she had heard that the applicant ’ s cousin had also experienced incidents with the accused. 18. The applicant ’ s stepfather explained that he had lived with her mother from 1997 until the autumn of 2003. They had separated on account of the incident in question, among other things. He had wanted to try to film with a hidden camera, but it had been an impulsive act. He was not sure whether the camera had been in recording mode or whether a film had been recorded. The applicant ’ s mother had burned the film without any of them seeing it. 19. By a judgment of 14 February 2006, the District Court convicted the applicant ’ s stepfather on all four counts of sexual molestation under Chapter 6, Article 7 § 3, of the Penal Code. As regards the first count of sexual molestation, it found it established that he had had a sexual intention in hiding the camera in the laundry basket and directing it at the part of the bathroom where it was usual to undress. It added that the buzzing sound from the camera heard by the applicant strongly suggested that the camera was switched on and was actually recording. Otherwise, there would have been no point in hiding the camera among the clothes in the laundry basket. The hole in the laundry basket indicated that the strategy was quite refined. Regardless of the fact that, afterwards, no one had verified the contents of the film, it could under the circumstances be considered established that the applicant ’ s stepfather had actually filmed her while she was naked. 20. The applicant ’ s stepfather was given a suspended sentence combined with seventy-five hours ’ compulsory community service. Moreover, he was ordered to pay the applicant damages in the amount of SEK 20,000. 21. On appeal, by a judgment of 16 October 2007, the Svea Court of Appeal ( Svea hovrätt ) convicted him on the two counts of sexual molestation committed against the cousin, for which he was given a suspended sentence and ordered to pay sixty day-fines of SEK 50, amounting to a total of SEK 3,000. 22. The Court of Appeal acquitted him on the counts of sexual molestation allegedly committed against the applicant. 23. As to the incident in September 2002, the Court of Appeal found it established that the applicant ’ s stepfather had put a camera in the bathroom and that he had started the recording before she was about to take a shower. Whether a recording had actually been made, however, was unclear. It was apparent, the court continued, that his motive had been to film the applicant covertly for a sexual purpose. Given that motive, it was also regarded as certain that he had not intended the applicant to find out about the filming. Nor, according to the court, had he been indifferent to the risk that she would find out about it. In assessing whether the act legally constituted sexual molestation within the meaning of Chapter 6, Article 7 § 3, of the Penal Code, the Court of Appeal referred to a Supreme Court judgment ( published in Nyatt jurisdiskt arkiv ( NJA ) 1996, p. 418) concerning a man who had covertly filmed his sleeping girlfriend while he masturbated. The man was acquitted of sexual molestation because he had not intended his girlfriend to find out about the filming. Moreover, in the said judgment the Supreme Court held that the isolated act of filming was not a crime in itself, as in Swedish law there was no general prohibition against filming an individual without his or her consent. Following that line of reasoning, and despite finding that the situation the applicant ’ s stepfather intended to film was obviously of a sensitive nature as regards her personal integrity and that the violation was particularly serious on account of the applicant ’ s age and relationship to her stepfather, the Court of Appeal found that he could not be held criminally responsible for the isolated act of filming the applicant without her knowledge. The court noted that the applicant had become aware of her stepfather ’ s attempt to film her, but that this had not been covered by his intent. 24. The Court of Appeal went on to point out that the act might, at least theoretically, have constituted the crime of attempted child pornography ( försök till barnpornografibrott ) considering the applicant ’ s age. However, since no charge of that kind had been brought against the applicant ’ s stepfather, the Court of Appeal could not examine whether he could be held responsible for such a crime. In conclusion, despite finding his behaviour extremely reprehensible, he was acquitted and the applicant ’ s claim for damages dismissed. 25. As regards the incident in the late summer of 2003, the Court of Appeal found it established that the applicant ’ s stepfather had wanted to look at her secretly. Thus, although the court found such behaviour reprehensible, he had lacked the intent that the applicant should see him. 26. On 12 December 2007 the Supreme Court ( Högsta domstolen ) refused leave to appeal. III. INTERNATIONAL CONVENTIONS A. The United Nations Convention on the Rights of the Child 1989 51. The United Nations Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe. It was ratified by Sweden on 29 June 1990 and its relevant Articles read : Article 19 “1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” Article 34 “States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials.” B. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse 52. This Convention obliges its Parties to take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to criminalise certain intentional conduct, including offences concerning child pornography. It was signed by Sweden on 25 October 2007 and came into force on 1 July 2010. Sweden ratified it on 28 June 2013. The relevant parts of Chapter VI, “Substantive criminal law ” read: Article 18 – Sexual abuse “1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised : a. engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities; b. engaging in sexual activities with a child where: – use is made of coercion, force or threats; or – abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or – abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence. 2. For the purpose of paragraph 1 above, each Party shall decide the age below which it is prohibited to engage in sexual activities with a child. 3. The provisions of paragraph 1. a are not intended to govern consensual sexual activities between minors.” Article 20 – Offences concerning child pornography “1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct, when committed without right, is criminalised: a. producing child pornography; b. offering or making available child pornography; c. distributing or transmitting child pornography; d. procuring child pornography for oneself or for another person; e. possessing child pornography; f. knowingly obtaining access, through information and communication technologies, to child pornography. 2. For the purpose of the present article, the term ‘ child pornography ’ shall mean any material that visually depicts a child engaged in real or simulated sexually explicit conduct or any depiction of a child ’ s sexual organs for primarily sexual purposes. 3. Each Party may reserve the right not to apply, in whole or in part, paragraph 1.a and e to the production and possession of pornographic material: – consisting exclusively of simulated representations or realistic images of a non-existent child; – involving children who have reached the age set in application of Article 18, paragraph 2, where these images are produced and possessed by them with their consent and solely for their own private use. 4. Each Party may reserve the right not to apply, in whole or in part, paragraph 1.f.” Article 21 – Offences concerning the participation of a child in pornographic performances “1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised: a. recruiting a child into participating in pornographic performances or causing a child to participate in such performances; b. coercing a child into participating in pornographic performances or profiting from or otherwise exploiting a child for such purposes; c. knowingly attending pornographic performances involving the participation of children. 2. Each Party may reserve the right to limit the application of paragraph 1.c to cases where children have been recruited or coerced in conformity with paragraph 1.a or b. ... ” | The case concerned the attempted covert filming of a 14-year old girl by her stepfather while she was naked, and her complaint that the Swedish legal system, which at the time did not prohibit filming without someone’s consent, had not protected her against the violation of her personal integrity. |
583 | Deportation of seriously ill persons | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in Uganda in 1974. She currently lives in London. 9. The applicant entered the United Kingdom on 28 March 1998 under an assumed name. She was seriously ill and was admitted to hospital, where she was diagnosed as HIV-positive with “considerable immunosuppression and ... disseminated mycobacterium TB”. 10. On 31 March 1998 solicitors lodged an asylum application on her behalf, claiming that she had been ill-treated and raped by the National Resistance Movement in Uganda because of her association with the Lord’s Resistance Army, and asserting that she was in fear of her life and safety if she were returned. 11. In August 1998 the applicant developed a second Aids-defining illness, Kaposi’s sarcoma. Her CD4 count was down to 10 (that of a healthy person is over 500). After treatment with antiretroviral drugs and frequent monitoring, her condition began to stabilise so that by 2005, when the House of Lords examined the case, her CD4 count had risen to 414. 12. In March 2001 a consultant physician prepared an expert report, at the request of the applicant’s solicitor, which expressed the view that without continuing regular antiretroviral treatment to improve and maintain her CD4 count, and monitoring to ensure that the correct combination of drugs was used, the applicant’s life expectancy would be less than one year, due to the disseminated Kaposi’s sarcoma and the risk of infections. The medication she needed would be available in Uganda, but only at considerable expense and in limited supply in the applicant’s home town of Masaka. Moreover, the author of the report pointed out that in Uganda there was no provision for publicly funded blood monitoring, basic nursing care, social security, food or housing. 13. The Secretary of State refused the asylum claim on 28 March 2001 on grounds of credibility, and also because it was not accepted that the Ugandan authorities were interested in the applicant. The applicant’s Article 3 claim was also rejected, the Secretary of State noting that treatment of Aids in Uganda was comparable to that in any other African country, and that all the major antiretroviral drugs were available in Uganda at highly subsidised prices. 14. An adjudicator determined the applicant’s appeal on 10 July 2002. He dismissed the appeal against the asylum refusal, but allowed the appeal on Article 3 grounds by reference to the case of D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997-III). He found that the applicant’s case fell within the scope of the Asylum Directorate Instructions which provide that exceptional leave to remain in or enter the United Kingdom must be given: “... where there is credible medical evidence that return, due to the medical facilities in the country concerned, would reduce the applicant’s life expectancy and subject him to acute physical and mental suffering, in circumstances where the UK [United Kingdom] can be regarded as having assumed responsibility for his care. ...” 15. The Secretary of State appealed against the Article 3 finding, contending that all the Aids drugs available under the National Health Service in the United Kingdom could also be obtained locally, and most were also available at a reduced price through the United Nations’ funded projects and from bilateral Aids donor-funded programmes. The applicant’s return would not, therefore, be to a “complete absence of medical treatment”, and so would not subject her to “acute physical and mental suffering”. The Immigration Appeal Tribunal allowed the appeal on 29 November 2002. It found as follows: “Medical treatment is available in Uganda for the [applicant’s] condition even though the Tribunal accept that the level of medical provision in Uganda falls below that in the United Kingdom and will continue to lag behind the advance of continuing drug advances which inevitably first become available in highly developed countries. Nonetheless, extensive efforts are being made in Uganda to tackle the Aids situation – Aids-treating drugs are available, refined forms of drug are being supplied (albeit with time lags) and it would not be until the [applicant’s] specific and varying needs became known that her needs could be assessed and the then availability of appropriate treatment decided.” 16. Leave to appeal to the Court of Appeal was granted on 26 June 2003, and on 16 October 2003 the applicant’s appeal to the Court of Appeal was dismissed by a majority of two to one ([2003] EWCA Civ 1369). With reference to the case of D. v. the United Kingdom (cited above), Lord Justice Laws (with whom Lord Justice Dyson concurred) stated: “The contrast between the relative well-being accorded in a signatory State to a very sick person who, for a while, even a long while, is accommodated there, and the scarcities and hardships which (without any violation of international law) he would face if he were returned home, is to my mind – even if the contrast is very great – an extremely fragile basis upon which to erect a legal duty upon the State to confer or extend a right to remain in its territory, a duty unsupported by any decision or policy adopted by the democratic arm, executive or legislature, of the State’s government. The elaboration of immigration policy ... is a paradigm of the responsibility of elected government. One readily understands that such a responsibility may be qualified by a supervening legal obligation arising under the ECHR [the Convention] where the person in question claims to be protected from torture or other mistreatment in his home country in violation of the Article 3 standards, especially if it would be meted out to him at the hands of the State. But a claim to be protected from the harsh effects of a want of resources, albeit made harsher by its contrast with the facilities available in the host country, is to my mind something else altogether. ... I would hold that the application of Article 3 where the complaint in essence is of want of resources in the applicant’s home country (in contrast to what has been available in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised State. That does not, I acknowledge, amount to a sharp legal test ... an Article 3 case of this kind must be based on facts which are not only exceptional, but extreme; extreme, that is, judged in the context of cases all or many of which (like this one) demand one’s sympathy on pressing grounds ...” Lord Justice Carnwath, dissenting, was unable to say that the facts of the case were so clear that the only reasonable conclusion was that Article 3 did not apply. Given the stark contrast between the applicant’s position in the United Kingdom and the practical certainty of a dramatically reduced life expectancy if returned to Uganda with no effective family support, he would have remitted the case to the fact-finding body in the case, the Immigration Appeal Tribunal. 17. Leave to appeal to the House of Lords was granted, and on 5 May 2005 the House of Lords unanimously dismissed the applicant’s appeal ([2005] UKHL 31). Lord Nicholls of Birkenhead summarised the applicant’s prognosis as follows: “... In August 1998 [the applicant] developed a second Aids-defining illness, Kaposi’s sarcoma. The CD4 cell count of a normal healthy person is over 500. Hers was down to 10. As a result of modern drugs and skilled medical treatment over a lengthy period, including a prolonged course of systematic chemotherapy, the [applicant] is now much better. Her CD4 count has risen [from 10] to 414. Her condition is stable. Her doctors say that if she continues to have access to the drugs and medical facilities available in the United Kingdom she should remain well for ‘decades’. But without these drugs and facilities the prognosis is ‘appalling’: she will suffer ill health, discomfort, pain and death within a year or two. This is because the highly active antiretroviral medication she is currently receiving does not cure her disease. It does not restore her to her pre-disease state. The medication replicates the functions of her compromised immune system and protects her from the consequences of her immune deficiency while, and only while, she continues to receive it. The cruel reality is that if the [applicant] returns to Uganda her ability to obtain the necessary medication is problematic. So if she returns to Uganda and cannot obtain the medical assistance she needs to keep her illness under control, her position will be similar to having a life-support machine turned off.” Lord Hope of Craighead, with whom Lord Nicholls, Lord Brown of Eaton-under-Heywood and Lord Walker of Gestingthorpe agreed, referred in detail to the Court’s case-law (see paragraphs 32-41 below), and held as follows: “... that Strasbourg has adhered throughout to two basic principles. On the one hand, the fundamental nature of the Article 3 guarantees applies irrespective of the reprehensible conduct of the applicant. ... On the other hand, aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State. For an exception to be made where expulsion is resisted on medical grounds the circumstances must be exceptional ... The question on which the Court has to concentrate is whether the present state of the applicant’s health is such that, on humanitarian grounds, he ought not to be expelled unless it can [be] shown that the medical and social facilities that he so obviously needs are actually available to him in the receiving State. The only cases where this test has been found to be satisfied are D. v. the United Kingdom ... and B.B. v. France ... [T]he Strasbourg Court has been at pains in its decisions to avoid any further extension of the exceptional category of case which D. v. the United Kingdom represents. It may be that the Court has not really faced up to the consequences of developments in medical techniques since the cases of D. v. the United Kingdom and B.B. v. France were decided. The position today is that HIV infections can be controlled effectively and indefinitely by the administration of retroviral drugs. In almost all cases where this treatment is being delivered successfully it will be found that at present the patient is in good health. But in almost all these cases stopping the treatment will lead in a very short time to a revival of all the symptoms from which the patient was originally suffering and to an early death. The antiretroviral treatment can be likened to a life ‑ support machine. Although the effects of terminating the treatment are not so immediate, in the longer term they are just as fatal. It appears to be somewhat disingenuous for the Court to concentrate on the applicant’s state of health which, on a true analysis, is due entirely to the treatment whose continuation is so much at risk. But it cannot be said that the Court is unaware of the advances of medical science in this field. All the recent cases since S.C.C. v. Sweden have demonstrated this feature. The fact that the Court appears to have been unmoved by them is due, I think, to its adherence to the principle that aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State. The way this principle was referred to and then applied in Amegnigan v. the Netherlands ... is, in my opinion, highly significant. What the Court is in effect saying it that the fact that the treatment may be beyond the reach of the applicant in the receiving State is not to be treated as an exceptional circumstance. It might be different if it could be said that it was not available there at all and that the applicant was exposed to an inevitable risk due to its complete absence. But that is increasingly unlikely to be the case in view of the amount of medical aid that is now reaching countries in the Third World, especially those in sub-Saharan Africa. For the circumstances to be, as it was put in Amegnigan v. the Netherlands, ‘very exceptional’ it would need to be shown that the applicant’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying. ... So long as [the applicant] continues to take the treatment she will remain healthy and she will have several decades of good health to look forward to. Her present condition cannot be said to be critical. She is fit to travel, and will remain fit if and so long as she can obtain the treatment that she needs when she returns to Uganda. The evidence is that the treatment that she needs is available there, albeit at considerable cost. She also still has relatives there, although her position is that none of them would be willing and able to accommodate and take care of her. In my opinion her case falls into the same category as S.C.C. v. Sweden, Arcila Henao v. the Netherlands, Ndangoya v. Sweden and Amegnigan v. the Netherlands, where the Court has consistently held that the test of exceptional circumstances has not been satisfied. In my opinion the Court’s jurisprudence leads inevitably to the conclusion that her removal to Uganda would not violate the guarantees of Article 3 of the Convention. ...” Lord Hope concluded by observing: “[Any extension of the principles in D. v. the United Kingdom ] would have the effect of affording all those in the [applicant’s] condition a right of asylum in this country until such time as the standard of medical facilities available in their home countries for the treatment of HIV/Aids had reached that which is available in Europe. It would risk drawing into the United Kingdom large numbers of people already suffering from HIV in the hope that they too could remain here indefinitely so that they could take the benefit of the medical resources that are available in this country. This would result in a very great and no doubt unquantifiable commitment of resources which it is, to say the least, highly questionable the States Parties to the Convention would ever have agreed to. The better course, one might have thought, would be for States to continue to concentrate their efforts on the steps which are currently being taken, with the assistance of the drugs companies, to make the necessary medical care universally and freely available in the countries of the third world which are still suffering so much from the relentless scourge of HIV/Aids.” Baroness Hale of Richmond, agreeing that the appeal should be dismissed, reviewed the domestic and Convention authorities and phrased the test to be applied as follows: “... whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity. ... [The test] is not met on the facts of this case.” II. MEDICAL TREATMENT FOR HIV AND AIDS IN THE UNITED KINGDOM AND UGANDA 18. According to information obtained by the Court of its own motion, HIV is normally treated by antiretroviral drugs. In the United Kingdom, in common with most developed countries, these drugs are provided in combination, a practice known as “highly active antiretroviral therapy” (HAART). The proper administration of antiretroviral drugs depends on regular monitoring of the patient, including blood tests, and the availability of medical personnel to adjust at frequent intervals the level and type of drugs taken. Such treatment is generally available free of charge on the National Health Service. 19. In Uganda, attempts have been made to reduce the country’s dependency on imported medication, including producing generic drugs locally. However, in common with most sub-Saharan African countries, the availability of antiretroviral drugs is hampered by limited financial resources and by shortcomings in the health-care infrastructure required to administer them effectively. As a result, according to research carried out by the World Health Organisation (WHO), approximately only half of those needing antiretroviral therapy in Uganda receive it (WHO, “Progress on Global Access to HIV Antiretroviral Therapy”, March 2006, pp. 9, 11 and 72). The Joint United Nations Programme on HIV/Aids (UNAIDS) and WHO in their 2007 country situation analysis on Uganda also cited major barriers to HIV prevention, treatment, care and support as including limited public investment, limited service coverage and lack of a policy framework. There are also significant disparities in the provision of drugs between urban and rural areas (WHO, “Summary Country Profile for HIV/Aids Treatment Scale-Up: Uganda”, December 2005). In addition, progress in providing medical care has been offset by the ever-increasing number of people requiring treatment (UNAIDS/WHO, “Aids Epidemic Update”, 2006, p. 18) and given the rapid population growth in Uganda, its stable HIV incidence rate means that an increasing number of people acquire HIV each year (UNAIDS/WHO, “Aids Epidemic Update”, December 2007, p. 17). | The applicant, a Ugandan national, was admitted to hospital days after she arrived in the UK as she was seriously ill and suffering from AIDS-related illnesses. Her application for asylum was unsuccessful. She claimed that she would be subjected to inhuman or degrading treatment if made to return to Uganda because she would not be able to get the necessary medical treatment there. |
60 | Adoption | I. THE CIRCUMSTANCES OF THE CASE 8. The applicants were born in 1961 and 1965 respectively and live in Clamart. 9. Ms Valérie Gas (“the first applicant”) has cohabited since 1989 with Ms Nathalie Dubois (“the second applicant”). The latter gave birth in France on 21 September 2000 to a daughter, A., conceived in Belgium via anonymous donor insemination. A. does not have an established legal tie to her father, who acted as an anonymous donor in accordance with Belgian law. The child has lived all her life in the applicants’ shared home. On 22 September 2000 her name was entered in the register of births, deaths and marriages held at Clamart town hall. She was formally recognised by her mother on 9 October 2000. 10. The two applicants subsequently entered into a civil partnership agreement which was registered on 15 April 2002 with the registry of the Vanves District Court. 11. On 3 March 2006 the first applicant applied to the Nanterre tribunal de grande instance for a simple-adoption order in respect of her partner’s daughter, after her partner had given her express consent before a notary. 12. On 12 April 2006 the public prosecutor lodged an objection against the first applicant’s application, on the basis of Article 365 of the Civil Code (see paragraph 19 below). 13. In a judgment of 4 July 2006, the tribunal de grande instance observed that the statutory conditions for adoption were met and that it had been demonstrated that the applicants were actively and jointly involved in the child’s upbringing, providing her with care and affection. However, the court rejected the application on the grounds that the requested adoption would have legal implications running counter to the applicants’ intentions and the child’s interests, by transferring parental responsibility to the adoptive parent and thus depriving the birth mother of her own rights in relation to the child. 14. The first applicant appealed against that decision and the second applicant intervened in the proceedings on her own initiative. Before the Versailles Court of Appeal the applicants reaffirmed their wish, by means of the adoption, to provide a stable legal framework for the child which reflected her social reality. They argued that the loss of parental responsibility on the part of the child’s mother could be remedied by means of a complete or partial delegation of parental responsibility, and submitted that other European countries permitted adoptions which created legal ties with a same-sex partner. 15. In a judgment of 21 December 2006, the Court of Appeal upheld the refusal of the application. Like the first-instance court, the Court of Appeal noted that the statutory conditions for the adoption had been met and that it had been established that the first applicant was active in ensuring the child’s emotional and material well-being. It nevertheless upheld the finding that the legal consequences of such adoption would not be in the child’s interests, since the applicants would be unable to share parental responsibility as permitted by Article 365 of the Civil Code in the event of adoption by the spouse of the child’s mother or father, and the adoption would therefore deprive Ms Dubois of all rights in relation to her child. The court further considered that simply delegating the exercise of parental responsibility at a later date would not suffice to eliminate the risks to the child resulting from her mother’s loss of parental responsibility. Accordingly, in the court’s view, the application merely accorded with the applicants’ wish to have their joint parenting of the child recognised and legitimised. 16. On 21 February 2007 the applicants lodged an appeal on points of law, but did not pursue the proceedings before the Court of Cassation to their conclusion. On 20 September 2007 the President of the Court of Cassation issued an order declaring the right to appeal on points of law to be forfeit. III. COUNCIL OF EUROPE TEXTS AND MATERIALS A. European Convention on the Adoption of Children (revised) 32. This Convention was opened for signature on 27 November 2008 and came into force on 1 September 2011. It has not been signed or ratified by France. Its relevant provisions read as follows. Article 7 Conditions for adoption “1. The law shall permit a child to be adopted: (a) by two persons of different sex (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. ...” Article 11 Effects of an adoption “1. Upon adoption a child shall become a full member of the family of the adopter(s) and shall have in regard to the adopter(s) and his, her or their family the same rights and obligations as a child of the adopter(s) whose parentage is legally established. The adopter(s) shall have parental responsibility for the child. The adoption shall terminate the legal relationship between the child and his or her father, mother and family of origin. 2. Nevertheless, the spouse or partner, whether registered or not, of the adopter shall retain his or her rights and obligations in respect of the adopted child if the latter is his or her child, unless the law otherwise provides. ... 4. States Parties may make provision for other forms of adoption having more limited effects than those stated in the preceding paragraphs of this Article.” B. Committee of Ministers’ Recommendation 33. Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010, recommends, inter alia, to member States: “... 24. Where national legislation recognises registered same-sex partnerships, member states should seek to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation. 25. Where national legislation does not recognise nor confer rights or obligations on registered same-sex partnerships and unmarried couples, member States are invited to consider the possibility of providing, without discrimination of any kind, including against different-sex couples, same-sex couples with legal or other means to address the practical problems related to the social reality in which they live.” | This case concerned two cohabiting women, one of whom had been refused a simple adoption order in respect of the other’s child. |
555 | Way of life, forced evictions and alternative accommodation | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1955 and lives in or about Lancashire. 9. The applicant and his family are gypsies. They led a traditional travelling lifestyle until they suffered so much from being moved on with ever increasing frequency and harassment that they settled on the gypsy site run by the local authority at Cottingley Springs. They lived there permanently for about thirteen years, until February 1997 when they moved off. They stated that they moved off the site at that time due to the anti-social behaviour of others living on the site and others who came onto the site, e.g. vehicles being driven round the site at night, violence and disturbances such that they could not sleep at night or the children play safely during the day. They moved into a rented house but were unable to adapt to these conditions. They gave up their tenancy when offered two plots for the family at Cottingley Springs. 10. The applicant returned to the site with his family in October 1998. 11. By a licence agreement dated 22 October 1998, Leeds City Council (“the Council”) granted the applicant and his wife a contractual licence to occupy plot no. 35 at Cottingley Springs caravan site in Leeds. The licence in Clause 12 required the applicant as occupier to comply with the Site Regulations, while Clause 18 stated: “No nuisance is to be caused by the occupier, his guests, nor any member of his family to any other person, including employees of the Council, the occupiers of any other plots on the Site, or occupiers of any land or buildings in the vicinity of the Site.” 12. On 29 March 1999, the applicant’s adult daughter Margaret Connors was granted a licence to occupy the adjacent plot, Plot 36, where she lived with Michael Maloney who later became her husband. She also cared for the applicant’s mother-in-law, Margaret Kelby, until she went into a residential nursing home in the area. The applicant’s adult sons, James Junior and Joseph, did not reside with the applicant but were frequent visitors both to his plot and their sister next door. 13. During 1999, the applicant and his family were in dispute with the Council due to its alleged failure to undertake repairs on Plot 36 (there was no electricity supply or other facilities for some time), their objection to paying electricity charges which they considered to be overcharging and concerning the Council’s refusal to accept payment by instalment for the site deposit. Their complaints were referred to the Local Authority Ombudsman to investigate. 14. The Government stated that the applicant’s children (including his adult sons James Junior and Joseph) and Michael Maloney misbehaved and caused considerable nuisance at the site. The Council’s Travellers Services Manager, based at the site, was aware of many incidents of nuisance caused by the applicant’s children and visitors. The Manager visited the applicant and Margaret Connors on a number of occasions to report the misbehaviour and nuisance. On 16 December 1998, the Council gave the applicant written warning that further incidents of anti-social behaviour by his children could jeopardise his occupation of the plot. Nevertheless, both the applicant’s children and his visitor Michael Maloney continued to cause nuisance at the caravan site. 15. In January 2000, when it became known that Margaret Connors was going to marry Michael Maloney, the applicant alleged that the Council manager of the site stated, “The minute you marry Michael Maloney you’ll be out that gate”. Michael Maloney was a member of a family against whom proceedings had previously been brought for eviction from the site on allegations that they were “a magnet for trouble”. In February 1997, the Maloney family had moved from the site. They remained in the Leeds area until the summer of 1999 when they went to Nottingham. 16. On 31 January 2000, notice to quit was served on the family requiring them to vacate both plots. No written or detailed reasons were given by the Council, though the issue of “magnet for troublemakers” had been raised. 17. On 12 February 2000, Margaret Connors married Michael Maloney and they continued to live on Plot 36. 18. On 20 March 2000, the Council issued two sets of proceedings for summary possession pursuant to Order 24 of the County Court Rules, one concerning the applicant and his wife and family on Plot 35 and the other against Margaret Connors and “persons unknown” on Plot 36. On 24 March 2000, the applicant was served with various documents. The grounds for possession stated that the defendants were in occupation without licence or consent. In the witness statement dated 17 March 2000, the site manager referred to Clause 18 of the licence agreement and asserted that the defendants had breached the licence agreement and that he had given them notice to quit. No particulars of breach were given. He also asserted that the necessary investigation into the needs of the defendants had been made in accordance with the guidelines set out in the Department of the Environment Circular 18/94. 19. The applicant disputed that they were in breach of Clause 18, that any possible alternative approaches had been taken to any problems and also that any appropriate enquiries had been made into their welfare. 20. At this stage, the applicant’s family consisted of his children Charles aged 14, Michael aged 13, Daniel aged 10 and Thomas aged 4 months. Thomas had been suffering from serious illness, with kidney problems and rashes of unknown origin, while the applicant’s wife, who was asthmatic, had suffered several attacks requiring visits to hospital. The applicant himself had been having chest pains and was awaiting a hospital appointment. Daniel had settled well into full-time education at the nearby primary school, and the others were receiving assistance, including teaching at home. 21. The Council served further witness statements containing particulars of the allegations of nuisance. These were disputed by the applicant. They related largely to Margaret and Michael Maloney on Plot 36. 22. On 14 April 2000, the summary possession proceedings were adjourned pending the determination of the applicant’s application for permission to apply for judicial review of the Council’s decision to determine the licence of his plot which had been lodged on 10 April 2000. During the hearing, Margaret and Michael Maloney indicated an intention to leave the site. As the bulk of the complaints were against them, the applicant stated that the Council were requested to review its decision to terminate the licence of the applicant and his family. 23. On 12 May 2000, the High Court refused permission to apply for judicial review. The judge noted that the applicant’s counsel accepted that the necessary investigations had been carried out by the Council and rejected as unarguable the contention, as regarded procedural fairness, that the applicant had not been given prior warning of the threat of eviction. 24. On 16 May 2000, the applicant applied to the Director General of Fair Trading for a ruling that the terms of the licence agreement were unfair, in particular that Clause 18 was unfair in holding him responsible for the actions of visitors whom he could not reasonably be expected to control. 25. The Council took the decision to proceed with the eviction. It dropped the allegations of breach of licence and asserted a right to summary possession on the basis that the family were trespassers as permission to occupy the land had been withdrawn. On 19 June 2000, the County Court granted a possession order. The Council undertook not to execute a warrant for possession until 14 July 2000 on condition that the applicant and his family were of good behaviour and kept the peace. 26. Further representations were made by the applicant to the Council without success. 27. On 13 July 2000, as the applicant had not given up possession, the Council obtained a warrant for possession of the plot. The Government stated that the applicant and his family barricaded themselves in the plot and refused to leave when the County Court bailiffs attended to execute the warrant. The Council applied to the High Court for enforcement of the order for possession. On 24 July 2000, the High Court ordered the Sheriff to execute the warrant for possession. The Sheriff’s officer, the bailiffs and the West Yorkshire police carried out a planning and risk assessment. The Sheriff’s officer attended the site and requested the applicant to vacate the plot. He refused. 28. On 1 August 2000, early in the morning, the Council commenced enforcement of the eviction, in an operation involving Council officers, the Sheriff’s officers and numerous police officers. The applicant stated that also police helicopter, police dogs, control centre, numerous police vehicles and detention vans were employed. The operation lasted five hours. 29. The Government stated that the police arrested the applicant and his son Daniel for obstruction under section 10 of the Criminal Law Act 1977. The applicant stated that he was attempting to carry out items of property to a trailer when he was stopped by bailiffs and arrested. He was handcuffed and held in a police van for an hour and subsequently at the police station, though he was complaining of chest pains. At about midday, he was taken to hospital for emergency admission. 30. According to the applicant, his thirteen-year-old son Michael was also seized and held in a van by the police for five hours during the eviction. The applicant’s wife was left to cope alone, the baby Thomas being ill. 31. The family’s two caravans were removed (they owned one and the other was rented). The applicant stated that it was not until late afternoon that their own caravan was returned to them. However many of their possessions were still held by the Council, including medicine needed for Thomas. During 3 August 2000, the Council returned their possessions, including a washing machine, drier, microwave, gas bottles, kettle and clothing. This was dumped on the roadside some distance away from the applicant’s caravan. The Government stated that on 1 August 2000 the Council removed from the plot to safe storage goods and personal property that the applicant and his family had failed to take with them. At the request of the applicant, the Council returned these goods and personal property to the family who had meanwhile taken up occupation on land nearby at Cottingley Drive owned by the Council, where the presence of gypsies was sometimes tolerated for short periods. As they claimed it was not possible to get into the field to deliver the goods directly, the Council unloaded the goods at the edge of the field, informed the applicant and kept watch until they were collected. 32. A group of gypsies was at that time on the land at Cottingley Drive for the purpose of attending a wedding. This group did not however leave by 1 August as previously agreed, staying on to attend the funeral of a baby who had died on 31 July 2000. The Council prepared eviction proceedings and included the applicants as “persons unknown”. The applicant alleges that no assistance or advice was given to them as to where they could go, save for an offer of accommodation at Bridlington (on the east coast) which failed to take into account the local community ties of the family who had lived on Cottingley Springs site for most of 13 years and in the Leeds area for some 20 to 30 years. 33. An application for adjournment of the possession proceedings was rejected by the County Court on 14 August 2000. The applicant and his family moved from the land and travelled around the Leeds area stopping for a few days at a time. 34. The Government stated that the applicant and his family had returned to the caravan site three times since as trespassers. The Council applied for an injunction to ban the applicant and his family from entering the site. The outcome of these proceedings is not known. 35. The applicant stated that following the eviction he and his family were required to move on repeatedly. Partly at least due to the stress and uncertainty, the applicant’s wife chose to move into a house with the younger children and they were separated in May 2001. Daniel lived for a while with the applicant. Following the eviction, he did not return to school. The applicant stated that he continued to travel in his caravan, with his son Michael and occasionally Daniel, but that they were unable generally to remain in any place for more that two weeks. He continued to have chest pains for which he received medication and tests. As he had no permanent address, he used his wife’s address for postal purposes, including medical appointments. ii. Site availability. There must be a substantial availability of sites for gypsies. Stanley Burnton J referred to the problem of ‘balance’ in general terms in Isaacs in paragraph 33: [cited above]. The submission is thus that there is no good clogging up all the caravan sites with those who do not move, and effectively removing them from the stock of available sites, by giving security of tenure. | This case concerned the eviction of the applicant and his family from the local authority’s gypsy site at Cottingley Springs in Leeds (England), where they had lived permanently for about 13 years, on the ground that they had misbehaved and caused considerable nuisance at the site. |
775 | Deportation of seriously ill persons | 10. The applicant was born in 1985 and now resides in the village of Kütükușağı in Turkey. 11. In 1991, when he was six years old, the applicant entered Denmark together with his mother and four siblings to join his father. The latter died in 2000. 12. On 9 January 2001, by a judgment of the City Court of Copenhagen ( Københavns Byret, hereinafter “the City Court”), the applicant was convicted of robbery and sentenced to imprisonment for one year and three months, nine months of which were suspended, and placed on probation for two years. Criminal proceedings 13. On 29 May 2006 the applicant, as part of a group of several persons, attacked a man; several kicks or blows with cudgels or other blunt objects were administered to the latter’s head and body, thereby inflicting serious traumatic brain injury that caused his death. It appears that the applicant was caught by the police on the spot, whereas all the others involved in the incident managed to escape. First round of proceedings 14. In connection with the above-mentioned incident, criminal proceedings were brought against the applicant, who was charged with assault with highly aggravating circumstances. Evidence examined by the courts (a) Reports of the Immigration Service 15. In the context of those proceedings, on 17 September 2007 the Immigration Service ( Udlændingeservice ) issued a report on the applicant. It stated, in particular, that on 1 February 1991 the applicant had been granted residence, with a possibility of permanent residence under the Aliens Act, by reference to his father living in Denmark. On or before 11 May 2004 his residence permit had been made permanent. The report also stated that the applicant had been lawfully resident in Denmark for approximately fourteen years and eight months; that his mother and four siblings lived in Denmark; and that he had been to Turkey between five and ten times for periods of two months to visit his family. However, he had not been to Turkey since 2000. The report referred to the applicant’s statements to the effect that he had no contact with persons living in Turkey, did not speak Turkish and only spoke a little Kurdish. Also, he had stated that he heard voices and suffered from a thought disorder and that he was being administered sedatives. In view of the information given by the prosecution on the nature of the crime in conjunction with the considerations mentioned in section 26(1) of the Aliens Act ( udlændingeloven; see paragraph 76 below), the Immigration Service endorsed the prosecution’s recommendation of expulsion. 16. In a supplementary report of 2 April 2008 the Immigration Service reaffirmed its recommendation of expulsion. (b) Medical opinions 17. A report on the examination of the applicant’s mental status dated 13 March 2008 which the Ministry of Justice ( Justitsministeriet ) obtained from the Department of Forensic Psychiatry ( Retspsykiatrisk Klinik ) concluded, in particular, that it was highly likely that the applicant had a slight mental impairment, but he was not found to be suffering from a mental disorder and could not be assumed to have been suffering from a mental disorder at the time when the crime had been committed. 18. The report furthermore stated that the applicant’s childhood and adolescence had been significantly lacking in stimulation and characterised by non-existent parental care and poor social conditions, and that he and his siblings had been forcibly removed from home and placed in foster care. According to the report, from his early childhood the applicant had displayed behavioural disturbance and a lack of social adaptation, and he had been attracted to criminal environments since his teens. Since that time, he had also smoked a lot of cannabis, which might have hampered his personality and intellectual development. Over the years, he had been placed in various socio-educational institutions but they had had difficulties accommodating his needs owing to his externalising behaviour, and the socio-educational support and therapy had not changed his condition and behaviour. 19. The report also mentioned that, in the context of his medical assessment, the applicant had insisted that he had experienced both visual and auditory hallucinations, but no objective findings of hallucinations had been made. He had made similar claims in the course of previous medical assessments but those complaints had apparently ceased when the applicant had no longer found it relevant to make them. The report added that the applicant’s description of those symptoms did not correspond to the usual description of hallucinations, and it was thus found that his description had to be classified as simulation. The report stressed that the applicant needed long-term regular and well-structured therapy, and recommended that he should be committed to a secure unit of a residential institution for the severely mentally impaired. 20. In an opinion of 16 April 2008, the Medico-Legal Council ( Retslægerådet ) stated, among other things, that the applicant had had a disadvantaged childhood and adolescence, had presented a pronounced behavioural disturbance and had later become involved in criminal activities. It also stated that the applicant had a mental impairment, but otherwise showed no signs of organic brain injury; that he smoked a lot of cannabis; that he had previously been in contact with the mental health system several times, but no definite diagnosis of psychotic disorder had been made despite complaints of psychotic symptoms. In its assessment, the Medico-Legal Council found that the applicant’s complaints of auditory hallucination could be characterised as simulation. He was also found to be mentally impaired with a mild to moderate level of functional disability and to be suffering from personality disorder characterised by immaturity, lack of empathy, emotional instability and impulsivity. He had a strong need for clear boundaries to give him structure and support. Court decisions 21. On 9 October 2007, the High Court of Eastern Denmark ( Østre Landsret, hereinafter “the High Court”) convicted the applicant of assault with highly aggravating circumstances under Articles 246 and 245(1) of the Penal Code ( straffeloven ) (see paragraph 75 below) and sentenced him to seven years’ imprisonment and expulsion from Denmark with a permanent ban on re-entry. 22. On appeal, on 22 May 2008 the Supreme Court ( Højesteret ) quashed the judgment and returned the case to the High Court for a fresh examination. With reference to the available medical evidence (see paragraphs 17-20 above), the court stated, in particular, that it had doubts that the sentence of imprisonment had been justified in the circumstances of the present case. Second round of proceedings 23. Following the remittal of the case, the High Court examined the criminal case against the applicant anew. Additional evidence examined by the courts 24. In a report of 18 June 2009 a psychiatric specialist pointed out that the applicant suffered from a condition of mental bewilderment which, by that time, had been obvious for more than four weeks; and that his recent development raised doubts as to whether he most likely suffered from a permanent mental disorder, or whether, owing to his intelligence level combined with his deviating distinctive personality traits, he was suffering from a permanent condition comparable to mental impairment. 25. On 14 July 2009 the Medico-Legal Council stated, with reference, in particular, to the report of 18 June 2009, that the applicant suffered from a more permanent mental disorder and that he had probably also been suffering from a similar mental condition at the time when the crime with which he had been charged had been committed. The report further reiterated the finding of the report of 16 April 2008 (see paragraph 20 above), and stated that subsequent observations made at a residential institution for the severely mentally impaired – where the applicant had been placed – had revealed his ongoing threatening and physically aggressive behaviour. For a long period, the applicant had been considered to have been obviously mentally ill and to be suffering from paranoid delusions and formal thought disorder. The report pointed out that those were symptoms most likely linked to schizophrenia; if that was the case, it was very likely that the applicant had been suffering from a mental disorder at the time when the crime with which he had been charged had been committed. The Medico-Legal Council recommended in its report that, if found guilty as charged, the applicant should be committed to forensic psychiatric care. Court decisions 26. By a judgment of 17 October 2008 the High Court found that the applicant had violated Articles 245(1) and 246 of the Penal Code but was exempt from punishment by virtue of Articles 16(2) and 68 thereof (see paragraph 75 below). In that connection it referred to the reports of 13 March and 16 April 2008 (see paragraphs 17-20 above). It thus sentenced him to committal to the secure unit of a residential institution for the severely mentally impaired for an indefinite period. The court also ordered the applicant’s expulsion from Denmark with a permanent ban on his re-entry. 27. In respect of the expulsion order, the High Court referred to the reports of the Immigration Service dated 17 September 2007 and 2 April 2008 (see paragraphs 15-16 above) and emphasised that the applicant had moved to Denmark at the age of six when granted family reunification with his father, who lived in Denmark; that he had been lawfully resident in Denmark for about fourteen years and eight months; that he was not married and did not have any children; and that his entire family, comprising his mother and four siblings, lived in Denmark, the only exception being his maternal aunt, who lived in Turkey. It was also emphasised that he had attended elementary school in Denmark for seven years and had been attached to the Danish labour market for about five years, but that at the moment he received a disability pension; that he had been to Turkey between five and ten times for periods of two months to visit his family, but not since 2000, and that he did not speak Turkish, but only spoke a little Kurdish. On the other hand, it was emphasised that the applicant had been found guilty of a very serious offence against the person of another, which was a serious threat to the fundamental values of society. Against that background the High Court found, on the basis of an overall assessment, that expulsion would not be conclusively inappropriate under the relevant domestic law then in force, or in breach of Article 8 of the Convention. 28. The applicant appealed against the judgment to the Supreme Court. 29. In the meantime, on 11 March 2008, a supplementary interview was conducted with the applicant during which he stated, inter alia, that he had last visited Turkey in 2001, that he was fluent in Kurdish, and that his family in the village of Koduchar lived in a house owned by his mother. 30. By a judgment of 10 August 2009, the Supreme Court changed the applicant’s sanction and sentenced him to committal to forensic psychiatric care, upholding the expulsion order. It took into account the medical reports of 18 June and 14 July 2009 (see paragraphs 24-25 above), and the applicant’s statements made during his supplementary interview (see the previous paragraph). The Supreme Court stated as follows: “[The applicant], who is now 24 years old, moved to Denmark from Turkey at the age of six. He has attended school in Denmark, and his close family members comprising his mother and his four siblings live in Denmark. He is not married and has no children. He receives disability pension and is not otherwise integrated into Danish society. He speaks Kurdish, and during his childhood and adolescence in Denmark he went to Turkey between five and ten times for periods of two months to visit his family. He last visited Turkey in 2001, where his mother owns a property. Having regard to the nature and gravity of the offence, we find no circumstances making expulsion conclusively inappropriate – see section 26(2) of the Aliens Act – nor do we find expulsion to be contrary to Article 8 of the Convention.” 31. The decision on expulsion was made by a majority of five judges out of six. The dissenting judge stated as follows: “[The applicant] came to Denmark at the age of six. Accordingly, he spent most of his childhood and adolescence and went to school in Denmark, which is also where his closest family (his mother and his four siblings) live. He visited Turkey several times until the death of his father, but he has not visited the country since 2001. He does not have any contact with relatives or other persons living in Turkey. He speaks Kurdish, but not Turkish. Accordingly, I find that [the applicant’s] ties with Denmark are so strong and his ties with Turkey so modest that they constitute circumstances making expulsion conclusively inappropriate – see section 26(2) of the Aliens Act – despite the gravity of the offence. For this reason, I vote in favour of dismissing the claim for expulsion.” Revocation proceedings under section 50a of the Aliens Act 32. On 3 January 2012 R.B., the applicant’s guardian ad litem, requested that the prosecution review his sentence, and on 1 December 2013 the prosecution brought the applicant’s case before the City Court in pursuance of Article 72(2) of the Penal Code (see paragraph 75 below), requesting that the sanction be changed from a sentence of forensic psychiatric care to treatment in a psychiatric department. Under section 50a of the Aliens Act (see paragraph 76 below), the prosecution also petitioned the court to decide simultaneously whether the order to expel the applicant was to be upheld. For its part, the prosecution argued that the expulsion order should be upheld. Medical opinions 33. In that connection, on various dates medical statements were obtained from three psychiatrists (K.A., M.H.M. and P.L) who, at various times, had been responsible for the applicant’s treatment at the Mental Health Centre of the Hospital of Saint John. K.A.’s statement 34. On 5 April 2013 K.A. observed in a written statement, among other things, that the applicant had been in psychiatric care since 2008 owing to the diagnoses of paranoid schizophrenia, mild intellectual disability and cannabis dependence. However, it had been discovered during the relevant period that his intellectual capacity level was higher, for which reason he had not met the criteria for the diagnosis of mental impairment, and that diagnosis had been rejected. The initial three to four years of the relevant period had been characterised by continuous cannabis abuse, incidental abuse of hard drugs and numerous instances of absconding, but the applicant had made progress in recent years. He had quit his abuse of hard drugs, with the result that there had been a considerable reduction in his externalising behaviour; no instances of absconding had been recorded since autumn 2012. During the past two months the applicant had not abused any cannabis, and he was making targeted efforts to stay clean in the open psychiatric unit. He had previously been complicit in smuggling cannabis to fellow patients, which had been his “old” way of living, but he had managed to resist doing so in the past six months. The applicant was prepared to cooperate, and he had agreed without any problems to undergo antipsychotic therapy. It was therefore recommended that the current sanction be modified from a sentence of forensic psychiatric care to treatment in a psychiatric department under supervision by both the Prison and Probation Service and the department following his discharge so that, in consultation with the consultant psychiatrist, the Prison and Probation Service could make a decision on readmission under Article 72(1) of the Penal Code. M.H.M.’s statement 35. A letter from M.H.M. dated 18 July 2013 stated, in particular, that on 5 February 2013, the applicant had been transferred to an open ward (R3) for substance abuse treatment. Around March he had claimed to have progressive symptoms, and his doses of antipsychotics had been increased, having been lowered some months before. Since the patient’s anger had been found to be increasing despite the increase in doses, it had been decided to transfer him to a closed ward on 5 April 2013; however, he had left the area and an alert had had to be circulated, but he had quickly returned again by himself. The applicant had absconded again briefly on 18 April 2013, but had returned and had not appeared to be under the influence of drugs. On 21 April 2013, the applicant had threatened a carer, whom he had then beaten in the head without any warning. The following day he had had to be immobilised with belts because of new threats. On 5 May 2013, he had attacked and beaten a carer without any warning, and he had been found in a severely psychotic state. Immobilisation with belts had been applied until 12 May 2013, and during that period his state had been severely fluctuating, being at times severely psychotic and aggressively threatening. He had willingly accepted a change in medication to Leponex tablets with the simultaneous scaling down of treatment with Cisordinol (antipsychotics). His condition had quickly improved, and he now appeared to have returned to his usual condition, being friendly, cooperative and motivated to continue therapy. The applicant’s drug abuse was very limited and he only used cannabis, although he was unable to refrain from continuing to use that substance. 36. In his written statement M.H.M. further pointed out that the applicant was highly motivated to undergo psychiatric treatment, including treatment with psychoactive drugs. However, the applicant had expressed strong doubts as to whether he would be able to continue this treatment to an adequate extent if he was deported from Denmark and was offered treatment that did not comprise a fairly intensive psychiatric element. The applicant clearly feared that he would not have the resources to continue the necessary psychiatric therapy, including pharmacotherapy, if deported from Denmark. In this connection, there was deemed to be a high risk of pharmaceutical failure and resumed abuse, and consequently a worsening of his psychotic symptoms and a risk of aggressive behaviour. His current medication in the form of Leponex tablets was an antipsychotic that had to be administered on a daily basis. It was the overall assessment that a potential interruption of the treatment would give rise to a significantly higher risk of offences against the person of others due to a worsening of his psychotic symptoms. 37. In his letter M.H.M. stated lastly that the medication currently being administered to the applicant included 50 mg of Risperdal Consta (risperidone) every 2 weeks (prolonged-release antipsychotic suspension for injection), and 250 mg tablets of Leponex daily (antipsychotic medication with clozapine as the active pharmaceutical ingredient). P.L.’s statements 38. In a written statement of 13 January 2014, P.L., who had been responsible for the treatment of the applicant since mid-July 2013, pointed out, in particular, that the applicant was still in a closed ward and that, for the past six months, his condition had been stable; he had abstained for long periods from smoking cannabis. Consequently, the applicant had been allowed leave to an increasing extent in accordance with the rights granted by the relevant regulations. On one occasion in autumn 2013, the applicant had absconded while on leave; on all other occasions of leave he had observed the agreement made. 39. The applicant was cooperative and did not appear productively psychotic in any way. He was generally forthcoming, but as previously, his behaviour continued to be characterised by some impulsivity and immaturity. The applicant had relapsed into smoking cannabis although he understood the importance of abstaining from such abuse. He had made a great effort not to engage in substance abuse; he was still aware that he had to take care not to allow such abuse to develop out of control. 40. The applicant had indicated to P.L. on numerous occasions that he sincerely regretted having committed the crime for which he had been sentenced. The applicant also said that he was doing well with the current antipsychotic treatment regime, which he was completely prepared to continue when he was ready for discharge at some point. 41. The letter further stated that the applicant had responded well to the combination therapy with Risperdal and Leponex. He denied having any psychotic symptoms such as delusions and hallucinations. Except for one single incident in which the applicant had been seriously provoked by a fellow patient and had kicked that person, he had not exhibited any externalising behaviour for the past six months. 42. On the basis of the course of the applicant’s treatment, P.L. supported the recommendation of a variation of the sanction from a sentence of forensic psychiatric care to a sentence of forced psychiatric treatment. The health professional went on to note that the applicant’s prospect of recovery was good if, when released, he could be reintegrated into society by being offered a suitable home and intensive outpatient therapy in the following years. The applicant was aware of his disease and clearly acknowledged his need for therapy. On the other hand, the applicant’s prospect of recovery was bad if he were to be discharged without follow-up and supervision. P.L. agreed with M.H.M. (see paragraph 36 above) that the potential interruption of the treatment gave rise to a significantly higher risk of offences against the person of others because of the worsening of the applicant’s psychotic symptoms. 43. When heard by the City Court on 7 October 2014, P.L. stated that, during the period that had elapsed since his medical statement of 13 January 2014, the applicant had been doing well in the safe environment at the department. The applicant had kept to the agreements made, and he had been able to have a job. In P.L.’s assessment, the applicant would lose focus if he did not have a solid framework. The applicant’s personal history showed this. The applicant had demonstrated violent behaviour for a long time, including at school and while in forensic psychiatric care. The violent behaviour had diminished as a result of the treatment. 44. P.L. added that the medical treatment of the applicant was an expert task. He was being given complex treatment, and the treatment plan had to be carefully followed, including the taking of blood samples for somatic reasons on a weekly or monthly basis. The applicant needed to receive his medicine in order to avoid serious relapses. It was a condition for making a recommendation to amend the sanction that the applicant should be taken care of through a range of treatment initiatives, in addition to the correct administration of medicines and the necessary arrangements for blood sampling. Some of the other treatment initiatives consisted of a regular contact person for supervision of the applicant, a follow-up scheme to make sure that the applicant paid attention to the medical treatment administered, assistance from a social worker to deal with any dependence and other problems and assistance for making sure that he was in the right environment and was offered an occupation. These elements of his treatment were essential to prevent relapses. These initiatives were designed as an element of his treatment in Denmark. In P.L.’s assessment, the same offers of treatment would not be available to the applicant in Turkey. If he relapsed, this could have serious consequences for himself and his environment. 45. P.L. believed that the applicant could become very dangerous if he relapsed, which was likely to happen if he was not given the right medication and support, such as that which he was currently receiving. According to P.L., there were highly skilled psychiatrists in cities in Turkey, but probably not in the small village in which the applicant was likely to settle, with the result that the applicant would not be taken care of in the same way as in Denmark. Opinions of the Immigration Service 46. On 8 October 2013 the Immigration Service issued an opinion on the issue of the applicant’s expulsion under section 50a of the Aliens Act. It stated, in particular: “Against this background, the Copenhagen Police ( Københavns Politi ) has requested an opinion on the treatment options in Turkey, and for the purpose of this case, we have been informed that the following medicinal products are currently being administered to [the applicant]: Risperdal Consta, which contains the active pharmaceutical ingredient risperidone, and Clozapine, which contains the active pharmaceutical ingredient clozapine. According to data from MedCOI [Medical Community of Interest], a database financed by the European Commission to provide information on the availability of medical treatment, the medicinal products Risperdal [risperidone] and Clozapine are available in Turkey, but their prices are not given. As regards the treatment options in Turkey, it also appears from data from MedCOI that all primary healthcare services are free and are provided by general practitioners, but that patients have to pay themselves if they are tested at a hospital laboratory in connection with primary healthcare services and in connection with prescriptions. ... ... According to data from MedCOI, in 2010 in Turkey there were 2.20 psychiatrists per 100,000 inhabitants and 1.85 psychologists per 100,000 inhabitants, and this is the lowest rate among the countries in the European part of the World Health Organisation ...” 47. On 4 July 2014 the Immigration Service issued a supplementary opinion which had been requested by the Copenhagen Police. The Immigration Service relied on a consultation response of 4 July 2014 from the Danish Ministry of Foreign Affairs, in which the latter had replied to the questions of the Immigration Service regarding treatment options in Konya, Turkey. 48. The opinion stated, in particular: “... It appears from the medical statement of 13 January 2014 that [the applicant’s] recovery prospects are good if, when released, he can be reintegrated into society by being offered a suitable home and intensive outpatient therapy in the following years. On the other hand, his recovery prospects are bad if he is discharged without follow ‑ up and supervision. [The applicant] has pointed out that he has no social network in the village in Turkey in which he was born and lived with his family for the first years of his life, that he will be far away from psychiatric assistance in that village, and that he only understands a little Turkish because he is Kurdish-speaking. Opinion ... By letter of 1 May 2014, which relates to the return of a Turkish national, the Immigration Service asked the Ministry of Foreign Affairs for assistance in obtaining information on treatment options in Konya, Turkey. The patient has been diagnosed with ‘ paranoid schizophrenia, sentenced to psychiatric placement, cannabis dependence syndrome, abstinent, overweight without specification’ and receives Risperdal Consta injections and Clozapine tablets. The Immigration Service asked for a reply to the following questions. The Ministry of Foreign Affairs has obtained information from the SGK, the social security institution in Turkey, and a physician at a rehabilitation clinic in Konya under the auspices of the public hospital named ‘ Konya Egitim ve Arastirma Hastanesi ’. The public hospital in Konya named ‘ Numune Hastanesi ’ has also been contacted and asked [the following] questions: (1) Is it possible for the patient to receive intensive care in a psychiatric hospital matching the needs of a person with the stated diagnosis in the province of Konya? Mentally ill patients are generally eligible for treatment at public hospitals and from private healthcare providers who have concluded an agreement with the Turkish Ministry of Health on an equal footing with other patients who apply to treatment facilities with a non-mental disease. Turkish nationals living in Turkey who are not covered by health insurance in another country will be covered by the general healthcare scheme in Turkey upon application. In order to be covered, the citizen must register with the Turkish Civil Registry and subsequently enquire at the District Governor’s office to lodge an application. The person has to pay a certain amount, depending on income, to be enrolled in the scheme. Examples of payment ... Monthly income of 0 to 357 [Turkish liras (TRY)]: No contribution is payable as the citizen’s contribution is paid by the Treasury Monthly income of TRY 358 to TRY 1,071: TRY 42 (approximately 105 [Danish kroner (DKK)]) Monthly income of TRY 1,072 to TRY 2,142: TRY 128 (approximately DKK 320) Monthly income exceeding TRY 2,143: TRY 257 (approximately DKK 645) (2) Is the mentioned medication available in the province of Konya? The physician has confirmed that Risperdal Consta 50mg (in packs containing solution for 1 injection, manufacturer Johnson & Johnson, retail price: TRY 352.52, corresponding to [approximately] DKK 925) is generally available at pharmacies in Konya and is used for the treatment of patients suffering from paranoid schizophrenia. If a specific medication is sold out by one pharmacy, it is possible to enquire at another pharmacy or order the medication for later pick-up. It is a prescription drug. Medication with clozapine as the active pharmaceutical ingredient is available in two forms: Leponex 100mg, packs containing 50 tablets, manufacturer Novartis, retail price TRY 25.27 (corresponding to approximately DKK 66). Active pharmaceutical ingredient: Clozapine. Is generally available at pharmacies in Turkey. It is a prescription drug. Clonex 100mg, packs containing 50 tablets. Manufacturer Adeka Ilac, retail price TRY 25.27 (corresponding to approximately DKK 66). Active pharmaceutical ingredient: Clozapine. Is generally available at pharmacies in Turkey. It is a prescription drug. a. if yes, what [are] the costs for the patient? As the relevant medicines are prescription drugs, the patient normally has to pay the full price unless he or she is covered by the general healthcare scheme. In that case, the patient has to pay 20% of the retail price, and the remaining 80% is covered by the general healthcare scheme. However, patients covered by the general healthcare scheme may be exempted from paying the 20% patient’s share if the physician writes a special committee report which has been approved and signed by several physicians. Such a report will be issued if, in the assessment of the physician, the patient has an existing and real need for long-term treatment and it is deemed unreasonable that the patient has to pay the costs himself or herself. This assessment does not take into account the patient’s financial situation. (3) Do healthcare personnel in Konya speak Kurdish? According to the physician, the hospitals employ Kurdish-speaking staff, who can offer language assistance should the need arise. The public hospital in Konya named ‘ Numune Hastanesi ’ gave the same reply. Conclusion The medical report issued by the Mental Health Centre of the Hospital of Saint John does not give rise to any supplementary observations in addition to those made in our opinion of 8 October 2013 providing information on treatment options in Turkey. Accordingly, we refer to our opinion of 8 October 2013 in general. ...” The applicant’s statements 49. The applicant was heard by the City Court on 6 February and 7 October 2014. He stated that he had no family in Turkey, as all his family members were in Denmark. He confirmed that, when he had been young, he had lived in a small village near Konya, and that the distance from that village to Konya was about 100 km. The applicant also stated that his mother no longer owned real property there, as it had been demolished; if expelled to Turkey, he would not know where to stay, as he was not familiar with that country and was not able to find his way there. He could not speak Turkish, only Kurdish; he spoke better Danish than Turkish. 50. The applicant was worried that he would not be able to find a job and support himself because of his language difficulties, and that he would not be able to receive the necessary treatment in Turkey. He knew that there was a hospital in Konya, but it was for poor people and of a low standard; the hospitals in Ankara and Istanbul offered good treatment, but patients had to pay themselves, and he could not afford to pay. Since he took Leponex, he had an increased risk of blood clots and needed to be examined regularly by a doctor. 51. When presented with a document of 1 September 2014 which stated that the applicant had worked at the Garden of Saint John from mid-May until 31 August 2014, he confirmed that he had been enrolled in the relevant project at the Hospital of Saint John and that it had gone well. This had created an opening for a job at a supermarket or a similar workplace under the so-called KLAP scheme (a scheme for creative, long-term, work planning run by the national Association for the Welfare of the Mentally Disabled). 52. The applicant further stated that he needed to take his medicine to avoid becoming unstable. He expressed his fears that he might commit a serious crime if he did not receive his medicine. He therefore wanted someone to look after him and to help him take his medicine. The previous year, he had not received the right medicine, and had therefore become violent and threatened the staff. He wanted to find work. He wanted to live at his mother’s home at the beginning to have someone to keep an eye on him. He feared that things would go wrong if he were to live in Turkey. Other evidence 53. The City Court also had before it a letter of 3 January 2012 and an email of 11 June 2013 from R.B., the applicant’s guardian ad litem. 54. In the letter of 3 January 2012 R.B. requested the court to change the applicant’s sanction from forensic psychiatric care to a forced psychiatric treatment. The letter also stated that the applicant was a kind and forthcoming person; that he had matured over the years, and in that process he had broken off relations with the “bad” friends from his old life. In the letter R.B. also expressed the opinion that the applicant had come to the point where he needed the opportunities offered by a sentence of forced psychiatric treatment for maturing even further and training to live a life as a good citizen. 55. In the email of 11 June 2013 R.B. stated, among other things, that the applicant wished to stay in Denmark; that all his family lived in Copenhagen, and that he would have no one to care for him if he suffered a further relapse of his condition while living in Turkey. As regards the applicant’s treatment, R.B. stated that there was still quite a way to go before he would be free from cannabis. His current treatment would have the greatest potential of success if he were afforded the degree of freedom allowed by a measure of forced psychiatric treatment. At that point, the applicant was able to function within the strict framework of forensic psychiatric care (the sanction that had been applied to him until that moment in time); however, it was necessary to test the effect of the treatment within a more flexible framework. 56. The City Court also had regard to an email of 15 November 2013 from the Danish Ministry of Foreign Affairs to the Copenhagen Police and a letter of 25 November 2013 from the Police Section of the National Aliens Division ( Nationalt Udlændinge Center ). The City Court’s decision 57. By a decision of 14 October 2014, the City Court amended the sentence imposed on the applicant from a sentence of forensic psychiatric care to treatment in a psychiatric department. As regards the expulsion order, the City Court found, regardless of the nature and gravity of the crime committed, that the applicant’s health made it conclusively inappropriate to enforce the expulsion order. 58. The City Court observed, in particular, that the applicant had been in psychiatric care since 2008 owing to the diagnosis of paranoid schizophrenia. It also took notice of the medical information available, and in particular the fact that the applicant was highly motivated to undergo psychiatric treatment, including treatment with psychoactive drugs, that he was aware of his disease and clearly acknowledged his need for therapy, and that his recovery prospects were good if he was subject to follow-up and supervision in connection with intensive outpatient therapy when discharged. On that basis the City Court found that it would suffice in order to prevent reoffending and to satisfy the applicant’s need for treatment that the sanction be amended to treatment in a psychiatric department under supervision by both the Prison and Probation Service and the department in question following his discharge so that, in consultation with the consultant psychiatrist, the Prison and Probation Service could make a decision on readmission under section 72(1) of the Penal Code (see paragraph 75 below). 59. The City Court went on to observe that the applicant, a 29-year-old Turkish national, had moved to Denmark from Turkey at the age of six under the family reunification programme. In his submission, he had neither family nor a social network in Turkey; the village in which he had lived with his family for the first years of his life was located 100 km away from Konya, the closest city, and accordingly far away from psychiatric assistance, and he only understood a little Turkish because he was Kurdish ‑ speaking. On the basis of the medical information, the court further accepted as fact that there was a high risk of pharmaceutical failure and resumed abuse, and consequently the worsening of the applicant’s psychotic symptoms, if he was not subject to follow-up and supervision in connection with intensive outpatient therapy when discharged and that this gave rise to a significantly higher risk that he would again commit offences against the person of others. 60. The City Court also considered it a fact that mentally ill patients were generally entitled to receive treatment in Turkey, that it was possible to apply for enrolment in the general healthcare scheme with contributions linked to income, and that the relevant medication was available, as was assistance from Kurdish-speaking staff at the hospitals. At the same time, the court stressed that what was crucial was that the applicant had access to appropriate treatment in his country of origin. The City Court noted that, on the basis of the information provided, it was not clear whether the applicant had a real possibility of receiving relevant psychiatric treatment, including the necessary follow-up and supervision in connection with intensive outpatient therapy, if returned to Turkey. It thus allowed the applicant’s application for revocation of the expulsion order. Proceedings before higher courts 61. The prosecution appealed to the High Court against the above ‑ mentioned decision in so far as it concerned the revocation of the expulsion order. 62. The applicant and P.L. were heard before the High Court on 6 January 2015. The applicant made statements similar to those made before the City Court (see paragraphs 49-52 above). He also stated that he had not yet been able to get a job because of his criminal past, but he was in the process of looking for a job through the job search platform Jobbank. He also had the possibility of finding work and attending school through the relief organisation Kofoeds Skole. He was to visit the school next week, and he looked forward to activities there. He still had the opportunity to work at the Psychiatric Hospital of Saint John during the weekends, and he intended to take that opportunity. 63. P.L stated, among other things, that the applicant had complete awareness of his illness; however, it was important that he was supervised regularly in order to adhere to the treatment. It was also important that he was supervised somatically, since Leponex could have the side-effect of an immune deficiency developing in the patient. Blood samples were to be taken regularly to check that no such deficiency had emerged. The patient should consult a doctor if sudden fever occurred, since this could be a sign of the immune deficiency. If the applicant experienced this side-effect, he should be followed closely, as in that case, he would have to be taken off Leponex, despite it having a positive effect on his aggressive behaviour. 64. On 13 January 2015 the High Court reversed the City Court’s decision and refused to revoke the expulsion order. 65. The High Court observed that, according to the medical information, the applicant suffered from paranoid schizophrenia and had a constant need for antipsychotics, in particular Leponex, and follow-up support to avoid psychotic symptoms, as well as the resulting risk that he would again commit offences against the person of others. It further considered it a fact that the applicant would be removed to Turkey if the expulsion order remained in effect, and that it was to be assumed that he would take up residence in the village in which he had been born and lived for about the first six years of his life, and which was located about 100 km from Konya. 66. With reference to the information on access to medicines and specific treatment options in Turkey contained in the MedCOI database and the consultation response of 4 July 2014 (see paragraphs 47-48 above), the High Court further found that the applicant could continue the same medical treatment as he was being given in Denmark in the Konya area in Turkey, and that psychiatric treatment was available at public hospitals and from private healthcare providers who had concluded an agreement with the Turkish Ministry of Health. According to the information obtained, the applicant would be eligible to apply for free or subsidised treatment in Turkey if he had no or limited income, and in certain cases it was also possible to be exempted from paying the 20% patient’s share of medicines; assistance from Kurdish-speaking staff at hospitals was also available. The court also noted that the applicant was aware of his disease and of the importance of adhering to his medical treatment and taking the drugs prescribed. In such circumstances, the High Court found that the applicant’s health did not make his removal conclusively inappropriate. Finally, it emphasised the nature and gravity of the crime committed by the applicant, and the fact that he had not founded his own family and did not have any children in Denmark. 67. Leave to appeal to the Supreme Court against the High Court’s decision was refused by the Appeals Permission Board ( Procesbevillingsnævnet ) on 20 May 2015. The relevant letter stated, in particular, that leave to appeal could only be granted if an appeal raised a question of principle or demonstrated particular reasons justifying a review; however, those conditions had not been met. Further developments 68. In the context of the proceedings before the Grand Chamber, the parties informed the Court that the applicant had in the meantime been deported to Turkey in 2015. 69. According to a police report submitted by the Government, the expulsion had taken place on 23 June 2015. The applicant was accompanied by his mother, who was issued with a return ticket to Turkey, the return flight to Denmark being one month later. 70. The information provided by the applicant indicates that he now lives in a village located 140 km from Konya. The village has around 1,900 inhabitants. The applicant has no family or relatives in that village or in other parts of Turkey and leads a very isolated life, as he does not speak Turkish. He stays indoors as he does not know the streets and is afraid of getting lost and not being able to find his way back on account of his diminished intellectual capacity. He only leaves the house to visit a grocery store and to pick up some medication every once a while when he can afford this. 71. According to the applicant, he found his way to the hospital for the first time six months after his arrival in Turkey. At present, he has to pay in order to be driven to Konya. There he visits a public hospital, which is a general healthcare institution rather than a specialised psychiatric one. His visit to a doctor, who is not a psychiatrist, usually lasts no more than ten minutes and does not include any health check; the applicant merely shows a list of the medication he needs to take and is given a prescription for some of the medication. As to which medicines are available and which ones he might be prescribed, this is to a very large extent random. The applicant gets the prescribed medicine from a pharmacy. There is no follow-up regarding his mental or somatic condition, which may deteriorate as a result of the side-effects of his medication; sometimes during his visits no doctor is available, and he can only speak to a secretary. In the applicant’s submission, he cannot adduce any new medical evidence as he does not receive the necessary treatment and has no access to psychiatric consultation. 72. According to the Government, since his expulsion the applicant has continued to be in receipt of a monthly pension equivalent to 1,300 euros paid to him by the Danish authorities. 73. On 2 October 2019 the applicant’s representative, on the applicant’s behalf, requested the Danish authorities to allow the applicant’s re-entry to Denmark. He referred to the Chamber’s judgment of 1 October 2019 as the grounds for that request and stated that the applicant wished to live with his mother. No medical information on the applicant’s state of health was provided. 74. In a letter of 11 November 2019, the Danish authorities informed the applicant’s representative that no specific steps had been taken in respect of the applicant, as the judgment in question had not yet become final. | The applicant, a Turkish national, had been resident in Denmark for most of his life. After being convicted of aggravated assault committed with other people, which had led to the victim’s death, he was in 2008 placed in the secure unit of a residential institution for the severely mentally impaired for an indefinite period. His expulsion with a permanent re-entry ban was ordered. He was deported in 2015. He complained that, because of his mental health, his removal to Turkey had violated his rights. |
642 | Journalists and publishing companies | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1953, 1950, 1969 and 1969 and live in Uster, Zürich, Bäretswil and Nussbaumen respectively. 7. The facts of the case, as submitted by the applicants, may be summarised as follows. 8. In 2003 the third applicant, an editor of the Kassensturz television programme, prepared a report on practices employed in selling life-insurance products. The report was prompted by the annual reports of the Private Insurance Ombudsman for the Canton of Zürich and by letters which the programme’s editors had received from viewers expressing their dissatisfaction with insurance brokers. Kassensturz is a long-running weekly consumer-protection programme on Swiss - German television (SF DRS). 9. The third applicant agreed with the first applicant ( the editor-in-chief of SF DRS ) and the second applicant ( the editor in charge of the programme) that she would record meetings between customers and brokers, using a hidden camera, to provide evidence of the brokers ’ inadequate advice. It was decided that the meetings would be recorded in a private flat and that an insurance expert would then be asked to comment on them. 10. The fourth applicant, a journalist working for SF DRS, arranged a meeting with an insurance broker from company X, which took place on 26 February 2003. She pretended to be a customer interested in taking out life insurance. The SF DRS crew installed two hidden cameras ( Lipstickkameras ) in the room in which the meeting was to take place, transmitting the recording of the conversation to a neighbouring room where the third applicant and the insurance expert had taken up position, together with a camera operator and a technician who had been assigned to film the expert ’ s views on the meeting. 11. Once the meeting had finished, the third applicant joined the broker and the fourth applicant in the room, introduced herself as an editor of Kassensturz and explained to the broker that the conversation had been filmed. The broker replied that he had suspected as much (“ Das habe ich gedacht ”). The third applicant told him that he had made some crucial errors during the meeting and asked him for his views, but he refused to comment. 12. The first and second applicants subsequently decided to broadcast part of the filmed meeting during a forthcoming edition of Kassensturz. They suggested that company X be invited to comment on the conversation and the criticism of the broker’s methods, and assured the company that his face and voice would be disguised and would therefore not be recognisable. Before the programme was broadcast, the applicants proceeded to pixelate the broker ’ s face so that only his hair and skin colour and his clothes could still be made out. His voice was also distorted. 13. On 3 March 2003 the broker brought a civil action in the Zürich District Court, seeking an injunction preventing the programme from being broadcast. The action was dismissed in a decision of 24 March 2003. 14. On 25 March 2003 the day after the application for an injunction to protect the broker ’ s interests had been rejected, excerpts from the meeting of 26 February were broadcast, with the broker ’ s face and voice disguised as planned. 15. On 29 August 2006 the single judge for criminal cases at the Dielsdorf District Court (Canton of Zürich) found the first three applicants not guilty of intercepting and recording the conversations of others (offences under Article 179 bis §§ 1 and 2 of the Criminal Code ), and the fourth applicant not guilty of the unauthorised recording of conversations ( Article 179 ter § 1 of the Criminal Code ). 16. Both the Principal Public Prosecutor ( Oberstaatsanwalt ) of the Canton of Zürich and the broker, as an injured party, appealed against the judgment of 29 August 2006. 17. In a judgment of 5 November 2007, the Court of Appeal ( Obergericht ) of the Canton of Zürich found the first three applicants guilty of recording the conversations of others ( Article 179 bis §§ 1 and 2 of the Criminal Code ) and of breaching confidentiality or privacy by means of a camera ( Article 179 quater §§ 1 and 2 of the Criminal Code ). It also found the fourth applicant guilty of unauthorised recording of conversations ( Article 179 ter § 1 of the Criminal Code ) and breaching confidentiality or privacy by means of a camera ( Article 179 quater §§ 1 and 2 of the Criminal Code ). The first three applicants were given suspended penalties of fifteen day-fines of 350 Swiss francs (CHF), CHF 200 and CHF 100 respectively, while the fourth applicant received a penalty of five day-fines of CHF 30. 18. The applicants appealed jointly to the Federal Court against their convictions, relying in particular on the right to freedom of expression under Article 10 of the Convention. They argued that their recourse to the impugned technique had been necessary to achieve the aim pursued. 19. In a judgment of 7 October 2008, which was served on the applicants ’ representative on 15 October 2008, the Federal Court allowed the appeal in so far as it concerned the charge of breaching confidentiality or privacy by means of a camera within the meaning of Article 179 quater of the Criminal Code. It held that there had been a violation of the principle that the trial must relate to the charges brought and a violation of the rights of the defence, and remitted the case to the lower court. 20. The Federal Court dismissed the remainder of the appeal. It held that the applicants had committed acts falling under Article 179 bis §§ 1 and 2 and Article 179 ter § 1 of the Criminal Code and dismissed their defence of justification. It acknowledged that there was a significant public interest in being informed about practices employed in the field of insurance, and that this interest was liable to be weightier than the individual interests at stake. However, it considered that the applicants could have achieved their aims by other means entailing less interference with the broker ’ s private interests, for example by commenting on the Ombudsman ’ s annual reports or interviewing the Ombudsman ’ s staff or customers who were dissatisfied with their broker’s services. It also found that instead of filming the meeting with a hidden camera, the journalist could have drawn up a record of the conversation, although it acknowledged that the probative value of that method would obviously have been less striking. Lastly, it held that the filming of a single case was insufficient to provide reliable evidence of the scale of the alleged problems, since examples of malpractice in this field were widespread and common knowledge. The public could therefore not draw general conclusions about the quality of advice given by insurance companies from the broadcasting of an isolated example. 21. On 24 February 2009 the Court of Appeal of the Canton of Zürich found the applicants guilty of breaching confidentiality or privacy by means of a camera, an offence under Article 179 quater of the Criminal Code. It therefore slightly reduced the penalties previously imposed on them : the first three applicants were given twelve day-fines of CHF 350 (approximately 290 euros (EUR)), CHF 200 (approximately EUR 160) and CHF 100 (approximately EUR 80) respectively, instead of fifteen day-fines, and the fourth applicant was given four day-fines of CHF 30 instead of five day-fines. The penalties were all suspended for a probationary period of two years. The applicants did not appeal against that judgment. | This case concerned the conviction of four journalists for having recorded and broadcast an interview of a private insurance broker using a hidden camera, as part of a television documentary intended to denounce the misleading advice provided by insurance brokers. The applicants complained that their sentence to payment of fines had amounted to a disproportionate interference in their right to freedom of expression. |
28 | Affiliation- and inheritance-related rights | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1948 in Oberschwöditz, in the former German Democratic Republic (GDR), and lives in Lennestadt. A. Background to the case 6. The applicant is the natural daughter of a Mr Schildgen, who recognised her several months after her birth. She lived in the territory of the former GDR until 1989, while her father lived in the FRG. The father and daughter corresponded regularly during this period, and after the reunification of Germany she visited him. He died between 30 June and 3 July 1998 (the precise date has not been specified). The applicant subsequently made several attempts to assert her inheritance rights in the domestic courts. B. Proceedings in the domestic courts 7. On 10 July 1998 the applicant applied for a certificate of inheritance attesting that she was entitled to at least a 50% share of Mr Schildgen ’ s estate. 8. In a decision of 8 October 1998 the Neunkirchen District Court ( Amtsgericht – Nachlassgericht ) refused the applicant ’ s application, holding that, notwithstanding the reform of the law of succession following the introduction of the Inheritance Rights Equalisation Act of 16 December 1997 ( Erbgleichstellungsgesetz ), the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act ( Gesetz über die rechtliche Stellung nichtehelicher Kinder – Nichtehelichengesetz ) of 19 August 1969 remained in force. The provision in question stated that children born outside marriage before 1 July 1949 were not deemed to be statutory heirs (see “Relevant domestic law and practice”, paragraph 18 below ). The District Court also referred to a decision given by the Federal Constitutional Court ( Bundesverfassungsgericht ) on 8 December 1976 (see also “Relevant domestic law and practice”, paragraph 21 below), in which the provision had been found to be in conformity with the Basic Law ( Grundgsetz ). 9. On 4 November 1998 the applicant appealed to the Saarbrücken Regional Court ( Landgericht ), arguing in particular that the law of the former GDR, which provided for equal treatment between children born within and outside marriage, should apply in her case. In any event, section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act contravened Article 3 (principle of equality before the law) of the Basic Law as there was no objective justification for the difference in treatment. 10. In a decision of 7 January 1999 the Saarbrücken Regional Court upheld the District Court ’ s decision on the same grounds. It acknowledged, however, that the exclusion of children born outside marriage before 1 July 1949 from the statutory right of inheritance placed them at a very clear disadvantage in relation to those born after that date and also to those covered by the law of the former GDR. 11. In a decision of 3 September 1999 the Saarland Court of Appeal ( Oberlandesgericht ) quashed the Regional Court ’ s decision and remitted the case to it to establish whether the applicant was indeed Mr Schildgen ’ s natural daughter and whether there were any other heirs. If the applicant were to be entitled to at least a 50% share of the estate, the Regional Court should examine whether the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act was in conformity with the Basic Law. The Court of Appeal confirmed at the outset that by virtue of the rules of private international law and, in particular, the settled case-law concerning section 25(1) of the Introductory Act to the FRG Civil Code ( Einführungsgesetz in das Bürgerliche Gesetzbuch ), FRG law alone was applicable in the applicant ’ s case, since the deceased ( Erblasser ) had not been resident in the territory of the former GDR on 3 October 1990, when German reunification had taken effect. However, it considered that the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act was not in conformity with the Basic Law, for the following reasons. Firstly, the legal and social status of children born outside marriage had evolved considerably since the Federal Constitutional Court ’ s decision of 8 December 1976 and had in practice become equivalent to that of children born within marriage. The Federal Constitutional Court, moreover, had itself adopted a more restrictive approach to Article 6 § 5 of the Basic Law (principle of equal treatment between children born outside and within marriage ) in its decision of 18 November 1986 (see “Relevant domestic law and practice”, paragraph 23 below ). Furthermore, a new situation had arisen as a result of the accession of the former GDR to the FRG, since by virtue of section 235(1)(2) of the Introductory Act to the Civil Code, taken together with section 25(1), children born outside marriage before 1 July 1949 had the same rights as children born within marriage if the father had been resident in the territory of the former GDR on 3 October 1990 (see “Relevant domestic law and practice”, paragraphs 19-20 below ). However, there were no objective grounds for a difference of treatment between children born outside marriage before or after 1 July 1949, or between children born outside marriage before 1 July 1949 according to whether or not the father had been resident in the territory of the former GDR on 3 October 1990. The Court of Appeal concluded that the arguments put forward by the Federal Constitutional Court in its decision of 8 December 1976 were no longer valid, particularly with regard to the practical and procedural difficulties of establishing the paternity of children born outside marriage before 1 July 1949, and the need to protect the “legitimate expectations ” of the deceased ( Vertrauensschutz des Erblassers ) and his family. 12. In a decision of 25 January 2001 the Saarbrücken Regional Court confirmed its previous decision on the basis of the same arguments. Even if it was established to a 99% degree of certainty that the applicant was indeed Mr Schildgen ’ s daughter and there were no other known heirs, she was excluded from any statutory entitlement to the estate by the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act. In the Regional Court ’ s view, that provision did not contravene the Basic Law despite German reunification, as the Federal Constitutional Court had held in its decision of 3 July 1996 (see “Relevant domestic law and practice” below, paragraph 22). 13. In a decision of 7 August 2001 the Saarland Court of Appeal again quashed the Regional Court ’ s decision and remitted the case to it to establish whether there were any other heirs of the second or third order and to re-examine whether the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act was compatible with the Basic Law where the State was the sole statutory heir. The Court of Appeal held that it was not acceptable to set a cut-off date if the deceased had no other heirs and, as a result, the State became the sole statutory heir. It referred in that connection to the right of inheritance ( Erbrechtsgarantie ) guaranteed in Article 14 § 1 of the Basic Law, which in its view also protected the rights of a child born outside marriage where there were no private statutory heirs other than the State. 14. In a decision of 10 July 2003 the Saarbrücken Regional Court confirmed its previous decisions on the basis of the same arguments. It added that it was not required in the case before it to examine whether the provision in issue was in conformity with the Basic Law, since it had been established that the deceased had heirs of the third order and that the State was therefore not the statutory heir. 15. In a decision of 29 September 2003 the Saarland Court of Appeal dismissed an appeal by the applicant, on the ground that it was bound by the decisions of the Federal Constitutional Court in which the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act had been found to be in conformity with the Basic Law. It further refused to refer the case back to the Regional Court for a fresh examination, seeing that the State was not the statutory heir in the case before it. 16. In a decision of 20 November 2003 the Federal Constitutional Court, sitting as a panel of three judges, declined to consider the appeal. It observed, in particular, that the aspect of protecting the “legitimate expectation” of the deceased had gained in importance since, following its decision of 8 December 1976, it had considered the inheritance rights of children born outside marriage before 1 July 1949 to have been clarified in relation to the Basic Law. It added that the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act had not lost its objective justification simply because children born outside marriage in an entirely different social context had the same rights as children born within marriage. The difference in treatment in comparison with children born outside marriage who were covered by the law of the former GDR was justified by the inherent purpose of section 235(1)(2), that of avoiding any disadvantage resulting from the former GDR ’ s accession to the FRG. | The applicant was unable to inherit from her father who had recognised her under a law affecting children born outside marriage before 1 July 1949. The equal inheritance rights available under the law of the former German Democratic Republic (where she had lived for much of her life) did not apply because her father had lived in the Federal Republic of Germany when Germany was unified. The applicant complained that, following her father’s death, her exclusion from any entitlement to his estate had amounted to discriminatory treatment and had been wholly disproportionate. |
485 | Failure to enforce a judgment acknowledging gender discrimination | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1965 and lives in Perales Del Río (Madrid). 6. At the material time she worked full-time in a hypermarket, mornings or afternoons, from Monday to Saturday 7. On 26 February 2003, relying on Article 37 § 5 of the Labour Regulations, the applicant asked her employer to reduce her working hours (with a corresponding reduction of her salary) because she had custody of her son, who was under six years old. She applied to work half-time, from 4 p.m. to 9.15 p.m. from Monday to Wednesday. 8. In a letter of 21 March 2003 her employer notified her that she would not be allowed to work the hours requested. Instead, he proposed that she work half days, from Monday to Saturday, in the morning or afternoon. 9. An attempt by the applicant to reach an agreement with her employer with the help of the Madrid Mediation, Conciliation and Arbitration Board failed. 10. On 20 May 2003 the applicant brought special proceedings before the Employment Tribunal to adjust her working hours to enable her to look after a child under six years of age. In a judgment of 25 September 2003 Madrid Employment Tribunal no. 1 dismissed the applicant’s case, considering that reductions in working hours should be made in the ordinary working day, whereas the applicant wanted to take several working days off (from Thursday to Saturday) and not to work mornings at all, which was not a reduction but a modification of the working day. 11. On 6 November 2003 the applicant lodged an amparo appeal with the Constitutional Court, based on the right to a fair hearing and the principle prohibiting discrimination on grounds of sex. In a judgment of 15 January 2007 the Constitutional Court allowed the appeal, considering that the principle that there should be no discrimination based on gender had been violated in the applicant’s case. The court referred to the established case-law of the Court of Justice of the European Communities to the effect that “Community law precluded the application of a domestic measure which, although formulated in a neutral manner, affected a much higher percentage of women than men”, unless this was the result of objective factors unrelated to any discrimination on grounds of sex. It noted that “in the event of indirect discrimination it is not necessary to prove the existence of more favourable treatment reserved exclusively for men; it is sufficient that there exists a legal provision the interpretation or application of which adversely affects a group composed mainly of female employees”. The Constitutional Court found that there had been a breach of the principle prohibiting discrimination on grounds of sex, stating: “the court’s refusal to acknowledge [the applicant’s right to] a reduction of her working hours, without examining to what degree the reduction concerned was necessary in order to respect the constitutional purposes for which [the possibility of working reduced hours] had been introduced or what organisational difficulties the employer might have if [the applicant’s] right to work the hours concerned were to be acknowledged, constitutes an unjustified obstacle to [the applicant] in her work and in reconciling that work with her family life, and therefore discrimination on grounds of sex”. The Constitutional Court accordingly allowed the amparo appeal, set aside the Madrid Employment Tribunal’s judgment of 25 September 2003 and ordered that court to deliver a new judgment in keeping with the fundamental right in issue. 12. In a new judgment of 6 September 2007 the Employment Tribunal again dismissed the applicant’s case. It considered that the reduction in working hours the applicant was seeking fell outside the scope of Article 37 of the Labour Regulations because she wanted to take Thursdays, Fridays and Saturdays off, especially as two of those days – Friday and Saturday – were the busiest days of the week. The court also held that, for the purposes of the constitutional protection she had been afforded, the applicant had not sufficiently justified the need for a reduction in her working hours that went beyond the bounds of a simple rearrangement of the ordinary working day. 13. On 28 November 2007, the applicant lodged a new amparo appeal with the Constitutional Court, which that court examined as proceedings in execution of its judgment of 15 January 2007. On 29 October 2008 she informed the Constitutional Court that her son had since turned six years old, so that as a result of the length of the judicial proceedings she no longer had the right to the reduced working hours she had applied for in order to look after her son. As the Constitutional Court’s judgment could therefore no longer be enforced as such, the applicant claimed alternative compensation, under Article 18 § 2 of the Judicature Act ( Ley Orgánica del Poder Judicial, “the LOPJ”), in the amount of 40,986 euros (EUR). 14. In a reasoned decision of 12 January 2009 the Constitutional Court held that its judgment of 15 January 2007 had not been correctly executed, and set aside the Employment Tribunal’s judgment of 6 September 2007. However, it found that there was no need to remit the case to the lower court in so far as a new judgment of that court would serve no purpose now that the child was over six, and that an award of compensation was not permitted under Article 92 of the Institutional Law on the Constitutional Court. 15. A dissenting opinion was appended to the judgment. The dissenting judge deemed, inter alia, that the Constitutional Court should have awarded the applicant compensation, particularly in a case such as hers where compensation was the only way to protect the fundamental right in issue and restore the applicant’s right in full. | As a mother with legal custody of her son, who was under six years old at the time, the applicant requested permission to reduce the number of hours she worked at a supermarket. Her employers refused. She complained that the Spanish Constitutional Court had failed to repair the violation of the principle prohibiting gender-based discrimination which it had found in her case. She alleged that her right to a fair hearing within a reasonable time had been violated, and that she had been the victim of gender-based discrimination. |
1,040 | Prohibition of discrimination (Article 14 of the Convention) and General prohibition of discrimination (Article 1 of Protocol No. 12 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 9. The facts of the case, as submitted by the parties, may be summarised as follows. 10. The applicants are unmarried sisters, born on 26 May 1918 and 2 December 1925 respectively. They have lived together, in a stable, committed and mutually supportive relationship, all their lives; for the last thirty-one years in a house built on land inherited from their parents in Wiltshire. 11. The house is owned by the applicants in their joint names. According to an expert valuation dated 12 January 2006, the property was worth 425,000 pounds sterling (GBP), or GBP 550,000 if sold together with the adjoining land. The sisters also jointly own two other properties, worth GBP 325,000 in total. In addition, each sister owns in her sole name shares and other investments worth approximately GBP 150,000. Each has made a will leaving all her property to the other. 12. The applicants submitted that the value of their jointly owned property had increased to the point that each sister ’ s one-half share was worth significantly more than the current exemption threshold for inheritance tax (see paragraph 13 below). | The applicants, both in their eighties, were unmarried sisters who had lived together all their lives, for the last 30 years in a house built on land they had inherited from their parents. Each sister had made a will leaving all her property to the other sister. The applicants complained that, when one of them died, the survivor would face a heavy inheritance tax bill, unlike the survivor of a marriage or a civil partnership. |
975 | Mobile telephone | 7. The MKKP is a political party active in Hungary. At the 2018 legislative elections it obtained 1.73% of the votes cast on national lists (99,410 votes nationwide) and consequently did not attain the statutory threshold for parliamentary representation; moreover, none of its candidates was elected in the individual constituencies. Its political stance is largely conveyed through satire directed at the political elite and governmental policies, through its website (which includes much humorous content), through purported “campaigns” for clearly absurd causes, and through street art and performances. 8. In 2006 the party presented its candidature for the national elections, with an election manifesto containing ideas such as eternal life, free beer, lower gravitation and two sunsets a day. In their 2006 campaign for the office of mayor of Budapest their slogans included “More of everything, less of nothing!” “Eternal life, free beer and tax deductions!” and “We promise anything!” 9. In the context of the wave of refugees and migrants crossing Hungarian territory in 2015 and in response to the resultant governmental policies on migration, which received widespread media coverage, the MKKP launched what it called an “anti-anti-immigration campaign”. It was financed through micro-donations from private individuals in the amount of some 33,000,000 Hungarian forints (HUF) (approximately 100,000 euros (EUR)). The campaign included the display of billboards caricaturing the government’s own media campaign with slogans such as “Feel free to come to Hungary, we already work in England!” 10. On 22 September 2015 the European Union’s interior ministers meeting in the Justice and Home Affairs Council approved a plan to relocate 120,000 asylum seekers over two years from the frontline States Italy and Greece to all other EU countries. Under the plan, Hungary was to accept 1,294 persons from other member States. 11. On 24 February 2016 the Prime Minister of Hungary announced that the Hungarian government would hold a referendum on whether to accept the European Union’s proposed mandatory quotas for relocating migrants. On the same day the government submitted for approval before the National Election Commission (“NEC”) the following question to be put to a referendum: “Do you want the European Union to be entitled to order the mandatory settlement of non-Hungarian citizens in Hungary without Parliament’s consent?” 12. On 29 February 2016 the NEC, by nine votes to three, approved the question. On 5 May 2016, after examining the legal challenges, the Kúria (the Hungarian supreme court) authorised the holding of the referendum. 13. The National Assembly officially approved the referendum initiated by the government on 10 May 2016. The initiative was approved with 136 votes being cast in favour by the parliamentary majority and the MPs of the opposition party Jobbik, with five votes against; the remaining fifty-three MPs boycotted the session. On 21 June 2016 the Constitutional Court rejected all the appeals against the plan to hold the referendum. It was announced that the referendum would take place on 2 October 2016. 14. Opposition groups including political parties and civil-society actors considered that the question put to a referendum deliberately misrepresented EU policies, since in their view no project existed involving mandatory quotas for the relocation of migrants. They voiced the opinion that the referendum was merely an instrument of government propaganda and did not provide voters with a real choice between real alternatives, and that its tendentious wording served no other purpose than to exacerbate the controversy over migration. 15. The MKKP urged its supporters to participate in the referendum but to cast an invalid ballot. Its main reason for advocating an invalid vote was that the referendum constituted in essence an abuse of a democratic legal institution and that, while boycotting was a passive rejection of the referendum, an invalid vote sent a clear message denouncing its lack of legitimacy in an active manner. Furthermore, according to the announcement posted on the MKKP’s website calling on voters to cast invalid ballots, such ballots could not be forged and would certainly not be taken into account when the votes were counted. 16. In the period preceding the referendum the government engaged in a campaign on migration policy, posting billboards with questions such as: “Did you know? More than 300 people have been killed in terrorist attacks in Europe since the start of the migrant crisis”, “Did you know? The Paris terrorist attacks were carried out by immigrants”, “Did you know? 1.5 million illegal immigrants arrived in Europe in 2015”, “Did you know? Brussels wants the forced resettling of a city’s worth of illegal immigrants in Hungary”, “Did you know? Almost one million immigrants want to come to Europe from Libya alone” and “Did you know? Since the start of the immigration crisis, sexual harassment of women has increased in Europe”. 17. In reaction to this, the MKKP continued its campaign on billboards (“Did you know there’s a war in Syria?”, “Did you know one million Hungarians want to emigrate to Europe?”, “Did you know? The perpetrators in most corruption cases are politicians”, “Did you know? A tree may fall on your head”, “Did you know? The average Hungarian is more likely to see a UFO than a refugee in his lifetime” and “Did you know? During the Olympic Games, the biggest danger to Hungarian participants came from foreign competitors”). It was again financed by micro-donations. 18. On 29 September 2016 the MKKP made available a mobile application called “Cast an invalid ballot” which enabled users to upload and share with other users, anonymously, photographs of their ballots or a photograph of the activity they were engaged in instead of voting. It was not disputed by the parties that the use of the application remained entirely anonymous, both for uploaders and passive users. The launch of the application was reported on in some major online journals (index.hu, hvg.hu). 19. The iOS version of the application was available from the AppStore, while the Android version could be downloaded from Google Play, without registration and free of charge. The application had access to the status and identifier of the mobile telephone and to its photo gallery. Under the basic settings of the application, the user could take a photograph with the rear camera of his or her telephone. The front camera could not be used, so that voters could not take so-called “ballot selfies”, including themselves in the photograph. Besides the photograph, users could also provide a comment, either by choosing a pre-set political message or by adding their own messages. They had the option to indicate in which county they had voted and whether they had participated in the referendum and if so whether they had cast a valid or invalid ballot. These messages appeared together with the photograph. Furthermore, the application generated infographics, broken down by county, about the participation rate and the number of valid and invalid votes. The pictures and messages were accessible to other users of the application. The posting and sharing of photographs were anonymous and each user could publish only one photograph. By using the application, the voters sent the non-recoverable encrypted code (hash value) generated by the mobile device’s identifier, and the picture (with a message hardcoded on it), to the operator of the application. Thanks to the hashing technique, neither the MKKP nor the developer of the application could trace the identifier of the mobile telephones. 20. On 29 September 2016 a private individual lodged a complaint with the NEC about the application. 21. In a decision of 30 September 2016 the NEC found that the mobile application infringed the principles of fairness of elections, voting secrecy, and the exercise of rights in accordance with their purpose ( rendeltetésszerű joggyakorlás ), and ordered the MKKP to refrain from further breaches of section 2(1)(a) and (e) of Act no. XXXVI of 2013 on Electoral Procedure, and Article 2 § 1 of the Fundamental Law. Relying on previous Guidelines issued in 2014, it held that voters could not treat ballot papers as their own [property], and therefore could neither take them out of the polling booths nor take a photograph of them. It held that taking photographs of ballot papers could lead to electoral fraud. Furthermore, although the principle of secrecy did not create any obligation on the voters’ side, it nevertheless did not entitle them to abuse their situation, bearing in mind that voting secrecy could be maintained only with their cooperation. The NEC concluded that the mobile application was capable of discrediting the work of the electoral bodies and the tallying systems in the eyes of the public. 22. The MKKP sought judicial review of this decision before the Kúria. As a result, the decision of the NEC had not taken effect by the date of the referendum. 23. On 2 October 2016 the referendum on the European Union’s migrant relocation plan was held. The mobile application in question was available throughout polling day and altogether 3,894 photos were shared on it. It appears from the case file that the photographs were not made available anywhere other than on the mobile application. 24. On 3 October 2016 the same private individual (see paragraph 20 above) lodged a new complaint with the NEC, in the light of the fact that the MKKP had activated the “Cast an invalid ballot” application on the day of the referendum. The complainant maintained that by operating the mobile application and by encouraging voters to make use of it, the MKKP had infringed the principles of the bona fide exercise of rights and the exercise of rights in accordance with their purpose, and also the principles of fairness and secrecy of elections. 25. In a decision of 7 October 2016 the NEC reiterated its previous finding and fined the political party HUF 832,500 (approximately EUR 2,700). The NEC supplemented its previous reasoning by noting that providing voters with a mobile application and calling on them to upload and publish photographs of ballot papers, and encouraging them to cast an invalid ballot could have influenced voters and had thus constituted unlawful campaigning. 26. By a decision of 10 October 2016 the Kúria upheld the NEC’s decision of 30 September 2016 as to its finding regarding the infringement of the principle of the exercise of rights in accordance with their purpose, but dismissed its conclusions regarding the fairness of the referendum. The decision contained the following passages: “... The request for review The petitioner has lodged a petition for review of the decision of the National Election Commission, requesting that the decision be set aside and the complaint be overturned. In its view, the decision violates Articles 2 § 1 and IX § 1 of the Fundamental Law and section 2(1)(e) of the Electoral Procedure Act. The petitioner pointed out that it was for the complainant to prove that the application was illegal, and that since he had failed to do so, the complaint should have been rejected without examination on the merits. The NEC did not examine the application, basing its findings on press releases. The petitioner attached the application on an external device and argued that neither it nor the developer of the application could have access to the personal data of the users; the data transferred could not be linked to a user and therefore did not constitute personal data. The Guidelines [of the National Election Commission] did not have binding force and could not constitute a legal basis for the decision. According to the petitioner’s reasoning, its conduct in providing publicity for the application and calling on voters to use the application fell on the one hand within the sphere of protection of freedom of expression, and on the other hand called on voters to exercise their right to freedom of expression, protected by Article IX § 1 of the Fundamental Law. The right to freedom of expression was not an unlimited fundamental right. However, regard being had to a number of Constitutional Court judgments, it could only be restricted in so far as necessary and proportionate in relation to another fundamental right or constitutional principle, and any restriction should be capable of achieving the stated aim. The secrecy of the vote had not been infringed by the application since the content of the vote could not be linked to the voter. The secrecy of the vote entailed the right for voters to ensure that no one could gain knowledge of how they had voted, but it did not create an obligation for voters not to share details of their vote with others. Irrespective of the above, the application, which provided a forum for voters to share the content of their vote with others, was incapable of infringing the secrecy of the vote. Therefore, in the petitioner’s view, the application did not infringe Article 2 § 1 of the Fundamental Law or section 2(1)(a) and (e) of the Electoral Procedure Act. ... According to the petitioner, the NEC did not give reasons in its decision for finding that the application was particularly likely to shake public confidence in the IT and tallying system for voting and in the work of the electoral bodies. ... The decision of the Kúria and its reasoning The NEC was right to find that the application enabled users to upload data in connection with the referendum of 2 October 2016; the information published on the petitioner’s website and Facebook page called on voters to post photographs and other information on the application. The subject-matter of the review is the decision of the NEC coming within the scope of the petition for review, that is, the decision finding that calling on voters to upload and publish photographs of ballot papers from the national referendum on a mobile application infringed the secrecy of voting, the fairness of the voting and the bona fide exercise of rights in accordance with their purpose. The complainant attached to his complaint as evidence the information about the application published on the petitioner’s website and on the websites hvg.hu and index.hu. The reviewing court thus finds that the complainant fulfilled his obligation to adduce the requisite evidence in support of his complaint. The NEC adequately clarified the underlying facts, and did not violate section 43(1) of the Electoral Procedure Act. The Kúria emphasises at the outset that the Guidelines do not constitute a legislative act and do not have binding legal force under section 51(2) of the Electoral Procedure Act; thus, they are irrelevant for the legal assessment of the present case. Although the NEC relied on the Guidelines in taking its decision, the latter should be assessed on its own, applying the relevant provisions of the Fundamental Law and the Electoral Procedure Act to the facts of the present case. Pursuant to Article 2 § 1 of the Fundamental Law, Members of the National Assembly are elected by universal and equal suffrage in a direct and secret ballot, in elections which guarantee the free expression of the will of the voters in a manner laid down in a cardinal Act. In the view of the reviewing court, the secrecy of voting (voting rights) as regulated by Article 2 § 1 means, firstly, that the right of all voters to a secret vote – not detectable by anybody –- must be secured. Secondly, a system must be developed that does not make it possible to establish how a voter has cast his or her ballot. The Kúria does not agree with the reasoning of the impugned decision according to which the application and its functions – and in particular the uploading of photographs, the sending of messages, the participation in voting, and the sending of notifications by voters – were openly aimed at infringing the secrecy of the vote and the referendum. The provisions of the Act on Initiating Referenda, the European Citizens’ Initiative and the Referendum Procedure, and of the Electoral Procedure Act, as well as the procedural rules on voting, clearly ensure that voters cast a secret ballot. The application attached to the present petition does not allow access to the personal data of the users, and is thus incapable of linking a cast ballot to a voter. The NEC reached the same conclusion. In the light of the above, the secrecy of the ballot was not infringed by the application or by the use thereof, and the NEC’s decision to uphold the complaint in that respect was unlawful. According to section 2(1) of the Electoral Procedure Act, the following principles shall prevail in the application of the rules of electoral procedure: (a) the protection of the fairness of the election; (e) the exercise of rights in good faith and in accordance with their purpose. The provisions relevant to voting are contained in sections 168-186 of the Electoral Procedure Act. Under section 180(1) of the Act voters must be provided with a polling booth in which to mark their ballot papers. Under section 182(1), the voter must put the ballot paper in an envelope and place it in a ballot box. Section 186(1) states that a valid vote can be given only to the candidates or lists whose names are printed on the official ballot paper. In the Kúria’s opinion – contrary to the reasoning of the NEC – the taking of photographs of ballot papers in the polling booth does not infringe the secrecy of voting and elections. There is no legislative act that forbids the taking of such photographs and the NEC was likewise unable to name any such provision. As stated above, the exercise of secret voting is twofold, and the taking of photographs does not infringe the secrecy of ballots and does not allow a cast ballot to be linked to a voter. The next question to be decided in the present case is whether calling on voters to upload their ballot photographs to the application and managing that application infringed the secrecy of the ballot and the bona fide exercise of rights in accordance with their purpose. According to the established case-law set out in Kúria decision no. Kvk.IV.37.359/2014/2, the exercise of rights in accordance with their purpose is an obligation emanating from the principle of civil law concerning the prohibition of abuse of rights, to be applied in the whole legal system. This means that rights are to be exercised by their holders in conformity with their aim and content. Only such exercise of rights is protected by law, where besides the formal entitlement the real content of the right can be recognised. Thus, an infringement of the exercise of rights in accordance with their purpose amounts to more than establishing an infringement of rights: the intention to abuse the content of a legal institution under the guise of lawful conduct must be recognisable. The reviewing court attaches particular importance to the role and use of ballot papers in the electoral process. A ballot paper clearly serves the purpose of allowing voters to express their opinion on a question put to the vote; any use of ballot papers contrary to this purpose infringes the principle of the exercise of rights in accordance with their purpose. Accordingly, the application in question and the petitioner’s conduct in calling on voters to take photographs and publish them through the application also constitute an infringement of that principle. Under Article IX § 1 of the Fundamental Law everyone has the right to freedom of expression. The Constitutional Court established in its decision no. 30/1992 (V.26) AB that the State may have recourse to the restriction of fundamental rights if the exercise of another fundamental right or freedom or the protection of any constitutional value cannot be achieved by other means. Thus, it is not enough that the restriction is imposed in order to protect another fundamental right or freedom or for any other constitutional aim; it is also necessary for the restriction to be proportionate, that is, for the importance of the intended aim and the gravity of the violation of the fundamental right to be in balance with each other. The legislature must choose the least restrictive measure that is adequate to achieve the intended aim. Any restriction of a right that does not serve a pressing need or is arbitrary, or any restriction that is disproportionate to the aim, will be unconstitutional. The reviewing court emphasises that its reasoning regarding the exercise of rights in accordance with their purpose does not infringe voters’ right to freedom of expression. In the present case the right of voters to freedom of expression in the context of voting is twofold. Firstly, they express their opinion on the question put to a vote by casting their ballot; secondly, they have the option to share the way they have voted with others orally, in writing, or in any other way, for example on social media or other websites. The Kúria finds that the application is in breach of the principle of the exercise of rights in accordance with their purpose not because it enables voters – without them being individually recognisable – to publicise the way they have voted, but rather because of the manner in which it enables them to publicise it, namely through the taking and uploading of ballot photographs. The petitioner’s conduct was therefore in breach of the exercise of rights in accordance with their purpose. However, the breach was not of a degree of gravity that would entail an infringement of the principle of protection of fair elections as set forth in section 2(1)(a) of the Electoral Procedure Act. The breach had no material impact on the fairness of the national referendum. The Kúria also examined whether the petitioner’s conduct infringed the principle of the bona fide exercise of rights. In this context it emphasises that developing the application and calling on voters to use it does not infringe the principle of the bona fide exercise of rights. No malicious intent of the petitioner has been proven and the decision of the NEC does not contain any substantive argument in this regard. The Kúria does not agree with the NEC’s reasoning according to which the application is particularly liable to shake people’s confidence in the IT and tallying system for voting. The NEC did not provide any substantive argument in this regard. Likewise, in the Kúria ’s view, there is no aspect of the application or of the call to voters to use the application that would be capable of shaking public confidence in the work of the electoral bodies. Taking ballot photographs does not enable electoral fraud. The decision of the United States Court of Appeals submitted by the petitioner shows that the sharing of ballot photographs has been the subject of litigation in the United States as well. However, this is irrelevant in the present case. Under section 231(5)(b) of the Electoral Procedure Act, the Kúria hereby amends the NEC’s decision as set out in the operative part. The only reason to uphold the complaint is that the conduct of the petitioner was in violation of section 2(1)(e) on the principle of the exercise of rights in accordance with their purpose. The Kúria upholds the requirement for the petitioner to refrain from further unlawful conduct. ...” 27. By a decision of 18 October 2016 the Kúria upheld the NEC’s decision of 7 October 2016 in part. It reduced the fine to HUF 100,000 (approximately EUR 310). It relied on essentially the same reasoning as above, adding the following: “... The petitioner lodged a petition for review against the decision of the National Election Commission requesting, firstly, that the decision be set aside and the complaint be overturned and, secondly, the setting-aside of the finding of a violation of section 2(1)(e) of the Electoral Procedure Act, as well as the setting-aside of the fine imposed. In the petitioner’s view the decision infringes Articles 2 § 1 and IX § 1 of the Fundamental Law, sections 2(1)(a) and (e), 47(2) and 218(2)(d) of the Electoral Procedure Act, section 79 of the Referendum Act and sections 223(3)(b) and 219(1) of the Electoral Procedure Act. .... The petitioner also pointed out that in reviewing NEC decision no. 118/216, the Kúria only found that section 2(1)(e) of the Electoral Procedure Act had been infringed and not any other provision. It requested that the Kúria ’s reasoning be taken into account. The petitioner also complained about the fine and considered the standard applied in imposing the fine to be unlawful. In its view, it had not been penalised for violating the campaign regulations, since the decision [of the NEC] had not established that calling on voters to cast an invalid ballot was unlawful. The NEC had merely established that the name of the application was capable of influencing voters’ choice; therefore, no fine could be imposed for any possible unlawfulness. The assessment of the amount of the fine by the NEC was also erroneous, in the petitioner’s view. Since the Kúria had already found that the finding of unlawfulness in NEC decision no. 118/2016 was erroneous, no such unlawfulness could be established in the present case either. In the petitioner’s view, the method it used to express an opinion was not unlawful to an extent that would justify the imposition of a fine. The fact that it did not comply with NEC decision no. 118/2016 could not serve as the basis for a fine, since the decision was not final or legally binding. ... During the campaign preceding the referendum of 2 October 2016 on the question “Do you want the European Union to be entitled to order the mandatory settlement of non-Hungarian citizens in Hungary without Parliament’s consent?”, as initiated by the government of Hungary, the campaigning not only addressed the way in which the question was to be answered, but also the question whether to vote or to abstain from voting ... Based on the above, developing and providing voters with a mobile application encouraging them to cast an invalid ballot is likely to influence voters’ choice. Under section 140 of the Electoral Procedure Act, campaign material is any material that is likely to influence, or attempts to influence, voters’ choice; this is true also of the present mobile application. Under section 141 of the Electoral Procedure Act campaigning activity is any activity using campaign material during the campaign period, and any other activity likely to influence or attempting to influence voters’ choice during the campaign period. The NEC rightly established that the petitioner carried out campaigning activity during the campaign period as provided for in section 139 of the Electoral Procedure Act. The Kúria further examined whether the fine had been imposed in accordance with section 218(2)(d) of the Electoral Procedure Act. The Kúria emphasises that the general principles and rules of the voting procedure must be respected also when carrying out campaign activities. It does not share the observation of the applicant in relation to campaign activities to the effect that in the present case no fine could be imposed for the manner in which an opinion had been expressed. The applicant in the present case was not fined solely because of the manner in which an opinion had been expressed. The campaigning activity had been carried out contrary to the principle of exercise of rights in accordance with their purpose as enshrined in section 2(1)(e) of the Electoral Procedure Act. Therefore, imposing a sanction was in compliance with section 218(2)(d) of the Electoral Procedure Act. ...” 28. The MKKP lodged a constitutional complaint under section 27 of the Constitutional Court Act against the Kúria decisions of 10 and 18 October 2016. The complaint contained the following passages: “The complainant developed the application in question, available through the application stores Google Play (Android) and Apple Store (iOS), with a view to the referendum held on 2 October 2016. The application was developed as a response to the spreading of new communication channels on social media. Nowadays, it is common for citizens to express their experiences, thoughts and opinions by sharing photographs taken with their mobile telephones on various websites (Facebook, Instagram, Tumblr, blogs). In the course of elections this manifests itself by citizens taking ballot photographs and sharing them with others on social media. In developing the application the complainant’s intention was to secure the possibility for voters to exercise their right to freedom of expression by anonymously sharing a photograph of their ballot papers (or, in the case of those who did not participate in the referendum, a photograph of the activity they were otherwise engaged in) and a related comment in a manner that did not allow the cast ballot to be linked to the voter him or herself. ... In the complainant’s view, the interpretation by the Kúria and the legal consequences of that interpretation infringed its rights under Article IX § 1 of the Fundamental Law and is therefore unconstitutional. The aim of taking photographs of ballot papers and sharing them with others is for voters to express a viewpoint on a matter of public interest; therefore it falls within the scope of freedom of expression, and in particular the salient aspect of the discussion of public matters. Therefore, the complainant’s own conduct in enabling the exercise of voters’ right to freedom of expression also falls within the sphere of protection of Article IX § 1 of the Fundamental Law. ... In the complainant’s view the purpose of the object shown on a photograph cannot serve as the basis for a constitutionally justified restriction on freedom of expression, exercised through taking photographs and sharing them with others, since such a restriction does not have a legitimate aim and it is not absolutely necessary. ... The purpose of the object shown on a photograph is not a fundamental right or a constitutional value; therefore, it cannot serve as a legitimate basis for restricting a fundamental right. That is to say, it does not fulfil the conditions required for the restriction of a fundamental right. ... In the complainant’s view the impugned decision of the Kúria restricts, without a constitutional basis, its conduct falling within the ambit of freedom of expression, by restricting voters’ right to freedom of expression. ... The complainant notes that it is common practice among voters to share their ballot photographs – like other aspects of their lives – with their friends and third parties on social media. Given the features of social media, this type of photograph-sharing links the cast ballot with the voter, since the photograph appears under the name of the user. By contrast, the application in the present case explicitly provides a possibility for individuals to share ballot photographs, and the content of their vote, with others without revealing their identity; therefore it is even less liable to breach the secrecy of the ballot than photographs shared on Facebook or other social media. If the development and advertising of the application were declared unlawful, this would result in voters sharing their ballot photographs on social media in a manner linking them with their vote, which would increase rather than decrease the hypothetical likelihood of electoral fraud.” 29. On 24 October 2016 the Constitutional Court issued two decisions, declaring both the complaint against the Kúria’ s decision of 10 October 2016 (decision no. 3226/2016 (XI.14) AB) and the complaint against the Kúria ’s decision of 18 October 2016 (decision no. 3227/216 (XI.14) AB) inadmissible and employing identical reasoning, as follows: “The Constitutional Court rejects [declares inadmissible] the constitutional complaint lodged against decision no. KvK.II.37.967/2016/2 of the Kúria. ... According to section 56(1) of the Constitutional Court Act, the Constitutional Court, sitting as a committee, decides on the admissibility of constitutional complaints. The committee, within its margin of appreciation, examines the statutory procedural and substantive conditions of admissibility of a constitutional complaint, and in particular the issues of victim status, the exhaustion of remedies under sections 26-27 and the conditions laid down in sections 29-31. Firstly, the Constitutional Court examined whether the constitutional complaint fulfilled the formal and procedural conditions. ... Secondly, the Constitutional Court examined whether the constitutional complaint fulfilled the substantive conditions under sections 27 and 29. Under section 27 persons or organisations affected by a judicial decision may submit a constitutional complaint to the Constitutional Court if the decision on the merits or any other decision terminating the judicial proceedings infringes a fundamental right of the complainant and if the complainant has exhausted available remedies or there were no remedies available. The Constitutional Court has established that the constitutional complaint does not fulfil the conditions laid down in section 27(a), that is, the impugned judicial decision does not concern a fundamental right of the complainant. The complainant submitted in its constitutional complaint that ‘the impugned decision of the Kúria restricts, without a constitutional basis, its conduct falling within the ambit of the exercise of the right to freedom of expression, by restricting voters’ right to freedom of expression’. ... In the present case the Constitutional Court needs to decide whether the decision establishing the unlawfulness of the ‘Cast an invalid ballot’ application developed by the complainant, a political party, and ordering the applicant to refrain from further unlawful behaviour, concerned the complainant’s right to freedom to express opinions, as described above. ... The Constitutional Court shares the view of the Kúria that the present case concerns voters’ right to freedom of expression. However, in the view of the Constitutional Court, this does not mean that the right of the complainant to freedom of expression was also the subject of the judicial proceedings. In the view of the Constitutional Court the complainant, by means of the application, merely provided a possibility for voters to share with each other their ballot photographs or their abstention from the referendum, in the exercise of their right to freedom of expression. Thus the complainant simply provided a forum, an interface where opinions could be published; this in itself does not mean that the complainant itself expressed its opinion. The complainant merely maintained that the impugned decision of the Kúria restricted voters’ right to freedom of expression and thus also concerned its own conduct, which in turn fell within the ambit of the exercise of freedom of expression. Thus, it relied only on an indirect infringement of its right to freedom of expression, alleging that the restriction of voters’ right to freedom of expression also infringed its right to freedom of expression. Based on the above, the Constitutional Court finds that the complainant requested the setting-aside of the impugned decision of the Kúria by relying on a violation, not of its own fundamental rights, but of the rights of others. Therefore the complaint does not fulfil the condition set out in section 27(a). In the light of the above, the Constitutional Court rejects the constitutional complaint pursuant to section 56(1) and (2) of the Constitutional Court Act and Rule 30(2)(h) of the Rules of Procedure.” 30. In a dissenting opinion, Judge Czine took the view that the case raised issues of constitutional importance. She commented as follows: “I do not agree with the decision rejecting the constitutional complaint, for the following reasons. In my opinion the substantive conditions, in particular those under sections 27 and 29, were met in the present case, since the arguments submitted concerning both the right to freedom of expression and the principle of the exercise of rights in accordance with their purpose under section 2(1)(e) of the Electoral Procedure Act raise doubts about the constitutionality of the judicial decision. They also render it necessary to examine a question of fundamental constitutional importance. ... In the present case the National Election Commission established, based on the available evidence, that the complainant had ‘encouraged voters to take photographs of valid and invalid ballot papers in the course of the referendum and to publish them on the application, thereby sending a message to the Government’. The complainant clearly argued in its constitutional complaint that ‘by making the application available its intention was to provide a possibility for voters to exercise their right to freedom of expression by taking and anonymously sharing photographs of ballot papers, or in the case of those who decided not to participate in the referendum, photographs of the activities they were engaged in instead of voting’. According to the complainant, its conduct in enabling the exercise of voters’ right to freedom of expression falls within the sphere of protection of Article IX § 1 of the Fundamental Law. In my opinion, in the present case, it is a question of fundamental constitutional importance whether the impugned judicial decision restricted the right to freedom of expression and whether the principle of the exercise of rights in accordance with their purpose under section 2(1)(e) could serve as a constitutional ground, within the meaning of Article I § 3 of the Fundamental Law, for restricting the right to freedom of expression. In the light of this, I considered it necessary to declare the constitutional complaint admissible and to examine it on its merits.” | This case concerned a political party’s mobile application which allowed voters to photograph, anonymously upload and comment on invalid votes cast during a referendum on immigration in 2016. The applicant party complained about a violation of its rights under Article 10 (right to freedom of expression) of the Convention. |
1,017 | Protection of property (Article 1 of Protocol No. 1) | I. THE CIRCUMSTANCES OF THE CASE 7. The applicants are all pensioners who retired on various dates between 1979 and 2002. Whenever the nominal monthly amount of their pensions exceeded the maximum amount of pension specified until the end of 1999 in section 47c of the Pensions Act 1957 (see paragraph 27 below) and since the beginning of 2000 in paragraph 6 of the provisional and concluding provisions of the Social Security Code 1999 (see paragraphs 31 ‑ 33 below), their pensions were capped. 8. In practice, that worked as follows. In individual decisions relating to each of the applicants, the National Social Security Institute (“the NSSI”) calculated their monthly pensions under the general rules laid down first in the Act and then in the Code, and then capped the pensions by reference to the above ‑ mentioned provisions. Whenever the pensions were updated or recalculated, the same process was repeated. A. Retired Air Force pilots 9. The following applicants are retired pilots from the Air Force. During their employment they received higher salaries than the average for the country. 10. Mr Valkov, who was born in 1928, started receiving a retirement pension in April 1979. In that year, the competent pension authority set his monthly pension at 330.20 old Bulgarian levs (BGL). Mr Valkov did not provide information about the actual amount of his monthly pension between June 1992 and the end of 1999; it appears that its nominal amount at the end of 1999 was 327.40 new Bulgarian levs (BGN) [1] (the equivalent of 167.40 euros (EUR) [2] ), and that it was therefore affected by the cap under section 47c of the Pensions Act 1957 (see paragraphs 27 and 28 below). When the Social Security Code 1999 came into force on 1 January 2000, Mr Valkov’s pension was recalculated in accordance with the new rules. With effect from 27 April 2004, he was granted an additional invalidity pension, amounting to BGN 13.75 (EUR 7.03). 11. In summary, Mr Valkov’s monthly pension after 1 January 2000 was as follows: Order of theNSSI dated For the period after Pension(s) under the general rules Capped amount of pension 3 July 2000, rect’d 12 January 2001 1 January 2000 BGN 622.97 (EUR 318.52) BGN 160 (EUR 81.81) 5 June 2001 1 June 2001 BGN 685.27 (EUR 350.37) BGN 176 (EUR 89.99) 3 June 2002 1 June 2002 BGN 726.39 (EUR 371.40) BGN 233.20 (EUR 119.23) 3 June 2003 1 June 2003 BGN 771.43 (EUR 394.43) BGN 250 (EUR 127.82) Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 771.43 (EUR 394.43) BGN 420 (EUR 214.74) 19 May 2004 27 April 2004 BGN 785.18 (EUR 401.46) BGN 420 (EUR 214.74) July 2004 1 June 2004 BGN 832.30 (EUR 425.55) BGN 420 (EUR 214.74) 19 May 2005 1 June 2005 BGN 891.46 (EUR 455.80) BGN 420 (EUR 214.74) 3 February 2006 1 January 2006 BGN 927.29 (EUR 474.12) BGN 455 (EUR 232.64) 2 July 2007 1 July 2007 BGN 1,020.02 (EUR 521.53) BGN 490 (EUR 250.53) 1 July 2008 1 July 2008 BGN 1,238.15 (EUR 633.06) BGN 490 (EUR 250.53) 1 April 2009 1 April 2009 BGN 1,541 (EUR 787.90) BGN 700 (EUR 357.90) 12. Mr Galabov, who was born in 1954, started receiving a retirement pension in 1999. It was as follows: Order of theNSSI dated For theperiod after Pension(s) under the general rules Capped amount of pension 7 July 1999 1 December 1998 BGL 356,160 (EUR 182.10) BGL 103,950 (EUR 53.15) 7 July 1999 1 July 1999 BGL 400,170 (EUR 204.60) BGL 111,000 (EUR 56.75) 3 July 2000, rect’d 22 May 2002 1 January 2000 BGN 616.86 (EUR 315.40) BGN 160 (EUR 81.81) 22 May 2002 1 June 2001 BGN 678.55 (EUR 346.94) BGN 176 (EUR 89.99) 2 July 2001, rect’d 22 May 2002 1 July 2001 BGN 680.72 (EUR 348.05) BGN 176 (EUR 89.99) 22 May 2002 1 January 2002 BGN 680.72 (EUR 348.05) BGN 220 (EUR 112.48) 22 May 2002 1 June 2002 BGN 721.56 (EUR 368.93) BGN 233.20 (EUR 119.23) 3 June 2002 1 June 2002 BGN 779.07 (EUR 368.93) BGN 186.56 (EUR 95.39) 3 June 2003 1 June 2003 BGN 766.30 (EUR 391.80) BGN 250 (EUR 127.82) Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 766.30 (EUR 391.80) BGN 420 (EUR 214.74) 1 June 2004 1 June 2004 BGN 812.28 (EUR 415.31) BGN 420 (EUR 214.74) 1 June 2005 1 June 2005 BGN 869.14 (EUR 444.38) BGN 420 (EUR 214.74) 1 March 2006 1 January 2006 BGN 903.91 (EUR 462.16) BGN 455 (EUR 232.64) 2 July 2007 1 July 2007 BGN 994.30 (EUR 508.38) BGN 490 (EUR 250.53) 1 October 2007 1 October 2007 BGN 1,093.73 (EUR 559.22) BGN 490 (EUR 250.53) 1 July 2008 1 July 2008 BGN 1,206.93 (EUR 617.09) BGN 490 (EUR 250.53) 1 October 2008 1 October 2008 BGN 1,368.52 (EUR 699.71) BGN 490 (EUR 250.53) 5 December 2008 27 November 2008 BGN 1,499.28 (EUR 766.57) BGN 490 (EUR 250.53) 1 April 2009 1 April 2009 BGN 1,649.39 (EUR 843.32) BGN 700 (EUR 357.90) 13. Mr Sodev, who was born in 1949, started receiving a retirement pension in 2001. It was as follows: Order of theNSSI dated For theperiod after Pension(s) under the general rules Capped amount of pension 13 August 2001 1 June 2001 BGN 915.61 (EUR 468.14) BGN 176 (EUR 89.99) 3 June 2002 1 June 2002 BGN 970.55 (EUR 496.23) BGN 233.20 (EUR 119.23) 12 February 2003 15 January 2003 BGN 999.56 (EUR 511.07) BGN 233.20 (EUR 119.23) 3 June 2003 1 June 2003 BGN 1,061.53 (EUR 542.75) BGN 250 (EUR 127.82) Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 1,061.53 (EUR 542.75) BGN 420 (EUR 214.74) 1 June 2004 1 June 2004 BGN 1,125.22 (EUR 575.32) BGN 420 (EUR 214.74) 1 June 2005 1 June 2005 BGN 1,203.99 (EUR 615.59) BGN 420 (EUR 214.74) 1 March 2006 1 January 2006 BGN 1,252.15 (EUR 640.21) BGN 455 (EUR 232.64) 29 March 2006 14 March 2006 BGN 1,351.70 (EUR 691.11) BGN 455 (EUR 232.64) 7 March 2007 19 February 2007 BGN 1,366.22 (EUR 698.58) BGN 455 (EUR 232.64) 2 July 2007 1 July 2007 BGN 1,502.84 (EUR 768.39) BGN 490 (EUR 250.53) 1 October 2007 1 October 2007 BGN 1,653.12 (EUR 845.23) BGN 490 (EUR 250.53) 19 March 2008 22 February 2008 BGN 1,670.72 (EUR 854.23) BGN 490 (EUR 250.53) 1 July 2008 1 July 2008 BGN 1,843.64 (EUR 942.64) BGN 490 (EUR 250.53) 26 March 2009 20 February 2009 BGN 2,049.34 (EUR 1,047.81) BGN 700 (EUR 357.90) 1 July 2009 1 July 2009 BGN 2,233.78 (EUR 1,142.11) BGN 700 (EUR 357.90) 14. Mr Stoyanov, who was born in 1950, started receiving a retirement pension in 2002. It was as follows: Order of theNSSI dated For the period after Pension(s) under the general rules Capped amount of pension 12 September 2002 14 June 2002 BGN 871.32 (EUR 445.50) BGN 233.20 (EUR 119.13) 3 June 2003 1 June 2003 BGN 925.34 (EUR 473.12) BGN 250 (EUR 127.82) Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 925.34 (EUR 473.12) BGN 420 (EUR 214.74) 1 June 2004 1 June 2004 BGN 980.86 (EUR 501.51) BGN 420 (EUR 214.74) n/a 1 June 2005 BGN 1,049.52 (EUR 536.61) BGN 420 (EUR 214.74) n/a 1 January 2006 BGN 1,091.50 (EUR 558.08) BGN 455 (EUR 232.64) n/a 1 January 2007 BGN 1,091.50 (EUR 558.08) BGN 490 (EUR 250.53) n/a 1 July 2007 BGN 1,200.65 (EUR 613.88) BGN 490 (EUR 250.53) n/a 1 October 2007 BGN 1,320.72 (EUR 675.27) BGN 490 (EUR 250.53) n/a 1 July 2008 BGN 1,457.41 (EUR 745.16) BGN 490 (EUR 250.53) n/a 1 April 2009 BGN 1,603.25 (EUR 819.73) BGN 700 (EUR 357.90) n/a 1 July 2009 BGN 1,747.54 (EUR 893.50) BGN 700 (EUR 357.90) 15. Mr Avreiski, who was born in 1950, started receiving a retirement pension in 2002. It was as follows: Order of theNSSI dated For theperiod after Pension(s) under the general rules Capped amount of pension 3 September 2002 15 June 2002 BGN 699.69 (EUR 357.75) BGN 233.20 (EUR 119.23) 3 June 2003 1 June 2003 BGN 743.07 (EUR 379.93) BGN 250 (EUR 127.82) Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 743.07 (EUR 379.93) BGN 420 (EUR 214.74) 1 June 2004 1 June 2004 BGN 787.65 (EUR 402.72) BGN 420 (EUR 214.74) n/a 1 June 2005 BGN 842.79 (EUR 430.91) BGN 420 (EUR 214.74) n/a 1 January 2006 BGN 876.50 (EUR 448.15) BGN 455 (EUR 232.64) n/a 1 July 2007 BGN 964.15 (EUR 492.96) BGN 490 (EUR 250.53) n/a 1 October 2007 BGN 1,060.57 (EUR 542.26) BGN 490 (EUR 250.53) n/a 1 July 2008 BGN 1,170.34 (EUR 598.39) BGN 490 (EUR 250.53) n/a 1 October 2008 BGN 1,170.34 (EUR 598.39) BGN 490 (EUR 250.53) n/a 1 April 2009 BGN 1,287.45 (EUR 658.26) BGN 700 (EUR 357.90) n/a 1 July 2009 BGN 1,403.32 (EUR 717.51) BGN 700 (EUR 357.90) B. Retired sappers 16. The following applicants were sappers from the Border Police Service. They also received higher salaries than the average for the country. 17. Mr Gonevski, who was born in 1944, started receiving a retirement pension in 2001. It was as follows: Order of theNSSI dated For theperiod after Pension(s) under the general rules Capped amount of pension 10 April 2002 27 November 2001 BGN 949.96 (EUR 485.71) BGN 176 (EUR 89.99) 3 June 2002 1 June 2002 BGN 1,006.96 (EUR 514.85) BGN 200 (EUR 102.26) 3 June 2003 1 June 2003 BGN 1,069.39 (EUR 546.77) BGN 200 (EUR 102.26) Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 1,069.39 (EUR 546.77) BGN 420 (EUR 214.74) 1 June 2004 1 June 2004 BGN 1,133.55 (EUR 579.57) BGN 420 (EUR 214.74) 1 June 2005 1 June 2005 BGN 1,212.90 (EUR 620.15) BGN 420 (EUR 214.74) 1 March 2006 1 January 2006 BGN 1,261.42 (EUR 644.95) BGN 455 (EUR 232.64) 2 July 2007 1 July 2007 BGN 1,387.56 (EUR 709.45) BGN 490 (EUR 250.53) 1 October 2007 1 October 2007 BGN 1,526.32 (EUR 780.40) BGN 490 (EUR 250.53) 1 July 2008 1 July 2008 BGN 1,684.29 (EUR 861.16) BGN 490 (EUR 250.53) 25 July 2008 17 July 2008 BGN 2,068.32 (EUR 1,057.52) BGN 490 (EUR 250.53) 27 February 2009 24 February 2009 BGN 2,100.36 (EUR 1,073.90) BGN 490 (EUR 250.53) 1 April 2009 1 April 2009 BGN 2,310.48 (EUR 1,181.33) BGN 700 (EUR 357.90) 1 July 2009 1 July 2009 BGN 2,518.42 (EUR 1,287.65) BGN 700 (EUR 357.90) 22 January 2010 20 January 2010 BGN 2,556.83 (EUR 1,307.29) BGN 700 (EUR 357.90) 18. Mr Slavkov, who was born in 1950, started receiving a retirement pension in 2000. It was as follows: Order of theNSSI dated For theperiod after Pension(s) under the general rules Capped amount of pension 11 August 2000 1 February 2000 BGN 772.74 (EUR 395.10) BGN 160 (EUR 81.81) 5 June 2001 1 June 2001 BGN 850.01 (EUR 434.60) BGN 176 (EUR 89.99) 3 June 2002 1 June 2002 BGN 901.01 (EUR 460.68) BGN 186.56 (EUR 95.39) 3 June 2003 1 June 2003 BGN 956.87 (EUR 489.24) BGN 200 (EUR 102.26) Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 956.87 (EUR 488.80) BGN 420 (EUR 214.74) 1 June 2004 1 June 2004 BGN 1,013.74 (EUR 518.32) BGN 420 (EUR 214.74) 1 June 2005 1 June 2005 BGN 1,084.70 (EUR 554.60) BGN 420 (EUR 214.74) 1 March 2006 1 January 2006 BGN 1,128.09 (EUR 576.78) BGN 455 (EUR 232.64) 2 July 2007 1 July 2007 BGN 1,240.90 (EUR 634.46) BGN 490 (EUR 250.53) 1 October 2007 1 October 2007 BGN 1,364.99 (EUR 697.91) BGN 490 (EUR 250.53) 1 July 2008 1 July 2008 BGN 1,506.27 (EUR 770.14) BGN 490 (EUR 250.53) 1 October 2008 1 October 2008 BGN 1,707.96 (EUR 873.27) BGN 490 (EUR 250.53) 1 April 2009 1 April 2009 BGN 1,878.84 (EUR 960.64) BGN 700 (EUR 357.90) 1 July 2009 1 July 2009 BGN 2,047.94 (EUR 1,047.10) BGN 700 (EUR 357.90) 19. Mr Baev, who was born in 1954, started receiving a retirement pension in 2000. It was as follows: Order of theNSSI dated For theperiod after Pension(s) under the general rules Capped amount of pension 11 August 2000 1 March 2000 BGN 560.92 (EUR 286.79) BGN 160 (EUR 81.81) 5 June 2001 1 June 2001 BGN 617.01 (EUR 315.47) BGN 176 (EUR 89.99) 3 June 2002 1 June 2002 BGN 654.03 (EUR 334.40) BGN 186.56 (EUR 95.39) 3 June 2003 1 June 2003 BGN 694.58 (EUR 355.13) BGN 200 (EUR 102.26) Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 694.58 (EUR 355.13) BGN 420 (EUR 214.74) 1 June 2004 1 June 2004 BGN 736.25 (EUR 376.44) BGN 420 (EUR 214.74) 1 June 2005 1 June 2005 BGN 787.79 (EUR 402.79) BGN 420 (EUR 214.74) 1 March 2006 1 January 2006 BGN 819.30 (EUR 418.90) BGN 455 (EUR 232.64) 2 July 2007 1 July 2007 BGN 901.23 (EUR 460.79) BGN 490 (EUR 250.53) 1 October 2007 1 October 2007 BGN 991.35 (EUR 506.87) BGN 490 (EUR 250.53) 1 July 2008 1 July 2008 BGN 1,093.95 (EUR 559.33) BGN 490 (EUR 250.53) 1 October 2008 1 October 2008 BGN 1,240.43 (EUR 634.22) BGN 490 (EUR 250.53) 1 April 2009 1 April 2009 BGN 1,364.26 (EUR 697.53) BGN 700 (EUR 357.90) 1 July 2009 1 July 2009 BGN 1,487.04 (EUR 760.31) BGN 700 (EUR 357.90) C. Mr Atanasov 20. Mr Atanasov, who was born in 1935, did not specify what his employment had been; he merely stated that it had entailed “hard physical labour”. He started receiving a retirement pension in 1995. He did not provide information about the actual amount of his monthly pension between that time and the end of 1999; it appears that its nominal amount at the end of 1999 was BGN 285.71 (EUR 146.08), and that it was therefore affected by the cap under section 47c of the Pensions Act 1957 (see paragraphs 27 and 28 below). When the Social Security Code 1999 came into force on 1 January 2000, Mr Atanasov’s pension was recalculated in accordance with the new rules. 21. In summary, Mr Atanasov’s pension after 1 January 2000 was as follows: Order of theNSSI dated For theperiod after Pension(s) under the general rules Capped amount of pension n/a 1 January 2000 BGN 310.79 (EUR 158.91) BGN 160 (EUR 81.81) n/a 1 June 2001 BGN 341.87 (EUR 174.80) BGN 176 (EUR 89.99) n/a 1 June 2002 BGN 362.38 (EUR 185.28) BGN 186.56 (EUR 95.39) n/a 1 June 2003 BGN 384.85 (EUR 196.77) BGN 200 (EUR 102.26) n/a 1 June 2004 BGN 407.94 (EUR 208.58) n/a n/a 1 June 2005 BGN 436.50 (EUR 223.18) BGN 420 (EUR 214.74) n/a 1 January 2006 BGN 453.96 (EUR 232.11) n/a n/a 1 July 2007 BGN 499.36 (EUR 255.32) BGN 490.00 (EUR 250.53) n/a 1 October 2007 BGN 549.30 (EUR 280.85) BGN 490.00 (EUR 250.53) n/a 1 July 2008 BGN 606.15 (EUR 309.92) BGN 490.00 (EUR 250.53) n/a 1 October 2008 BGN 687.30 (EUR 351.41) BGN 490.00 (EUR 250.53) n/a 1 April 2009 BGN 755.89 (EUR 386.48) BGN 700 (EUR 357.90) n/a 1 July 2009 BGN 832.92 (EUR 425.87) BGN 700 (EUR 357.90) | The applicants, pensioners who had retired between 1979 and 2002, complained of the statutory cap on their retirement pensions which operated whenever the nominal monthly amount of their pensions exceeded the maximum amount specified in the legislation. In particular, they called into question the purpose of the pension cap, arguing that it had been introduced because of the perception that people in Bulgaria would not tolerate very high pensions and not in order to ensure the financial viability of the pension system. The applicants also complained of discrimination both in relation to pensioners whose pensions fell below the cap and in relation to certain high ranking officials whose pensions were exempted from the cap. |
375 | Contact with fellow inmates | 2. The applicant was born in 1973. He has been serving a life sentence since 2004. From May 2005 he has been imprisoned in Romny Prison no. 56. 3. Having been granted legal aid, the applicant was represented by Mr M. Tarakhkalo, Mr O. Levytskyy and Ms A. Kozmenko, lawyers practising in Kyiv, as well as Mr H. de Suremain, a lawyer practising in Paris. 4. The Government (“the Government”) were represented by their Agent, Mr I. Lishchyna. 5. The facts of the case, as submitted by the parties, may be summarised as follows. Incident on 13 June 2009 6. On 13 June 2009 the applicant greeted a fellow prisoner during a walk in the prison courtyard. The guard made a remark to them that that was prohibited and made a report to the prison administration. It was noted that the applicant “had tried to enter into verbal contact” with another prisoner in breach of section 23 of the Internal Regulations of Penal Institutions (see paragraph 30 below). 7. On the same day the applicant wrote an explanation to the prison administration. He admitted having talked to a fellow prisoner, whom he did not know. 8. Based on the guard’s report, on 16 June 2009 the prison administration disciplined the applicant. The sanction applied to him on that occasion was “a warning” (see paragraph 23 below). Administrative claim brought by the applicant 9. On 26 May 2010 the applicant lodged an administrative claim against the prison administration seeking that the disciplinary sanction in question be declared unlawful and that the relevant entry be removed from his records. 10. On 9 June 2010 the Sumy Circuit Administrative Court rejected his claim on account of its lack of jurisdiction to examine issues relating to the execution of sentences. 11. On 13 October 2010 the Kharkiv Administrative Court of Appeal upheld that ruling. 12. On 13 October 2011 the Higher Administrative Court dismissed the applicant’s appeal on points of law as having been lodged out of time, even though the applicant had claimed having received the appellate court’s ruling with a delay. 13. The Government submitted that they were unable to provide the Court with a copy of the above-mentioned case file because it had been destroyed on the expiry of the statutory storage period. Civil claim brought by the applicant 14. On 13 June 2012 the applicant brought civil proceedings against the prison administration seeking that the disciplinary measure in question be declared unlawful, and claiming compensation in respect of non-pecuniary damage. 15. On 20 June 2012 the Romny Town Court rejected the applicant’s claim on the grounds that it fell to be examined by the administrative courts. 16. The applicant appealed, with reference to the administrative courts’ decisions declining jurisdiction over the matter. 17. On 31 July 2012 the Sumy Regional Court of Appeal rejected that appeal, reiterating the first-instance court’s reasoning. 18. On 5 February 2013 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant’s request for leave to appeal on points of law. Other relevant facts 19. As indicated in an information note issued by the governor of Romny Prison no. 56 on 15 February 2017, since 13 June 2009 the applicant had applied to the prison administration for medical and psychological assistance on thirteen occasions. He had consistently submitted that the permanent prohibition of any contact with other prisoners “in the same areas” amounted to torture. It was mentioned in the information note that “there was no information concerning the examination of those applications”. As further noted therein, on 3 February 2011 the applicant had been diagnosed with “neurocirculatory asthenia of hypertonic type”, for which he had received no medical treatment, but the following recommendation had been made: “to lead a healthy lifestyle and to avoid psychological and emotional strain”. Lastly, it was observed that the applicant had periodically complained of a deterioration in his health on account of the prohibition of contact with other prisoners, and that he had been taking some items of medication supplied by his relatives and friends. 20. In April 2013 the applicant applied to the regional prison authorities for possible enrolment in vocational training. He was informed that, although there was indeed a vocational training programme for inmates in Romny Prison no. 56, life prisoners were not eligible for it. 21. On 23 October 2020 the governor of Romny Prison no. 56 issued a further information note stating as follows: “During the period from 4 May 2005 to 27 August 2019 [the applicant] was held in a cell for life-sentenced prisoners together with another inmate, while during the period from 28 August 2019 to 23 October 2020 he shared his cell with two other inmates, spending twenty-two to twenty-four hours per day in his cell without any activities (work or training)...” | This case concerned the regime – a ban on talking to prisoners from other cells – in which the applicant had been held while serving his life sentence. The applicant complained of the permanent prohibition on his having contact with inmates from other cells, and that there was no effective remedy for his complaint. |
55 | Applications lodged by the abducting parent | I. THE CIRCUMSTANCES OF THE CASE A. Background of the case 6. The first applicant, Ms O.C.I., was born in 1978 and lives in Tulcea. In 2005 she married P.L.R., an Italian national. The couple lived together in Italy, where O.C.I. gave birth to their children: the second applicant, P.A.R., in 2008, and the third applicant, N.A.R., in 2010. 7. On 12 June 2015 the family went to Romania for the summer holidays. A few days later P.L.R. returned to Italy, expecting to go back to collect the applicants at the end of summer. On 25 June 2015 the first applicant informed her husband that she and the children would no longer return to Italy. She said that she saw no future for them there. Moreover, she told P.L.R. that he was a bad father who mistreated his children. 8. On 14 September 2015 P.L.R. lodged a criminal complaint against the first applicant in Italy for child abduction in a foreign country. B. Proceedings for the return of the children to Italy 9. On 29 September 2015 P.L.R. applied to the Bucharest County Court for the return of the second and third applicants to Italy, the place of their habitual residence. He relied on the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and those of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“the Brussels II bis Regulation”). He contended that he had not agreed that the second and third applicants would remain permanently in Romania. In his view, the mother had unilaterally changed the children ’ s residence which, he argued, constituted wrongful retention. 10. The first applicant opposed the action. She alleged that P.L.R. was a violent father who often got angry with is children when they did not obey him. According to the first applicant, P.L.R. would beat up the children, bruising their faces and giving them nose bleeds. He would pull them by the ears, slap their faces and hit their bottoms. Sometimes he would undress them and beat their bodies with hard objects. He would also call them names and humiliate them. The violence had worsened in recent years and the first applicant had become a target as well. She had tried to intervene but to no avail. She had encouraged her husband to seek medical help for his behaviour, but he had refused. Eventually, the first applicant had decided to find refuge with the children in Romania. She submitted as evidence several recordings of discussions between the applicants and P.L.R. during their common life in Italy, showing episodes similar to those described above. 11. The first applicant further explained that the children had become integrated in their new environment. They attended school in Romania and had made friends. They participated in after-school activities that they had always wanted to try but had in the past been denied by their father. She also explained that the children refused to speak with their father. They feared going back to Italy and being again subject to abuse. 12. The County Court heard evidence from the parents (hearing of 27 September 2015) and interviewed the children in the presence of a psychologist (on 16 November 2015). 13. In a judgment of 18 January 2016 the Bucharest County Court allowed the application for the return of the children to their habitual residence in Italy. It found that there was nothing to oppose the children ’ s return to Italy. The court concluded that the mother had influenced the children against their father. It also considered that her decision to leave Italy had been made because of marital problems and because of her own dissatisfaction. As for the allegations that the children ran a grave risk of being exposed to physical or psychological harm at their father ’ s hands, it found as follows: “The evidence in the file proves without doubt that the father used physical force and a raised voice to discipline his children. [P.L.R.] confirmed this in his statement before the court. The child has the right to respect for his dignity, which entails prohibition under any circumstances of any act of physical or psychological violence against the child. It is therefore evident that nothing can justify a departure from this norm.” 14. The first applicant appealed, and in a final decision of 30 March 2017 the Bucharest Court of Appeal upheld the order to return the children. The Court of Appeal considered that the existence of criminal proceedings against the first applicant in Italy did not constitute grounds for refusing the return. In fact, the Court reasoned, in accordance with the European arrest warrant procedure, a criminal sentence would have the same effect regardless of whether the first applicant lived in Romania or Italy. The Court of Appeal reassessed the allegations of grave risk for the children in Italy and concluded as follows: “... it cannot be inferred that occasional acts of violence such as those which were proved by the recordings adduced in the file, would reoccur often enough to pose a grave risk ... under Article 13 § 1 (b) of the Hague Convention ... ... it is reasonable to expect that the Italian authorities would give the assurance that they would take the measures required by the [Brussels II bis Regulation], so that the aim of the Hague Convention would be observed, namely that a child is not removed or retained in the name of rights linked to his person which are to a larger or lesser extent debatable. It is also reasonable to suppose that if after the decision is rendered the children are exposed to a risk, [the Italian authorities] would take such requisite measures, if the risk was brought to their attention and supported by evidence.” C. Enforcement of the return order 15. On 11 July 2017 P.L.R. started enforcement proceedings through the offices of a bailiff in Romania. 16. On 28 September 2017 the bailiff together with P.L.R. and a psychologist from the Bucharest Directorate General for Social Welfare and Child Protection (“the child - protection authority”) spoke with the children, with their mother ’ s permission. It was noted that the children refused to go back to Italy with their father. Consequently, the child-protection authority sought a court order for a three-month psychological counselling programme for the children. On 7 December 2017 the Tulcea District Court granted the request. The enforcement proceedings were stayed during that period. 17. A report of 29 May 2018 on the results of the counselling stated that the children refused contact with their father despite the first applicant ’ s efforts to encourage that relationship. Therapy for the children was recommended. 18. On 29 March 2018 P.L.R. sought enforcement in Romania of a Parma District Court order granting him sole parental authority. On 10 July 2018 the first applicant lodged an objection to the enforcement. On 13 July 2018 the court stayed the enforcement proceedings, at the first applicant ’ s request, on the grounds that the children ’ s refusal to go back to Italy with their father had already been established. 19. It appears from the parties ’ observations that at least on 26 September 2018 (the date of the most recent relevant information) the applicants were still living in Romania. | After spending the summer holidays in Romania in 2015, the first applicant, a Romanian national, decided not to go back to her husband in Italy with their two children. Before the Court, the first applicant and her children complained about the order to return the children to Italy. They alleged in particular that the Romanian courts had failed to take into account the grave risk of mistreatment they faced at the hands of their father, which was one of the exceptions under the Hague Convention of 25 October 1980 to the principle that children should be returned to their habitual place of residence. |
1,094 | Pensions | 10. The applicants were born between 1938 and 1948 and live in various cities of Latvia. 11. The facts of the case, as submitted by the parties, may be summarised as follows. THE GENERAL HISTORICAL BACKGROUND TO THE CASE 12. The historical background, namely the incorporation of the Baltic States into the Soviet Union in 1940, has been described in the cases of Ždanoka v. Latvia [GC] (no. 58278/00, §§ 12-13, ECHR 2006 ‑ IV); Kuolelis and Others v. Lithuania (nos. 74357/01 and 2 others, § 8, 19 February 2008); Vasiliauskas v. Lithuania [GC] (no. 35343/05, §§ 11-12, ECHR 2015); and Sõro v. Estonia (no. 22588/08, § 6, 3 September 2015). 13. On 4 May 1990, the Supreme Council of the “Latvian Soviet Socialist Republic” (“SSR”, one of the fifteen “Soviet Socialist Republics” of the USSR), the legislative assembly elected on 18 March of the same year, adopted the Declaration on the Restoration of Independence of the Republic of Latvia, which declared Latvia’s incorporation into the USSR in 1940 unlawful under international law and acknowledged that the fundamental provisions of the 1922 Constitution ( Satversme ) were still in force. A transitional period, aimed at the restoration of de facto sovereignty, was instituted. Negotiations with the USSR were to be initiated in accordance with the 1920 Peace Treaty between Latvia and Russia. During this period, various provisions of the Constitution of the Latvian SSR and other applicable legal acts remained in force in so far as they did not contradict the fundamental provisions of the 1922 Constitution (see paragraphs 60-61 below). 14. On 21 August 1991, the Supreme Council passed a constitutional law proclaiming full independence with immediate effect (see paragraph 62 below). The transitional period established under the 4 May 1990 Declaration on the Restoration of Independence was abolished. 15. On 8 December 1991, Belarus, the Russian Federation and Ukraine signed the Minsk Agreement, declaring the end of the Soviet Union’s existence and setting up the Commonwealth of Independent States (CIS). 16. On 21 December 1991, eleven sovereign States, former polities of the USSR – but not Latvia, Lithuania, Estonia, and Georgia – signed the Alma ‑ Ata Declaration, which confirmed and extended the Minsk Agreement setting up the CIS. It was noted in the Alma-Ata Declaration that “with the establishment of the CIS, the USSR ha[d] cease[d] to exist” and that the CIS was neither a State nor a supra-State entity. A Council of the Heads of State of the CIS was set up. They decided on the same date that (UN Doc. A/47/60): “The States of the Commonwealth support Russia’s continuance of the membership of the USSR in the United Nations, including permanent membership of the Security Council, and [membership of] other international organisations.” PARTICULAR CIRCUMSTANCES OF THE CASEThe initial calculation of the applicants’ retirement pensions The initial calculation of the applicants’ retirement pensions The initial calculation of the applicants’ retirement pensions 17. In 1996, the Republic of Latvia created a social security system under which periods of employment and equivalent periods accrued prior to 1991 in the territory of Latvia were to be taken into account in the calculation of retirement pensions. Such periods were also to be taken into account for citizens of Latvia if they had been accrued in the other territories of the former USSR. However, in relation to “permanently resident non-citizens” the employment and equivalent periods accrued in the other territories of the former USSR were to be taken into account only in a limited number of situations (see paragraphs 66-68 below). 18. The applicants were all born in various territories of the Soviet Union, were nationals of the former USSR, and came to live in Latvia while its territory was incorporated in the Soviet Union. Some of them arrived at a young age, others shortly before the restoration of Latvia’s independence in 1990-91. Following the restoration of independence the applicants did not become Latvian nationals but were granted the status of “permanently resident non-citizens” ( nepilsoņi ) of Latvia. After having worked in Latvia until their retirement they were granted retirement pensions. However, in contrast to the situation pertaining for citizens of Latvia, the employment and equivalent periods accrued outside the territory of Latvia in other parts of the former USSR prior to the restoration of that State’s independence were not taken into account in calculating their pensions. First applicant (Mr Jurijs Savickis) 19. The first applicant was born in the Kalinin Oblast (Russia) in 1939. Before the Court, he complained that the period of his employment in Russia, which had lasted 21 years, 3 months and 13 days, was not initially included in the calculation of his retirement pension, and although it was later included this was only on an ex nunc basis, without retroactive effect. 20. By a letter received by the Registry on 30 October 2020, the applicants’ representative informed the Court of the first applicant’s death. By a letter of 16 February 2021, the applicant’s representative informed the Court that no heir or close relative had come forward with a wish to pursue the application on the first applicant’s behalf. Second applicant (Mr Genādijs Nesterovs) 21. The second applicant was born in Baku (Azerbaijan) in 1938. According to his submissions, he was employed in the territory of Azerbaijan from 1956 to 1957 and from 1960 to 1968 (that is, 9 years, 1 month and 8 days). From 1957 to 1960 he was conscripted for compulsory military service, which he served in East Germany (3 years, 2 months and 12 days). In 1968, at the age of 30, he started working in Latvia. 22. On 12 January 1999 the State Social Insurance Agency ( Valsts sociālās apdrošināšanas aģentūra ) granted the second applicant a retirement pension. The insurance period was set at 30 years, 1 month and 14 days. The years of employment and of military service outside the territory of Latvia were not included in the calculation. The monthly amount of his pension was set at 79.05 Latvian lati (LVL) (approximately 113 euros (EUR)), payable from 3 December 1998. 23. On 11 February 2008 the second applicant’s pension was recalculated in view of his continued employment. The insurance period was set at 39 years, 1 month and 13 days, and he was granted a pension amounting to LVL 177.46 (approximately EUR 253), payable from 1 January 2007. 24. According to the most recent information provided by the applicants, as of December 2015 the second applicant was receiving a pension of EUR 359.15 and a supplement of EUR 26.89. The employment periods accrued in Azerbaijan and the compulsory military service served in Germany remain excluded from the calculation. Third applicant (Mr Vladimirs Podoļako) 25. The third applicant was born in Vladivostok (Russia) in 1948 and came to Latvia in 1951, at the age of three. He worked in the territory of Latvia from 1968 onwards. He states that his compulsory military service was carried out in Russia (2 years and 1 month). 26. On 20 October 2009 the third applicant requested an early retirement pension. On 2 December 2009 his application was refused on the grounds that he did not meet the requirement of having accrued an insurance period of at least 30 years. As the period of compulsory military service had not been taken into account, the insurance period was set at 28 years, 5 months and 14 days. An appeal before the administrative courts was not examined on the grounds that he failed to establish that he had complied with the procedural requirements. 27. On 2 August 2010, after the third applicant had reached the official retirement age, he was granted a retirement pension of LVL 186.17 (approximately EUR 265), payable from 11 July 2010. In view of his continued employment, his insurance period was set at 29 years, 3 months and 16 days. 28. According to the most recent information provided by the third applicant, as of December 2015 he was receiving a pension of EUR 283.05 and a supplement of EUR 16.93. The years of his compulsory military service in Russia remain excluded from the calculation. Fourth applicant (Ms Asija Sivicka) 29. The fourth applicant was born in Termez (Uzbekistan) in 1946. According to data from the State Social Insurance Agency, from 1963 to 1971 she worked in the territory of Uzbekistan (a total of 7 years, 10 months and 14 days of employment, and 2 months of parental leave). From 1971 to 1973 (1 year, 11 months and 26 days) the fourth applicant was on parental leave, although the documents before the Court do not clearly specify in which country this time was spent. In the period between 1973 and 1976 the fourth applicant was employed in Germany (2 years, 9 months and 16 days of employment and 1 month and 4 days of parental leave). From 1976 until 1981 she was employed in Russia (4 years, 11 months and 25 days). From 1981 to 1985 she served in the Soviet armed forces as a volunteer. From 1985 to 1987 (1 year, 5 months and 5 days) the fourth applicant worked in the territory of Belarus. She started working in Latvia in 1987, at the age of 41. 30. On 28 March 2008, the State Social Insurance Agency granted the fourth applicant a retirement pension. The insurance period was set at 19 years, 11 months and 12 days, as the years of employment and the equivalent periods accrued outside the territory of Latvia were not included in the calculation. The monthly amount of her pension was set at LVL 49.50 (approximately EUR 70), payable from 27 February 2008. 31. On 28 September 2010, the Agreement between the Republic of Latvia and the Republic of Belarus on Cooperation in the Field of Social Security (“Latvia-Belarus Social Security Agreement”) entered into force. On the basis of this agreement, the Republic of Belarus granted the fourth applicant a retirement pension of EUR 6.55 with respect to the employment period in Belarus. There are no documents establishing when this decision was taken. In her application form lodged on 4 August 2011, the fourth applicant submitted that she had filed the relevant request in October 2010 but had not yet received a response. However, the Government alleged that this decision had already been taken on 27 October 2010. 32. On 19 January 2011, the Agreement between the Republic of Latvia and the Russian Federation on Cooperation in the Field of Social Security (“Latvia-Russia Social Security Agreement”) entered into force. By a decision of 8 June 2011 the employment period in Russia was included in the calculation on the basis of the Latvia-Russia Social Security Agreement. Accordingly, the insurance period was set at 27 years, 2 months and 7 days (including periods accrued through continued employment following her retirement). The monthly pension was set at LVL 82.05 (approximately EUR 117) with a supplement of LVL 9.10 (approximately EUR 13), payable from 1 February 2011. 33. According to the most recent information provided by the applicants, as of December 2015 the fourth applicant was receiving a pension of EUR 152.06 and a supplement of EUR 12.95 from Latvia. The applicant receives a pension of EUR 12.50 from Belarus for the periods worked in Belarus. The employment and equivalent periods accrued in Uzbekistan remain excluded from the calculation. While the employment periods accrued in Germany and the voluntary military service in Russia are also excluded from the calculation, the fourth applicant does not complain about those periods, as they also remain excluded from the relevant calculation for Latvian citizens. Fifth applicant (Ms Marzija Vagapova) 34. The fifth applicant was born in Syzran (Russia) in 1942. According to the data provided by the State Social Insurance Agency, she worked in the territory of Russia from 1960 to 1970 (9 years, 10 months and 14 days), in Uzbekistan from 1970 to 1971 (7 months and 10 days), in Turkmenistan from 1972 to 1980 (4 years, 9 months and 15 days, or, according to the applicant’s submissions, 5 years, 3 months and 12 days), and in Tajikistan from 1980 to 1986 (6 years, 1 month and 15 days). She started working in Latvia in 1987, at the age of 44. 35. On 16 February 2005, the State Social Insurance Agency granted the fifth applicant a retirement pension. The insurance period was set at 10 years and 4 days, as the years of service outside the Latvian territory were not included in the calculation. The monthly amount of her pension was set at LVL 38.50 (approximately EUR 55), payable from 1 December 2004. 36. By a decision of 11 March 2011, the employment periods accrued in the territory of Russia were included in the calculation on the basis of the Latvia-Russia Social Security Agreement. The insurance period was set at 21 years, 1 month and 18 days (including periods of employment accrued following her retirement). The monthly amount of the pension was set at LVL 88.76 (approximately EUR 126). She was granted a supplement of LVL 12.60 (approximately EUR 18), payable from 1 February 2011. 37. According to the most recent information provided by the fifth applicant, as of December 2015 she was receiving a pension of EUR 137.08, with a supplement of EUR 17.93. The employment periods accrued in Uzbekistan, Turkmenistan, and Tajikistan remain excluded from the calculation. 38. On an unspecified date (after the introduction of the application before the Court but prior to its relinquishment to the Grand Chamber), the fifth applicant acquired Russian nationality. The Constitutional Court’s initial ruling (2001) 39. The domestic legislation providing for the differences in the calculation of State pensions on the basis of Latvian citizenship was reviewed by the Constitutional Court ( Satversmes tiesa ) in 2001, in proceedings instituted by twenty members of the Parliament. The Constitutional Court considered that the contested provision, namely Paragraph 1 of the transitional provisions of the State Pensions Act, did not concern the right of property, as the pension entitlements for the respective time periods were based on the principle of solidarity and did not create a direct link between the contributions and the amount of pensions. Accordingly, it found that the contested provision was not at variance with Article 1 of Protocol No. 1 and did not infringe Article 14 of the Convention. Additionally, the Constitutional Court pointed out that the distinction made under the domestic law was objectively justified by the nature and principles of the Latvian pension system and did not amount to a discrimination within the meaning of the Constitution. The question of the aggregate periods of employment outside Latvia prior to 1991 with respect to persons not holding Latvian citizenship had to be resolved by means of international agreements, and Latvia should not be required to assume the obligations of another State (for a translation of the Constitutional Court’s main arguments, see Andrejeva v. Latvia [GC], no. 55707/00, § 37, ECHR 2009). The Court’s judgment in the Andrejeva case 40. The conformity of Paragraph 1 of the transitional provisions of the State Pensions Act with Article 1 of Protocol No. 1 and Article 14 of the Convention was put before the Court in the Andrejeva case, cited above. In its judgment, the Court started by pointing out that in Stec and Others v. the United Kingdom ((dec.) [GC], nos. 65731/01 and 65900/01, ECHR 2005 ‑ X) it had abandoned the distinction between contributory and non-contributory benefits for the purposes of the applicability of Article 1 of Protocol No. 1. The Government’s argument that, from the standpoint of public international law, Latvia had not inherited the rights and obligations of the former Soviet Union as regards welfare benefits, was found to be misconceived in the instant case, as the Latvian State had decided of its own accord to pay pensions to individuals in respect of periods of employment outside its territory, thereby creating a sufficiently clear legal basis in its domestic law. Accordingly, the presumed entitlement to such benefits fell within the scope of Article 1 of Protocol No. 1 and rendered Article 14 of the Convention applicable (ibid., §§ 76-80). 41. Having regard to the conclusions it would reach later in its judgment, the Court considered it unnecessary to determine whether the domestic courts’ finding that the fact of having worked for an entity established outside Latvia, despite having been physically in Latvian territory, had not constituted “employment within the territory of Latvia” was reasonable or, on the contrary, manifestly arbitrary (see Andrejeva, cited above, § 85). The Court then accepted that the difference in treatment pursued at least one legitimate aim, namely the protection of the country’s economic system (ibid., § 86) and then noted that the national authorities’ refusal to take into account the years of the applicants’ employment “outside Latvia” had been based exclusively on the consideration that she had not had Latvian citizenship. Therefore, the Court concluded that nationality had been the sole criterion for the distinction complained of (ibid., § 87). 42. Relying on the judgments in Gaygusuz v. Austria (16 September 1996, § 42, Reports of Judgments and Decisions 1996 ‑ IV), and Koua Poirrez v. France (no. 40892/98, § 46, ECHR 2003 ‑ X), the Court reiterated that very weighty reasons would have to be put forward before it could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention. No such reasons could be discerned in the Andrejeva case. Firstly, it had not been alleged that the applicant had not satisfied the other statutory conditions entitling her to a pension in respect of all her years of employment. She had therefore been in an objectively similar situation to persons who had had an identical or similar career involving periods of employment outside Latvian territory but who, after 1991, had been recognised as Latvian citizens. Secondly, there was no evidence that during the Soviet era there had been any difference in treatment between nationals of the former USSR as regards pensions. Thirdly, the applicant was not a national of any State. She had the status of a “permanently resident non ‑ citizen” of Latvia, the only State with which she had any stable legal ties and thus the only State which, objectively, could assume responsibility for her in terms of social security (ibid., § 88). Accordingly, the Court was not satisfied that there was a “reasonable relationship of proportionality” rendering the impugned difference of treatment compatible with the requirements of Article 14 of the Convention (ibid., § 89). 43. Additionally, while the Court acknowledged the importance of the bilateral inter-State agreements on social security in the effective solution of problems such as those arising in the case before it, it noted that the Latvian State could not be absolved of its responsibility under Article 14 of the Convention on the ground that it was not bound by inter-State agreements on social security (ibid., § 90). Finally, the Court rejected the Government’s argument that it would be sufficient for the applicant to become a naturalised Latvian citizen in order to receive the full amount of the pension claimed. Dismissing the victim’s claims on the ground that he or she could have avoided the discrimination by altering one of the factors listed in Article 14 – for example, by acquiring a nationality – would render that provision devoid of substance (ibid., § 91). Accordingly, the Court found a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 to the Convention. The applicants’ requests subsequent to the Andrejeva judgmentRequests for administrative review Requests for administrative review Requests for administrative review 44. On 14 August 2009, following the delivery of the judgment in the Andrejeva case, the first, second, fourth, and fifth applicants applied to the State Social Insurance Agency seeking a recalculation of their pensions and the inclusion of the employment and equivalent periods accrued in the territory of the former USSR outside Latvia, as well as compensation for the pecuniary damage sustained. As these requests were refused, the applicants brought proceedings before the administrative courts, seeking the reopening of the administrative proceedings related to their claims. 45. By final decisions of 20 November 2009, 27 November 2009, and 16 December 2009 the District Administrative Court ( Administratīvā rajona tiesa ) dismissed the applicants’ requests. The District Administrative Court declared that the Court’s judgment had been adopted only in respect of Ms Andrejeva; conversely, no similar judgments had been given by the Court with respect to any of the applicants in the present case. Furthermore, reopening could not be based on an alleged change in the legal circumstances, as the State had a margin of appreciation in deciding how to execute the Strasbourg Court’s judgment. In particular, the District Administrative Court pointed out that draft amendments to the State Pensions Act were pending before Parliament and had been adopted at first reading. These amendments proposed that the insurance periods accrued outside the territory of Latvia be excluded from the calculation of pensions in respect of both Latvian citizens and “permanently resident non-citizens”. The explanatory note to the draft amendments argued that the Andrejeva judgment could be executed either by including those periods in the calculation with respect to both of these groups or by excluding them from the calculation entirely. As the inclusion of these periods in the calculation of pensions for “permanently resident non-citizens” was seen as contradicting the doctrine of continuity of the Latvian State despite its occupation or annexation by foreign powers, a complete exclusion was proposed. In view of these circumstances, the District Administrative Court considered that only following the legislative amendments would it be possible to speak of a change in legal circumstances warranting or justifying the reopening of the administrative proceedings. The Constitutional Court’s review (a) Application before the Constitutional Court 46. On 5 March 2010, relying on the Court’s judgment in Andrejeva, the first, second, fourth, and fifth applicants lodged an application with the Constitutional Court seeking a reassessment of the compatibility of Paragraph 1 of the transitional provisions of the State Pensions Act, instituting the impugned difference in treatment between citizens and “permanently resident non-citizens” in the calculation of their retirement pensions, with Article 91 of the Constitution (guaranteeing the principle of equality and non-discrimination) and Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1 to the Convention. 47. The Constitutional Court accepted their application and instituted proceedings on 24 March 2010 (case no. 2010-20-0106). It considered that the applicants had provided sufficient evidence that no possibility was open to them to defend their rights through the generally available remedies. 48. On 22 March 2010, the third applicant lodged a similar application, specifically pointing to the exclusion of the periods of compulsory military service from the calculation of the insurance period and the resulting refusal to grant him an early retirement pension. On 16 April 2010 the Constitutional Court instituted proceedings with respect to the third applicant also, having held that the contested legal provision had personally affected him and that he had substantiated that he was unable to protect his rights by using the general remedies. On 17 June 2010 the two applications were joined. (b) The Constitutional Court’s second judgment (2011) 49. By a judgment delivered on 17 February 2011, the Constitutional Court found that the impugned legal provision was compatible with the principle of non-discrimination. Analysing the historical context in which the social security system had been created, the Constitutional Court reasoned that, once Latvia’s independence had been restored, the State had to resolve the issue of how to calculate retirement pensions for those persons who had made no contributions to the Latvian State budget, either because they had retired prior to the restoration of independence or because their insurance periods had been entirely or partly accrued during the Soviet regime. With regard to Latvian citizens, the legislature had chosen to include in the calculation all the employment periods and equivalent periods accrued both in Latvia and in the territory of the former USSR outside Latvia. Conversely, with respect to foreign citizens, stateless persons and “permanently resident non-citizens” of Latvia, only the periods of work in the Latvian territory were to be counted (with some exceptions). The treatment of Latvian citizens and “permanently resident non-citizens” of Latvia was thus clearly different and it had to be determined whether this difference was justified. 50. Referring to the Court’s judgment in the Andrejeva case, the Constitutional Court noted that the European Court of Human Rights had only analysed the particular circumstances of that case, rather than the general compliance of the relevant domestic regulation with legal provisions of a higher legal force. The Constitutional Court then drew a distinction between the factual circumstances in the Andrejeva case and those in the case at hand. In particular, even though Ms Andrejeva had been an employee of a Soviet enterprise, the regional department where she was physically present during her work had been located in Latvia. In contrast, in the case at hand the applicants had been working outside the Latvian territory for periods of considerable length over which time they could not have acquired legal ties with Latvia. 51. The relevant part of the Constitutional Court’s reasoning reads as follows: “9. ... The factual circumstances in the case of Andrejeva v. Latvia and in the present case put before the Constitutional Court differ considerably. In particular, Ms N. Andrejeva lived in Latvia from 1954 onwards and was an employee of an enterprise that was placed under the authority of the central government of the USSR, that is, an all-Union enterprise; the regional department where she worked was nonetheless located in the territory of Latvia. However, the total length of the insurance period for the [first] applicant is 37.2 years, of which 21.3 years (57 percent) was worked outside the territory of Latvia. [The fifth applicant] worked outside the territory of Latvia for 21.4 years (68 percent) of the total length of her insurance period (31.4 years). [The fourth applicant] accrued 21.8 years (52 percent) of the total length of her insurance period (41.7 years) outside Latvia, whilst [the second applicant] [accrued outside Latvia] 12 years (28 percent) of the total length of his insurance period (42.1 years). The Constitutional Court has no information that the above-mentioned applicants had only formally been employees of the enterprises placed under the authority of other Republics of the USSR but had in reality resided and worked in the territory of Latvia, as was the case for Ms N. Andrejeva. Consequently, during these periods, no legal ties could have formed between them and Latvia.” 52. Relying, inter alia, on the case-law of the European Court of Human Rights, the Constitutional Court emphasised the wide margin of appreciation enjoyed by the States in creating their social security schemes, including pension schemes. Further, relying on such cases as Jasinskij v. Lithuania ((dec.), no. 38985/97, 9 September 1998); Kuna v. Germany ((dec.), no. 52449/99, 10 April 2001); Kireev v. Moldova and Russia ((dec.), no. 11375/05, 1 July 2008); Kovačić and Others v. Slovenia ([GC], nos. 44574/98 and 2 others, § 256, 3 October 2008); and Si Amer v. France (no. 29137/06, 29 October 2009), the Constitutional Court noted that the Court had indeed paid due regard to considerations of the State succession and continuity of legal obligations. 53. The Constitutional Court continued (emphasis as in the original): “11.1. ... On 18 November 1918 the People’s Council of Latvia proclaimed the Republic of Latvia as an independent State. Latvia and the other Baltic States lost their independence de facto in 1940 when the USSR occupied Latvia in breach of international law. Latvia’s independence was restored in 1990, based on the doctrine of State continuity. If a State in respect of which independence was discontinued unlawfully restores its statehood on the basis of the doctrine of State continuity, it is entitled to recognise itself as the same State as that which was unlawfully liquidated ... The continuity of Latvia as a subject of international law was emphasised in the Declaration [“On the Restoration of Independence of the Republic of Latvia”, adopted on 4 May 1990 by the Supreme Council of the Latvian SSR]. Its Preamble notes that the incorporation of the Republic of Latvia into the Soviet Union was null and void from the perspective of international law and that the Republic of Latvia still existed de jure as a subject of international law. Establishing the doctrine of the continuity of the Latvian State in the Latvian legal system may be considered to be the main function of the Preamble to the Declaration ... 11.2. A State’s legal identity determines its rights and obligations. In determining a State’s legal identity it must be noted, and recognised, that the illegal annexation of a State, or part thereof, into other State has no effect in legal terms. ... According to the principle ex injuria ius non oritur, States or parts thereof can join other States on a voluntary basis only, complying with the procedures established by international and national law ... 11.3 The doctrine of State continuity directly influences the State’s actions, not only in the area of international law, where it continues to comply with the obligations undertaken prior to the de facto termination of its independence and does not assume the international obligations of the State of which it formerly unlawfully formed part, but also in internal affairs. The acts of the illegally established public authorities of the other State in the field of public law are not binding on the State which has restored its independence. ... To claim or to imply indirectly that Latvia has any automatic obligations based on the Soviet period would be tantamount to denying the fact of the unlawful occupation and annexation of Latvia within the meaning of international law and would be contrary to the principle ex injuria ius non oritur and the obligation of non-recognition established in international law (see the partly dissenting opinion of Judge Ziemele in the case of Andrejeva v. Latvia, paragraph 22). Accordingly, the Republic of Latvia is not a successor to the rights and obligations of the former USSR and, in accordance with the doctrine of State continuity, the restored State is not required to undertake any obligations emanating from the obligations of the occupying State. ” 54. The Constitutional Court then noted that a difference in treatment in the sphere of social rights was based on the idea that the State had to assume particular responsibility for its citizens. Some social rights could only be ensured partially and an absolute application of the prohibition of discrimination could have serious financial consequences. The mere fact that a person did not enjoy certain social rights did not violate his or her fundamental rights, as a violation would only be caused if this restriction was without sufficient justification. Referring to the Court’s decision in Janković v. Croatia ((dec.), no. 43440/98, ECHR 2000 ‑ X), the Constitutional Court noted that the State enjoyed a margin of appreciation of granting privileges to those persons that it deemed appropriate in view of the particular circumstances. The Convention did not prevent the Contracting Parties from introducing measures that treated certain groups of people differently, in so far as this interference could be justified under the Convention. The case-law of the European Court of Human Rights also showed that Article 1 of Protocol No. 1 did not guarantee the right to a pension of a specific amount, instead calling for a determination of whether the essence of the right to receive the pension had not been impaired (the Constitutional Court referred to Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004 ‑ IX, and Janković, cited above). Likewise, the Convention did not guarantee the right to receive a pension for the work carried out in another country (referring to L.B. v. Austria (dec.), no. 39802/98, 18 April 2002). 55. The Constitutional Court then continued (emphasis as in the original): “12.2. Since the restoration of its independence, Latvia has developed a social security system which applies to all persons who were resident in Latvia on 1 January 1991. The collapse of the USSR and the restoration of the Latvian State gave rise to considerable difficulties. During the occupation, the State and social budgets were controlled by the USSR State Bank. After the collapse of the USSR, those resources were not shared; they remained the property of the Russian Federation. Therefore, Latvia decided to ensure a minimum pension for all the inhabitants of Latvia. Pursuant to the disputed provision, periods of work accrued within the territory of Latvia are taken into consideration when calculating pensions for both citizens and [“permanently resident non-citizens”]. The legislature chose this particular regulatory framework because, in fact, this was the same administrative territory, with the same body of inhabitants, that Latvia “inherited” when it restored its independence. Furthermore, it could be considered that during the periods preceding 31 December 1991 when they worked within the territory of Latvia, the inhabitants had contributed to the national economy and the development of Latvia. 12.3. When devising the new pension system, it was decided that, in addition to the minimum pension already awarded, periods of work which had been accrued outside the territory of Latvia would be included in everyone’s insurance period. Latvian citizens were credited with a broader range of work periods accrued outside the territory of Latvia for inclusion in the insurance period, as compared to [“permanently resident non-citizens”], aliens and stateless persons. When assessing the periods which the legislature has chosen to count towards the length of the insurance periods for [“permanently resident non-citizens”], it can be seen that these are the periods during which [“permanently resident non-citizens”] acquired education or upgraded their qualifications so that they would later contribute to the development of the Latvian national economy, as well as those periods during which politically persecuted persons were held in custody, were resettled or were deported because they were regarded as opponents of the occupying regime. Accordingly, in creating its pension system the State exercised its margin of appreciation and took into account its citizens’ special link with the State, as well as the contribution their predecessors had made to the development of the national economy. The inclusion of certain periods of work accrued outside the territory of Latvia towards the insurance period for [“permanently resident non-citizens”] can be regarded as a manifestation of good will by the restored State (see also Epstein and Others v. Belgium (dec.), no. 9717/05, 8 January 2008). 13. As a result of the Soviet occupation in June 1940, Latvia not only lost its independence but also experienced mass deportations, killings of its inhabitants and an influx of Russian-speaking immigrants. On 25 March 1949 2.3% of the inhabitants of Latvia were deported – that is, about three times as many people as in the deportation of 14 June 1941. After the Second World War mass immigration into Latvia of USSR citizens occurred ... After the restoration of independence, the legislature had to decide how to establish the body of Latvian citizens. In view of the continuity of Latvia as a subject of international law, the citizenry of Latvia was restored in the same way as it had been determined in the Nationality Act of 1919. Accordingly, instead of granting citizenship to persons who had held citizenship prior to Latvia’s occupation, Latvia restored the rights of those persons de facto ... Consequently, the continuity of Latvia as a subject of international law was the legal grounds for not automatically granting citizenship status to a certain group of people, and it was necessary to create a special legal status for those persons who had come to Latvia during the period of occupation without acquiring any other citizenship. The granting of the status of [“permanently resident non-citizens”] to a certain group of people was the result of a complicated political compromise. Moreover, when enacting the Law “On the Status of those Citizens of the Former USSR who do not have the Citizenship of Latvia or any other State”, Latvia had also to observe international human-rights standards, which prohibit increasing the number of stateless persons ... The status of [“permanently resident non-citizens”] of Latvia cannot be equated with the status of either stateless persons or aliens, as defined in international legal instruments, as the level of rights granted to [“permanently resident non-citizens”] does not fully correspond to [those granted to persons] of either of those statuses. The status of [“permanently resident non-citizens”] is not and cannot be regarded as a variety of Latvian citizenship ... The present case does not concern long-term immigrants who arrived in the country pursuant to the provisions of a regulated immigration procedure, as happens nowadays. The majority of [“permanently resident non-citizens”] in Latvia settled in Latvian territory as a result of the immigration policy implemented by the USSR. Over the employment periods accrued outside the territory of Latvia these persons made no contribution to the Latvian economy and development. For these persons, the Latvian SSR was one corner of the USSR, where they could live and work for a shorter or longer while, thereby implementing part of the Sovietisation and Russification policy of the Communist Party of the Soviet Union (see the partly dissenting opinion of Judge Ziemele in the case of Andrejeva v. Latvia, paragraph 27). The Constitutional Court recognises that [“permanently resident non-citizens”] have legal ties with Latvia that are the basis for certain mutual rights and obligations. Nonetheless, the context of the State continuity is decisive, and it serves as a weighty reason justifying the difference in calculation of pensions for citizens and [“permanently resident non-citizens”]. A State that has been occupied as the result of an aggression by another State does not have the obligation to guarantee social security to persons who had travelled to its territory as the result of the immigration policy of the occupying State. This is particularly so if the erga omnes obligation not to recognise and justify breaches of international law is taken into account (see the judgment of 5 February 1970 of the International Court of Justice in the case of Belgium v. Spain (Barcelona Traction case), ICJ Reports 1970, No. 3, paragraph 33). Although the applicants do not regard the possibility of obtaining citizenship of the Republic of Latvia as proportionate, this option is open to [“permanently resident non ‑ citizens”]. The legislature has expressed the view that the status of [“permanently resident non-citizens”] was devised as a temporary instrument, so that the persons could obtain Latvian citizenship or choose another State with which to establish legal ties ... After the acquisition of Latvian citizenship, the employment periods accrued outside the territory of Latvia would also be counted towards the length of the insurance period. Many [“permanently resident non-citizens”] have used this possibility as a means of obtaining the rights and duties stipulated with respect of citizens. However, many [“permanently resident non-citizens”] have not wished to take advantage of this possibility, for a variety of reasons. Consequently, the difference in treatment when calculating pensions for citizens and [“permanently resident non-citizens”] of Latvia has objective and reasonable grounds. ” 56. Further, referring to the Court’s case-law in Carson and Others v. the United Kingdom ([GC], no. 42184/05, § 88, ECHR 2010), and Andrejeva, cited above, the Constitutional Court noted the importance of international agreements in the area of social security. Latvia was not required to assume the obligations of another State and to insure persons with retirement pensions for periods of work accomplished in that State. Latvia could not oblige the taxpayers of the new pension scheme to resolve issues that fell to be determined by international agreements. Latvia had in fact concluded such agreements with several countries, envisaging mutual recognition of periods of employment for inclusion in calculating State pensions. The Constitutional Court referred to the agreements with the United States of America (in force since 5 November 1992), Lithuania (in force since 31 January 1995), Estonia (in force since 29 January 1997, replaced by a new agreement in force since 1 September 2008), Ukraine (in force since 11 June 1999), Finland (in force since 1 June 2000), Norway (in force since 18 November 2004), the Netherlands (in force since 1 June 2005), Canada (in force since 1 November 2006), Belarus (in force since 28 September 2010) and Russia (in force since 19 January 2011). 57. The Constitutional Court continued: “14. ... The agreements concluded with the States which were formed after the collapse of the USSR show that these States have a similar understanding of the rights and obligations in the area of social law with respect to the period of occupation by the USSR. All these agreements are different; they reflect the outcome of negotiations between different States and regulate situations that have formed as a result of different historical, economic and political circumstances (see Tarkoev and Others v. Estonia, nos. 14480/08 and 47916/08, § 53, 4 November 2010). When concluding these agreements, the States have taken into account the historical context in which Latvia created its pensions system following the restoration of its independence.” 58. The Constitutional Court then noted that, with respect to the fourth applicant, the Latvia-Belarus Social Security Agreement was to be taken into account in calculating her pension, whereas the employment period accrued in Germany would be included in any calculation based on European Union law. In addition, with respect to the first, third, fourth, and fifth applicants, the periods of employment and of compulsory military service were to be included in the calculation, on the basis of the Latvia-Russia Social Security Agreement which had taken effect on 19 January 2011. 59. The Constitutional Court then observed that the applicants, similarly to the applicants in the case of Tarkoev and Others v. Estonia (nos. 14480/08 and 47916/08, 4 November 2010), wished to expand their rights with respect to the amount of pension granted, but this desire was not justified. The applicants had not been deprived of the pension or of any other social security payments and, in case of need, they were entitled to receive other social services and benefits. Accordingly, the difference in treatment was justified and proportionate, and the contested provision was therefore compatible with Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1, as well as with Article 91 of the Constitution. | This case concerned the applicants’ allegations of discrimination in the calculation of their State pensions as “permanently resident non-citizens” of Latvia, as contrasted with Latvian citizens6. The applicants complained that in their status as “permanently resident non-citizens” they had been treated unfairly vis-à-vis Latvian citizens in respect of the amount of their retirement pension and eligibility for early retirement. |
1,011 | Military presence | I. THE CIRCUMSTANCES OF THE CASE 8. The facts of the case may be summarised as follows. A. The applicant, his arrest and internment 9. The applicant was born in Iraq in 1957. He played for the Iraqi basketball team until, following his refusal to join the Ba’ath Party, he left Iraq in 1978 and lived in the United Arab Emirates and Pakistan. He moved to the United Kingdom in 1992, where he made a claim for asylum and was granted indefinite leave to remain. He was granted British nationality in June 2000. 10. In September 2004 the applicant and his four eldest children travelled from London to Iraq, via Dubai. He was arrested and questioned in Dubai by United Arab Emirates intelligence officers, who released him after twelve hours, permitting him and his children to continue their journey to Iraq, where they arrived on 28 September 2004. On 10 October 2004 United States soldiers, apparently acting on information provided by the British intelligence services, arrested the applicant at his sister’s house in Baghdad. He was taken to Basra in a British military aircraft and then to the Sha’aibah Divisional Temporary Detention Facility in Basra City, a detention centre run by British forces. He was held in internment there until 30 December 2007. 11. The applicant was held on the basis that his internment was necessary for imperative reasons of security in Iraq. He was believed by the British authorities to have been personally responsible for recruiting terrorists outside Iraq with a view to the commission of atrocities there; for facilitating the travel into Iraq of an identified terrorist explosives expert; for conspiring with that explosives expert to conduct attacks with improvised explosive devices against Coalition Forces in the areas around Fallujah and Baghdad; and for conspiring with the explosives expert and members of an Islamist terrorist cell in the Gulf to smuggle high-tech detonation equipment into Iraq for use in attacks against Coalition Forces. No criminal charges were brought against him. 12. The applicant’s internment was initially authorised by the senior officer in the detention facility. Reviews were conducted seven days and twenty-eight days later by the Divisional Internment Review Committee (DIRC). This comprised the senior officer in the detention facility and army legal and military personnel. Owing to the sensitivity of the intelligence material upon which the applicant’s arrest and detention had been based, only two members of the DIRC were permitted to examine it. Their recommendations were passed to the Commander of the Coalition’s Multinational Division (South-East) (“the Commander”), who himself examined the intelligence file on the applicant and took the decision to continue the internment. Between January and July 2005 a monthly review was carried out by the Commander, on the basis of the recommendations of the DIRC. Between July 2005 and December 2007 the decision to intern the applicant was taken by the DIRC itself, which, during this period, included as members the Commander together with members of the legal, intelligence and other army staffs. There was no procedure for disclosure of evidence or for an oral hearing, but representations could be made by the internee in writing which were considered by the legal branch and put before the DIRC for consideration. The two Commanders who authorised the applicant’s internment in 2005 and 2006 gave evidence to the domestic courts that there was a substantial weight of intelligence material indicating that there were reasonable grounds for suspecting the applicant of the matters alleged against him. 13. When the applicant had been detained for eighteen months, the internment fell to be reviewed by the Joint Detention Committee (JDC). This body included senior representatives of the Multinational Force, the Iraqi interim government and the ambassador for the United Kingdom. It met once and thereafter delegated powers to a Joint Detention Review Committee, which comprised Iraqi representatives and officers from the Multinational Force. 14. On 14 December 2007 the Secretary of State signed an order depriving the applicant of British citizenship, on the ground that it was conducive to the public good. The Secretary of State claimed, inter alia, that the applicant had connections with violent Islamist groups, in Iraq and elsewhere, and had been responsible for recruiting terrorists outside Iraq and facilitating their travel and the smuggling of bomb parts into Iraq. 15. The applicant was released from internment on 30 December 2007 and travelled to Turkey. He appealed against the deprivation of his British citizenship. On 7 April 2009 the Special Immigration Appeals Commission dismissed his appeal, having heard both open and closed evidence, during a hearing where the applicant was represented by special advocates (see, further, A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 91-93, ECHR 2009). The Special Immigration Appeals Commission held that, for reasons set out in detail in a closed judgment, it was satisfied on the balance of probabilities that the Secretary of State had proved that the applicant had facilitated the travel to Iraq of a terrorist explosives expert and conspired with him to smuggle explosives into Iraq and to conduct improvised explosive device attacks against Coalition Forces around Fallujah and Baghdad. The applicant did not appeal against the judgment. B. The domestic proceedings under the Human Rights Act 16. On 8 June 2005 the applicant brought a judicial review claim in the United Kingdom, challenging the lawfulness of his continued detention and also the refusal of the Secretary of State for Defence to return him to the United Kingdom. The Secretary of State accepted that the applicant’s detention within a British military facility brought him within the jurisdiction of the United Kingdom under Article 1 of the Convention. He also accepted that the detention did not fall within any of the permitted cases set out in Article 5 § 1 of the Convention. However, the Secretary of State contended that Article 5 § 1 did not apply to the applicant because his detention was authorised by United Nations Security Council Resolution 1546 (see paragraph 35 below) and that, as a matter of international law, the effect of the Resolution was to displace Article 5 § 1. He also denied that his refusal to return the applicant to the United Kingdom was unreasonable. It was argued on behalf of the applicant that Article 103 of the Charter of the United Nations (see paragraph 46 below) had no application since, inter alia, Resolution 1546 placed no obligation on the United Kingdom and/or since the Charter of the United Nations placed an obligation on member States to protect human rights. 17. Both the Divisional Court in its judgment of 12 August 2005 and the Court of Appeal in its judgment of 29 March 2006 unanimously held that United Nations Security Council Resolution 1546 explicitly authorised the Multinational Force to take all necessary measures to contribute to the maintenance of security and stability in Iraq, in accordance with the annexed letter from the US Secretary of State. By the practice of the member States of the United Nations, a State which acted under such an authority was treated as having agreed to carry out the Resolution for the purposes of Article 25 of the Charter of the United Nations and as being bound by it for the purposes of Article 103 (see paragraph 46 below). The United Kingdom’s obligation under Resolution 1546 therefore took precedence over its obligations under the Convention. The Court of Appeal also held that, under section 11 of the Private International Law (Miscellaneous Provisions) Act 1995, since the applicant was detained in Iraq, the law governing his claim for damages for false imprisonment was Iraqi law (see R. (on the application of Al-Jedda) v. Secretary of State for Defence [2005] EWHC 1809 (Admin); [2006] EWCA Civ 327) 18. The applicant appealed to the House of Lords (Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood: see R. (on the application of Al-Jedda) (FC) (Appellant) v. Secretary of State for Defence (Respondent) [2007] UKHL 58, 12 December 2007). The Secretary of State raised a new argument before the House of Lords, claiming that by virtue of United Nations Security Council Resolutions 1511 and 1546 the detention of the applicant was attributable to the United Nations and was thus outside the scope of the Convention. Lord Bingham introduced the attribution issue as follows: “5. It was common ground between the parties that the governing principle is that expressed by the International Law Commission in Article 5 of its Draft Articles on the Responsibility of International Organisations ...” He referred to the Court’s reasoning in Behrami v. France and Saramati v. France, Germany and Norway ((dec.) [GC], nos. 71412/01 and 78166/01, 2 May 2007) (hereinafter “ Behrami and Saramati ”) and to the factual situation in Iraq at the relevant time and continued: “22. Against the factual background described above a number of questions must be asked in the present case. Were UK forces placed at the disposal of the UN? Did the UN exercise effective control over the conduct of UK forces? Is the specific conduct of the UK forces in detaining the appellant to be attributed to the UN rather than the UK? Did the UN have effective command and control over the conduct of UK forces when they detained the appellant? Were the UK forces part of a UN peacekeeping force in Iraq? In my opinion the answer to all these questions is in the negative. 23. The UN did not dispatch the Coalition Forces to Iraq. The CPA [Coalition Provisional Authority] was established by the Coalition States, notably the US, not the UN. When the Coalition States became Occupying Powers in Iraq they had no UN mandate. Thus when the case of Mr Mousa reached the House [of Lords] as one of those considered in R. (Al-Skeini and Others) v. Secretary of State for Defence) (The Redress Trust intervening) [2007] UKHL 26, [2007] 3 WLR 33 the Secretary of State accepted that the UK was liable under the European Convention for any ill-treatment Mr Mousa suffered, while unsuccessfully denying liability under the Human Rights Act 1998. It has not, to my knowledge, been suggested that the treatment of detainees at Abu Ghraib was attributable to the UN rather than the US. Following UNSCR [United Nations Security Council Resolution] 1483 in May 2003 the role of the UN was a limited one focused on humanitarian relief and reconstruction, a role strengthened but not fundamentally altered by UNSCR 1511 in October 2003. By UNSCR 1511, and again by UNSCR 1546 in June 2004, the UN gave the Multinational Force express authority to take steps to promote security and stability in Iraq, but (adopting the distinction formulated by the European Court in paragraph 43 of its judgment in Behrami and Saramati ) the Security Council was not delegating its power by empowering the UK to exercise its function but was authorising the UK to carry out functions it could not perform itself. At no time did the US or the UK disclaim responsibility for the conduct of their forces or the UN accept it. It cannot realistically be said that US and UK forces were under the effective command and control of the UN, or that UK forces were under such command and control when they detained the appellant. 24. The analogy with the situation in Kosovo breaks down, in my opinion, at almost every point. The international security and civil presences in Kosovo were established at the express behest of the UN and operated under its auspices, with UNMIK [United Nations Interim Administration Mission in Kosovo] a subsidiary organ of the UN. The Multinational Force in Iraq was not established at the behest of the UN, was not mandated to operate under UN auspices and was not a subsidiary organ of the UN. There was no delegation of UN power in Iraq. It is quite true that duties to report were imposed in Iraq as in Kosovo. But the UN’s proper concern for the protection of human rights and observance of humanitarian law called for no less, and it is one thing to receive reports, another to exercise effective command and control. It does not seem to me significant that in each case the UN reserved power to revoke its authority, since it could clearly do so whether or not it reserved power to do so. 25. I would resolve this first issue in favour of the appellant and against the Secretary of State.” Baroness Hale observed in this connection: “124. ... I agree with [Lord Bingham] that the analogy with the situation in Kosovo breaks down at almost every point. The United Nations made submissions to the European Court of Human Rights in Behrami v. France, Saramati v. France, Germany and Norway ... concerning the respective roles of UNMIK [United Nations Interim Administration Mission in Kosovo] and KFOR [NATO-led Kosovo Force] in clearing mines, which was the subject of the Behrami [ and Saramati ] case. It did not deny that these were UN operations for which the UN might be responsible. It seems to me unlikely in the extreme that the United Nations would accept that the acts of the [Multinational Force] were in any way attributable to the UN. My noble and learned friend, Lord Brown of Eaton-under-Heywood, has put his finger on the essential distinction. The UN’s own role in Iraq was completely different from its role in Kosovo. Its concern in Iraq was for the protection of human rights and the observance of humanitarian law as well [as] to protect its own humanitarian operations there. It looked to others to restore the peace and security which had broken down in the aftermath of events for which those others were responsible.” Lord Carswell similarly agreed with Lord Bingham on this issue (§ 131). Lord Brown also distinguished the situation in Kosovo from that in Iraq, as follows: “145. To my mind it follows that any material distinction between the two cases must be found ... in the very circumstances in which the [Multinational Force] came to be authorised and mandated in the first place. The delegation to KFOR [NATO-led Kosovo Force] of the UN’s function of maintaining security was, the Court observed [in Behrami and Saramati ], ‘neither presumed nor implicit but rather prior and explicit in the Resolution itself’. Resolution 1244 decided (paragraph 5) ‘on the deployment in Kosovo, under United Nations auspices, of international civil and security presences’ – the civil presence being UNMIK [United Nations Interim Administration Mission in Kosovo], recognised by the Court in Behrami [ and Saramati ] (paragraph 142) as ‘a subsidiary organ of the UN’; the security presence being KFOR. KFOR was, therefore, expressly formed under UN auspices. Paragraph 7 of the Resolution ‘[a]uthorise[d] member States and relevant international organisations to establish the international security presence in Kosovo as set out in point 4 of Annex 2 ...’. Point 4 of Annex 2 stated: ‘The international security presence with substantial NATO participation must be deployed under unified command and control and authorised to establish a safe environment for all people in Kosovo and to facilitate the safe return to their homes of all displaced persons and refugees.’ 146. Resolution 1511, by contrast, was adopted on 16 October 2003 during the USA’s and UK’s post-combat occupation of Iraq and in effect gave recognition to those occupying forces as an existing security presence. ... ... 148. Nor did the position change when Resolution 1546 was adopted on 8 June 2004, three weeks before the end of the occupation and the transfer of authority from the CPA [Coalition Provisional Authority] to the interim government of Iraq on 28 June 2004. ... Nothing either in the Resolution [1546] itself or in the letters annexed suggested for a moment that the [Multinational Force] had been under or was now being transferred to United Nations authority and control. True, the [Security Council] was acting throughout under Chapter VII of the Charter [of the United Nations]. But it does not follow that the UN is therefore to be regarded as having assumed ultimate authority or control over the Force. The precise meaning of the term ‘ultimate authority and control’ I have found somewhat elusive. But it cannot automatically vest or remain in the UN every time there is an authorisation of UN powers under Chapter VII, else much of the analysis in Behrami [ and Saramati ] would be mere surplusage.” 19. Lord Rodger dissented on this point. He found that the legal basis on which the members of the NATO-led Kosovo Force (KFOR) were operating in Kosovo could not be distinguished from that on which British forces in the Multinational Force were operating during the period of the applicant’s internment. He explained his views as follows: “59. There is an obvious difference between the factual position in Kosovo that lay behind the Behrami [ and Saramati ] case and the factual position in Iraq that lies behind the present case. The forces making up KFOR went into Kosovo, for the first time, as members of KFOR and in terms of Security Council Resolution 1244. By contrast, the Coalition Forces were in Iraq and, indeed, in occupation of Iraq, for about six months before the Security Council adopted Resolution 1511, authorising the creation of the [Multinational Force], on 16 October 2003. ... 61. It respectfully appears to me that the mere fact that Resolution 1244 was adopted before the forces making up KFOR entered Kosovo was legally irrelevant to the issue in Behrami [ and Saramati ]. What mattered was that Resolution 1244 had been adopted before the French members of KFOR detained Mr Saramati. So the Resolution regulated the legal position at the time of his detention. Equally, in the present case, the fact that the British and other Coalition Forces were in Iraq long before Resolution 1546 was adopted is legally irrelevant for present purposes. What matters is that Resolution 1546 was adopted before the British forces detained the appellant and so it regulated the legal position at that time. As renewed, the provisions of that Resolution have continued to do so ever since. ... 87. If one compares the terms of Resolution 1244 and Resolution 1511, for present purposes there appears to be no relevant legal difference between the two Forces. Of course, in the case of Kosovo, there was no civil administration and there were no bodies of troops already assembled in Kosovo whom the Security Council could authorise to assume the necessary responsibilities. In paragraph 5 of Resolution 1244 the Security Council accordingly decided ‘on the deployment in Kosovo, under United Nations auspices, of international civil and security presences’. Because there were no suitable troops on the ground, in paragraph 7 of Resolution 1244 the Council had actually to authorise the establishing of the international security presence and then to authorise it to carry out various responsibilities. 88. By contrast, in October 2003, in Iraq there were already forces in place, especially American and British forces, whom the Security Council could authorise to assume the necessary responsibilities. So it did not need to authorise the establishment of the [Multinational Force]. In paragraph 13 the Council simply authorised ‘a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq’ – thereby proceeding on the basis that there would indeed be a Multinational Force under unified command. In paragraph 14 the Council urged member States to contribute forces to the [Multinational Force]. Absolutely crucially, however, in paragraph 13 it spelled out the mandate which it was giving to the [Multinational Force]. By ‘authorising’ the [Multinational Force] to take the measures required to fulfil its ‘mandate’, the Council was asserting and exercising control over the [Multinational Force] and was prescribing the mission that it was to carry out. The authorisation and mandate were to apply to all members of the [Multinational Force] – the British and American, of course, but also those from member States who responded to the Council’s call to contribute forces to the [Multinational Force]. The intention must have been that all would be in the same legal position. This confirms that – as I have already held, at paragraph 61 – the fact that the British forces were in Iraq before Resolution 1511 was adopted is irrelevant to their legal position under that Resolution and, indeed, under Resolution 1546.” 20. The second issue before the House of Lords was whether the provisions of Article 5 § 1 of the Convention were qualified by the legal regime established pursuant to United Nations Security Council Resolution 1546 and subsequent resolutions. On this point, the House of Lords unanimously held that Article 103 of the Charter of the United Nations gave primacy to resolutions of the Security Council, even in relation to human rights agreements. Lord Bingham, with whom the other Law Lords agreed, explained: “30. ... while the Secretary of State contends that the Charter [of the United Nations], and UNSCRs [United Nations Security Council Resolutions] 1511 (2003), 1546 (2004), 1637 (2005) and 1723 (2006), impose an obligation on the UK to detain the appellant which prevails over the appellant’s conflicting right under Article 5 § 1 of the European Convention, the appellant insists that the UNSCRs referred to, read in the light of the Charter, at most authorise the UK to take action to detain him but do not oblige it to do so, with the result that no conflict arises and Article 103 [of the Charter] is not engaged. 31. There is an obvious attraction in the appellant’s argument since, as appears from the summaries of UNSCRs 1511 and 1546 given above in paragraphs 12 and 15, the Resolutions use the language of authorisation, not obligation, and the same usage is found in UNSCRs 1637 (2005) and 1723 (2006). In ordinary speech to authorise is to permit or allow or license, not to require or oblige. I am, however, persuaded that the appellant’s argument is not sound, for three main reasons. 32. First, it appears to me that during the period when the UK was an Occupying Power (from the cessation of hostilities on 1 May 2003 to the transfer of power to the Iraqi interim government on 28 June 2004) it was obliged, in the area which it effectively occupied, to take necessary measures to protect the safety of the public and its own safety. [Lord Bingham here referred to Article 43 of the Hague Regulations and Articles 41, 42 and 78 of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War: for the text of these Articles, see paragraphs 42 and 43 of this judgment below.] These three Articles are designed to circumscribe the sanctions which may be applied to protected persons, and they have no direct application to the appellant, who is not a protected person. But they show plainly that there is a power to intern persons who are not protected persons, and it would seem to me that if the Occupying Power considers it necessary to detain a person who is judged to be a serious threat to the safety of the public or the Occupying Power there must be an obligation to detain such a person: see the decision of the International Court of Justice in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) [2005] ICJ Reports 116, paragraph 178. This is a matter of some importance, since although the appellant was not detained during the period of the occupation, both the evidence and the language of UNSCR 1546 (2004) and the later Resolutions strongly suggest that the intention was to continue the pre-existing security regime and not to change it. There is not said to have been such an improvement in local security conditions as would have justified any relaxation. 33. There are, secondly, some situations in which the Security Council can adopt resolutions couched in mandatory terms. One example is UNSCR 820 (1993), considered by the European Court (with reference to an EC regulation giving effect to it) in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [[GC], no. 45036/98, ECHR 2005-VI] (2005) 42 EHRR 1, which decided in paragraph 24 that ‘all States shall impound all vessels, freight vehicles, rolling stock and aircraft in their territories ...’. Such provisions cause no difficulty in principle, since member States can comply with them within their own borders and are bound by Article 25 of the UN Charter to comply. But language of this kind cannot be used in relation to military or security operations overseas, since the UN and the Security Council have no standing forces at their own disposal and have concluded no agreements under Article 43 of the Charter which entitle them to call on member States to provide them. Thus in practice the Security Council can do little more than give its authorisation to member States which are willing to conduct such tasks, and this is what (as I understand) it has done for some years past. Even in UNSCR 1244 (1999) relating to Kosovo, when (as I have concluded) the operations were very clearly conducted under UN auspices, the language of authorisation was used. There is, however, a strong and to my mind persuasive body of academic opinion which would treat Article 103 as applicable where conduct is authorised by the Security Council as where it is required: see, for example, Goodrich, Hambro and Simons (eds.), Charter of the United Nations: Commentary and Documents, 3rd edn. (1969), pp. 615-16; Yearbook of the International Law Commission (1979), Vol. II, Part One, paragraph 14; Sarooshi, The United Nations and the Development of Collective Security (1999), pp. 150-51. The most recent and perhaps clearest opinion on the subject is that of Frowein and Krisch in Simma (ed.), The Charter of the United Nations: A Commentary, 2nd edn. (2002), p. 729: ‘Such authorisations, however, create difficulties with respect to Article 103. According to the latter provision, the Charter – and thus also SC [Security Council] Resolutions – override existing international law only in so far as they create “obligations” (cf. Bernhardt on Article 103 MN 27 et seq.). One could conclude that in case a State is not obliged but merely authorised to take action, it remains bound by its conventional obligations. Such a result, however, would not seem to correspond with State practice at least as regards authorisations of military action. These authorisations have not been opposed on the ground of conflicting treaty obligations, and if they could be opposed on this basis, the very idea of authorisations as a necessary substitute for direct action by the SC would be compromised. Thus, the interpretation of Article 103 should be reconciled with that of Article 42, and the prevalence over treaty obligations should be recognised for the authorisation of military action as well (see Frowein/Krisch on Article 42 MN 28). The same conclusion seems warranted with respect to authorisations of economic measures under Article 41. Otherwise, the Charter would not reach its goal of allowing the SC to take the action it deems most appropriate to deal with threats to the peace – it would force the SC to act either by way of binding measures or by way of recommendations, but would not permit intermediate forms of action. This would deprive the SC of much of the flexibility it is supposed to enjoy. It seems therefore preferable to apply the rule of Article 103 to all action under Articles 41 and 42 and not only to mandatory measures.’ This approach seems to me to give a purposive interpretation to Article 103 of the Charter, in the context of its other provisions, and to reflect the practice of the UN and member States as it has developed over the past sixty years. 34. I am further of the opinion, thirdly, that in a situation such as the present ‘obligations’ in Article 103 should not in any event be given a narrow, contract-based, meaning. The importance of maintaining peace and security in the world can scarcely be exaggerated, and that (as evident from the Articles of the Charter quoted above) is the mission of the UN. Its involvement in Iraq was directed to that end, following repeated determinations that the situation in Iraq continued to constitute a threat to international peace and security. As is well known, a large majority of States chose not to contribute to the Multinational Force, but those which did (including the UK) became bound by Articles 2 and 25 to carry out the decisions of the Security Council in accordance with the Charter so as to achieve its lawful objectives. It is of course true that the UK did not become specifically bound to detain the appellant in particular. But it was, I think, bound to exercise its power of detention where this was necessary for imperative reasons of security. It could not be said to be giving effect to the decisions of the Security Council if, in such a situation, it neglected to take steps which were open to it. 35. Emphasis has often been laid on the special character of the European Convention as a human rights instrument. But the reference in Article 103 to ‘any other international agreement’ leaves no room for any excepted category, and such appears to be the consensus of learned opinion. The decision of the International Court of Justice ( Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom ) [1992] ICJ Reports 3, paragraph 39, and Application of the Convention on the Prevention and Punishment of the Crime of Genocide [1993] ICJ Reports 325, 439 ‑ 40, paragraphs 99-100 per Judge ad hoc Lauterpacht) give no warrant for drawing any distinction save where an obligation is jus cogens and according to Judge Bernhardt it now seems to be generally recognised in practice that binding Security Council decisions taken under Chapter VII supersede all other treaty commitments ( The Charter of the United Nations: A Commentary, 2nd edn., ed Simma, [2002,] pp. 1299 ‑ 300).” Lord Bingham concluded on this issue: “39. Thus there is a clash between on the one hand a power or duty to detain exercisable on the express authority of the Security Council and, on the other, a fundamental human right which the UK has undertaken to secure to those (like the appellant) within its jurisdiction. How are these to be reconciled? There is in my opinion only one way in which they can be reconciled: by ruling that the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR [United Nations Security Council Resolution] 1546 and successive resolutions, but must ensure that the detainee’s rights under Article 5 are not infringed to any greater extent than is inherent in such detention. I would resolve the second issue in this sense.” 21. Baroness Hale commenced by observing: “122. ... There is no doubt that prolonged detention in the hands of the military is not permitted by the laws of the United Kingdom. Nor could it be permitted without derogation from our obligations under the European Convention on Human Rights. Article 5 § 1 of the Convention provides that deprivation of liberty is only lawful in defined circumstances which do not include these. The drafters of the Convention had a choice between a general prohibition of ‘arbitrary’ detention, as provided in Article 9 of the Universal Declaration of Human Rights, and a list of permitted grounds for detention. They deliberately chose the latter. They were well aware of Churchill’s view that the internment even of enemy aliens in war time was ‘in the highest degree odious’. They would not have contemplated the indefinite detention without trial of British citizens in peacetime. I do not accept that this is less of a problem if people are suspected of very grave crimes. The graver the crime of which a person is suspected, the more difficult it will be for him to secure his release on the grounds that he is not a risk. The longer therefore he is likely to be incarcerated and the less substantial the evidence which will be relied upon to prove suspicion. These are the people most in need of the protection of the rule of law, rather than the small fry in whom the authorities will soon lose interest.” Baroness Hale agreed with Lord Bingham that the Convention rights could be qualified by “competing commitments under the United Nations Charter”, but continued: “126. That is, however, as far as I would go. The right is qualified but not displaced. This is an important distinction, insufficiently explored in the all or nothing arguments with which we were presented. We can go no further than the UN has implicitly required us to go in restoring peace and security to a troubled land. The right is qualified only to the extent required or authorised by the Resolution. What remains of it thereafter must be observed. This may have both substantive and procedural consequences. 127. It is not clear to me how far UNSC [United Nations Security Council] Resolution 1546 went when it authorised the [Multinational Force] to ‘take all necessary measures to contribute to the maintenance of security and stability in Iraq, in accordance with the letters annexed to this Resolution expressing, inter alia, the Iraqi request for the continued presence of the Multinational Force and setting out its tasks’ (paragraph 10). The ‘broad range of tasks’ were listed by Secretary of State Powell as including ‘combat operations against members of these groups [seeking to influence Iraq’s political future through violence], internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security’. At the same time, the Secretary of State made clear the commitment of the forces which made up the MNF [Multinational Force] to ‘act consistently with their obligations under the law of armed conflict, including the Geneva Conventions’. 128. On what basis is it said that the detention of this particular appellant is consistent with our obligations under the law of armed conflict? He is not a ‘protected person’ under the Fourth Geneva Convention because he is one of our own citizens. Nor is the UK any longer in belligerent occupation of any part of Iraq. So resort must be had to some sort of post-conflict, post-occupation, analogous power to intern anyone where this is thought ‘necessary for imperative reasons of security’. Even if the UNSC Resolution can be read in this way, it is not immediately obvious why the prolonged detention of this person in Iraq is necessary, given that any problem he presents in Iraq could be solved by repatriating him to this country and dealing with him here. If we stand back a little from the particular circumstances of this case, this is the response which is so often urged when British people are in trouble with the law in foreign countries, and in this case it is within the power of the British authorities to achieve it. 129. But that is not the way in which the argument has been conducted before us. Why else could Lord Bingham and Lord Brown speak of ‘displacing or qualifying’ in one breath when clearly they mean very different things? We have been concerned at a more abstract level with attribution to or authorisation by the United Nations. We have devoted little attention to the precise scope of the authorisation. There must still be room for argument about what precisely is covered by the Resolution and whether it applies on the facts of this case. Quite how that is to be done remains for decision in the other proceedings. With that caveat, therefore, but otherwise in agreement with Lord Bingham, Lord Carswell and Lord Brown, I would dismiss this appeal.” 22. Lord Carswell started his speech by observing: “130. Internment without trial is so antithetical to the rule of law as understood in a democratic society that recourse to it requires to be carefully scrutinised by the courts of that society. There are, regrettably, circumstances in which the threat to the necessary stability of the State is so great that in order to maintain that stability the use of internment is unavoidable. The Secretary of State’s contention is that such circumstances exist now in Iraq and have existed there since the conclusion of hostilities in 2003. If the intelligence concerning the danger posed by such persons is correct, – as to which your Lordships are not in a position to make any judgment and do not do so – they pose a real danger to stability and progress in Iraq. If sufficient evidence cannot be produced in criminal proceedings – which again the House [of Lords] has not been asked to and cannot judge – such persons may have to be detained without trial. Article 42 of the Fourth Geneva Convention permits the ordering of internment of protected persons ‘only if the security of the Detaining Power makes it absolutely necessary’, and under Article 78 the Occupying Power must consider that step necessary ‘for imperative reasons of security’. Neither of these provisions applies directly to the appellant, who is not a protected person, but the degree of necessity which should exist before the Secretary of State detains persons in his position – if he has power to do so, as in my opinion he has – is substantially the same. I would only express the opinion that where a State can lawfully intern people, it is important that it adopt certain safeguards: the compilation of intelligence about such persons which is as accurate and reliable as possible, the regular review of the continuing need to detain each person and a system whereby that need and the underlying evidence can be checked and challenged by representatives on behalf of the detained persons, so far as is practicable and consistent with the needs of national security and the safety of other persons.” He continued: “135. It was argued on behalf of the appellant that the Resolution did not go further than authorising the measures described in it, as distinct from imposing an obligation to carry them out, with the consequence that Article 103 of the Charter [of the United Nations] did not apply to relieve the United Kingdom from observing the terms of Article 5 § 1 of the Convention. This was an attractive and persuasively presented argument, but I am satisfied that it cannot succeed. For the reasons set out in paragraphs 32 to 39 of Lord Bingham’s opinion I consider that Resolution 1546 did operate to impose an obligation upon the United Kingdom to carry out those measures. In particular, I am persuaded by State practice and the clear statements of authoritative academic opinion – recognised sources of international law – that expressions in Security Council resolutions which appear on their face to confer no more than authority or power to carry out measures may take effect as imposing obligations, because of the fact that the United Nations have no standing forces at their own disposal and have concluded no agreements under Article 43 of the Charter which would entitle them to call on member States to provide them. 136. I accordingly am of [the] opinion that the United Kingdom may lawfully, where it is necessary for imperative reasons of security, exercise the power to intern conferred by Resolution 1546. I would emphasise, however, that that power has to be exercised in such a way as to minimise the infringements of the detainee’s rights under Article 5 § 1 of the Convention, in particular by adopting and operating to the fullest practicable extent safeguards of the nature of those to which I referred in paragraph 130 above.” C. The applicant’s claim for damages under Iraqi law 23. Following the Court of Appeal’s ruling on the applicable legal regime (see paragraph 17 above), which was upheld by the House of Lords, the applicant brought a claim for damages in the English courts claiming that, from 19 May 2006 onwards, his detention without judicial review was unlawful under the terms of the Iraqi Constitution, which came into force on that date (see paragraph 38 below). 24. This claim was finally determined by the Court of Appeal in a judgment dated 8 July 2010 ([2010] EWCA Civ 758). The majority found that, in the circumstances, the review procedure under Coalition Provisional Authority Memorandum No. 3 (Revised) (see paragraph 36 below) provided sufficient guarantees of fairness and independence to comply with Iraqi law. D. Background: the occupation of Iraq from 1 May 2003 to 28 June 2004 1. United Nations Security Council Resolution 1441 (2002) 25. On 8 November 2002 the United Nations Security Council, acting under Chapter VII of the Charter of the United Nations, adopted Resolution 1441. The Resolution decided, inter alia, that Iraq had been and remained in material breach of its obligations under previous United Nations Security Council resolutions to disarm and to cooperate with United Nations and International Atomic Energy Agency weapons inspectors. Resolution 1441 decided to afford Iraq a final opportunity to comply with its disarmament obligations and set up an enhanced inspection regime. It requested the Secretary-General of the United Nations immediately to notify Iraq of the Resolution and demanded that Iraq cooperate immediately, unconditionally, and actively with the inspectors. Resolution 1441 concluded by recalling that the United Nations Security Council had “repeatedly warned Iraq that it w[ould] face serious consequences as a result of its continued violations of its obligations”. The United Nations Security Council decided to remain seised of the matter. 2. Major combat operations: 20 March to 1 May 2003 26. On 20 March 2003 a Coalition of armed forces under unified command, led by the United States of America with a large force from the United Kingdom and small contingents from Australia, Denmark and Poland, commenced the invasion of Iraq. By 5 April 2003 the British had captured Basra and by 9 April 2003 United States troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003. Thereafter, other States sent troops to help with the reconstruction efforts in Iraq. 3. Legal and political developments in May 2003 27. On 8 May 2003 the Permanent Representatives of the United Kingdom and the United States of America at the United Nations addressed a joint letter to the President of the United Nations Security Council, which read as follows: “The United States of America, the United Kingdom of Great Britain and Northern Ireland and Coalition partners continue to act together to ensure the complete disarmament of Iraq of weapons of mass destruction and means of delivery in accordance with United Nations Security Council Resolutions. The States participating in the Coalition will strictly abide by their obligations under international law, including those relating to the essential humanitarian needs of the people of Iraq. ... In order to meet these objectives and obligations in the post-conflict period in Iraq, the United States, the United Kingdom and Coalition partners, acting under existing command and control arrangements through the Commander of Coalition Forces, have created the Coalition Provisional Authority, which includes the Office of Reconstruction and Humanitarian Assistance, to exercise powers of government temporarily, and, as necessary, especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass destruction. The United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall, inter alia, provide for security in and for the provisional administration of Iraq, including by: deterring hostilities; ... maintaining civil law and order, including through encouraging international efforts to rebuild the capacity of the Iraqi civilian police force; eliminating all terrorist infrastructure and resources within Iraq and working to ensure that terrorists and terrorist groups are denied safe haven; ... and assuming immediate control of Iraqi institutions responsible for military and security matters and providing, as appropriate, for the demilitarisation, demobilisation, control, command, reformation, disestablishment, or reorganisation of those institutions so that they no longer pose a threat to the Iraqi people or international peace and security but will be capable of defending Iraq’s sovereignty and territorial integrity. ... The United Nations has a vital role to play in providing humanitarian relief, in supporting the reconstruction of Iraq, and in helping in the formation of an Iraqi interim authority. The United States, the United Kingdom and Coalition partners are ready to work closely with representatives of the United Nations and its specialised agencies and look forward to the appointment of a special coordinator by the Secretary-General. We also welcome the support and contributions of member States, international and regional organisations, and other entities, under appropriate coordination arrangements with the Coalition Provisional Authority. We would be grateful if you could arrange for the present letter to be circulated as a document of the Security Council. (Signed) Jeremy GreenstockPermanent Representative of the United Kingdom (Signed) John D. NegropontePermanent Representative of the United States” 28. As mentioned in the above letter, the occupying States, acting through the Commander of Coalition Forces, created the Coalition Provisional Authority (CPA) to act as a “caretaker administration” until an Iraqi government could be established. It had power, inter alia, to issue legislation. On 13 May 2003 the US Secretary of Defence, Donald Rumsfeld, issued a memorandum formally appointing Ambassador Paul Bremer as Administrator of the CPA with responsibility for the temporary governance of Iraq. In CPA Regulation No. 1, dated 16 May 2003, Ambassador Bremer provided, inter alia, that the CPA “shall exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration” and that: “2. The CPA is vested with all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war. This authority shall be exercised by the CPA Administrator. 3. As the Commander of Coalition Forces, the Commander of US Central Command shall directly support the CPA by deterring hostilities; maintaining Iraq’s territorial integrity and security; searching for, securing and destroying weapons of mass destruction; and assisting in carrying out Coalition policy generally.” The CPA administration was divided into regional areas. CPA South was placed under United Kingdom responsibility and control, with a United Kingdom Regional Coordinator. It covered the southernmost four of Iraq’s eighteen provinces, each having a governorate coordinator. United Kingdom troops were deployed in the same area. 29. United Nations Security Council Resolution 1483 referred to by Ambassador Bremer in CPA Regulation No. 1 was actually adopted six days later, on 22 May 2003. It provided as follows: “ The Security Council, Recalling all its previous relevant resolutions, ... Resolved that the United Nations should play a vital role in humanitarian relief, the reconstruction of Iraq, and the restoration and establishment of national and local institutions for representative governance, ... Welcoming also the resumption of humanitarian assistance and the continuing efforts of the Secretary-General and the specialised agencies to provide food and medicine to the people of Iraq, Welcoming the appointment by the Secretary-General of his Special Adviser on Iraq, ... Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognising the specific authorities, responsibilities, and obligations under applicable international law of these States as Occupying Powers under unified command (the ‘Authority’), Noting further that other States that are not Occupying Powers are working now or in the future may work under the Authority, Welcoming further the willingness of member States to contribute to stability and security in Iraq by contributing personnel, equipment, and other resources under the Authority, ... Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Appeals to member States and concerned organisations to assist the people of Iraq in their efforts to reform their institutions and rebuild their country, and to contribute to conditions of stability and security in Iraq in accordance with this Resolution; 2. Calls upon all member States in a position to do so to respond immediately to the humanitarian appeals of the United Nations and other international organisations for Iraq and to help meet the humanitarian and other needs of the Iraqi people by providing food, medical supplies, and resources necessary for reconstruction and rehabilitation of Iraq’s economic infrastructure; ... 4. Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future; 5. Calls upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907; ... 8. Requests the Secretary-General to appoint a Special Representative for Iraq whose independent responsibilities shall involve reporting regularly to the Council on his activities under this Resolution, coordinating activities of the United Nations in post-conflict processes in Iraq, coordinating among United Nations and international agencies engaged in humanitarian assistance and reconstruction activities in Iraq, and, in coordination with the Authority, assisting the people of Iraq through: (a) coordinating humanitarian and reconstruction assistance by United Nations agencies and between United Nations agencies and non-governmental organisations; (b) promoting the safe, orderly, and voluntary return of refugees and displaced persons; (c) working intensively with the Authority, the people of Iraq, and others concerned to advance efforts to restore and establish national and local institutions for representative governance, including by working together to facilitate a process leading to an internationally recognised, representative government of Iraq; (d) facilitating the reconstruction of key infrastructure, in cooperation with other international organisations; (e) promoting economic reconstruction and the conditions for sustainable development, including through coordination with national and regional organisations, as appropriate, civil society, donors, and the international financial institutions; (f) encouraging international efforts to contribute to basic civilian administration functions; (g) promoting the protection of human rights; (h) encouraging international efforts to rebuild the capacity of the Iraqi civilian police force; and (i) encouraging international efforts to promote legal and judicial reform; ... 24. Requests the Secretary-General to report to the Council at regular intervals on the work of the Special Representative with respect to the implementation of this Resolution and on the work of the International Advisory and Monitoring Board and encourages the United Kingdom of Great Britain and Northern Ireland and the United States of America to inform the Council at regular intervals of their efforts under this Resolution; 25. Decides to review the implementation of this Resolution within twelve months of adoption and to consider further steps that might be necessary. 26. Calls upon member States and international and regional organisations to contribute to the implementation of this Resolution; 27. Decides to remain seised of this matter.” 4. Developments between July 2003 and June 2004 30. In July 2003 the Governing Council of Iraq was established. The CPA was required to consult with it on all matters concerning the temporary governance of Iraq. 31. On 16 October 2003 the United Nations Security Council passed Resolution 1511, which provided, inter alia, as follows: “ The Security Council ... Recognising that international support for restoration of conditions of stability and security is essential to the well-being of the people of Iraq as well as to the ability of all concerned to carry out their work on behalf of the people of Iraq, and welcoming member State contributions in this regard under Resolution 1483 (2003), ... Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Reaffirms the sovereignty and territorial integrity of Iraq, and underscores, in that context, the temporary nature of the exercise by the Coalition Provisional Authority (Authority) of the specific responsibilities, authorities, and obligations under applicable international law recognised and set forth in Resolution 1483 (2003), which will cease when an internationally recognised, representative government established by the people of Iraq is sworn in and assumes the responsibilities of the Authority, inter alia, through steps envisaged in paragraphs 4 through 7 and 10 below; ... 8. Resolves that the United Nations, acting through the Secretary-General, his Special Representative, and the United Nations Assistance Mission [for] Iraq, should strengthen its vital role in Iraq, including by providing humanitarian relief, promoting the economic reconstruction of and conditions for sustainable development in Iraq, and advancing efforts to restore and establish national and local institutions for representative government; ... 13. Determines that the provision of security and stability is essential to the successful completion of the political process as outlined in paragraph 7 above and to the ability of the United Nations to contribute effectively to that process and the implementation of Resolution 1483 (2003), and authorises a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of the United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure; 14. Urges member States to contribute assistance under this United Nations mandate, including military forces, to the Multinational Force referred to in paragraph 13 above; ... 25. Requests that the United States, on behalf of the Multinational Force as outlined in paragraph 13 above, report to the Security Council on the efforts and progress of this Force as appropriate and not less than every six months; 26. Decides to remain seised of the matter.” 32. Reporting to the United Nations Security Council on 16 April 2004, the United States Permanent Representative said that the Multinational Force had conducted “the full spectrum of military operations, which range from the provision of humanitarian assistance, civil affairs and relief and reconstruction activities to the detention of those who are threats to security”. In a submission made by the CPA to the United Nations Office of the High Commissioner for Human Rights on 28 May 2004 it was stated that the United States and United Kingdom military forces retained legal responsibility for the prisoners of war and detainees whom they respectively held in custody. 33. On 3 June 2004 the Iraqi Foreign Minister told the United Nations Security Council: “We seek a new and unambiguous draft resolution that underlines the transfer of full sovereignty to the people of Iraq and their representatives. The draft resolution must mark a clear departure from Security Council Resolutions 1483 (2003) and 1511 (2003) which legitimised the occupation of our country. ... However, we have yet to reach the stage of being able to maintain our own security and therefore the people of Iraq need and request the assistance of the Multinational Force to work closely with Iraqi forces to stabilise the situation. I stress that any premature departure of international troops would lead to chaos and the real possibility of civil war in Iraq. This would cause a humanitarian crisis and provide a foothold for terrorists to launch their evil campaign in our country and beyond our borders. The continued presence of the Multinational Force will help preserve Iraq’s unity, prevent regional intervention in our affairs and protect our borders at this critical stage of our reconstruction.” 34. On 5 June 2004, the Prime Minister of the interim government of Iraq, Dr Allawi, and the US Secretary of State, Mr Powell, wrote to the President of the Security Council, as follows: “Republic of Iraq, Prime Minister Office. Excellency: On my appointment as Prime Minister of the interim government of Iraq, I am writing to express the commitment of the people of Iraq to complete the political transition process to establish a free, and democratic Iraq and to be a partner in preventing and combating terrorism. As we enter a critical new stage, regain full sovereignty and move towards elections, we will need the assistance of the international community. The interim government of Iraq will make every effort to ensure that these elections are fully democratic, free and fair. Security and stability continue to be essential to our political transition. There continue, however, to be forces in Iraq, including foreign elements, that are opposed to our transition to peace, democracy, and security. The government is determined to overcome these forces, and to develop security forces capable of providing adequate security for the Iraqi people. Until we are able to provide security for ourselves, including the defence of Iraq’s land, sea and air space, we ask for the support of the Security Council and the international community in this endeavour. We seek a new resolution on the Multinational Force (MNF) mandate to contribute to maintaining security in Iraq, including through the tasks and arrangements set out in the letter from Secretary of State Colin Powell to the President of the United Nations Security Council. ... ... We are ready to take sovereign responsibility for governing Iraq by 30 June. We are well aware of the difficulties facing us, and of our responsibilities to the Iraqi people. The stakes are great, and we need the support of the international community to succeed. We ask the Security Council to help us by acting now to adopt a Security Council resolution giving us necessary support. I understand that the Co-sponsors intend to annex this letter to the Resolution on Iraq under consideration. In the meantime, I request that you provide copies of this letter to members of the Council as quickly as possible. (Signed) Dr Ayad Allawi” “The Secretary of State, Washington. Excellency: Recognising the request of the government of Iraq for the continued presence of the Multinational Force (MNF) in Iraq, and following consultations with Prime Minister Ayad Allawi of the Iraqi interim government, I am writing to confirm that the MNF under unified command is prepared to continue to contribute to the maintenance of security in Iraq, including by preventing and deterring terrorism and protecting the territory of Iraq. The goal of the MNF will be to help the Iraqi people to complete the political transition and will permit the United Nations and the international community to work to facilitate Iraq’s reconstruction. ... Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure Force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security. ... ... In order to continue to contribute to security, the MNF must continue to function under a framework that affords the Force and its personnel the status that they need to accomplish their mission, and in which the contributing States have responsibility for exercising jurisdiction over their personnel and which will ensure arrangements for, and use of assets by, the MNF. The existing framework governing these matters is sufficient for these purposes. In addition, the forces that make up the MNF are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions. The MNF is prepared to continue to pursue its current efforts to assist in providing a secure environment in which the broader international community is able to fulfil its important role in facilitating Iraq’s reconstruction. In meeting these responsibilities in the period ahead, we will act in full recognition of and respect for Iraqi sovereignty. We look to other member States and international and regional organisations to assist the people of Iraq and the sovereign Iraqi government in overcoming the challenges that lie ahead to build a democratic, secure and prosperous country. The co-sponsors intend to annex this letter to the Resolution on Iraq under consideration. In the meantime, I request that you provide copies of this letter to members of the Council as quickly as possible. (Signed) Colin L. Powell” 35. Provision for the new regime was made in United Nations Security Council Resolution 1546, adopted on 8 June 2004. It provided as follows, with the above letters from Dr Allawi and Mr Powell annexed: “ The Security Council, Welcoming the beginning of a new phase in Iraq’s transition to a democratically elected government, and looking forward to the end of the occupation and the assumption of full responsibility and authority by a fully sovereign and independent interim government of Iraq by 30 June 2004, Recalling all of its previous relevant resolutions on Iraq, ... Recalling the establishment of the United Nations Assistance Mission for Iraq (UNAMI) on 14 August 2003, and affirming that the United Nations should play a leading role in assisting the Iraqi people and government in the formation of institutions for representative government, Recognising that international support for restoration of stability and security is essential to the well-being of the people of Iraq as well as to the ability of all concerned to carry out their work on behalf of the people of Iraq, and welcoming member State contributions in this regard under Resolution 1483 (2003) of 22 May 2003 and Resolution 1511 (2003), Recalling the report provided by the United States to the Security Council on 16 April 2004 on the efforts and progress made by the Multinational Force, Recognising the request conveyed in the letter of 5 June 2004 from the Prime Minister of the interim government of Iraq to the President of the Council, which is annexed to this Resolution, to retain the presence of the Multinational Force, ... Welcoming the willingness of the Multinational Force to continue efforts to contribute to the maintenance of security and stability in Iraq in support of the political transition, especially for upcoming elections, and to provide security for the United Nations presence in Iraq, as described in the letter of 5 June 2004 from the United States Secretary of State to the President of the Council, which is annexed to this Resolution, Noting the commitment of all forces promoting the maintenance of security and stability in Iraq to act in accordance with international law, including obligations under international humanitarian law, and to cooperate with relevant international organisations, ... Determining that the situation in Iraq continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Endorses the formation of a sovereign interim government of Iraq ... which will assume full responsibility and authority by 30 June 2004 for governing Iraq ...; 2. Welcomes that, also by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty; ... 7. Decides that in implementing, as circumstances permit, their mandate to assist the Iraqi people and government, the Special Representative of the Secretary-General and the United Nations Assistance Mission for Iraq (UNAMI), as requested by the government of Iraq, shall: (a) play a leading role to: (i) assist in the convening, during the month of July 2004, of a national conference to select a Consultative Council; (ii) advise and support the Independent Electoral Commission of Iraq, as well as the interim government of Iraq and the Transitional National Assembly, on the process for holding elections; (iii) promote national dialogue and consensus-building on the drafting of a national Constitution by the people of Iraq; (b) and also: (i) advise the government of Iraq in the development of effective civil and social services; (ii) contribute to the coordination and delivery of reconstruction, development, and humanitarian assistance; (iii) promote the protection of human rights, national reconciliation, and judicial and legal reform in order to strengthen the rule of law in Iraq; and (iv) advise and assist the government of Iraq on initial planning for the eventual conduct of a comprehensive census; ... 9. Notes that the presence of the Multinational Force in Iraq is at the request of the incoming interim government of Iraq and therefore reaffirms the authorisation for the Multinational Force under unified command established under Resolution 1511 (2003), having regard to the letters annexed to this Resolution; 10. Decides that the Multinational Force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this Resolution expressing, inter alia, the Iraqi request for the continued presence of the Multinational Force and setting out its tasks, including by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people as outlined in paragraph 7 above and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities; ... 15. Requests member States and international and regional organisations to contribute assistance to the Multinational Force, including military forces, as agreed with the government of Iraq, to help meet the needs of the Iraqi people for security and stability, humanitarian and reconstruction assistance, and to support the efforts of UNAMI; ... 30. Requests the Secretary-General to report to the Council within three months from the date of this Resolution on UNAMI operations in Iraq, and on a quarterly basis thereafter on the progress made towards national elections and fulfilment of all UNAMI’s responsibilities; 31. Requests that the United States, on behalf of the Multinational Force, report to the Council within three months from the date of this Resolution on the efforts and progress of this Force, and on a quarterly basis thereafter; 32. Decides to remain actively seised of the matter.” 36. On 18 June 2003 the CPA had issued Memorandum No. 3, which set out provisions on criminal detention and security internment by the Coalition Forces. A revised version of Memorandum No. 3 was issued on 27 June 2004. It provided as follows: Section 6: MNF Security Internee Process “(1) Any person who is detained by a national contingent of the MNF [Multinational Force] for imperative reasons of security in accordance with the mandate set out in UNSCR [United Nations Security Council Resolution] 1546 (hereinafter ‘security internee’) 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 seven 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 no later than eighteen 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 twelve months after the initial date of internment. (6) Where it is considered that, for continuing imperative reasons of security, a security internee placed in internment after 30 June 2004 who is over the age of 18 should be retained in internment for longer than eighteen months, an application shall be made to the Joint Detention Committee (JDC) for approval to continue internment for an additional period. In dealing with the application, the members of the JDC will present recommendations to the co-chairs who must jointly agree that the internment may continue and shall specify the additional period of internment. While the application is being processed the security internee may continue to be held in internment but in any case the application must be finalised not later than two months from the expiration of the initial eighteen-month internment period. (7) Access to internees shall be granted to the Ombudsman. Access will only be denied the Ombudsman for reasons of imperative military necessity as an exceptional and temporary measure. The Ombudsman shall be permitted to inspect health, sanitation and living conditions and to interview all internees in private and to record information regarding an internee. (8) Access to internees shall be granted to official delegates of the ICRC [International Committee of the Red Cross]. Access will only be denied the delegates for reasons of imperative military necessity as an exceptional and temporary measure. The ICRC delegates shall be permitted to inspect health, sanitation and living conditions and to interview all internees in private. They shall also be permitted to record information regarding an internee and may pass messages to and from the family of an internee subject to reasonable censorship by the facility authorities. ...” 5. The end of the occupation and subsequent developments 37. On 28 June 2004 full authority was transferred from the CPA to the Iraqi interim government, and the CPA ceased to exist. Subsequently, the Multinational Force, including the British forces forming part of it, remained in Iraq pursuant to requests by the Iraqi government and authorisations from the United Nations Security Council. 38. On 19 May 2006 the new Iraqi Constitution was adopted. It provided that any law which contradicted its provisions was deemed to be void. Article 15 of the Constitution required, inter alia, that any deprivation of liberty must be based on a decision issued by a competent judicial authority and Article 37 provided that no one should be kept in custody except according to a judicial decision. 39. The authorisation for the presence of the Multinational Force in Iraq under United Nations Security Council Resolution 1546 was extended by Resolution 1637 of 8 November 2005 and Resolution 1723 of 28 November 2006 until 31 December 2006 and 31 December 2007 respectively. These Resolutions also annexed an exchange of letters between the Prime Minister of Iraq and the US Secretary of State, Condoleezza Rice, referring back to the original exchange of letters annexed to Resolution 1546. 6. Reports to the United Nations Security Council on the internment regime in Iraq 40. On 7 June 2005, as required by Resolution 1546, the Secretary-General of the United Nations reported to the Security Council on the situation in Iraq (S/2005/373). Under the heading “Human rights activities” he stated, inter alia : “70. The volume of reports on human rights violations in Iraq justifies serious concern. Accounts of human rights violations continue to appear in the press, in private security reports and in reports by local human rights groups. Individual accounts provided to UNAMI [United Nations Assistance Mission for Iraq] and admissions by the authorities concerned provide additional indications about this situation. In many cases, the information about violations has been widely publicised. Effective monitoring of the human rights situation remains a challenge, particularly because the current security situation makes it difficult to obtain evidence and further investigate allegations. In most instances, however, the consistency of accounts points to clear patterns. ... 72. ... One of the major human rights challenges remains the detention of thousands of persons without due process. According to the Ministry of Justice, there were approximately 10,000 detainees at the beginning of April, 6,000 of whom were in the custody of the Multinational Force. Despite the release of some detainees, their number continues to grow. Prolonged detention without access to lawyers and courts is prohibited under international law, including during states of emergency.” Similar concerns were repeated in his reports of September and December 2005 (S/2005/585, § 52; S/2005/766, § 47) and March, June, September and December 2006 (S/2006/137, § 54; S/2006/360, § 47; S/2006/706, § 36; S/2006/945, § 45). By the end of 2006, he reported that there were 13,571 detainees in Multinational Force detention centres. In his report of March 2006 he observed: “At the same time, the internment of thousands of Iraqis by the Multinational Force and the Iraqi authorities constitutes de facto arbitrary detention. The extent of such practices is not consistent with the provisions of international law governing internment for imperative reasons of security.” In June 2007 he described the increase in the number of detainees and security internees as a pressing human rights concern (S/2007/330, § 31). 41. Similar observations were contained in the reports of the United Nations Assistance Mission for Iraq (UNAMI), which paragraph 7 of Resolution 1546 mandated to promote the protection of human rights in Iraq. In its report on the period July to August 2005, UNAMI expressed concern about the high number of persons detained, observing that “[i]nternees should enjoy all the protections envisaged in all the rights guaranteed by international human rights conventions”. In its next report (September to October 2005), UNAMI repeated this expression of concern and advised that “[t]here is an urgent need to provide [a] remedy to lengthy internment for reasons of security without adequate judicial oversight”. In July-August 2006 UNAMI reported that of the 13,571 detainees in Multinational Force custody, 85 individuals were under United Kingdom custody while the rest were under United States authority. In the report for September to October 2006, UNAMI expressed concern that there had been no reduction in the number of security internees detained by the Multinational Force. In its report for January to March 2007, UNAMI commented: “71. The practice of indefinite internment of detainees in the custody of the MNF [Multinational Force] remains an issue of concern to UNAMI. Of the total of 16,931 persons held at the end of February, an unknown number are classified as security internees, held for prolonged periods effectively without charge or trial. ... The current legal arrangements at the detention facilities do not fulfil the requirement to grant detainees due process. ...” UNAMI returned to this subject in its report for April to June 2007, stating, inter alia : “72. In UNAMI’s view, the administrative review process followed by the MNF through the Combined Review and Release Board (CRRB) requires improvement to meet basic due process requirements. Over time, the procedures in force have resulted in prolonged detention without trial, with many security internees held for several years with minimal access to the evidence against them and without their defence counsel having access to such evidence. While the current review process is based on procedures contained in the Fourth Geneva Convention, UNAMI notes that, irrespective of the legal qualification of the conflict, both in situations of international and internal armed conflict the Geneva Conventions are not of exclusive application to persons deprived of their liberty in connection with the conflict. Alongside common Article 3 to the four Geneva Conventions and customary international law, international human rights law also applies. Accordingly, detainees during an internal armed conflict must be treated in accordance with international human rights law. As such, persons who are deprived of their liberty are entitled to be informed of the reasons for their arrest; to be brought promptly before a judge if held on a criminal charge, and to challenge the lawfulness of their detention.” The report also referred to an exchange of correspondence between the US authorities and UNAMI, on the question whether the International Covenant for the Protection of Civil and Political Rights applied in relation to the Multinational Force’s security internment regime. While the US authorities maintained that it did not, UNAMI concluded: “77. There is no separation between human rights and international humanitarian law in Security Council resolutions adopted under Chapter VII [of the Charter of the United Nations]. In fact, the leading Resolutions on Iraq, such as Resolution 1546 of June 2004, cite in the preamble: ‘Affirming the importance of the rule of law, national reconciliation, respect for human rights including the rights of women, fundamental freedoms, and democracy.’ This arguably applies to all forces operating in Iraq. The letter from the government of Iraq attached to SC res. [Security Council Resolution] 1723 also states that ‘The forces that make up MNF will remain committed to acting consistently with their obligations and rights under international law, including the law of armed conflict’. International law includes human rights law.” | This case concerned the internment of an Iraqi civilian for more than three years (2004-2007) in a detention centre in Basrah, Iraq, run by British forces. The Government of the United Kingdom maintained that the applicant’s internment was attributable to the United Nations (UN) and not to the United Kingdom. |
906 | Independence and right to a fair trial | I. CIRCUMSTANCES OF THE CASE 6. Mr Saïd André Remli, a French national of Algerian origin, is currently in custody at Les Baumettes Prison in Marseilles. A. Background to the case 7. On 16 April 1985, while attempting to escape from Lyons- Montluc Prison, the applicant and a fellow prisoner of Algerian nationality, Mr Boumédienne Merdji, knocked out a warder, who died four months later as a result of the blows he had received. 8. The two prisoners were charged with intentional homicide for the purpose of facilitating, preparing or executing the offences of escape and attempted escape. In a judgment of 12 August 1988 the Indictment Division of the Lyons Court of Appeal committed them for trial at the Rhône Assize Court. On 5 December 1988 the Court of Cassation dismissed an appeal on points of law that Mr Remli had lodged against the decision to commit him for trial. B. Proceedings in the Rhône Assize Court 9. The trial at the Assize Court took place on 12, 13 and 14 April 1989. On the first day, when the sitting began, the members of the jury and two additional jurors were drawn by lot. The defendants challenged five of them, the legal maximum, and the prosecution two of them. The jury was subsequently finally empanelled and the hearing of witnesses began. 10. On 13 April 1989, at about 1.50 p.m., as the sitting resumed, counsel for the applicant filed submissions in which they requested the court to take formal note of a remark made by one of the jurors on 12 April, before the hearing began, which had been overheard by a third person, Mrs M., and to append her written statement, together with their submissions, to the record of the trial. 11. Mrs M. ’ s statement of 13 April read as follows: "I, the undersigned Mrs [M.], declare on my honour that I witnessed the following facts: I was at the door of the court at about 1 p.m., next to a group of people. From their conversation, I chanced to overhear that they were members of the jury drawn by lot in the Merdji [ and] Remli against Pahon case. One of them then let slip the following remark : ‘ What ’ s more, I ’ m a racist. ’ I do not know that person ’ s name, but I can state that he was on the left of the juror sitting immediately to the left of the judge on the presiding judge ’ s left. Being unable to attend the hearing to confirm the facts as my daughter has recently gone into hospital, but being at the court ’ s disposal if it proves essential to call me as a witness, I have drawn up this statement to be used for the appropriate legal purposes." 12. The court, composed in this instance solely of the judges, withdrew to deliberate and then delivered the following judgment: "... According to the handwritten statement of a Mrs [M.] of 13 April 1989, one of the members of the jury in the present case said ‘ What ’ s more, I ’ m a racist ’ at the door of the court at about 1 p.m. According to this statement and the written submissions, these words were spoken before the beginning of the first hearing in the instant case and not in the presence of the judges of the Court. The Court is thus not able to take formal note of events alleged to have occurred out of its presence. For these reasons, it Refuses the application made to it for formal note to be taken; Holds that the applicants ’ written submissions and the statement of Mrs [M.] are to be appended to the record of the trial; ..." 13. On 14 April 1989 the Assize Court sentenced Mr Remli to life imprisonment and Mr Merdji to a twenty-year term, for two-thirds of which he would not be liable to any form of release. C. Proceedings in the Court of Cassation 14. Mr Remli appealed on points of law. He argued mainly that the Assize Court had made a mistake of law and had disregarded Article 6 para. 1 (art. 6-1) of the Convention in holding that it was "not able to take formal note of events alleged to have occurred out of its presence" when it had power to do so. 15. In a judgment of 22 November 1989 the Court of Cassation dismissed the appeal. It gave the following reason in particular: "The Assize Court rightly refused to take formal note of events which, assuming they were established, had taken place outside the hearing, such that it could not have been in a position to note them." | This case concerned an Assize Court’s refusal of an application by a French defendant of Algerian origin to have formal note taken of a racist remark allegedly made by one of the jurors outside the courtroom and which had been recorded in a written witness statement. The applicant complained in particular that he had not had a hearing by an impartial tribunal. |
281 | (Suspected) terrorists | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, Mr Yasser Chraidi, was born in 1959 in Lebanon. At the time of lodging his application, he was detained in Berlin. He is currently living in Lebanon. 6. On 1 August 1984 the Berlin Tiergarten District Court issued an arrest warrant in respect of the applicant on the ground that he was strongly suspected of having murdered E. 7. On 19 July 1990 the Berlin Tiergarten District Court issued a further arrest warrant in respect of the applicant and five other suspects, born in Lebanon, Libya or Morocco. The court accused the applicant of having prepared, with others, a bomb attack at the “La Belle” discotheque in Berlin on 5 April 1986 in order to kill as many members of the American armed forces as possible. During this terrorist attack, three people had been killed and 104 seriously injured. 8. On 1 September 1992 the applicant was arrested by the police in Lebanon and was subsequently taken into detention with a view to extradition. 9. On 21 June 1994 a Lebanese court acquitted the applicant of E. ’ s murder but convicted him of forgery and sentenced him to one year and six months ’ imprisonment. 10. On 24 May 1996 the applicant was extradited to Germany and subsequently held in detention on remand on account of the arrest warrant issued in 1990. 11. On 25 November 1996 the Berlin Court of Appeal ordered the applicant ’ s continued detention on remand. It held that the reasonable suspicion that the applicant had committed the offences with which he had been charged resulted, among other things, from the confession of one of the other suspects. The danger of his absconding still persisted because the applicant had been extradited to Germany only in May 1996 and had neither a fixed dwelling nor social ties in Germany which would prevent him from absconding if released. The court moreover referred to the lifelong prison sentence the applicant faced and underlined that more lenient preventive measures would not be suitable. Lastly, there had been no breach of the obligation to proceed speedily ( Beschleunigungsgebot ). 12. On 30 January 1997 the public prosecutor filed the bill of indictment. On 5 September 1997 the Berlin Regional Court opened the main proceedings against the applicant and four other accused. Between 1997 and 2000 the Berlin Court of Appeal repeatedly ordered the applicant ’ s continued detention on remand. 13. On 13 January 2000 the Berlin Regional Court rejected a request by the applicant for release. It held that there was still a danger of his absconding. Furthermore, the reasonable suspicion that the applicant had committed the offences with which he had been charged persisted. The applicant ’ s continued detention was also proportionate having regard to the serious nature of those offences, the prospective sentence, the importance of the case and the particular public interest in the prosecution of these offences. Furthermore, there had been no breach of the obligation to proceed speedily. 14. On 1 March 2 000 the Berlin Court of Appeal upheld that decision. Concerning the suspicions as regards the applicant, the court pointed out that it was bound by the assessment of the Regional Court. Furthermore, the danger of the applicant ’ s absconding persisted in view of the lifelong prison sentence he faced. The objective of his detention on remand could accordingly not be accomplished by alternative, less radical, preventive measures. Although the applicant had been detained since as far back as 8 January 1994, his further detention remained proportionate having regard to the importance of the case, the character and seriousness of the offences and the particular public interest in the prosecution of these offences. Referring to the principle of proportionality, the court underlined that a detainee ’ s right to liberty could outweigh the public interest in the prosecution as time passed, if there was, for instance, an imminent risk of irreparable damage to his health. In the present case, however, nothing suggested that the applicant ’ s life or health were at risk. Moreover, given that the Regional Court had continuously held two hearings per week since November 1997, the length of the proceedings could not be considered disproportionate. 15. On 24 May 2000 the Federal Constitutional Court refused to admit a complaint by the applicant, without giving any reasons. Its decision was served on the applicant ’ s lawyer on 30 May 2000. 16. On 13 November 2001 the Berlin Regional Court convicted the applicant on three counts of aiding and abetting murder, on 104 counts of aiding and abetting attempted murder, and of aiding and abetting causing an explosion ( Herbeiführung einer Sprengstoffexplosion ). The court alluded to the historical background of the case, in particular to the tensions between the United States and Libya which had arisen following terrorist attacks in 1985. In January 1986 the United States government had imposed a trade embargo on Libya and had ordered the freezing of all Libyan State assets in United States banks. These measures had led to military intervention and to the planning by Libyan nationals of terrorist attacks on United States facilities in Germany. The court further pointed out that the applicant ’ s crimes were punishable by imprisonment for up to fifteen years and sentenced him to fourteen years ’ imprisonment. When determining the sentence, the court took into account, among other things, the fact that the applicant ’ s detention on remand and the proceedings had lasted an unusually long time. It further determined that since 8 January 1994 the applicant had been detained in Lebanon with a view to extradition in connection with the present case. This period of detention was to be deducted from his prison sentence at a ratio of 1:3 until 30 April 1994 and at a ratio of 1:2 from 1 May 1994. The court moreover ordered the applicant ’ s continued detention. The judgment, which ran to 380 pages, was served on the applicant ’ s lawyer on 10 January 2003. 17. The Berlin Regional Court delivered its judgment after holding 281 hearings with an average of two hearings per week and having heard 169 witnesses. The hearings, which lasted on average five hours each, were regularly attended by the five accused, their 15 lawyers, 106 joint plaintiffs, their 29 lawyers and three interpreters. 18. On 24 June 2004 the Federal Court of Justice dismissed appeals on points of law by the applicant and the public prosecutor. 19. On 28 April 2005 the applicant was released. | In 1990, an arrest warrant was issued against the applicant (a stateless person residing in Lebanon), accused of having prepared, with others, the bomb attack of a discotheque in Berlin in 1986 in order to kill members of the American armed forces. During this attack three persons had been killed and 104 persons had been seriously injured. In 1996 the applicant was extradited to Germany from Lebanon and held in detention. In November 2001 he was convicted of aiding and abetting murder, attempted murder and causing an explosion. The applicant complained, in particular, about the excessive length of his detention on remand which lasted approximately five and-a-half years. |
606 | Display of religious symbols in State-school classrooms | I. THE CIRCUMSTANCES OF THE CASE 10. The first applicant and her two sons, Dataico and Sami Albertin, also applicants, were born in 1957, 1988 and 1990 respectively. They are resident in Italy. In the school year 2001-2002 Dataico and Sami attended the Istituto comprensivo statale Vittorino da Feltre, a State school in Abano Terme. A crucifix was fixed to the wall in each of the school's classrooms. 11. On 22 April 2002, during a meeting of the school's governors, the first applicant's husband raised the question of the presence of religious symbols in the classrooms, particularly mentioning crucifixes, and asked whether they ought to be removed. On 27 May 2002, by ten votes to two with one abstention, the school's governors decided to keep religious symbols in classrooms. 12. On 23 July 2002 the first applicant contested that decision in the Veneto Administrative Court, complaining of an infringement of the principle of secularism, relying in that connection on Articles 3 (principle of equality) and 19 (religious freedom) of the Italian Constitution and Article 9 of the Convention, and on the principle of the impartiality of public administrative authorities (Article 97 of the Constitution). 13. On 3 October 2002 the Minister of Education, Universities and Research adopted Directive no. 2666, instructing the competent services of his Ministry to take the necessary measures to see to it that school governors ensured the presence of crucifixes in classrooms (see paragraph 24 below). On 30 October 2003 the Minister joined the proceedings brought by the first applicant. He argued that her application was ill-founded since the presence of crucifixes in the classrooms of publicly run schools was based on Article 118 of royal decree no. 965 of 30 April 1924 (internal regulations of middle schools) and Article 119 of royal decree no. 1297 of 26 April 1928 (approval of the general regulations governing primary education; see paragraph 19 below). 14. By a decision of 14 January 2004 the Administrative Court referred to the Constitutional Court the question of the constitutionality, with regard to the principle of the secular character of the State and Articles 2, 3, 7, 8, 19 and 20 of the Constitution, of Articles 159 and 190 of legislative decree no. 297 of 16 April 1994 (approving the single text bringing together the legislative provisions in force regarding education and schools), in their “specifications” resulting from Articles 118 and 119 of the above-mentioned royal decrees, and of Article 676 of the same legislative decree. Articles 159 and 190 make municipalities responsible for purchasing and supplying the furniture of primary and middle schools. Article 119 of the 1928 decree specifies that each classroom must have a crucifix and Article 118 of the 1924 decree that each classroom must have a portrait of the king and a crucifix. Article 676 of legislative decree no. 297 stipulates that provisions not included in the single text remain in force, “with the exception of provisions contrary to or incompatible with the single text, which are repealed ”. By a decision of 15 December 2004 (no. 389), the Constitutional Court declared the question as to constitutionality manifestly inadmissible, on the ground that it was in reality directed towards texts which, not having the status of law, but only that of regulations (the above-mentioned Articles 118 and 119), could not form the subject of a review of constitutionality. 15. On 17 March 2005 the Administrative Court dismissed the application. After ruling that Article 118 of the royal decree of 30 April 1924 and Article 119 of the royal decree of 26 April 1928 were still in force and emphasising that “the principle of the secular nature of the State [was] now part of the legal heritage of Europe and the western democracies”, it held that the presence of crucifixes in State - school classrooms, regard being had to the meaning it should be understood to convey, did not offend against that principle. It took the view, in particular, that although the crucifix was undeniably a religious symbol, it was a symbol of Christianity in general rather than of Catholicism alone, so that it served as a point of reference for other creeds. It went on to say that the crucifix was a historical and cultural symbol, possessing on that account an “identity- linked value” for the Italian people, in that it “represent[ed] in a way the historical and cultural development characteristic of [Italy] and in general of the whole of Europe, and [was] a good synthesis of that development”. The Administrative Court further held that the crucifix should also be considered a symbol of a value system underpinning the Italian Constitution. It gave the following reasons: “ ... 11.1. At this stage, the Court must observe, although it is aware that it is setting out along a rough and in places slippery path, that Christianity, and its older brother Judaism – at least since Moses and certainly in the Talmudic interpretation – have placed tolerance towards others and protection of human dignity at the centre of their faith. Singularly, Christianity – for example through the well-known and often misunderstood “Render unto Caesar the things which are Caesar's, and unto ... ” – through its strong emphasis placed on love for one's neighbour, and even more through the explicit predominance given to charity over faith itself, contains in substance those ideas of tolerance, equality and liberty which form the basis of the modern secular State, and of the Italian State in particular. 11.2 Looking beyond appearances makes it possible to discern a thread linking the Christian revolution of two thousand years ago to the affirmation in Europe of the right to liberty of the person and to the key elements in the Enlightenment (even though that movement, historically speaking, strongly opposed religion), namely the liberty and freedom of every person, the declaration of the rights of man, and ultimately the modern secular State. All the historic phenomena mentioned are based to a significant extent – though certainly not exclusively – on the Christian conception of the world. It has been observed – judiciously – that the rallying call “liberty, equality, fraternity” can easily be endorsed by a Christian, albeit with a clear emphasis on the third word. In conclusion, it does not seem to be going too far to assert that, through the various twists and turns of European history, the secular nature of the modern State has been achieved at a high price, and was prompted in part, though of course not exclusively so, by a more or less conscious reference to the founding values of Christianity. That explains why in Europe and in Italy many jurists belonging to the Christian faith have featured among the strongest supporters of the secular State. ... 11.5 The link between Christianity and liberty implies a logical historical coherence which is not immediately obvious – like a river in a karst landscape which has only recently been explored, precisely because for most of its course it flows underground – partly because in the constantly changing relations between the States and Churches of Europe it is much easier to see the numerous attempts by the Churches to meddle in matters of State, and vice versa, just like the frequent occasions on which Christian ideals have been abandoned, though officially proclaimed, in the quest for power, or on which governments and religious authorities have clashed, sometimes violently. 11.6 Moreover, with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State. 11.7 By studying history carefully, from a suitable distance, not from up close, we can clearly perceive an affinity between (but not the identity of) the “hard core” of Christianity, which, placing charity above everything else, including faith, emphasises the acceptance of difference, and the “hard core” of the republican Constitution, which, in a spirit of solidarity, attaches value to the freedom of all, and therefore constitutes the legal guarantee of respect for others. The harmony remains, even though around those cores – both centred on human dignity – there have been numerous accretions of extraneous elements with the passage of time, some of them so thick as to obscure the core, particularly the core of Christianity. ... 11.9 It can therefore be contended that in the present-day social reality the crucifix should be regarded not only as a symbol of a historical and cultural development, and therefore of the identity of our people, but also as a symbol of a value system: liberty, equality, human dignity and religious toleration, and accordingly also of the secular nature of the State – principles which underpin our Constitution. In other words, the constitutional principles of freedom have many roots, which undeniably include Christianity, in its very essence. It would therefore be something of a paradox to exclude a Christian sign from a public institution in the name of secularism, one of whose distant sources is precisely the Christian religion. 12.1 This court is admittedly not unaware of the fact that, in the past, other values have been attributed to the symbol of the crucifix, such as, at the time of the Albertine Statute, the sign of Catholicism understood as the State religion, and therefore used to Christianise and consolidate power and authority. The court is well aware, moreover, that it is still possible today to give various interpretations of the sign of the cross, and above all a strictly religious meaning referring to Christianity in general and Catholicism in particular. It is also aware that some pupils attending State schools might freely and legitimately attribute to the cross values which are different again, such as the sign of an unacceptable preference for one religion in relation to others, or an infringement of individual freedom and accordingly of the secular nature of the State, or at the extreme limit a reference to temporal political control over a State religion, or the inquisition, or even a free catechism voucher tacitly distributed even to non-believers in an inappropriate place, or subliminal propaganda in favour of Christian creeds. Although all those points of view are respectable, they are ultimately irrelevant in the present case. ... 12.6 It must be emphasised that the symbol of the crucifix, thus understood, now possesses, through its references to the values of tolerance, a particular scope in consideration of the fact that at present Italian State schools are attended by numerous pupils from outside the European Union, to whom it is relatively important to transmit the principles of openness to diversity and the refusal of any form of fundamentalism – whether religious or secular – which permeate our system. Our era is marked by the ferment resulting from the meeting of different cultures with our own, and to prevent that meeting from turning into a collision it is indispensable to reaffirm our identity, even symbolically, especially as it is characterised precisely by the values of respect for the dignity of each human being and of universal solidarity. ... 13.2 In fact, religious symbols in general imply a logical exclusion mechanism, as the point of departure of any religious faith is precisely the belief in a superior entity, which is why its adherents, the faithful, see themselves by definition and by conviction as part of the truth. Consequently, and inevitably, the attitude of the believer, faced with someone who does not believe, and who is therefore implicitly opposed to the supreme being, is an attitude of exclusion. ... 13.3 The logical mechanism of exclusion of the unbeliever is inherent in any religious conviction, even if those concerned are not aware of it, the sole exception being Christianity – where it is properly understood, which of course has not always been and still is not always the case, not even thanks to those who call themselves Christian. In Christianity even the faith in an omniscient god is secondary in relation to charity, meaning respect for one's fellow human beings. It follows that the rejection of a non-Christian by a Christian implies a radical negation of Christianity itself, a substantive abjuration; but that is not true of other religious faiths, for which such an attitude amounts at most to the infringement of an important precept. 13.4 The cross, as the symbol of Christianity, can therefore not exclude anyone without denying itself; it even constitutes in a sense the universal sign of the acceptance of and respect for every human being as such, irrespective of any belief, religious or other, which he or she may hold. ... 14.1 It is hardly necessary to add that the sign of the cross in a classroom, when correctly understood, is not concerned with the freely held convictions of anyone, excludes no one and of course does not impose or prescribe anything, but merely implies, in the heart of the aims set for education and teaching in a publicly run school, a reflection – necessarily guided by the teaching staff – on Italian history and the common values of our society legally retranscribed in the Constitution, among which the secular nature of the State has pride of place. ... ” 16. The first applicant appealed to the Consiglio di Stato ( Supreme Administrative Court ), which confirmed that the presence of crucifixes in State-school classrooms had its legal basis in Article 118 of the royal decree of 30 April 1924 and Article 119 of the royal decree of 26 April 1928 and, regard being had to the meaning that should be attached to it, was compatible with the principle of secularism. On that point it found in particular that in Italy the crucifix symbolised the religious origin of values (tolerance, mutual respect, valorisation of the person, affirmation of one's rights, consideration for one's freedom, the autonomy of one's moral conscience vis-à-vis authority, human solidarity and the refusal of any form of discrimination) which characterised Italian civilisation. In that sense, when displayed in classrooms, the crucifix could fulfil – even in a “secular” perspective distinct from the religious perspective to which it specifically referred – a highly educational symbolic function, irrespective of the religion professed by the pupils. The Consiglio di Stato held that the crucifix had to be seen as a symbol capable of reflecting the remarkable sources of the above-mentioned values, the values which defined secularism in the State's present legal order. In its judgment (no. 556) dated 13 April 2006 the Consiglio di Stato gave the following reasoning: “ ... the Constitutional Court has accepted on a number of occasions that secularism is a supreme principle of our constitutional order, capable of resolving certain questions of constitutional legitimacy (among numerous judgments, see those which concern the provisions relating to the compulsory nature of religious teaching in school or the jurisdiction of the courts over cases concerning the validity of marriages contracted according to canon law and recorded in the registers of marriages). This is a principle which is not proclaimed in express terms in our Constitution, a principle which is rich with ideological resonances and has a history full of controversy, but one nevertheless which has a legal importance that can be deduced from the fundamental norms of our system. In reality the Court derives this principle specifically from Articles 2, 3, 7, 8, 19 and 20 of the Constitution. The principle uses a linguistic symbol (“secularism”) which indicates in abridged form certain significant aspects of the above-mentioned provisions, the content of which established the operating conditions under which this symbol should be understood and function. If these specific operating conditions had not been established, the principle of “secularism” would remain confined to ideological conflicts and could be used only with difficulty in a legal framework. In that framework, the operating conditions are of course determined by reference to the cultural traditions and the customs of each people, in so far as these traditions and customs are reflected in the legal order, and this differs from one nation to another. ... In the context of this court and the problem placed before it, namely the legitimacy of displaying the crucifix in classrooms, on the part of the competent authorities acting pursuant to the regulations, what has to be done in practice is the simpler task of verifying whether that requirement does or does not infringe the content of the fundamental norms of our constitutional order, that give form and substance to the principle of “secularism” which now characterises the Italian State and to which the Constitutional Court has referred on a number of occasions. Quite clearly, the crucifix is in itself a symbol that may have various meanings and serve various purposes, above all for the place in which it has been displayed. In a place of worship the crucifix is properly and exclusively a “religious symbol”, since it is intended to foster respectful adherence to the founder of the Christian religion. In a non-religious context like a school, used for the education of young people, the crucifix may still convey the above-mentioned values to believers, but for them and for non-believers its display is justified and possesses a non-discriminatory meaning from the religious point of view if it is capable of representing and evoking synthetically and in an immediately perceptible and foreseeable manner (like any symbol) values which are important for civil society, in particular the values which underpin and inspire our constitutional order, the foundation of our civil life. In that sense the crucifix can perform – even in a “secular” perspective distinct from the religious perspective specific to it – a highly educational symbolic function, irrespective of the religion professed by the pupils. Now it is obvious that in Italy the crucifix is capable of expressing, symbolically of course, but appropriately, the religious origin of those values – tolerance, mutual respect, valorisation of the person, affirmation of one's rights, consideration for one's freedom, the autonomy of one's moral conscience vis-à-vis authority, human solidarity and the refusal of any form of discrimination – which characterise Italian civilisation. Those values, which have pervaded traditions, a way of life, the culture of the Italian people, form the basis for and spring from the fundamental norms of our founding charter – contained in the “Fundamental Principles” and the first part – and especially from those which the Constitutional Court referred to and which delimit the form of secularism appropriate to the Italian State. The reference, via the crucifix, to the religious origin of these values and their full and complete correspondence with Christian teachings accordingly makes plain the transcendent sources of the values concerned, without calling into question, rather indeed confirming the autonomy of the temporal power vis-à-vis the spiritual power ( but not their opposition, implicit in an ideological interpretation of secularism which has no equivalent in the Constitution), and without taking anything away from their particular “secular” nature, adapted to the cultural context specific to the fundamental order of the Italian State and manifested by it. Those values are therefore experienced in civil society autonomously ( and not contradictorily ) in relation to religious society, so that they may be endorsed “secularly” by all, irrespective of adhesion to the creed which inspired and defended them. As with any symbol, one can impose on or attribute to the crucifix various contrasting meanings; one can even deny its symbolic value and make it a simple trinket having artistic value at the most. However, a crucifix displayed in a classroom cannot be considered a trinket, a decorative feature, nor as an adjunct to worship. Rather, it should be seen as a symbol capable of reflecting the remarkable sources of the civil values referred to above, values which define secularism in the State's present legal order. ... ” | The applicant’s children attended a state school where all the classrooms had a crucifix on the wall, which she considered contrary to the principle of secularism by which she wished to bring up her children. During a meeting of the school’s governors, the applicant’s husband raised the question of the presence of religious symbols in the classrooms, particularly mentioning crucifixes, and asked whether they ought to be removed. Following a decision of the school’s governors to keep religious symbols in classrooms, the applicant brought administrative proceedings and complained in particular, without success, of an infringement of the principle of secularism. She complained before the Court that the display of the crucifix in the State school attended by her children was in breach of Article 9 (freedom of thought, conscience and religion)1 of the European Convention on Human Rights and of Article 2 (right to education) of Protocol No. 1 to the Convention. |
1,041 | Prohibition of discrimination (Article 14 of the Convention) and General prohibition of discrimination (Article 1 of Protocol No. 12 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE A. The applicants 1. Annette Carson 10. Ms Carson was born in 1931. She spent most of her working life in the United Kingdom, paying National Insurance contributions (NICs) in full, before emigrating to South Africa in 1989. From 1989 to 1999 she paid further NICs on a voluntary basis (see paragraph 3 7 below). 11. In 2000 she became eligible for a basic State pension of 67.50 pounds sterling (GBP) per week. Her pension has remained fixed at this rate since 2000. Had her pension benefited from uprating in line with inflation, it would now be worth GBP 95.25 per week (see paragraphs 4 1 -4 2 below). 12. Ms Carson brought domestic proceedings challenging the refusal to uprate her pension ( see paragraphs 2 5 -3 6 below ). 2. Bernard Jackson 13. Mr Jackson was born in 1922. He spent fifty years working in the United Kingdom, paying NICs in full. He emigrated to Canada on his retirement in 1986 and became eligible for a State pension in 1987. His basic State pension was then GBP 39.50 per week, and it has remained fixed at that level since 1987. Had his State pension benefited from uprating since 1987 it would now be worth GBP 95.25 per week. 3. Venice Stewart 14. Mrs Stewart was born in 1931. She spent fifteen years working in the United Kingdom, paying NICs in full, before emigrating to Canada in 1964. She became eligible for a reduced State pension in 1991. Her basic State pension was then GBP 15.48 per week, and it has remained fixed at that level since 1991. 4. Ethel Kendall 15. Mrs Kendall was born in 1913. She spent forty-five years working in the United Kingdom, paying NICs in full, before retiring in 1976. She became eligible for a State pension in 1973, and emigrated to Canada in 1986, at which point her State pension had increased to GBP 38.70 per week. It has remained fixed at that level, whereas the current uprated pension is worth GBP 9 5 .25 (see paragraph 39 below ). 5. Kenneth Dean 16. Mr Dean was born in 1923. He spent fifty-one years working in the United Kingdom, paying NICs in full, before retiring in 1991. He became eligible for a State pension in 1988, and emigrated to Canada in 1994, when his weekly State pension was GBP 57.60. It has remained fixed at that level since 1994. Had it benefited from uprating, it would now be worth approximately GBP 95.25 per week. 6. Robert Buchanan 17. Mr Buchanan was born in 1924. He spent forty-seven years working in the United Kingdom, paying NICs in full, before emigrating to Canada in 1985. He became eligible for a State pension in 1989. His basic State pension was then GBP 41.15 per week, and it has remained fixed at that level since 1989. Had his State pension benefited from uprating, it would now be worth approximately GBP 95.25 per week. 7. Terence Doyle 18. Mr Doyle was born in 1937. He spent forty-two years working in the United Kingdom, paying NICs in full, before retiring in 1995 and emigrating to Canada in 1998. He became eligible for a State pension in 2002. His basic State pension was then GBP 75.50 per week, and it has remained fixed at that level since then. Had it benefited from uprating, it would now be worth approximately GBP 95.25 per week. 8. John Gould 19. Mr Gould was born in 1933. He spent forty-four years working in the United Kingdom, paying NICs in full, before retiring and emigrating to Canada in 1994. He became eligible for a State pension in 1998. His basic State pension was then GBP 64.70 per week, and it has remained fixed at that level since then. Had his State pension benefited from uprating, it would now be worth approximately GBP 95.25 per week. 9. Geoff Dancer 20. Mr Dancer was born in 1921. He spent forty-four years working in the United Kingdom, paying NICs in full, before emigrating to Canada in 1981. He became eligible for a State pension in 1986. His basic State pension was then GBP 38.30 per week, and it has remained fixed at that level. Had it benefited from uprating, it would now be worth approximately GBP 95.25 per week. 10. Penelope Hill 21. Mrs Hill was born in Australia in 1940; it appears that she remains an Australian national. She lived and worked in the United Kingdom between 1963 and 1982, paying NICs in full, before returning to Australia in 1982. She made further NICs for the tax years 1992 to 1999, and became eligible for a British State pension in 2000. Her basic State pension was then GBP 38.05 per week. Between August 2002 and December 2004 she spent over half her time in London. During this period, her pension was increased to GBP 58.78 per week, which included an uprating of the basic State pension. When she returned to Australia, her pension returned to the previous level, that is a basic State pension of GBP 38.05 per week. Her pension has remained at this level subsequently. 11. Bernard Shrubshole 22. Mr Shrubshole was born in 1933. His contribution record in the United Kingdom qualified him for a full basic State pension in 1998. He emigrated to Australia in 2000, at which point his State pension had increased to GBP 67.40 per week. Save for a period of seven weeks when he returned to the United Kingdom (during which time his pension was increased to take into account annual upratings ), his State pension has remained fixed at that level since 2000. Had his State pension benefited from uprating, it would now be worth approximately GBP 95.25 per week. 12. Lothar Markiewicz 23. Mr Markiewicz was born in 1924. He spent fifty-one years working in the United Kingdom, paying NICs in full, and became eligible for a State pension in 1989. In 1993 he emigrated to Australia. His basic State pension was then worth GBP 56.10 a week, and it has remained fixed at that level. Had it benefited from uprating, it would now be worth approximately GBP 95.25 per week. 13. Rosemary Godfrey 24. Mrs Godfrey was born in 1934. She spent ten years working in the United Kingdom between 1954 and 1965, paying NICs in full, before emigrating to Australia in 1965. She became eligible for a State pension in 1994. Her basic State pension was then GBP 14.40 per week, and it has remained fixed at that level. B. The domestic proceedings brought by Ms Carson 25. In 2002 Ms Carson brought proceedings by way of judicial review to challenge the failure to uprate her pension, relying on Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention. 1. The High Court 26. In a judgment dated 22 May 2002 ( R (Carson) v. Secretary of State for Work and Pensions [2002] EWHC 978 (Admin)), the first - instance judge, Stanley Burnton J, dismissed Ms Carson ’ s application for judicial review. 27. Applying the principles he drew from the case-law of the Court, the judge found that the pecuniary right that fell to be protected by Article 1 of Protocol No. 1 had to be defined by the domestic legislation that created it. He found that, by the operation of the domestic legislation, Ms Carson had never been entitled to an uprated pension, so that there could be no breach of Article 1 of Protocol No. 1 taken in isolation. 28. The matter nonetheless fell within the ambit of Article 1 of Protocol No. 1 and the judge therefore had to consider whether Ms Carson had suffered discrimination contrary to the provisions of Article 14. The Government initially contended that country of residence was not a prohibited ground of discrimination under Article 14, but this objection was subsequently withdrawn. The judge, however, dismissed Ms Carson ’ s claim on the ground that she was not in a comparable position to pensioners in countries attracting uprating. The differing economic conditions in each country, including local social security provision and taxation, made it impossible simply to compare the amount in sterling received by pensioners. Moreover, even if the applicant could claim to be in an analogous position to a pensioner in the United Kingdom or a country where uprating was paid subject to a bilateral agreement, the difference in treatment could be justified. 2. The Court of Appeal 29. Ms Carson appealed to the Court of Appeal, which dismissed her appeal on 17 June 2003 ( R (Carson and Reynolds) v. Secretary of State for Work and Pensions [2003] EWCA Civ 797). For similar reasons to the High Court, the Court of Appeal ( Simon Brown, Laws and Rix LJJ ) found that, since Article 1 of Protocol No. 1 conferred no right to acquire property, the failure to uprate Ms Carson ’ s pension gave rise to no violation of that provision taken alone. 30. As to the complaint under Article 14 in conjunction with Article 1 of Protocol No. 1, the Court of Appeal noted that the Secretary of State accepted that place of residence constituted a “status” for the purposes of the Article. However, it found that the applicant was in a materially different position to those whom she contended were her comparators. In this connection it was significant that “ the scheme of the primary legislation is entirely geared to the impact on the pension of price inflation in the United Kingdom”. Laws LJ continued: “ There is simply no inherent probability that price inflation in other countries where expatriate UK pensioners might have made their home (or, for that matter, any other economic factors) will have a comparable effect on the value of the pension to such pensioners. They may do better, they may do worse. There will also, of course, be the impact of variable exchange rates. There will be, if I may be forgiven a jejune metaphor, swings and roundabouts. While I certainly do not suggest there are no principled arguments in favour of the annual uprate being paid to those in Ms Carson ’ s position, it seems to me inescapable that its being awarded across the board to all such pensioners would have random effects. A refusal by government to put in place a measure which would produce such effects (which in the end is all that has happened here) cannot be said to stand in need of justification by reason if it is being compared with the clear and certain effects of the uprate for UK-resident pensioners.” 31. The Court of Appeal also considered, in the alternative, the question of justification and found that the “ true ” justification of the refusal to pay the uprate was that Ms Carson and those in her position “ had chosen to live in societies, more pointedly economies, outside the United Kingdom where the specific rationale for the uplift may by no means necessarily apply ”. The Court of Appeal thus considered the decision to be objectively justified without reference to what they accepted would be the “ daunting cost ” of extending the uprate to those in Ms Carson ’ s position. Moreover, the cost implications were “ in the context of this case a legitimate factor going in justification for the Secretary of State ’ s position ”, because to accept Ms Carson ’ s arguments would be to lead to a judicial interference in the political decision as to the deployment of public funds which was not mandated by the Human Rights Act 1998, the jurisprudence of this Court or by a “ legal imperative ” which was sufficiently pressing to justify confining and circumscribing the elected Government ’ s macroeconomic policies. 3. The House of Lords 32. Ms Carson appealed to the House of Lords, relying on Article 1 of Protocol No. 1 read together with Article 14. Her appeal was dismissed on 26 May 2005 by a majority of four to one ( R (Carson and Reynolds) v. Secretary of State for Work and Pensions [2005] UKHL 37). 33. The majority (Lords Nicholls of Birkenhead, Hoffmann, Rodger of Earlsferry and Walker of Gestinghope ) accepted that a retirement pension fell within the scope of Article 1 of Protocol No. 1 and that Article 14 was thus applicable. They further assumed that a place of residence was a personal characteristic and amounted to “any other status” within the meaning of Article 14, and was thus a prohibited ground of discrimination. However, because a person could choose where to live, less weighty grounds were required to justify a difference of treatment based on residence than one based on an inherent personal characteristic, such as race or sex. 34. The majority observed that in certain cases it was artificial to treat separately the questions, firstly, whether an individual complaining of discrimination was in an analogous position to a person treated more favourably and, secondly, whether the difference in treatment was reasonably and objectively justified. In the present case, the applicant was not in an analogous position to a pensioner resident in the United Kingdom or resident in a country with a bilateral agreement with the United Kingdom. The State pension was one element in an interconnected system of taxation and social security benefits, designed to provide a basic standard of living for the inhabitants of the United Kingdom. It was funded partly from the NICs of those currently in employment and their employers, and partly out of general taxation. The pension was not means - tested, but pensioners with a high income from other sources paid some of it back to the State in income tax. Those with low incomes might receive other benefits, such as income support. The provision for index-linking was intended to preserve the value of the pension in the light of economic conditions, such as the cost of living and the rate of inflation, within the United Kingdom. Quite different economic conditions applied in other countries: for example, in South Africa, where Ms Carson lived, although there was virtually no social security, the cost of living was much lower, and the value of the rand had dropped in recent years compared to sterling. 35. Lord Hoffmann, who gave one of the majority opinions, put the arguments as follows: “18. The denial of a social security benefit to Ms Carson on the ground that she lives abroad cannot possibly be equated with discrimination on grounds of race or sex. It is not a denial of respect for her as an individual. She was under no obligation to move to South Africa. She did so voluntarily and no doubt for good reasons. But in doing so, she put herself outside the primary scope and purpose of the UK social security system. Social security benefits are part of an intricate and interlocking system of social welfare which exists to ensure certain minimum standards of living for the people of this country. They are an expression of what has been called social solidarity or fraternité; the duty of any community to help those of its members who are in need. But that duty is generally recognised to be national in character. It does not extend to the inhabitants of foreign countries. That is recognised in treaties such as the ILO [International Labour Organization] Social Security (Minimum Standards) Convention 1952 ( Article 69) and the European Code of Social Security 1961. 19. Mr Blake QC, who appeared for Ms Carson, accepted the force of this argument. He agreed in reply that she could have no complaint if the United Kingdom had rigorously applied the principle that UK social security is for UK residents and paid no pensions whatever to people who had gone to live abroad. And he makes no complaint about the fact that she is not entitled to other social security benefits like jobseeker ’ s allowance and income support. But he said that it was irrational to recognise that she had an entitlement to a pension by virtue of her contributions to the National Insurance Fund and then not to pay her the same pension as UK residents who had made the same contributions. 20. The one feature upon which Ms Carson seizes as the basis of her claim to equal treatment (but only in respect of a pension) is that she has paid the same National Insurance contributions. That is really the long and the short of her case. In my opinion, however, concentration on this single feature is an oversimplification of the comparison. The situation of the beneficiaries of UK social security is, to quote the European Court in Van der Mussele v. Belgium (1983) 6 EHRR 163, 180, para. 46, ‘ characterised by a corpus of rights and obligations of which it would be artificial to isolate one specific aspect ’. 21. In effect Ms Carson ’ s argument is that because contributions are a necessary condition for the retirement pension paid to UK residents, they ought to be a sufficient condition. No other matters, like whether one lives in the United Kingdom and participates in the rest of its arrangements for taxation and social security, ought to be taken into account. But that in my opinion is an obvious fallacy. National Insurance contributions have no exclusive link to retirement pensions, comparable with contributions to a private pension scheme. In fact the link is a rather tenuous one. National Insurance contributions form a source of part of the revenue which pays for all social security benefits and the National Health Service (the rest comes from ordinary taxation). If payment of contributions is a sufficient condition for being entitled to a contributory benefit, Ms Carson should be entitled to all contributory benefits, like maternity benefit and jobseeker ’ s allowance. But she does not suggest that she is. 22. The interlocking nature of the system makes it impossible to extract one element for special treatment. The main reason for the provision of State pensions is the recognition that the majority of people of pensionable age will need the money. They are not means-tested, but that is only because means-testing is expensive and discourages take-up of the benefit even by people who need it. So State pensions are paid to everyone whether they have adequate income from other sources or not. On the other hand, they are subject to tax. So the State will recover part of the pension from people who have enough income to pay tax and thereby reduce the net cost of the pension. On the other hand, those people who are entirely destitute would be entitled to income support, a non-contributory benefit. So the net cost of paying a retirement pension to such people takes into account the fact that the pension will be set off against their claim to income support. 23. None of these interlocking features can be applied to a non-resident such as Ms Carson. She pays no United Kingdom income tax, so the State would not be able to recover anything even if she had substantial additional income. (Of course I do not suggest that this is the case; I have no idea what other income she has, but there will be expatriate pensioners who do have other income. ) Likewise, if she were destitute, there would be no saving in income support. On the contrary, the pension would go to reduce the social security benefits (if any) to which she is entitled in her new country. State and private pensions 24. It is, I suppose, the words ‘ insurance ’ and ‘ contributions ’ which suggest an analogy with a private pension scheme. But, from the point of view of the citizens who contribute, National Insurance contributions are little different from general taxation which disappears into the communal pot of the consolidated fund. The difference is only a matter of public accounting. And although retirement pensions are presently linked to contributions, there is no particular reason why they should be. In fact (mainly because the present system severely disadvantages women who have spent time in the unremunerated work of caring for a family rather than earning a salary) there are proposals for change. Contributory pensions may be replaced with a non-contributory ‘ citizen ’ s pension ’ payable to all inhabitants of this country of pensionable age. But there is no reason why this should mean any change in the collection of National Insurance contributions to fund the citizen ’ s pension like all the other non-contributory benefits. On Ms Carson ’ s argument, however, a change to a non-contributory pension would make all the difference. Once the retirement pension was non-contributory, the foundation of her argument that she had ‘ earned ’ the right to equal treatment would disappear. But she would have paid exactly the same National Insurance contributions while she was working here and her contributions would have had as much (or as little) causal relationship to her pension entitlement as they have today. Parliamentary choice 25. For these reasons it seems to me that the position of a non-resident is materially and relevantly different from that of a UK resident. I do not think, with all respect to my noble and learned friend, Lord Carswell, that the reasons are subtle and arcane. They are practical and fair. Furthermore, I think that this is very much a case in which Parliament is entitled to decide whether the differences justify a difference in treatment. It cannot be the law that the United Kingdom is prohibited from treating expatriate pensioners generously unless it treats them in precisely the same way as pensioners at home. Once it is accepted that the position of Ms Carson is relevantly different from that of a UK resident and that she therefore cannot claim equality of treatment, the amount (if any) which she receives must be a matter for Parliament. It must be possible to recognise that her past contributions gave her a claim in equity to some pension without having to abandon the reasons why she cannot claim to be treated equally. And in deciding what expatriate pensioners should be paid, Parliament must be entitled to take into account competing claims on public funds. To say that the reason why expatriate pensioners are not paid the annual increases is to save money is true but only in a trivial sense: every decision not to spend more on something is to save money to reduce taxes or spend it on something else. 26. I think it is unfortunate that the argument for the Secretary of State placed such emphasis upon such matters as the variations in rates of inflation in various countries which made it inappropriate to apply the same increase to pensioners resident abroad. It is unnecessary for the Secretary of State to try to justify the sums paid with such nice calculations. It distracts attention from the main argument. Once it is conceded, as Mr Blake accepts, that people resident outside the UK are relevantly different and could be denied any pension at all, Parliament does not have to justify to the courts the reasons why they are paid one sum rather than another. Generosity does not have to have a logical explanation. It is enough for the Secretary of State to say that, all things considered, Parliament considered the present system of payments to be a fair allocation of available resources. 27. The comparison with residents in treaty countries seems to me to fail for similar reasons. Mr Blake was able to point to government statements to the effect that there was no logical scheme in the arrangements with treaty countries. They represented whatever the UK had from time to time been able to negotiate without placing itself at an undue economic disadvantage. But that seems to me an entirely rational basis for differences in treatment. The situation of a UK expatriate pensioner who lives in a country which has been willing to enter into suitable reciprocal social security arrangements is relevantly different from that of a pensioner who lives in a country which has not. The treaty enables the government to improve the social security benefits of UK nationals in the foreign country on terms which it considers to be favourable, or at least not unduly burdensome. It would be very strange if the government was prohibited from entering into such reciprocal arrangements with any country (for example, as it has with the EEA [European Economic Area] countries) unless it paid the same benefits to all expatriates in every part of the world.” 36. Lord Carswell, dissenting, found that Ms Carson could properly be compared to other contributing pensioners living in the United Kingdom or other countries where their pensions were uprated. He continued: “ How persons spend their income and where they do so are matters for their own choice. Some may choose to live in a country where the cost of living is low or the exchange rate favourable, a course not uncommon in previous generations, which may or may not carry with it disadvantages, but that is a matter for their personal choice. The common factor for purposes of comparison is that all of the pensioners, in whichever country they may reside, have duly paid the contributions required to qualify for their pensions. If some of them are not paid pensions at the same rate as others, that in my opinion constitutes discrimination for the purposes of Article 14 ...” Lord Carswell therefore considered that the appeal turned on the question of justification. He accepted that the courts should be slow to intervene in questions of macroeconomic policy. He further accepted that, had the Government put forward sufficient reasons of economic or State policy to justify the difference in treatment, he should have been properly ready to yield to its decision-making power in those fields. However, in the present case the difference in treatment was not justified: as the Department of Social Security itself accepted, the reason all pensions were not uprated was simply to save money, and it was not fair to target the applicant and others in her position. | This case concerned allegedly discriminatory rules governing the entitlement to index-linking of the State pension. Under the rules, pensions were only index-linked if the recipient was ordinarily resident in the United Kingdom or in a country having a reciprocal agreement with the United Kingdom on the uprating of pensions. Those resident elsewhere continued to receive the basic State pension, but this was frozen at the rate payable on the date they left the United Kingdom. The thirteen applicants (aged between 65 and 92) had spent most of their working lives in the United Kingdom, paying National Insurance contributions in full, before emigrating or returning to South Africa, Australia or Canada, none of which had a reciprocal agreement with the United Kingdom on pension uprating. Their pensions were accordingly frozen at the rate payable on the date of their departure. Considering this to be an unjustified difference in treatment, the first applicant sought judicial review of the decision not to index-link her pension. However, her application was dismissed in 2002 and ultimately on appeal before the House of Lords in 2005. |
572 | Cases in which the Court found no violation of Article 4 of Protocol No. 4 | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1985 and lives in Paris. 8. The applicant comes from the Afghan province of Baghlan and is a member of the Tajik ethnic group. His family were land-owning farmers. His father was a member of the communist party and was a party representative in Ghuri. After the fall of the communist regime of Mohamad Najibullah, this political involvement by a Tajik was regarded as high treason. In particular, the applicant ’ s family faced hostility from a former warlord who had gone on to become a prominent local figure, Arab Nourak. The latter, a Pashtun and a former member of Jamiat - e Islami (an Islamic political party), appropriated the family ’ s possessions in 1992. At the end of 1992 a grenade was thrown into the applicant ’ s family home, and he sustained injuries to the head and thigh. The applicant claimed to have scars on his body as a result of that event. His father allegedly received a knee injury. The case file included a medical certificate drawn up on 7 April 2006 by a doctor at the Medical Committee for Exiles at the Bicêtre Hospital, Paris, who concluded : “ ... Mr Sultani informs me that he is from the Baghlan region. Following a conflict between his father and a local chief, a grenade was thrown at the family home. Mr Sultani states that he sustained injuries to the head and left thigh. In the course of the examination, several scars on the left parietal area of the scalp and a scar covering about a third of the outer left thigh were found. ... The findings of the clinical examination are compatible with the patient ’ s statements. ” 9. The applicant and his family left Afghanistan for Pakistan, staying first in Sorkhab, then in Quetta. 10. The applicant claimed that he arrived in France in December 2002. On 25 March 2003 he applied for asylum. By a decision of 6 August 2003, the French Office for the Protection of Refugees and Stateless Persons ( “the OFPRA ” ) refused his application on the following grounds : “The applicant, who was questioned at the Office, referred to land disputes between his father and a local commander and stated that he had been obliged to leave his country of origin in 1991 or 1992. He initially lived in a camp on the Afghan- Pakistani border for several years before settling with his family in Quetta. Even supposing they were substantiated, and given the grounds having occasioned them, the time that has elapsed and the political changes that have since occurred in Afghanistan, the circumstances described cannot, however, justify the applicant ’ s refusal to return and to claim protection from the current authorities in his country of origin.” 11. That decision was upheld on 13 May 2004 by the Refugee Appeals Board. On 5 July 2004 the applicant was directed to leave French territory. 12. In December 2004 the applicant ’ s family was repatriated from Pakistan to their village of origin. They again encountered hostility from Arab Nourak who, supported by the new governor of Baghlan Province ( also a member of a radical Islamic party and, like Mr Nourak, an ethnic Pashtun ), refused to return their land. According to the applicant, his family were again obliged to seek refuge in the Pakistani town of Quetta. The applicant alleged that he had heard nothing from his relatives since that time. 13. In the light of those events, the applicant alleged that he had intended to lodge a fresh application for asylum in France, but that he had been waiting to obtain further news from his family. 14. On 21 September 2005 the applicant was arrested at the Square de Verdun in Paris, a place where Afghan nationals newly arrived in France frequently gathered. He was released on that occasion. 15. On 14 December 2005 he was again arrested at the same location with other Afghan nationals. He alleged that the French police had carried out targeted arrests based on the nationality of those concerned, with a view to organising a “grouped flight” to deport them. 16. On the same day he was made the subject of a prefectoral removal order, of a decision stipulating the country of destination and of an administrative detention order. 17. The applicant applied to the Paris Administrative Court to have set aside the prefectoral order of 14 December 2005 and the separate decision naming Afghanistan as the country of destination. By a judgment of 17 December 2005, the judge appointed by the President of the Administrative Court dismissed the applicant ’ s request. The applicant appealed to the Paris Administrative Court of Appeal. 18. On 16 December 2005, during a hearing with the liberties and detention judge at the Paris tribunal de grande instance, the applicant stated : “ I do not wish to return to my country of origin because I am afraid for my life. I have new information to include in my request for political asylum. I would like to see a doctor. ” 19. In an order issued on the same date, the liberties and detention judge ordered that the administrative detention be extended by fifteen days, until 5 p.m. on 31 December 2005. The judge also noted : “the detainee raised complaints of a medical nature ... and requested political asylum; ... We order that the detainee be examined by a doctor from the forensic medicine unit at the Hôtel Dieu Hospital in order to determine whether his state of health is compatible with the detention and expulsion order. ” 20. On 19 December 2005 the applicant and three other Afghan nationals (G., S. and D.) lodged an application with the Court, together with a request for application of Rule 39 of the Rules of Court. 21. On 20 December 2005 the Paris Police Commissioner ’ s Office informed the applicant that he had been refused leave to remain, in a document dated 16 December 2005 and worded as follows : “You were arrested on 14 December 2005 and found to be in contravention of the legislation on aliens; you have now requested that your application for asylum be re-examined. This request, submitted out of time and in support of your [continued] detention, is clearly intended to circumvent an order for removal from French territory. In consequence, and in accordance with Articles L. 742-3, L. 742-6 of the Code on the conditions of entry and residence of aliens and the right of asylum, I refuse to grant you leave to remain. ... The re-examination of your request for refugee status will therefore be given priority treatment by the French Office for the Protection of Refugees and Stateless Persons under Articles L. 313-3, L. 313-5, L. 313-6, L. 313-7, L. 313-8, L. 313-9, L. 313-10 of the above-mentioned Code. Finally, an administrative measure of expulsion by prefectoral order may be taken in application of Articles L. 511-1 and L. 512-1 of the above-mentioned Code; however, this may not be enforced prior to the Office ’ s decision (Article L. 741-5 of the above-mentioned Code ). ” 22. On the same date the acting President of the Second Section decided to indicate to the French Government, under Rule 39 of the Rules of Court, that it was desirable to refrain from deporting the applicant to Afghanistan. He also invited the Government to keep the Court informed of the applicant ’ s situation with regard to the proceedings on his asylum application and the medical examination ordered by the liberties and detention judge. In reply, the Government indicated that the applicant had been released from the Vincennes Administrative Detention Centre on 21 December 2005 and was free to circulate on French territory. 23. On 20 December 2005 a grouped flight left France for Afghanistan. 24. On 5 January 2006 the Court decided to extend the interim measure indicated under Rule 39 until further notice. 25. On 6 January 2006 the prefecture summoned the applicant to an interview, scheduled for 13 January, to examine his administrative situation with a view to enforcement of the removal measure. 26. On 9 January 2006 the OFPRA registered a second asylum application from the applicant. On 10 January 2006 the Director General of the OFPRA refused it on the following grounds: “In support of his application, Mr Noor Mohammad SULTANI Refers to the general situation in Afghanistan. In itself, however, this evidence is not sufficient to substantiate the fears of persecution or the existence of serious threats within the meaning of Articles L. 711-1 and L. 721-1 of the Code on the conditions of entry and residence of aliens and the right of asylum. Accordingly, it is not admissible. He submits a statement from an association for refugees. This, however, is a new item of evidence which refers to events that were previously argued. Accordingly, it is not admissible. He further claims that his family has again been persecuted by the henchmen of Arab Nourak, an influential local military leader in the Baghlan region, since their return to the Afghan territory. It is claimed that a cousin is currently being detained. However, the applicant ’ s statements, which are brief and vague, are not supported by any credible or decisive evidence capable of proving that the alleged facts are true and that his fears are well-founded.” 27. On 10 February 2006 the applicant appealed against that decision to the Refugee Appeals Board. 28. On 22 March and 11 May 2006 the applicant submitted the additional information requested by the Court and confirmed that he wished to pursue the application. 29. On 4 July 2006 the Paris Administrative Court of Appeal dismissed the applicant ’ s appeal against the Paris Administrative Court ’ s judgment of 17 December 2005. It found, inter alia : “ On the lawfulness of the removal order: ... Firstly, contrary to what is alleged by Mr Sultani, the expulsion order dated 14 December 2005, which sets out the considerations of law and of fact on which it is based, is supported by sufficient grounds; the prefect, who indicated that the appellant ’ s situation had been scrutinised, particularly with regard to his right to family life, examined the appellant ’ s personal situation; Secondly, the disputed removal order, the sole purpose of which is the removal from the territory of Mr Sultani, is not collective in nature; in any event, it does not therefore contravene the requirements of Article 4 of Protocol No. 4 to the European Convention on Human Rights ... which prohibits collective expulsions; nor can Mr Sultani validly rely either on the provisions of Article 6 of the Convention ..., which are not applicable to appeal judgments against removal orders, or on the provisions of Article 1 of Protocol No. 7 to the said Convention, published by decree of 24 January 1989, which are applicable only to aliens residing lawfully on the territory of a State; On the lawfulness of the additional decision naming the country of destination: Mr Sultani ’ s request for political asylum has been ... refused by decisions of the French Office for the Protection of Refugees and Stateless Persons and the Refugee Appeals Board; his second request for asylum, submitted on 9 January 2006, was rejected by a new decision by the Office on 10 January 2006; although Mr Sultani refers to the risk that he would run in the event of a return to Afghanistan, given the situation of civil war that exists in that country, that circumstance is not in itself capable of substantiating the risks alleged by the appellant in the event of return to his country of origin; he has not submitted any evidence concerning his personal situation which would make it possible to consider as substantiated [his argument] that there are circumstances which would constitute a legal impediment to expulsion to his country of origin; ...” ... | This case concerned the risk of deportation on a collective flight used to deport illegal immigrants. The applicant submitted, in particular, that if he were to return to Afghanistan he ran the risk of being subjected to inhuman and degrading treatment. He complained of the deportation proceedings against him, and in particular of the short time taken by the French Agency for the Protection of Refugees and Stateless Persons (OFPRA) to consider his second asylum application. |
486 | Reconciling professional and family life | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1965 and lives in Perales Del Río (Madrid). 6. At the material time she worked full-time in a hypermarket, mornings or afternoons, from Monday to Saturday 7. On 26 February 2003, relying on Article 37 § 5 of the Labour Regulations, the applicant asked her employer to reduce her working hours (with a corresponding reduction of her salary) because she had custody of her son, who was under six years old. She applied to work half-time, from 4 p.m. to 9.15 p.m. from Monday to Wednesday. 8. In a letter of 21 March 2003 her employer notified her that she would not be allowed to work the hours requested. Instead, he proposed that she work half days, from Monday to Saturday, in the morning or afternoon. 9. An attempt by the applicant to reach an agreement with her employer with the help of the Madrid Mediation, Conciliation and Arbitration Board failed. 10. On 20 May 2003 the applicant brought special proceedings before the Employment Tribunal to adjust her working hours to enable her to look after a child under six years of age. In a judgment of 25 September 2003 Madrid Employment Tribunal no. 1 dismissed the applicant’s case, considering that reductions in working hours should be made in the ordinary working day, whereas the applicant wanted to take several working days off (from Thursday to Saturday) and not to work mornings at all, which was not a reduction but a modification of the working day. 11. On 6 November 2003 the applicant lodged an amparo appeal with the Constitutional Court, based on the right to a fair hearing and the principle prohibiting discrimination on grounds of sex. In a judgment of 15 January 2007 the Constitutional Court allowed the appeal, considering that the principle that there should be no discrimination based on gender had been violated in the applicant’s case. The court referred to the established case-law of the Court of Justice of the European Communities to the effect that “Community law precluded the application of a domestic measure which, although formulated in a neutral manner, affected a much higher percentage of women than men”, unless this was the result of objective factors unrelated to any discrimination on grounds of sex. It noted that “in the event of indirect discrimination it is not necessary to prove the existence of more favourable treatment reserved exclusively for men; it is sufficient that there exists a legal provision the interpretation or application of which adversely affects a group composed mainly of female employees”. The Constitutional Court found that there had been a breach of the principle prohibiting discrimination on grounds of sex, stating: “the court’s refusal to acknowledge [the applicant’s right to] a reduction of her working hours, without examining to what degree the reduction concerned was necessary in order to respect the constitutional purposes for which [the possibility of working reduced hours] had been introduced or what organisational difficulties the employer might have if [the applicant’s] right to work the hours concerned were to be acknowledged, constitutes an unjustified obstacle to [the applicant] in her work and in reconciling that work with her family life, and therefore discrimination on grounds of sex”. The Constitutional Court accordingly allowed the amparo appeal, set aside the Madrid Employment Tribunal’s judgment of 25 September 2003 and ordered that court to deliver a new judgment in keeping with the fundamental right in issue. 12. In a new judgment of 6 September 2007 the Employment Tribunal again dismissed the applicant’s case. It considered that the reduction in working hours the applicant was seeking fell outside the scope of Article 37 of the Labour Regulations because she wanted to take Thursdays, Fridays and Saturdays off, especially as two of those days – Friday and Saturday – were the busiest days of the week. The court also held that, for the purposes of the constitutional protection she had been afforded, the applicant had not sufficiently justified the need for a reduction in her working hours that went beyond the bounds of a simple rearrangement of the ordinary working day. 13. On 28 November 2007, the applicant lodged a new amparo appeal with the Constitutional Court, which that court examined as proceedings in execution of its judgment of 15 January 2007. On 29 October 2008 she informed the Constitutional Court that her son had since turned six years old, so that as a result of the length of the judicial proceedings she no longer had the right to the reduced working hours she had applied for in order to look after her son. As the Constitutional Court’s judgment could therefore no longer be enforced as such, the applicant claimed alternative compensation, under Article 18 § 2 of the Judicature Act ( Ley Orgánica del Poder Judicial, “the LOPJ”), in the amount of 40,986 euros (EUR). 14. In a reasoned decision of 12 January 2009 the Constitutional Court held that its judgment of 15 January 2007 had not been correctly executed, and set aside the Employment Tribunal’s judgment of 6 September 2007. However, it found that there was no need to remit the case to the lower court in so far as a new judgment of that court would serve no purpose now that the child was over six, and that an award of compensation was not permitted under Article 92 of the Institutional Law on the Constitutional Court. 15. A dissenting opinion was appended to the judgment. The dissenting judge deemed, inter alia, that the Constitutional Court should have awarded the applicant compensation, particularly in a case such as hers where compensation was the only way to protect the fundamental right in issue and restore the applicant’s right in full. | This case concerned a supermarket employee, who asked for a reduction in her working time because she had to look after her son, who was then under six years old. The applicant complained that her right to a fair hearing within a reasonable time had been breached and that she had suffered discrimination on grounds of sex. She complained that she had not obtained redress for the breach of her fundamental right and that she had had no effective remedy before the Spanish Constitutional Court. |
22 | Military presence and political support | I. THE CIRCUMSTANCES OF THE CASE 6. The application concerns the murder on 15 January 2005 of Elmas, Zerrin and Eylül Güzelyurtlu, all Cypriot nationals of Turkish Cypriot origin. 7. The applicants are the family of the deceased. The first, second and third applicants are the children of Elmas and Zerrin Güzelyurtlu and the brother and sisters, respectively, of Eylül Güzelyurtlu. The fourth and fifth applicants are Zerrin Güzelyurtlu ’ s sisters, and the sixth and seventh applicants are her parents. 8. The first five applicants were born in 1978, 1976, 1980, 19 6 2 and 1956 respectively. The sixth and seventh applicants were both born in 1933. The first, fifth, sixth and seventh applicants live in the “TRNC”. The second, third and fourth applicants live in the United Kingdom. A. The background facts and the murder of Elmas, Zerrin and Eylül Güzelyurtlu 9. Elmas Güzelyurtlu was a businessman and used to live with his wife Zerrin and daughter Eylül in the “TRNC”. In 2000, following the collapse of the bank that Elmas Güzelyurtlu owned, Elmas Güzelyurtlu fled to and settled in Larnaca, in the Cypriot-Government- controlled areas. His wife and daughter joined him in 2001. In 2003 they moved to the Ayios Dometios district of Nicosia. 10. On 15 January 2005 at about 8.00 a.m. on the Nicosia-Larnaca highway, near the Athiainou exit, a police officer spotted a black Lexus car parked on the hard shoulder. The engine was running, the left turn indicator light was flashing and the door of the front passenger seat was open. 11. Zerrin and Eylül Güzelyurtlu were found dead on the back seat of the car. Elmas Güzelyurtlu was lying dead at a distance of 1.5 metres from the car in a nearby ditch. All three were in pyjamas and slippers. Zerrin Güzelyurtlu had adhesive tape on her neck and two rolls of adhesive tape in her hands. Both Zerrin Güzelyurtlu and her daughter Eylül Güzelyurtlu had redness ( ερυθρότητα ) on the edges of their hands, which indicated that they had been tied with adhesive tape. They also had bruises on their shins which had been sustained in a struggle. B. The investigation and the measures taken by the Cypriot authorities 12. The particulars of the investigation and the measures taken, as submitted by the Cypriot Government and as can be seen from the documents contained in the case file, may be summarised as follows. 13. The police officer who discovered the bodies informed Nicosia police headquarters. A number of police officers (some of them high- ranking ), arrived at about 8.35 a.m. at the crime scene, which had already been secured and sealed off. 14. A detailed on-the- spot investigation was immediately conducted by the police and a forensic pathologist. Photographs were taken and a video recording was made. Two bullets, two cartridge cases and a kitchen knife were found inside the car. A third cartridge case was found outside the car. 15. An investigation team consisting of eight officers was set up. 16. The car was taken away for further inspection. 17. At about 9.25 a.m. officers went to the victims ’ house in Ayios Dometios. The house was secured and sealed off. An investigation was carried out by the investigation team and a forensic pathologist. Photographs and fingerprints were taken and a video recording made at the scene. The investigation determined that the perpetrators of the murders had broken into the house through a window. A suction cup ( βεντούζα ) and pieces of adhesive tape were found outside the window. Adhesive tape was found in the victims ’ bedrooms, the living room and the car park. The security system had been switched off at 4.35 a.m. on that day and one of the cameras appeared to have been turned upwards at 4.29 a.m. 18. Numerous exhibits were collected from the scene of the crime and the victims ’ home. These were sent for forensic examination. 19. On the same day the victims ’ bodies were taken to the mortuary at Larnaca General Hospital for a post-mortem examination. Death certificates were issued. 20. On 16 January 2005 post-mortem examinations were carried out by a forensic pathologist. It was determined that each of the three victims had died of severe craniocerebral injury caused by a shot from a firearm at close range and that their deaths had been the result of a criminal act. Photographs were taken and a video recording made of the post-mortem examinations. A diary of action ( ημερολόγιο ενέργειας ) was kept by one of the police officers present during the post-mortem examinations, which recorded, inter alia, the actions and findings of the forensic pathologist. 21. The investigation included the tracing and questioning of numerous witnesses, searching the records of vehicles that had gone through the crossing points between north and south, and examining the security system of the victims ’ house and computer hard discs for relevant material concerning the movements of persons and vehicles near the house at the material time. The source of the suction cup and the adhesive tape was determined to be a shop in Kyrenia (in northern Cyprus). 22. From the evidence collected it appeared that on 15 January 2005, between 5.15 a.m. and 5.20 am, three shots had been heard from the area in which the car and the victims were found. 23. According to the witness statements taken by the police, at the time the murders were committed a BMW car without number plates was seen parked behind the victims ’ car. Four persons were seen standing around the cars and one person was seen in the passenger ’ s seat of the Lexus car. It was further ascertained that on 14 January 2005, at 11.00 p.m., a red BMW car with “TRNC” number plates had passed through the Pergamos crossing point located in the British Eastern Sovereign Base Area of Dhekelia but without passing through the Base Area ’ s checkpoint. At 5.45 a.m. the next day the same car had returned to the “TRNC” through the same crossing point – again without being checked. The driver of the car, who resided in the “TRNC”, had been accompanied by another person. 24. From the evidence gathered, it was determined that the victims had been kidnapped at 4.41 a.m. on 15 January 2005 and had been murdered between 5.15 and 5.20 a.m. 25. According to the relevant police reports, five vehicles and more than eight people were involved in the murder; a fact which pointed to a well-planned and premeditated crime. 26. A ballistics examination established that the bullets had been fired from the same handgun; two of the cartridge cases had been of Romanian manufacture and one of Turkish manufacture. 27. The initial investigation resulted in the identification of five suspects: M.C. (“the first suspect”), E.F. (“the second suspect”), F.M. (“the third suspect”), M.M. (“the fourth suspect”) and H.O. (“ the fifth suspect ”). It appears from the documents submitted to the Court that the first, second, third and fourth suspects were Cypriot nationals and “TRNC” citizens and that the fifth suspect was a Turkish national. 28. DNA belonging to the first, second and fourth suspects was found on exhibits taken from the crime scene and the victims ’ house. DNA belonging to the first suspect was found on the steering wheel of Elmas Güzelyurtlu ’ s car. The police authorities already had DNA from these three suspects as they had taken genetic material from all of them in the past in connection with other offences (unlawful possession of a firearm and burglary). Moreover, the BMW car was found to be registered in the name of the fourth suspect and to have been driven by the first suspect. 29. Arrest warrants had already been issued in respect of these three suspects with regard to other offences; the first suspect was wanted in relation to a drugs case and for obtaining a passport and identity card issued by the Republic of Cyprus under false pretences; the second suspect was wanted for the unlawful possession and transfer of a firearm, and the fourth suspect was wanted for the unlawful possession of a firearm. 30. The other two suspects were linked to the murder through other evidence. DNA belonging to two unidentified persons was also found. 31. On 20 January 2005 the Larnaca District Court issued arrest warrants in respect of all five suspects on the ground that there was a reasonable suspicion that they had committed the offences of premeditated murder, conspiracy to murder, abducting ( απαγωγή ) a person in order to commit murder (sections 203, 204, 217 and 249 of the Criminal Code, Cap. 154), and the illegal transfer of a category B firearm (sections 4(1) and 51 of the Firearms and Other Arms Law (Law 113/(I)/2004, as amended). 32. On 21 January 2005 the police authorities sent “stop list” messages to the immigration authorities (that is to say messages asking them to add the suspects to their “ stop list ” – a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring) and to notify the police should they attempt to leave the Republic. 33. On 23 January 2005 the police submitted “ Red Notice ” requests to Interpol to search for and arrest the suspects with a view to their extradition. 34. On 24 January 2005 an official request was made by the Director of the Diplomatic Office of the President of the Republic to the Special Representative and Chief of Mission (“ the Special Representative”) of the United Nations Peacekeeping Force in Cyprus (“UNFICYP”) to facilitate the handing over to the appropriate authorities of the Republic of Cyprus of all the suspects and all evidential material relating to the crime and /or suspects in northern Cyprus ( see paragraph 129 below ). 35. On 26 January 2005 Red Notices were published by Interpol in respect of the first four suspects and on 28 January 2005 in respect of the fifth suspect. These sought the provisional arrest of the suspects and stated that extradition would be requested from any country with which the Republic of Cyprus was linked by a bilateral extradition treaty, an extradition convention or any another convention or treaty containing provisions on extradition. 36. As the police authorities were not able to trace the suspects in the areas controlled by the Republic, on 27 January 2005 they applied for the issuance of European arrest warrants. On the same day the Larnaca District Court issued European arrest warrants in respect of all five suspects. 37. As the investigation continued, another three suspects were identified: A.F. (“the sixth suspect”), S.Y. (“the seventh suspect”) and Z.E. (“the eighth suspect”). It appears from the documents submitted to the Court that the sixth and eighth suspects were Cypriot nationals and “TRNC” citizens and that the seventh suspect was a Turkish national. The sixth suspect had been wanted by the authorities since 2003 in respect of a case involving an assault causing serious bodily harm. The relevant case file had been classified as “ otherwise disposed of ” ( Άλλως Διατεθείσα ) in 2004. 38. On 4 February 2005 the Larnaca District Court issued arrest warrants against all three suspects on the same grounds as those issued in respect of the other suspects (see paragraph 31 above). 39. On 10 February 2005 the same court issued European arrest warrants against them. 40. On 11 February 2005, at the request of the Cypriot authorities, Red Notices were published in respect of the latter three suspects. 41. On 14 February 2005 a message was sent by Interpol Ankara to Interpol Athens in response to the Red Notice in respect of the fifth suspect. This message stated that the fifth suspect was in police custody and that the Turkish Ministry of Justice had been informed of the crime that he had allegedly committed. They also noted that under the Turkish Criminal Code, a Turkish national who had committed a crime in a foreign country which was punishable with at least three years ’ imprisonment under Turkish law could be punished under Turkish law. Furthermore, pursuant to domestic law, it was not possible to extradite a Turkish citizen from Turkey. Consequently, the Ministry of Justice wanted to know if it was possible for the investigation documents to be sent to them via Interpol channels. 42. On 15 February 2005 the police authorities transmitted “ stop list ” messages to the immigration authorities (see paragraph 32 above). 43. As can be seen from an email dated 7 March 2005 from the Director of the Diplomatic Office of the President of the Republic to the Chief European Union negotiator for Cyprus, the Cypriot authorities around this time forwarded to UNFICYP an interim report by the Laboratory of Forensic Genetics of the Cyprus Institute of Neurology and Genetics in order to facilitate its mediation of the handing over of the suspects in the instant case. The European Commission was asked for any assistance that it might be in a position to provide in bringing the perpetrators of the murders to justice. According to an internal note of a telephone conversation the Diplomatic Office was subsequently informed by UNFICYP that the above - mentioned report had been passed on to the “TRNC” authorities, who had found the evidence that it contained to be insufficient. The “TRNC” authorities requested video tapes but did not clarify whether the suspects would be handed over if such tapes were given to them. 44. The Government submitted that as the investigation had progressed more evidence had been collected implicating the suspects. More than 180 statements had been taken from various persons, including the relatives of the victims, persons who knew or had connections with the victims, and persons involved in the investigation. The authorities had also carried out DNA tests on a number of other possible suspects but no link to the crime had been found. The applicants ’ representatives had also met and had been in telephone contact with the Attorney-General. 45. On 12 July 2006 the eighth suspect was arrested by Cypriot police in Limassol ( in the Government - controlled area ). The next day he was remanded in custody for eight days by order of the Larnaca District Court on the ground that there was reasonable suspicion that he had committed offences under sections 203, 204, 217 and 249 of the Criminal Code ( Cap. 154 ) and sections 4(1) and 51 of the Firearms and Other Arms Act (Law 113 /( I)/2004, as amended). He was released, however, upon the expiry of the remand period as the authorities, after questioning him, did not have enough evidence to link him to the offences. According to the relevant police report, some of the allegations he had made could not be looked into as the Cypriot police could not conduct investigations in the “TRNC”. Furthermore, DNA tests did not link him to the crime. 46. In a letter dated 26 July 2006 the Attorney-General assured the applicants ’ representatives that the Republic was “doing everything within its power – bearing in mind that it [did] not have effective control over the areas of the Republic occupied by Turkey ( in which persons that might be involved [ were at that time] and taking into account the relevant Convention case-law – to investigate the ... murder and bring the persons responsible to trial before the Courts of the Republic”. He also informed them that he would keep them informed of the progress of the investigation and reply to the queries that they had submitted on behalf of the victims ’ family and that this could be achieved through meetings at his office between him, the applicants ’ representatives and the police. 47. A report by the Larnaca police investigation department dated 1 July 2007 stated that the investigation had been extended to the British bases and the occupied areas of Kyrenia and Karavas. It also stated that the investigation was still ongoing as the authorities were waiting for replies from Interpol Ankara. The report also proposed that the officers in the investigation team be commended for their outstanding work on the case. 48. As the authorities were not able to execute the arrest warrants in the “TRNC” or undertake other steps through UNFICYP, and given that the issuance of international arrest warrants had not resulted in the suspects ’ surrender by Turkey, the police officer in charge of the investigation suggested in a report dated 30 March 2008 that the case be “ otherwise disposed of ” ( Άλλως Διατεθείσα ) pending future developments. 49. On 7 April 2008 the case file was sent, along with the above -mentioned proposal by the Larnaca police investigation department, to the Attorney-General. The latter agreed with the Larnaca police investigation department ’ s proposal and on 24 April 2008 instructed the police to re - submit ( εναποβληθεί ) the investigation file if and when the arrest of all or any of the suspects was effected. 50. On 19 May 2008 the case file were transferred to the coroner for the inquest proceedings (inquest nos. 9 /05, 10 /05 11/05) before the Larnaca District Court. The proceedings were scheduled by the court for 18 August 2009. According to the Cypriot Government, on that date the proceedings were adjourned until October 2009 due to the non-attendance of the first applicant. The first applicant was notified by the officer in charge of the investigation of the inquest proceedings and was requested to attend, as the testimony of a relative of the victims was necessary. No further information has been provided about these proceedings by the Cypriot Government. 51. In a letter dated 25 June 2008 to the Chief of Police, the Attorney-General noted that, despite all efforts on the part of the authorities, the suspects had not been handed over to the Republic, that he had spoken to the President of the Republic and that he had had repeated meetings and telephone conversations with the applicants ’ counsel. The Attorney-General noted that the latter had informed him of the applicants ’ intention to lodge an application with the Court. The Attorney-General therefore considered that it was necessary – and counsel agreed – that international arrest warrants be issued in respect of the suspects and that Turkey – who had, pursuant to the Court ’ s judgments, responsibility for whatever occurred in the occupied areas – be requested to enforce them. He requested that, if this had not been done already, international arrest warrants be issued as quickly as possible for the surrender of the suspects to the Republic of Cyprus. 52. On 3 August 2008 the fourth suspect was murdered in the “TRNC”. Following confirmation of his death by UNFICYP and pursuant to instructions by the Attorney-General, the arrest warrant in respect of him was cancelled by the Larnaca District Court on 29 August 2008. 53. On 6 August 2008 the Attorney-General gave instructions for the preparation of extradition requests to Turkey under the European Convention on Extradition of 13 December 1957, to which both States were parties (see paragraphs 164 and 165 below). 54. On 23 September 2008, extradition requests in respect of the six remaining suspects (see paragraphs 45 and 52 above), together with certified translations of all documents into Turkish, were transmitted by the Cypriot Ministry of Justice and Public Order to the Cypriot Ministry of Foreign Affairs for communication through diplomatic channels to Turkey ’ s Ministry of Justice. The requests were then sent to the Republic ’ s embassy in Athens for communication to Turkey. 55. By a letter dated 4 November 2008 the embassy of the Republic of Cyprus in Athens informed the Director General of the Cypriot Ministry of Foreign Affairs that on that date the extradition requests and a note verbale from the Cypriot Ministry of Justice and Public Order and had been delivered to the Turkish embassy in Athens in a sealed envelope. The usher of the embassy had given the envelope to the embassy security guard. No receipt of delivery had been given. 56. By a letter dated 11 November 2008 the embassy of the Republic of Cyprus in Athens informed the Director General of the Cypriot Ministry of Foreign Affairs that on that date an employee of the Turkish embassy had left an envelope with the Cypriot embassy ’ s security guard on which only the address of the Cypriot embassy had been written and which had contained the extradition requests and the note verbale from the Cypriot Ministry of Justice and Public Order, which had been given to the Turkish embassy on 4 November 2008. The person had not stated his identity, but had simply had left ( παράτησε ) the envelope and departed in haste. 57. By a letter dated 24 November 2008 the Director General of the Cypriot Ministry of Justice informed the Attorney-General of the return of all the above-mentioned documents and stated that it was clear that Turkey was refusing to receive requests for the extradition of fugitives made by Cyprus under the European Convention of Extradition, due to Turkey ’ s refusal to recognise the Republic of Cyprus as a State. 58. In his reply dated 26 November 2008 the Attorney-General stated that the conduct of Turkey towards the Republic of Cyprus was not that expected of a State which had countersigned the European Convention on Extradition. It was not, however, for the Office of the Attorney-General to decide on the measures to be taken but it was an issue to be taken up on a political level, by the Cypriot Ministry of Foreign Affairs in particular. 59. The Cypriot Government submitted that the domestic arrest warrants were still in force and would remain in force until executed pursuant to section 21 (1) of the Criminal Procedure Law. C. The investigation and measures taken by the Turkish, including the “TRNC”, authorities 60. The particulars of the investigation and measures, according to the submission of the Turkish Government and as can be seen from the documents they provided, may be summarised as follows. 61. On 17 January 2005 the victims ’ bodies were taken to the Dr. Burhan Nalbantoğlu State Hospital in Nicosia (“Lefkoşa”) for post-mortem examinations. The “TRNC” police were provided with the death certificates, which had been issued by the Republic of Cyprus. 62. Given that the cause of death required that a coroner ’ s inquest be held, the “TRNC” police sought a court order for post-mortem examinations. 63. Following a hearing before the “TRNC” Nicosia District Court, the “TRNC” Attorney-General ’ s office requested the court to waive the requirement for post-mortem examinations, as post- mortem examinations had already been carried out in the Republic of Cyprus. Having heard evidence from two police officers and the hospital ’ s forensic pathologist the court decided that post-mortem examinations were not required. 64. On 18 January 2005 the first applicant gave a statement to the “TRNC” police. His views were requested concerning potential suspects. In his statement he alleged that there were five likely suspects : M.C, E.F., F.M., M.M. and H.O. ( see paragraph 27 above ). The “TRNC” authorities checked the entry and exit records of the suspects and established that the first suspect had crossed to the Republic of Cyprus side on the night of the murders and had returned to the “TRNC” side in the early morning hours. There was no record of the entry and exit of the other suspects on that day. 65. On 18 January 2005 the first suspect was taken to Kyrenia (“ Girne ”) police headquarters ( Polis Genel Müdürlüǧü ) for questioning by the “TRNC” police. The BMW car he had used to cross the border was seized as evidence. The Kyrenia District Court issued a summons on the same day in respect of both the first and second suspects for the purpose of bringing them before the court on suspicion of theft, vehicle importation and forgery of documents ( Hirsizlik Araç Ithali ve Evrak Sahteleme ). The first suspect was kept in detention. 66. The first suspect ’ s BMW car was inspected, but no evidence was found. 67. On the same day (that is to say 18 January 2005) the third and fourth suspects were also taken for questioning by police. An arrest warrant was issued in respect of the third and fourth suspects by the Morphou (“ Güzelyurt ”) District Court on the same day on suspicion of forgery of documents – specifically, providing fake registered vehicle with falsified documents and statements ( Sahte Belge Düzenleme –Yalan Belge ve Beyanlarla Sahte Kayitla Araç Temin Etme ). 68. On 19 January 2005 an arrest warrant was issued in respect of the first and second suspects by the Kyrenia District Court for two days ( Mahkeme: Zanlilarin 2 gün tutuklu kalmasina emir venir ) on suspicion of theft, forgery of documents and “providing fake registry records, etc. ” ( Hirsizlik, Sahte Belge Düzenlemek, Sahte Kayut Temin Etmek v.s. ). 69. The second suspect was arrested the next day and was detained at Lapithos (“ Lapta ”) police headquarters. 70. The fifth suspect had already left for Turkey ( on 18 January 2005 ) when the Red Notice was published by Interpol on 28 January 2005 (see paragraph 35 above). 71. On 19 January 2005 the “TRNC” Nicosia District Court also remanded the third and fourth suspects in custody for two days on suspicion of theft and forgery of documents. 72. The “TRNC” police searched the houses of the first four suspects, as well as that of another person, on the basis of search warrants issued by the Morphou District Court on 18 January 2005 ( in respect of the third and fourth suspects) and by the Kyrenia District Court on 19 January 2005 (in respect of the first and second suspects). No evidence was found. 73. Statements were taken from the four suspects while they were in detention. They all denied involvement in the murders. The “TRNC” police also took statements from a number of other persons, including public servants, mainly in relation to the BMW car that the first applicant had alleged had been used by the murderers. According to the evidence collected, the BMW car had been transferred to the first suspect on 17 May 2004. 74. On 21 January 2005, following an application by the “TRNC” police, the “TRNC” Nicosia District Court remanded the first four suspects in custody for a further three days on suspicion of premeditated murder. 75. On 22 January 2005 the “TRNC” Nicosia District Court issued a summons in respect of the fifth suspect for the purpose of bringing him before the court on suspicion of premeditated murder. “TRNC” Nicosia police headquarters informed all other district police offices that they were searching for this suspect and that a warrant had been issued. 76. On different dates statements were taken from a number of persons, including the first applicant, with a view to obtaining information concerning the fifth suspect. 77. On 23 January 2005 the fifth suspect was arrested as, in the meantime, he had returned to the “TRNC” (see paragraph 75 above). 78. On 24 January 2005 the first four suspects were remanded in custody for another three days by the “TRNC” Nicosia District Court on suspicion of premeditated murder, murder, and possession of an illegal firearm and explosives ( Taamüden Adam Öldürme, Adam Öldürme, Kanunsuz Ateşli Silah ve Patlayici Madde Tasarrufu ). An arrest warrant was also issued by that court in respect of the fifth suspect in order that he might be remanded in custody for three days. 79. On 25 January 2005 “TNRC” Nicosia police headquarters were informed by the Turkish Ministry of Internal Affairs that a Red Notice had been published by Interpol in relation to the first four suspects. The above - mentioned Ministry requested confirmation of Elmas Güzelyurtlu ’ s death as the Turkish authorities had been looking for him in order to extradite him to the “TRNC”. They also enquired about the nationality status of the first four suspects, in particular, whether or not they had Turkish nationality. 80. The Turkish Government submitted that on 23 and 28 January 2005 the Turkish Ministry of Internal Affairs received emails from Greek Cypriot Interpol stating that they were searching for the first, second, third and fifth suspects with a view to their arrest and that they should be arrested if they entered into Turkey. 81. On 27 January 2005 the first, second, third, fourth and fifth suspects were remanded in custody for another five days by the “TRNC” Nicosia District Court on suspicion of premeditated murder. 82. On the same day the “TRNC” Nicosia District Court issued a warrant in respect of the sixth and seventh suspects ( see paragraph 37 above) for the purpose of bringing them before the court on suspicion of premeditated murder. Search warrants were also issued by the Kyrenia District Court in respect of the house of the fifth suspect and by the Nicosia District Court in respect of the houses of the sixth and seventh suspects. 83. By a letter dated 27 January 2005 “TRNC” Nicosia police headquarters provided the Turkish Ministry of Internal Affairs with information about the suspects ’ identities. 84. On 28 January 2005 the “TRNC” Nicosia District Court remanded the sixth, seventh and eighth suspects (see paragraph 37 above) in custody for three days on suspicion of premeditated murder. It also issued a search warrant for the house of the eighth suspect. 85. On the same date the “TRNC” police also took a statement from the fifth suspect. 86. On 31 January 2005 the sixth, seventh and eighth suspects ’ detention was extended by a further eight days by the “TRNC” Nicosia District Court on suspicion of premeditated murder. 87. On the same day “TRNC” Nicosia police headquarters requested further information from the Turkish Ministry of Internal Affairs about the criminal record of the fifth suspect. They were provided with his criminal record, photograph and fingerprints on 7 February 2005. 88. On 1 February 2005 the “TRNC” Nicosia District Court extended the first five suspects ’ detention for seven further days on suspicion of premeditated murder. 89. On 2 February 2005 “TRNC” Nicosia police headquarters published a notice to all branches of police informing them that they were also looking for another person, M.K., who they also considered to be a suspect in the case. It transpired that this suspect had left for Turkey on 19 January 2005. 90. On 7 February 2005 “TRNC” Nicosia police headquarters requested the Turkish Ministry of Internal Affairs police headquarters to carry out a criminal record check on M.K. and to inform them whether he was in Turkey or not. 91. On 8 February 2005 the “TRNC” police took statements from the first, second, third, fifth, sixth and eighth suspects. An additional statement was taken on 11 February 2005 from the fifth suspect. They all denied involvement in the murders. 92. On or around 11 February 2005 all the suspects were released due to a lack of evidence connecting them to the crime. 93. The Turkish Government submitted that on 11 February 2005 another email was sent to the Turkish Ministry of Internal Affairs by Greek Cypriot Interpol informing them that they had information that the fifth suspect was going to travel to Mersin in Turkey the same day and requesting the Turkish authorities to take the necessary measures. 94. The fifth suspect was arrested on the above date as he was entering Mersin. On 15 February 2005 he was taken to the office of the Mersin public prosecutor, where a preliminary file was opened in respect of the murders and he was questioned by the public prosecutor. The Turkish Government submitted that he was released in the absence of any evidence connecting him to the crime in question and in the absence of an extradition request. 95. M.K. (see paragraph 89 above) was also traced and on 25 March 2005 he was questioned by police at Kyrenia police headquarters. He denied any involvement in the murders. 96. On 15 April 2006 the authorities investigated a well in the village of Myrtou (“ Çamlibel”) in the Kyrenia district for evidence. Nothing, however, was found. 97. Throughout the investigation the “TRNC” police questioned and took statements from numerous persons who knew or were somehow connected or related to the suspects. As can be seen from a document in the internal police files entitled “Time/Work Sheet” ( İş Cetveli ) and the copies of the statements provided, statements were taken from various witnesses, including the suspects. They also searched for evidence and took fingerprints. 98. According to a note/direction in the “ Time/Work Sheet ”, on 30 January 2006 the “TRNC” Police Chief Inspector (Başmüfettiş - Tahkikat Memuru) wrote to the “TRNC” Nicosia Judicial Police Director – Assistant Police Director (“ Polis Müdürü Müavini – Adli Polis Müdürü”) that upon the oral instructions of the “TRNC” Attorney-General (Başsavcı) a copy of the file in respect of the murder of Elmas, Zerrin and Eylül Güzelyurtlu had been prepared and would be submitted for the opinion of the “TRNC” Attorney-General. A note bearing the same date from the “TRNC” Nicosia Judicial Police Director informed the “TRNC” Attorney-General ’ s Office that the file regarding the case was ready and had been submitted to the “TRNC” Attorney-General. 99. The Turkish Government submitted that, following a report by the “TRNC” Police Chief Inspector, the case had been classified as “non- resolved”. They provided a copy of this report, which was not dated. According to this report, the last action undertaken as part of the investigation appears to have occurred on 22 March 2007, when the fifth suspect ’ s car, which had been inspected by the “TRNC” police, had been handed over to the “TRNC” Nicosia Customs and Tax Office ( Lefkoşa Gümrük ve Rüsumat Dairesi ). The inspection had not resulted in the collection of any evidence concerning the crime. In his report the “TRNC” Police Chief Inspector concluded that on the basis of the investigation that the police had conducted from the date of the murders until the time of his writing the report the police had not been able to resolve the case. He therefore suggested that the case be logged as “ non-resolved for the time being ”. 100. On 19 August 2009 the “TRNC” Attorney-General ’ s office sent a copy of the case file to the “TRNC” Ministry of Foreign Affairs. They informed the latter that the case had been classified as “ non-resolved for the time being ” on the instructions of the previous “TRNC” Attorney-General. 101. The Turkish Government submitted that the case file was with the “TRNC” Attorney-General and remained open pending the submission of evidence by the Republic of Cyprus authorities. 102. The Turkish Government submitted that after they received the investigation file from the Cypriot Government through the Court following communication of the case, the “TRNC” police questioned again the first and second suspects on 24 February 2010. The suspects denied their involvement in the killings. 103. Subsequently, in other proceedings, on 31 August 2010 the Kyrenia Assize Court found the first and second suspects guilty of, inter alia, the murder of the first applicant ’ s bodyguard and passed sentences amounting to thirty years ’ imprisonment each. An appeal by the first and second suspects was dismissed by the “TRNC” Supreme Court on 4 January 2012. They are both currently serving their sentences. 104. The Turkish Government submitted that in the context of those proceedings, the first suspect had written on a piece of paper that the second suspect had killed three people. In addition, after being cautioned by the Kyrenia Assize Court that if he made a self-incriminating statement under oath it could be used against him, the second suspect stated : “I saw this Güzelyurtlu incident personally myself. This is what I want to say. There is also one thing, that is what he told me, ... I did not see it, it is what he explained to me. At this stage, I do not want to talk about the Güzelyurtlu murder, your honour ”. In its judgment the Kyrenia Assize Court noted that it had to examine the voluntary statements made before it more carefully in the light of the fact that the first suspect had retracted the statements and submitted different statements. The first suspect refused to give any statement to the police. 105. Following the above -mentioned development, the “TRNC” Attorney-General reviewed the investigation file. Taking into account the rules of evidence, he concluded that even if the first suspect had not retracted his statement, in the absence of other evidence, this statement would not have been sufficient for any charges against the suspects to be brought. D. Information submitted by the applicants 1. Information derived from the first applicant ’ s statements to his lawyers 106. In a summary of the first applicant ’ s statements to his lawyers between 2006 and 2007, the first applicant stated, inter alia, the following: 107. On the morning of 15 January 2005 the Cypriot police informed the first applicant of the death of his parents and sister. He went to Larnaca morgue to identify the victims. He signed a form authorising police officers to enter the family home in Ayios Dometios and conduct an investigation. The first applicant was present for part of the investigation and then went with the police to his father ’ s office in Nicosia, where the police took documents as part of the investigation. 108. The next day the first applicant went to Larnaca morgue and then Larnaca police station, where he spent nine hours giving a statement. In his statement he informed the police of the identities of the persons he suspected of committing the murders and the grounds for his suspicions. 109. On 17 January 2005 the first applicant took the victims ’ bodies back to the “TRNC”, where a funeral was held. 110. On 18 January 2005 the first applicant had meetings with the “TRNC” police. 111. On 19 January 2005 the first, second and fourth applicants went to Nicosia police headquarters, where they were shown pictures and sketches of a number of people and asked whether they recognised them. Some of the photos had been taken at the funeral. The first applicant identified one of the suspects. The next day they returned to Nicosia police headquarters and were informed that the Cypriot police had DNA matches for at least three of the suspects and had found other DNA which they could not, however, match to any person in their records. The first applicant also gave them information concerning the investigation by the “TRNC” police. 112. During the two weeks following the killings the first applicant met often with the Cypriot and the “TRNC” police and was informed by both sides of their respective investigations. He also updated each side on the other side ’ s progress in an effort to prevent the suspects ’ release for lack of evidence and to convince the “TRNC” police to surrender them to the Cypriot Government for trial. 113. The first applicant had meetings with a number of “TRNC” high - ranking officials. 114. In March 2007 the Cypriot police informed the first applicant that the car and the material removed from the victims ’ home and office could be returned. They also informed the first applicant of the circumstances of the killings, that the investigation remained open and that the evidence had been shown to UNFICYP but that the “TRNC” authorities refused to cooperate. Although the Cypriot police showed the first applicant copies of the Red Notices and witness statements, they refused to give him copies. They also informed him that only a court could take possession of the case file ( at the appropriate time ). 2. Other information submitted by the applicants 115. The applicants ’ representatives had meetings about the case with the Attorney-General of the Republic of Cyprus in January 2006 and July 2006. 116. Furthermore, on 1 February 2006, at a meeting at Nicosia Police Headquarters, the applicants ’ lawyers were informed that one of the suspects had been briefly detained in Turkey. The Cypriot police had received this information from the office of Interpol in Athens. 117. On 15 March 2006 the applicants, upon their request, were given a progress report by the Cypriot police on the case. The applicants submitted that they had requested all the evidentiary material but this was not provided with the report. 118. On 15 July 2007 there was an attempt to kill the first applicant at his home in the “TRNC”. During that month the applicants were also informed by the Cypriot police that the arrest warrant in respect of one of the suspects had been cancelled. 119. In May 2009 the first applicant ’ s bodyguard was murdered. 120. With regard to the inquest, the applicants submitted that the Larnaca District Court had adjourned the inquest on 19 August 2009 for administrative reasons and not because of the first applicant ’ s absence. The court had resumed the inquest proceedings on 14 and again on 20 October 2009. Three of the applicants had attended with their counsel and a local lawyer. The inquest had confined itself to investigating whether the deaths had been the result of an unlawful killing. The judge had referred the matter to the Attorney-General as she was functus officio in so far as the criminal proceedings were concerned. 3. Correspondence 121. The applicants, through their representatives, sent a number of letters to various Cypriot, Turkish and “TRNC” high - ranking officials about the case, including the President of the Republic of Cyprus, the Prime Minister of Turkey and the President of the “TRNC”. 122. In a letter dated 30 November 2006 the applicants ’ counsel informed the Prime Minister of Turkey about the case and all the steps that had been taken until that date. They informed him, inter alia, that the Government of Cyprus had stated that they were prepared to hand over the relevant evidence to UNFICYP in order for the latter to decide whether there was a prima facie case against the suspects with the proviso that if UNFICYP concluded that there was indeed such a case, the “TRNC” would undertake to surrender the suspects. As UNFICYP was not prepared to take on this task (see paragraph 149 below) and the “TRNC” insisted on making a decision only after receiving the evidence, the applicants ’ counsel stated that “I believe that I have now exhausted the possibilities for reaching the desired compromise through negotiation and mediation”. E. Involvement of the United Nations 123. Following the murders the Cypriot Government, the “TRNC” authorities and the applicants were in contact with UNFICYP officials concerning the case. A number of meetings were held. There was also an exchange of telephone calls and correspondence. The relevant information provided by the parties is set out below. 1. Information submitted by the Cypriot Government (a) Internal note dated 20 January 2005 124. According to this note, the Cypriot authorities made contact with UNFICYP ’ s Special Representative to see whether UNFICYP could assist. They informed UNFICYP that they intended to carry out a complete investigation into the crime and that the police were working intensively to gather information and evidence. Some of this, however, would have to be collected from the occupied areas. UNFICYP ’ s Special Representative said that UNFICYP was ready to provide help but suggested, acknowledging the difficulties, that it might be better for the two sides to be in direct contact with each other and to exchange information. The Cypriot authorities had informed him that this was not possible as the Cypriot police could not have direct contact with the “TRNC” police and that it was for this reason they had sought UNFICYP ’ s intervention. (b ) Internal note by the Cypriot police dated 21 January 2005 125. According to this note, a meeting was held on that day at UNFICYP headquarters in Nicosia on the initiative of UNFICYP ’ s Senior Police Adviser and Commander (“ the SPA”) between the SPA and the assistant of the Cypriot Chief of Police. The UNFICYP ’ s liaison officer was also present. The SPA stated that she had had, on the same day, a long meeting concerning the murders with the “TRNC” Chief of Police in the presence of other officers and the “TRNC” Attorney-General. She had informed the “TRNC” Chief of Police that the Cypriot police had in their possession genetic material linking three of the suspects with the crime ( although she was not in a position at that time to tell them who these suspects were ), as well as other evidence linking another two persons to the crime, and that one of the cartridges found at the scene had been made in Turkey. She had also informed him that five arrest warrants had been issued by a Cypriot court against the suspects, four of whom were detained in “TRNC” prisons. She had expressed her concerns that if the suspects were released they might leave the “TRNC” and their future arrest would not be possible. The “TRNC” Chief of Police had informed her that these suspects had been detained for minor offences (car theft) and that it was possible that their detention would not be extended by the judge. Although the “TRNC” authorities would try to get their detention extended, they had no evidence to charge them with murder. Although the suspects had already been questioned about the murders and had given some information, this was not enough. No voluntary statements had been made. The “TRNC” Chief of Police had also told her that he was aware that the Cypriot police did not have enough evidence and that only if the two police forces cooperated could more evidence be collected. He had also asked her if, and how, UNFICYP could help; she had informed him that UNFICYP could only intervene if one of the two sides made an official request for help. 126. The “TRNC” Chief of Police had expressed his concerns in respect of the problems that had arisen and might also arise in the future and considered it advisable that the two police forces come to an agreement to enable cooperation in such cases. The “TRNC ” Minister of Foreign Affairs was ready to discuss matters of policing and public safety with the Minister of Foreign Affairs of Cyprus and other members of the Cypriot police in order to facilitate cooperation without any political ramifications ( προεκτάσεις ). 127. UNFICYP ’ s liaison officer had asked if there was a possibility that Turkey could be involved, so that the suspects could be extradited to Turkey and from there to the Republic of Cyprus. The “TRNC” Chief of Police had answered in the negative; it appeared that the “TRNC” authorities had already examined the matter but could not take such action as it was not provided for by their legislation. The “TRNC” Chief of Police had suggested that the Cypriot police hand over the evidence to the “TRNC” police so that the latter could arrest and try the suspects. If the Cypriot police informed their authorities officially about the evidence and exhibits in respect of the case and officially requested the extradition of the suspects, the “TRNC” authorities could cooperate and possibly extradite them. One of the suspects was in Turkey but appeared not to be connected to the murders. The “TRNC” authorities also had information in their possession linking other persons to the murders. 128. According to the SPA the “TRNC” authorities were sincere and wished to cooperate. They had mentioned, inter alia, their concerns that there could be more crimes of this nature – that is to say criminals going through crossing points, committing crimes and then returning to the other side in order to avoid arrest and punishment. UNFICYP was ready to provide advice as to how the Cypriot Government should act and to sit in any negotiations in order to see how UNFICYP could intervene so as to help investigate ( εξιχνιαστει ) the murders. The SPA had asked the Cypriot authorities whether Interpol could intervene as she considered it unfair that, although the perpetrators of an atrocious crime had been identified, they remained free because of a political problem. The “TRNC” police had requested to be kept informed by the United Nations (UN) of developments in the case and she had promised that they would be. (c ) Letter dated 24 January 2005 from the Diplomatic Office of the President of the Republic to the SPA 129. This letter reaffirmed the Cypriot Government ’ s determination to bring the suspects to justice. The Cypriot authorities had collected sufficient evidence, issued arrest warrants for five suspects and requested UNFICYP to facilitate the handing over of the suspects and evidential material to the relevant authorities of the Republic of Cyprus. It stated that the Cypriot police had issued international arrest warrants in respect of four of the suspects, which had been forwarded to Interpol ’ s General Secretariat and to all of Interpol ’ s member States. The Cypriot police were in the process of issuing an international arrest warrant in respect of the fifth suspect. (d) Internal note dated 25 January 2005 130. This note stated that the “TRNC” Attorney-General did not intend to hand over to the police of the Republic of Cyprus the three suspects that were detained in the “TRNC” for the murders, relying on the 1960 Constitution. The “TRNC” Attorney-General had notified UNFICYP of this. An attached memo by UNFICYP stated as follows: “I have seen the [Attorney-General]. Mr A. S. with regard to the inquiries [made in respect of] and the prosecution of the culprits in respect of the Elmas Güzelyurtlu murder. He says that there is no legal and/or constitutional basis for handing over the accused to the Republican Authorities, for the following reasons: The Constitution of Cyprus Articles: 133,153,158,159 (2), (3) and (4) Admin. of Justice Law 14/60 Section 4 Section 5 Section 20 Section 23 He made representation to UN for the Turkish suspect kept by the Greek Police to be handed over to Turkish for prosecution, together with others”. (e) Police note dated 25 January 2005 131. This note stated that the SPA had met with the police at Nicosia police headquarters after she had met the same day with the “TRNC” Chief of Police. The latter had suggested that a meeting be organised with the Cypriot police, in secret, in neutral territory chosen by UNFICYP, so that the issue would not become the object of political manipulation. The “TRNC” Attorney-General had consented to such a meeting. According to the “TRNC” Chief of Police, there were possibly more suspects and the first applicant had given inaccurate information to the Cypriot police, including the wrong photo of the alleged fifth suspect. As a first step, the “TRNC” Chief of Police had suggested the participation in the investigation of an equal number of officers of the same grade from both sides and the presentation of all exhibits collected which could help solve the crime, such as photographs and fingerprints of the suspects and samples of genetic material. He had also mentioned that in order to ensure the continued detention of the suspects, the “TRNC” authorities would like to have the results of the DNA tests linking the suspects to the case. As a second step, the “TRNC” Chief of Police had suggested that the “TRNC” police be given information concerning the ballistic evidence in order to enable the “TRNC ” authorities to compare that evidence with information in their database. The SPA had noted that there would be no discussion in any meeting held as to which side would bring the suspects to justice, as the matter at this stage would be limited to the investigation of the case, without giving rise to any political implications. This matter could be discussed later on a political level. The Cypriot police had expressed their hesitations as to the usefulness and repercussions of such a meeting. They would inform her of the Chief of Police ’ s decision on the matter. (f ) Letter dated 18 May 2006 from the Cypriot Chief of Police to the Ministry of Foreign Affairs 132. This letter stated that at meetings held with UNFICYP and the Deputy Senior Police Advisor (“ the DSPA”), the SPA had suggested that meetings between the Cypriot police, the police of the British Sovereign Bases and the “TRNC” police be held at a technical services level ( τεχνικό υπηρεσιακό επίπεδο ) in the mixed village of Pyla, which is located in the UN buffer zone between the Cypriot police, the police of the British Sovereign Bases and the “TRNC” police. The Cypriot Chief of Police had rejected this as constituting a move towards recognising a “pseudo - state” which provided refuge to fugitives. It was true that UNFICYP ’ s arguments for the meetings of the technical committees was valid in that there was a risk that the village of Pyla would become a safe haven for criminals. This could be dealt with, however, through more efficient cooperation between UNFICYP and the Cypriot authorities. The Cypriot Chief of Police sought to obtain the Cypriot Government ’ s political position regarding this suggestion. (g ) Note by the Cypriot police to the Chief of Police dated 18 May 2006 133. This note stated that as concerned a meeting held on 17 May 2006 between the SPA, the DSPA, and members of the Cypriot police and investigation team, the DSPA had raised his concerns as to an increased level of collaboration between Greek Cypriot and Turkish Cypriot criminals and their movements across the island. The DSPA had been informed generally about evidence that had been collected. He had also enquired whether: - the Cypriot police intended to give the evidence to UNFICYP for forwarding to the “TRNC” authorities to enable the suspects ’ prosecution; - the Cypriot police could make the necessary arrangements for the suspects to be taken to a UNFICYP building at the Ledra Palace Hotel in the buffer zone and be questioned through “ the video recording interview method ”, and – if this was possible – whether such evidence would be admissible before a Cypriot court; - if one of the suspects were to come over to make a statement against the other suspects, the Cypriot authorities would arrest him and bring criminal proceedings against him. 134. The Cypriot police had informed him that prosecution decisions were made by the Attorney-General. They had also informed him that they would cooperate with UNFICYP but not with the “TRNC” authorities or police. They had highlighted the fact that, despite the Red Notices, Turkey had refused to cooperate and had not surrendered the fifth suspect, who had gone to Turkey. They had arrested him but subsequently released him. 135. The DSPA had stated that the “TRNC” – pursuant to its own laws – could not surrender Turkish Cypriots. It had been stressed by the Police Chief Superintendant that the “TRNC” was not a state. 136. The DSPA had also put forward the suggestion that the suspects could be surrendered to a third country such as Greece, and that steps to bring them to justice could be taken from there. The Police Chief Superintendant had informed him that this was not an option and that Turkey had an obligation to comply with international law. 137. Finally, the DSPA had suggested that the matter could be discussed by the relevant technical committee (see paragraphs 154, 155 and 156 below ) in order to avoid the issue taking on a political dimension, to find solutions for cooperation and to bring the perpetrators to justice. He had been informed that this was a sensitive matter and that the political aspects could not be ignored; if the “ pseudo-state ” authorities were interested in completing the investigation and bringing the perpetrators to justice, they should stop providing refuge to criminals. (h ) Internal note about a meeting on 20 June 2006 between UNFICYP and the Cypriot police 138. The note stated that at this meeting, the DSPA had noted that he was trying to convince the “TRNC” authorities to surrender the suspects. The Cypriot police had informed him that they would not be providing any evidence to, or cooperating with, the authorities of the “ pseudo-state ” but that they were willing to cooperate with UNFICYP without this implying any recognition of any illegal entity. 2. Information submitted by the Turkish Government (a ) From the minutes of a meeting on 24 January 2005 139. On 24 January 2005 a meeting was held between the private secretary of the “TRNC” Prime Minister, the SPA, the head of UNFICYP ’ s civil affairs unit, and the envoy of the President of the Republic of Cyprus concerning the suspects held in detention. According to the minutes of the meeting, the “TRNC” authorities needed the results of the DNA tests that had been carried out by the Greek Cypriot authorities, which were reluctant to transmit them on the pretext that this would constitute the [ de facto ] recognition of the “TRNC”. The “TRNC” authorities suggested these could be transmitted through UNFICYP. A “non-paper” dated 24 January 2005 was given to the envoy. This stated as follows: “ According to the Constitution of Cyprus (article 159), any case confined among Turkish Cypriots should be taken by the Turkish Cypriot courts. In the case of murder of Elmas Güzelyurtlu and his family, all the suspects are Turkish Cypriots hence the case should be heard by Turkish Cypriot courts by Turkish Cypriot judges. Since the act took place in Greek Cypriot side and all of the evidences collected successfully by the Greek Cypriot police, cooperation is needed for the justice to be done. This is an urgent situation therefore we need to act together immediately. As a first step the report concerning the DNA analysis is needed to get the court order to have the suspects in custody during the lawsuit. This is a humanitarian issue and totally out of political concerns. The political concerns should not be in the way to prevent the justice to take place. ” (b ) From the minutes of a meeting on 25 January 2005 140. On 25 January 2005 the “TRNC” Chief of Police held a meeting with the SPA, who gave details about the circumstances of the murders. According to the minutes, Elmas Güzelyurtlu had been known throughout Cyprus and had been suspected of many crimes; some had involved the suspects. The information in the hands of the Greek Cypriot police was sufficient for the purpose of issuing arrest warrants in respect of the suspects. Although the “TRNC” police had already issued such warrants, they did not have evidence to bring proceedings against the suspects; more information was necessary. The SPA had asked for suggestions. (c) From the minutes of a meeting on 26 January 2005 141. On 26 January 2005 a meeting was held between UNFICYP officials and “TRNC” functionaries, including the “TRNC” Deputy Prime Minister. According to the minutes, the question had been raised as to whether the Greek Cypriot authorities were willing to transmit the evidence. The “TRNC” Deputy Prime Minister had mentioned that if this was done the suspects ’ detention would be extended; then, if the “TRNC” courts considered the evidence to be credible, the suspects would be handed over to [the Republic of Cyprus] via UNFICYP. (d) From the minutes of a meeting on 31 January 2005 142. On 31 January 2005 another meeting was held between UNFICYP and “ TRNC ” officials. According to the minutes, the UNFICYP officials had submitted Interpol ’ s Red Notices in respect of three of the suspects detained in the “TRNC”. They had mentioned that the Greek Cypriot authorities were reluctant to share the suspects ’ DNA test results and did not want to collaborate with the “TRNC”. (e) From the minutes of a meeting on 7 February 2005 143. At a meeting held on 7 February 2005 UNFICYP officials and the Prime Minister of the “TRNC” discussed the reluctance of the Greek Cypriot authorities to cooperate. (f) From the minutes of a meeting on 18 February 2005 144. On 18 February 2005 a meeting was held between the head of UNFICYP ’ s civil affairs unit and the Undersecretary of the “TRNC” Ministry of Foreign Affairs. The former stated that the Greek Cypriot authorities ’ attitude concerning their cooperation with the “TRNC” was changing and that they were planning to send the evidence through UNFICYP. He also asked the Undersecretary whether the suspects could be re-arrested and given to the Greek Cypriot authorities through UNFICYP. The Undersecretary replied that under the 1960 agreements if the suspects were Turkish, then they should be tried in a Turkish court. (g) From the minutes of a telephone conversation on 30 March 2005 145. On 30 March 2005 the head of UNFICYP ’ s civil affairs unit had a telephone conversation with the “TRNC” Head of Consular Affairs. The former informed the latter that the courts of the British Sovereign Base areas did not have jurisdiction to try the suspects; however, the courts of the Republic of Cyprus could sit at the bases and the hearing could take place there. The Head of Consular Affairs stated that the “TRNC” authorities were not planning to take any steps until the evidence and records were given over to them because it was unacceptable to the “TRNC” authorities for the Greek Cypriot authorities to work alone on this matter. (h) From the minutes of a meeting on 5 April 2005 146. On 5 April 2005 UNFICYP officials had a general meeting with the “TRNC” Head of Consular affairs who mentioned that the DNA results given to them were not sufficient in order to proceed further with the case file. The “TRNC” authorities needed more concrete evidence such as police investigation records and security camera records. The head of UNFICYP ’ s civil affairs unit promised to discuss this with the Greek Cypriot side. 3. Relevant correspondence between the applicants and UNFICYP 147. Between 2005 and 200 6, an exchange of correspondence concerning the investigation of the murders took place between the applicants ’ representatives and UNFICYP officials. The text of the most relevant communications between UNFICYP and the applicants ’ representatives is set out below: 148. In a communication to UNFICYP dated 19 December 2005, the applicant ’ s lawyer, requested, inter alia, the disclosure of any possible information relating to the UNFICYP ’ s efforts in the case, in particular, concerning the mistrust and lack of cooperation between the two sides. He wanted to ensure that all local remedies were properly exhausted and UNFICYP to help him to form a view in general terms about the attitude of both sides. If all legal means to bring about the prosecution of suspects of this heinous crime failed, he had instructions to bring an application before the Court against Turkey and Cyprus. 149. In a letter to the applicants ’ representatives dated 23 February 2006 the SPA, stated, inter alia, the following: “1. The Senior Police Advisor (SPA) of the UN police in Cyprus first became involved in the case on 16 January 2005 at the request of the Assistant Chief of Police of the Republic of Cyprus, ... who at that time briefed the Senior Police Adviser on the case. A request was made to the SPA to facilitate the exchange of information between the sides. 2. At no time was the SPA asked to operationally assist in the investigation of the murder or apprehend the suspects. If [she had been] asked this would not have been agreed to as this is not within UNFICYP ’ s mandate. ... ( Illegible) 4. A copy of the preliminary investigation report prepared by the authorities in the south was provided to the Turkish Cypriot authorities, with the SPA ’ s facilitation. UNFICYP limited itself to a mediation role and therefore neither verified the contents nor kept a copy of the report. 5. At what point the trial venue became an issue cannot be ascertained as this was not within the control or knowledge of the SPA. 6. UNFICYP attempts to facilitate the exchange of information on criminal enquiries when asked to do so by one side or the other. ... (Illegible) 8. As you may be aware, UNFICYP is not part of the internal justice system of the Republic of Cyprus and does not have executive power. UNFICYP is not in any sense an element of the “domestic remedies” available to victims of a crime in the [Republic of Cyprus] ”. 150. In an e-mail sent by the DSPA to the applicants ’ representative, Ms Meleagrou on 25 October 2006, the following, inter alia, was stated: “I note your request and assure you of the UN ’ s utmost cooperation in dealing with any matter of a criminal nature, particularly ... in this most serious case. While UNFICYP has been exhausting its efforts to reach some conclusion to this case, it is unfortunate that there is a stalemate at this present time due to the two sides not agreeing on a way forward. I note your comments that: The [Republic of Cyprus] will hand over to the UN in Cyprus all the evidence on the suspects so that the UN legal team can evaluate the evidence and see whether or not there is a prima facie case against them. The [Republic of Cyprus] will only do so if the “TRNC” authorities give an undertaking that they will hand the suspects over to the [Republic of Cyprus] to be tried if the UN is satisfied ( possibly after discussion with the “ TRNC ” – the italicised parenthesis is not strictly speaking part of the proposal at this stage but might be what we will have to argue in order to facilitate matters) that there is such a prima facie case against the suspects: 1. The [Republic of Cyprus] will not hand over any evidence for the purposes of conducting a trial in the north. This is despite the fact that [an ] other jurisdiction (United Kingdom) has in the past successfully caused a trial to be conducted in the north [ in respect of ] a serious crime committed in the UK. 2. The legal processes conducted in the north do not allow for the handing over of any [ Turkish Cypriot ] suspects to any authorities in the south or any other country in any other circumstances. Therefore UNFICYP stands ready to facilitate [ in any way ] it can in this case, I can see no resolution being [arrived at] until such time as one side or the other cedes their current position. Either the [Republic of Cyprus] is willing to hand over all the evidence to the north and offer full police and evidentiary cooperation so that a trial can be conducted in that “jurisdiction”, or the north is willing to hand over suspects [ on the basis of ] sufficient evidence to cause the [ issuance ] of an arrest warrant in the north, with a view to handling the suspects to UNFICYP for passing on the [Republic of Cyprus]. As always UNFICYP stands ready to cooperate in whatever manner it can.” 151. In an e-mail sent by UNFICYP to the applicants ’ representative Ms Meleagrou on 16 November 2006 the following was stated : “ As stated in my previous email to you UNFICYP stands ready to facilitate negotiations between the two sides in respect of this matter and indeed continues in its efforts to find a solution. However, UNFICYP is not in a position to formally engage a suitably qualified expert to officially adjudicate on the evidence held by the Republic of Cyprus. It has already been stated that while the UNFICYP believes that there is enough evidence on face value for the two sides to reach a suitable position, it welcomes the delivery of any further or all evidence, copies or otherwise, from the Republic of Cyprus that can be used to further meaningful dialogue between the two sides. I again reiterate the following options that may in my view facilitate further useful negotiations: The [Republic of Cyprus], without prejudice, [should] deliver to the UNFICYP all necessary evidence, allowing this to be used as UNFICYP sees fit, with a view to negotiating the alleged offenders ’ arrest and handover to UNFICYP for delivery to the authorities in the south for the purposes of a trial. However, without a clear guarantee that the north will arrest and hand over the alleged offenders there is little chance of this being successful. The only other solution is for the [Republic of Cyprus] to hand over all the evidence to UNFICYP for delivery to the relevant persons in the north with a view to having a trial conducted in the north. This option has already been rejected by the [Republic of Cyprus] .” 4. Other relevant documents : the UN Secretary-General ’ s reports on the UN operation in Cyprus 152. The relevant parts of the UN Secretary-General ’ s reports on the UN operation in Cyprus are set out below: 153. Report of 27 May 2005 : “23. Official contact between the sides is hampered by a high degree of mistrust. On 15 January 2005, three members of a Turkish Cypriot family living in the south were killed .... Eight suspects were arrested in the north while all the evidence remained in the south. UNFICYP ’ s efforts to assist the sides to bring the suspects to justice proved unsuccessful, and all suspects were released in the north. This case is an illustration of the growing number of crimes across the cease-fire line, such as smuggling, drug trafficking, illegal immigration and human trafficking. These problems are implicit in the expanding inter-communal contacts, which though positive, have also the potential for adverse consequences if the present lack of cooperation between the sides persists. 24. The continuing absence of official contacts between the sides has accentuated UNFICYP ’ s role in promoting bicommunal contacts. Although people from either side can meet freely since the opening of the crossings in 2003, the impartiality of the Ledra Palace Hotel venue and the United Nations umbrella are considered indispensable for sensitive humanitarian and other meetings, including those of political parties from the north and the south. It is hoped that under the auspices of UNFICYP, contacts may be established between the sides, without prejudice to their political positions, on humanitarian and related issues generating a climate of trust and easing tensions. During the reporting period, UNFICYP provided facilities for 57 bicommunal events, including those implemented by the United Nations Development Programme (UNDP)/United Nations Office for Project Services (UNOPS) ... ”. 154. Report of 2 June 2008: “4. On 21 March [2008 ], ... the two leaders met in the presence of my then Special Representative and agreed on a path towards a comprehensive settlement (see annex II). The agreement entailed the establishment of a number of working groups, to consider the core issues pertaining to an eventual settlement plan, and of technical committees, to seek immediate solutions to everyday problems arising from the division of the island. They also agreed to meet again in three months to review the work of the working groups and the technical committees and, using their results, to start full-fledged negotiations under United Nations auspices. In addition, the leaders agreed to meet as and when needed prior to the commencement of full-fledged negotiations. ... 5. On 26 March [2008], representatives of the leaders agreed to establish six working groups on governance and power-sharing, European Union matters, security and guarantees, territory, property and economic matters, as well as seven technical committees on crime and criminal matters, economic and commercial matters, cultural heritage, crisis management, humanitarian matters, health and the environment. ... On 22 April [2008], the groups and committees began to meet. They have been coming together on a regular basis since then, as foreseen by the leaders, and facilitated by the United Nations.” 155. Report of 15 May 2009 : “9. On 14 April [2009], the leaders agreed to the implementation of 4 of the 23 confidence-building measures identified by the technical committees, which were aimed at improving the daily life of Cypriots across the entire island. They concern the passage of ambulances through crossing points in cases of emergency, the establishment of a communications and liaison facility (operating round the clock) to share information on crime and criminal matters, an initiative funded by the United Nations Development Programme (UNDP) on awareness-raising measures for saving water and the establishment of an advisory board on shared cultural heritage. ... ” 156. Report of 9 January 2015 : “ 10. ( ... ) UNFICYP police facilitated meetings of the Technical Committee on Crime and Criminal Matters, and the Joint Communications Room continued to work actively, providing the police services of both sides with a forum for enhanced cooperation. The appointment for the first time of serving police officers as Greek Cypriot representatives to the Technical Committee signaled a significant step forward in cooperation. Over and above the exchange of information on criminal matters that have intercommunal elements, the Joint Communications Room focused on the investigation of crimes that took place within and across the buffer zone, the handover of persons of interest through the UNFICYP police and humanitarian cases.” | The case related to the situation that has existed in northern Cyprus since the conduct of military operations there by Turkey in July and August 1974 and the continuing division of the territory of Cyprus. Cyprus contended that, despite the proclamation of the “Turkish Republic of Northern Cyprus” (the “TRNC”) in November 1983, that was an illegal entity under international law and therefore Turkey was the accountable State for a broad range of Convention violations there. Turkey argued that the “TRNC” was politically independent from Turkey and consequently Turkey could not be held responsible for its acts. |
799 | Verbal and / or physical harassment | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1977 and 1956 respectively and live in Zagreb. 6. The first applicant is a person divested of legal capacity owing to his mental and physical retardation. He goes to a workshop for adults at the V.B. primary school in Zagreb for twelve hours a week. He is taken care of by his mother, the second applicant. The medical documentation of 16 June 2008 submitted in respect of the first applicant describes his health as follows: “... in his very early childhood he suffered from purulent meningitis, which resulted in permanent consequences and epilepsy. He is retarded in his mental and physical development and is under the constant supervision of a neurologist and psychiatrist. Owing to hydrocephalus he has had a Pudenz valve [a type of cerebrospinal fluid shunt] implanted. ... his eyesight is very poor ... and he is dependent on his mother as regards feeding, dressing, personal hygiene and moving about. His spine is mobile but painful in the lower region. ... he suffers from severe foot deformation, ... has difficulty walking; walking on his toes and heels is not possible. Mentally he is emotionally distant, fearful and he has a poor vocabulary. ...” 7. The applicants live in a ground-floor flat in a block of flats in Špansko, a part of Zagreb. The A.K. primary school is nearby in their neighbourhood. 8. It appears that the applicants were subjected to harassment between July 2008 and February 2011. They alleged that pupils from the A.K. primary school, all minors, frequently harassed them, and in particular the first applicant, at all times of the day, especially when the pupils returned home from school in groups and in the late afternoon and evening when they gathered without parental supervision on and around a wooden bench in front of the balcony of the applicants’ flat. The harassment, in their submission, was motivated by the first applicant’s health and both applicants’ Serbian origin. A larger group of children, also minors, came daily to a park in front of the applicants’ flat, shouted obscenities at the first applicant, called him names and wrote insulting messages on the pavement. The children often rang the applicants’ bell, asking when the first applicant was going out. They often spat at him. 9. A police report of 31 July 2008 shows that the second applicant called the police at 9.12 p.m. and complained that unknown young persons were harassing her son and had smashed some objects on her balcony. The police arrived at the applicants’ home at 9.30 p.m. and the second applicant told them that at about 6 p.m. she and the first applicant had left the flat and that when they had returned at about 9 p.m. she had found the balcony ruined and all the flower beds torn up. She also told the police that the first applicant had been harassed for a longer period of time by children in the neighbourhood on account of his mental retardation. She named two of the children. 10. On 2 March 2009 the Susedgrad Social Welfare Centre ordered the supervision of the parental care of D.K., a pupil at A.K. primary school, on account of his poor school results, problematic behaviour and tendency to commit criminal offences. There was no mention of his involvement in the harassment of the applicants. 11. A medical report drawn up on 6 April 2009 shows that the first applicant had been psychologically and physically harassed in the street and that he had cigarette burns on both hands. The doctor asked the social authorities to institute proceedings for the protection of the first applicant as a person with serious mental disorders and described him as a peaceful and benign person who could not and did not know how to defend himself from the abusers. 12. In a letter of 20 April 2009 to the Ombudswoman for Persons with Disabilities, the second applicant complained that on 4 April 2009 two children, D.K. and I.M., had harassed the first applicant. She alleged that while riding their bicycles they had approached the first applicant and burned his hands with cigarettes. She also complained that the first applicant had been continually harassed by children attending a nearby school on the basis of his mental retardation and added that she had on numerous occasions complained to the Susedgrad Social Welfare Centre and the authorities of the A.K. primary school, but to no avail. 13. On the same day the applicants’ lawyer complained to the police about the incident of 4 April 2009. 14. A police report of 5 May 2009 records that on that day on the premises of the II Zagreb Police Station the police interviewed D.K., born in 1997, and P.B., born in 1995. The relevant part of the report in respect of D.K. reads: “When asked whether he remembers the event of 4 April 2009 in ... Zagreb, [D.K.] said that at about 12 noon he was there with his friend I.M., who is in the seventh grade at A.K. primary school, and that P.B., an older boy from the seventh grade of the same school, arrived together with two men, unknown to him, who were playing with a ball. A person who is disabled and has had problems from birth and who lives in a block of flats in ... Street was playing between the buildings. At one point, P.B. lit a cigarette, approached Dalibor and burned his right hand several times, after which they all ran away because that person started to shout.” The relevant part of the report in respect of P.B. reads: “When asked whether he remembers the event of 4 April 2009 in ... Zagreb, concerning the harassment of a disabled person, Dalibor Đorđević, [P.B.] says that he was not present on that occasion but that at the beginning of that week during the morning break he had met D.K., who is in the fifth grade at the same school and who told him that he [D.K.] and I.M. at about 12 noon on Saturday had burned with a cigarette the hand of a person named Dalibor in ... Street who lives on that street and is disabled. When asked a further question as to whether he knew what that person looks like, he answered that he used to go to play on that street with other boys from the neighbourhood and he saw that person, who is about thirty, strongly built, has short salt-and-pepper hair and a pale complexion and has difficulty speaking. That person plays with other children who tease him and he runs after them and beats them.” 15. A police report of 7 May 2009 records that on that day on the premises of the II Zagreb Police Station the police interviewed I.M., born in 1994. The relevant part of the report reads: “When asked whether he remembers the event of 4 April 2009 in ... Zagreb, concerning the harassment of a disabled person, Dalibor Đorđević, between thirty and forty years old, [I.M.] said that he remembered that occasion, that it was a Saturday ... and that he took his bicycle and went ... with D.K. to ... Street, where they saw Dalibor, a person disabled from birth, between the buildings, playing with a ball with some children who took the ball and did not want to return it to him. When he saw this, he [I.M.] asked the children why they did not give the ball back to Dalibor, and Dalibor started to shout and wave his hands. The children then threw the ball and he took it. He [I.M.] was holding a cigarette in his left hand ... and as he was passing Dalibor on his bicycle he [Dalibor] started to wave his hands and slapped him a few times on the hand in which he was holding the cigarette and thus Dalibor burned his hand. He was sure that he burned Dalibor only once and he was sorry for it. He did not understand why Dalibor reacted in such a manner because it was not his [I.M.’s] fault that some children took his ball. The pupil P.B. was not with them. ... When asked a further question as to whether Dalibor had problems with other children, [I.M.] answered that he is often on that street where Dalibor plays ball with other boys and that these children tease Dalibor because of his illness ... and then he runs after them and catches them. In the end [I.M.’s] mother R. was advised to keep an eye on I.M.’s behaviour. She said that she had no problems with him and she did not know why he had done this.” 16. On 19 May 2009 the II Zagreb Police Station sent a report to the Zagreb State Attorney’s Juvenile Office stating that – on 16 April 2009 they had received a letter from the Susedgrad Social Welfare Centre stating that it had received a letter from the second applicant in which she had alleged that her son had been ill-treated by D.K. and others and enclosed medical documentation; and – on 30 April 2009 they had received a letter from the Ombudswoman for Persons with Disabilities stating that she had also received a letter from the second applicant who was seeking help in connection with the frequent harassment of the first applicant. The police also informed the Zagreb State Attorney’s Juvenile Office about the interviews they had conducted with the children D.K., I.M. and P.B. 17. In a letter of 20 May 2009 the II Zagreb Police Station informed the Ombudswoman that they had interviewed the children I.M. and D.K., that they had contacted the headmaster of A.K. primary school, that the police officers from the station had been informed about the problems and that they had regularly patrolled the streets in question. 18. On 17 July 2009 the police informed the Susedgrad Social Welfare Centre that they had established that on 4 April 2009 at about 12 noon the first applicant had been playing with a ball in the street with some boys from the neighbourhood who had taken his ball away, which had upset him. When the boys I.M. and D.K. had gone past the first applicant he had waved his hands and I.M. had unintentionally burned them. 19. On 16 July 2009 the Susedgrad Social Welfare Centre drew up a report on the first applicant. The relevant part of the report reads: “ ... On 6 August 2008 [the first applicant’s] mother, Radmila, complained to us about harassment of Dalibor, alleging that the children ... were visiting the girls V.K. and I.K., who lived in their block of flats. The K. girls said that they had not harassed Dalibor and that the leader of the group had been H.B. An agreement has been reached with the K. girls and their mother, J.F., that the girls will stop hanging around in front of the block of flats and will find another place to do so in order to avoid conflicts. H. and her parents were summoned to this office. H. said that she would no longer hang around in front of that block of flats and that there had been peace for a time. After that the boys started to come, in different groups, so that Mrs Đorđević could not tell their names, but she knew that they attended A.K. primary school. Mrs Đorđević again complained of harassment on 8 April 2009, when Dalibor had been burned with cigarettes and [she said that] the harassment had continued. On 17 June 2009 an interview with Mrs Đorđević was carried out. [She said] that the problems had continued. There were constantly new children who provoked Dalibor, mostly acquainted with the K. girls. There would be peace for two or three days and then the problems would start again. She had good relations with the school counsellor, the defectologist and the headmaster. Mrs Đorđević stated: ‘On 16 June 2009 first the girls came and stood next to the bench. Mrs Đorđević told Dalibor to come inside because she knew how afraid he was of them. They said that he did not need to be afraid because they would soon leave. Then a group of boys came and sprayed Dalibor with water from a balloon.’ Mrs Đorđević also said that lately V.K. had again started to get children to meet up in front of the building, which upset Dalibor. The police and the school were informed about the above events. The school [authorities] talked to all the children who had been reported and to their parents. The police carried out an inquiry [and interviewed] the children who had been present when Dalibor was burned. In order to prevent further harassment we wrote to the school [authorities, asking them] to hold meetings with all children and parents at the beginning of the school year, in all classes, to inform everyone of the problem and to make it clear that they were all responsible for the ill-treatment until the perpetrators were identified. It was also suggested that lectures and workshops with children be held in order for them to understand that there were persons with disabilities who had the same rights as everybody else – to walk about and live their lives outside their flats without being harassed by anyone. It was agreed with police officer I.M. from the II Police Station that the police in charge of that neighbourhood would keep a closer eye on and patrol more frequently the street in order to identify the perpetrators of the harassment. On 14 July 2009 a visit of the family was carried out and only Dalibor was found; he did not know where his mother was and also said that the children had not teased him lately. Dalibor was in the flat and there were no children around the building. ...” 20. On 27 July 2009 the Zagreb Municipality State Attorney’s Office informed the second applicant that the perpetrators of the criminal offence of violent behaviour under Article 331 § 1 of the Criminal Code were D.K. and I.M., who were children below 14 years of age, and that therefore no criminal proceedings could be instituted against them. The second applicant was instructed that she could bring a claim for compensation in civil proceedings. 21. A police report of 5 September 2009 states that on that day the second applicant called the police at 8.40 p.m. complaining about noise in the park. When the police arrived at 8.45, the second applicant told them that in the meantime the children had left. 22. A medical report in respect of the first applicant drawn up on 8 September 2009 indicates that he had constantly been harassed by children, who had burned his hands, shouted at him and made noise in front of the applicants’ balcony. It stated that it was necessary for the first applicant to spend time outdoors. 23. A report drawn up on 17 September 2009 by the Susedgrad Social Welfare Centre indicates that they had interviewed I.M. and his mother. Since I.M. expressed regret about the incident of 4 April 2009, there was no need for any further measures. 24. On an unspecified date in September 2009 the headmaster of A.K. primary school sent a letter to the parents informing them that in their neighbourhood lived a young man with disabilities named Dalibor who had been frequently harassed by schoolchildren. The headmaster expressly stated that the children had admitted to “a number of brutal acts” against Dalibor, such as making derogatory remarks, using insulting language and swearing, behaving provocatively, taking his ball and burning his hands with cigarettes. The parents were asked to talk to their children and warn them about the possible consequences of such behaviour. 25. The relevant part of the written record of a parent-teacher meeting held on 30 September 2009 at A.K. primary school reads as follows: “... At all parent-teacher meetings in the new school year we have drawn the parents’ attention to a young man with special needs who lives in the school’s neighbourhood and who has been harassed by pupils from our school, mostly verbally and sometimes physically. His mother often seeks help from the school employees, and a social welfare centre and the Ombudswoman for Persons with Disabilities have also been involved. The parents were asked to talk to their children and raise their awareness about the problem of accepting differences and the need for peaceful coexistence. The parents present commented on the matter. Some of them mentioned that the young man in question had sometimes also been aggressive, that he had approached young girls in an inappropriate manner and that they had expressed a fear of him and tended to avoid the area where he usually was. Some also commented that he should not be out in public and that he should spend time in conditions appropriate for him or in the park under the constant supervision of a guardian. The headmaster noted all the comments and promised to contact the competent social welfare centre. ...” 26. On 1 October 2009 the applicants’ lawyer sent a written complaint to the Zagreb Municipality State Attorney’s Office. She stated that her clients were two Croatian nationals of Serbian origin, a mother and her son who suffered from mental and physical retardation. She explained that her clients lived about seventy metres away from A.K. primary school and that they had been constantly harassed by schoolchildren, at all times of the day and mainly when the children went home from school in groups and in the late afternoon and evening when they gathered around a bench in front of the applicants’ balcony without parental supervision. She alleged that the harassment had already been going on for about four years and was motivated by the applicants’ Serbian origin and the first applicant’s disability. A group of children aged from 10 to 14 hung around daily in front of the block of flats where the applicants lived, shouting insults and obscenities and calling them names. They also wrote insulting remarks on the pavement in front of the building. The lawyer further described the incident of 4 April 2009. Relying on Articles 8 and 13 of the Convention, she complained that there was no effective remedy in the Croatian legal system affording protection from violent acts by children. She also described the events of 5 and 7 September 2009, when a group of children had insulted the first applicant and, on the latter date, taken a ball from him. On 10 September 2009 a group of boys had urinated in front of the applicants’ door. On 14 September 2009 about fourteen pupils from the fourth and fifth grades had pushed the first applicant, insulted him and taken a ball from him. The day after a boy had shouted insults at him. She also alleged that the children had physically attacked the first applicant on at least ten different occasions and had often spat at him. On 31 July 2008 the children had ruined the applicants’ balcony by tearing up all the flower beds and by throwing stones and mud onto the balcony. A few days later they had thrown a carton of chocolate milk onto the balcony. The second applicant had reported the harassment to the social services, the police, the Ombudswoman for Persons with Disabilities and the school authorities. Despite the good will of all those concerned, the harassment of the applicants had continued. 27. A medical report in respect of the first applicant drawn up on 7 October 2009 indicates that he had constantly been harassed by children. 28. A medical report in respect of the first applicant drawn up on 9 November 2009 indicates that he had been attacked by children a few days before, which had greatly upset him. Psychotherapy was recommended. 29. A medical report in respect of the first applicant drawn up on 14 December 2009 states that “everyone hit him mercilessly with snowballs”, which had scared him. 30. A medical report in respect of the first applicant drawn up on 14 January 2010 indicates that the first applicant suffered from constant anxiety and a feeling of being persecuted because “nothing ha[d] been done to resolve his situation”. 31. A police report of 19 March 2010 states that the second applicant called the police that day at 9.18 p.m. because of “problems with children”. When the police arrived at 9.25 p.m. the second applicant told them that the children had been playing with a ball in the park and had then hit her window with the ball and run away. 32. A medical report in respect of the first applicant drawn up on 11 April 2010 indicates that the first applicant was attacked by a group of children and was hit by a ball on the nose. 33. The applicants alleged that on 13 May 2010 a group of children, including a boy, P., pushed the first applicant against an iron fence in the park. He fell and hit his head and right leg. He was disoriented and uncommunicative for three days. Medical documents drawn up on the same day show that the first applicant suffered from swelling in his right leg and skin abrasion on the left side of his forehead. He was unable to walk for five days and the second applicant had to borrow a wheelchair for him. The medical report also indicates that the first applicant had stumbled and sprained his ankle and had also hit his head. 34. On 14 May 2010 the second applicant complained to the police that on 13 May 2010 a boy, P.B., had pushed the first applicant against a wall and had also taken his ball. 35. On 20 May 2010 the applicants’ lawyer wrote to the Zagreb Municipality State Attorney’s Office complaining that since her last letter of October 2009, there had been further incidents of violence and harassment against the applicants. The relevant part of the letter reads: “... On 5 November 2009 two boys, one of whom was P., verbally abused the first applicant, which scared him. The second applicant informed the school counsellor about the incident but has not received a reply. On 14, 18 and 21 December 2009 a group of children threw snow at the applicants’ window and on one of those occasions covered their balcony with snow. On 15 December 2009 a group of children verbally insulted the first applicant in the street. On 22 February 2010 the second applicant was called by a social worker from the Susedgrad Social Welfare Centre, J.S., who told her that the only way to resolve the situation was to bring a civil action. On 19 March 2010 the children kept throwing a ball at the applicants’ windows, about which the police were informed. On 20 March 2010, while the first applicant was riding on a bus, a group of children shouted his name, which upset him. On 10 April 2010 a boy whose first name was R. hit the first applicant on the nose with a ball, which disoriented him and caused him pain. The second applicant informed the police about it. The police conducted a two-hour interview with her and expressed their regret but informed the second applicant that nothing could be done because any kind of inquiry would show that the children had only been joking. On 13 May 2010 a group of children, including P., pushed the first applicant against an iron fence in the park. He fell and hit his head and right leg. He was disoriented and uncommunicative for three days. On 18 May 2010, when the first applicant was sitting on a swing, a group of children approached him and made obscene gestures and told him that he was stupid.” 36. On the same day the lawyer complained about the harassment of the applicants to the Ombudswoman for Children and asked for advice. 37. The applicants alleged that on 24 May 2010 a group of boys hit the first applicant’s head against an iron fence in the park and said that they enjoyed it. A medical report in respect of the first applicant drawn up on the same day indicates that he had been pushed against an iron fence and had hit his head on it. 38. On 25 May 2010 the Zagreb Municipality State Attorney’s Office informed the applicants’ lawyer that it had no jurisdiction in the matter since the complaints concerned children who were not criminally responsible. 39. On 26 May 2010 the headmaster of A.K. primary school informed the applicants’ lawyer that the school authorities had taken all measures they deemed appropriate, such as discussion with the pupils concerned and the provision of information to all parents at parent-teacher meetings about the problems the applicants had encountered with the pupils. 40. On 31 May 2010 the Ombudswoman for Children informed the applicants’ counsel that she had no jurisdiction in the matter. 41. A medical report in respect of the first applicant drawn up on 29 June 2010 indicates that he had continually been attacked by children in the neighbourhood. 42. Medical reports in respect of the first applicant drawn up on 29 June, 25 October and 24 November 2010 and 9 February 2011 indicate that the first applicant had continually been attacked by children in the neighbourhood. 43. On 1 July 2010 the police interviewed P.B., a pupil attending A.K. primary school, about the incidents of 13 and 14 May 2010, in which he denied his involvement. 44. The applicants alleged that on 13 July 2010 at 9 p.m. four boys and a girl made repeated lewd comments in a loud voice under the applicants’ window. When the second applicant asked them to be quiet they replied provocatively, using the Serbian dialect in direct allusion to the applicants’ Serbian origin, telling her: “Call the police, we are not afraid [ zovi bre policiju, mi se ne bojimo ]”. The second applicant reported this incident on 14 July 2010 to a social worker from the Susedgrad Social Welfare Centre, Ms J.S. 45. On 19 July 2010 the Susedgrad Social Welfare Centre interviewed V.K., who lived in the same block of flats as the applicants. She denied her involvement in the harassment of the applicants. She also said that children and alcoholics frequently gathered at the bench in front of the block of flats where she lived and made screaming noises, which irritated her family as well. 46. On 2 August 2010 the Susedgrad Social Welfare Centre informed the police that the second applicant had complained of continued harassment and violence against the first applicant. The police were asked to take appropriate measures. 47. On 26 August 2010 the police interviewed Z.B., a pupil attending A.K. primary school, who denied any involvement in the harassment of the first applicant. 48. On 27 August 2010 the second applicant asked the Zagreb Municipality for the wooden bench beneath the applicants’ window to be removed. 49. The applicants alleged that on 31 August 2010 at around 3 p.m., when they were returning home from a shop, a boy known to them as M. rode past them on a bicycle and shouted insults at the first applicant, saying, inter alia : “Dalibor is a fag”. The first applicant felt extremely anxious and stressed. 50. The applicants alleged that on 1 September 2010 at 6.45 p.m. three boys on bicycles rode up in front of their window and threw rubbish and screamed. At 7.20 p.m. more children gathered around the wooden bench in front of the applicants’ window and repeatedly hit a nearby metal fence, thus making a lot of noise. They also threw a stone at the applicants’ window and made lewd comments in loud voices. At 10.03 p.m. the second applicant called the police. Since the police did not come, she called them again at 10.28 p.m. The police said that they would come but that they had other calls to answer as well. The police arrived at 10.32 p.m. and told the children to move a few metres away from the applicants’ window. They made no attempt to identify the children. A police report of the same day indicates that at 9.21 p.m. the second applicant had called the police and complained about noise in the park. When the police arrived at 10.35 p.m. they had not found anyone in front of the building. 51. The applicants alleged that on 3 September 2010 a group of about ten children gathered around the bench and made an unbearable amount of noise. At 10.15 p.m. the second applicant called the police, who arrived at 10.40 p.m. and ordered the children to go away, without, however, making any attempt to identify them. A police report of the same day indicates that at 10.20 p.m. the second applicant had called the police and complained about noise in the park. When the police arrived at 10.25 p.m. they had not found anyone. 52. The applicants alleged that on 5 September 2010 at about 9 p.m. they noticed, on returning from church, that an unidentified white substance had been thrown at their window in their absence. There were also some children screaming under their window. At 10 p.m. the second applicant called the police. The applicants further alleged that on 7, 8, 14, 23 and 27 September 2010, children gathered around the bench and made an unbearable amount of noise. 53. On 23 September 2010 the police interviewed I.S., a pupil attending A.K. primary school, who denied any involvement in the harassment of the first applicant. 54. The applicants alleged that on 2 October 2010 five boys gathered around the bench and made loud noises. At 7.40 p.m. seven boys threw balls at the applicants’ window and made noise until late at night. At 11.38 p.m. the second applicant called the police, who arrived at a quarter past midnight and told the boys to leave without asking them any questions or making any attempt to identify them. A police report of the same day indicates that the second applicant had called the police at 11.40 p.m. and complained about noise. When the police had arrived at a quarter past midnight they had not found anyone. 55. The applicants further alleged that on 4 October 2010 at 4 a.m. they were awakened by a car alarm outside their window. Some children were banging on the outer wall of their flat, making a very loud noise. The first applicant’s pet rabbit died that night and he attributed the rabbit’s death to the events of that night, which made him extremely upset. On 15 October 2010, while the applicants were not at home, someone spat on their living-room window until it was completely covered in saliva. On 23 October and 7, 14 and 19 November 2010 groups of children gathered around the bench, making a lot of noise. 56. On 17 November 2010 the Zagreb Municipality informed the second applicant that her request for the removal of the bench situated beneath the balcony of the applicants’ flat had been denied. 57. The applicants alleged that on 22 November 2010, while they were coming home from a shop, a group of children shouted after them: “Dalibor, Dalibor!” The first applicant was paralysed with fear and asked his mother why they would not leave him alone. The second applicant wrote to the Office of the President of Croatia and the Ombudswoman for Persons with Disabilities about the harassment of her son, seeking their assistance in connection with the removal of the bench. On 5 December 2010 at around midnight some children threw snowballs at the applicants’ window, which terrified the first applicant. 58. On 14 December 2010 the Ombudswoman for Persons with Disabilities recommended to the Zagreb Municipality that the bench be removed. The bench was removed in February 2011. The applicants alleged that on the same day, some children destroyed a metal container under their window where the gas meters were located. 59. The applicants alleged that further incidents occurred as follows. On 5 February 2011 a group of children shouted provocatively at the second applicant on the street, using the Serbian dialect (“ De si bre? ”). On 8 February 2011 at 6.40 p.m. some children rang the applicants’ doorbell and then ran away. On 10 February 2011 the applicants went to a hairdresser, taking a detour in order to avoid the children. However, they met a group of children who shouted “Dalibor!” in a provocative manner. On 13 February 2011 at 12.30 p.m. seven boys ran around the applicants’ flat, banged on the walls, climbed onto their balcony, peered into the flat and laughed loudly. At 9.45 p.m. a group of boys sang the song “We are Croats” beneath the applicants’ window. 60. A medical report of 9 March 2011 in respect of the first applicant indicates that owing to stress he often bit his lips and fists, and that he had a twitch in his left eye and symptoms of psoriasis. It also mentioned that he had frequently been attacked and ridiculed and that it was necessary to ensure a calm and friendly environment for him. i. to ensure effective access to justice for persons with disabilities on an equal basis with others; ii. to protect and promote the enjoyment of all human rights and fundamental freedoms by persons with disabilities on an equal basis with others. 3.12.3. Specific actions by member States i. to provide protection against discrimination through the setting up of specific legislative measures, bodies, reporting procedures and redress mechanisms; ii. to ensure that provisions which discriminate against disabled people are eradicated from mainstream legislation; iv. to encourage non-governmental advocacy networks working in defence of people with disabilities’ human rights; v. to ensure people with disabilities have equal access to the judicial system by securing their right to information and communication that are accessible to them; vi. to provide appropriate assistance to those people who experience difficulty in exercising their legal capacity and ensure that it is commensurate with the required level of support; ... 3.13. Action line No. 13: Protection against violence and abuse 3.13.1. Introduction Acts of abuse or violence against any person are unacceptable and society has a duty to ensure that individuals, particularly the most vulnerable, are protected against such abuse. There are indications that the rate of abuse and violence committed against persons with disabilities is considerably higher than the rate for the general population, and higher in women with disabilities, particularly women with severe disabilities, where the percentages of abuse far exceed those of non-disabled women. Such abuse can occur in institutions or other types of care and situations, including the family environment. It can be inflicted by strangers or persons known to the individual and can take many forms, for instance verbal abuse, violent actions, or the refusal to meet basic needs. While governments cannot guarantee that abuse will not happen they must do their utmost to establish protection and the strongest possible safeguards. Prevention can be assisted in many ways, particularly through education to appreciate the rights of individuals to protection and to recognise and reduce the risk of abuse. Persons with disabilities who experience abuse or violence should have access to appropriate supports. They must have a system in which they can have sufficient confidence to report abuse and expect follow-up action, including individual support. Such systems require personnel who are skilled and qualified to detect and respond to situations of abuse. While there has been some research undertaken in recent years, it is clear that further knowledge is required to inform future strategies and best practice. 3.13.2. Objectives i. to work within anti-discriminatory and human rights frameworks towards safeguarding people with disabilities against all forms of violence and abuse; ii. to ensure access for people with disabilities to services and support systems for victims of violence and abuse. 3.13.3. Specific actions by member States i. to establish safeguards to protect people with disabilities from violence and abuse through the effective implementation of policies and legislation, where necessary; ii. to promote the availability of and access to training courses for people with disabilities to reduce the risk of violence and abuse, for example courses in self-confidence and empowerment; iii. to develop processes, measures and protocols adapted to people with disabilities, to improve detection of violence and abuse, and to ensure that the necessary action is taken against perpetrators, including redress and adequate professional counselling in case of emotional problems; vi. to support people with disabilities, in particular women, and their families, in situations of abuse through the provision of information and access to services; vii. to ensure that systems are in place for the protection against abuse of persons with disabilities in psychiatric facilities, social care homes and institutions, orphanages, and other institutional settings; ix. to train police and judicial authorities so that they can receive testimony from disabled people and treat instances of abuse seriously; x. to provide people with disabilities with information on how to avoid the occurrence of violence and abuse, how to recognise it, and how to report it; xi. to take effective legislative, administrative, judicial or other measures with strong sanctions in a transparent manner and to allow for independent review by civil society in order to prevent all forms of physical or mental violence, injury or abuse, neglect and negligent treatment, maltreatment, exploitation or abduction of people with disabilities; ...” 77. The relevant parts of Resolution ResAP(2005)1 on safeguarding adults and children with disabilities against abuse (adopted by the Committee of Ministers on 2 February 2005 at the 913th meeting of the Ministers’ Deputies) read as follows. “... I. Definition of abuse 1. In this Resolution abuse is defined as any act, or failure to act, which results in a breach of a vulnerable person’s human rights, civil liberties, physical and mental integrity, dignity or general well-being, whether intended or through negligence, including sexual relationships or financial transactions to which the person does not or cannot validly consent, or which are deliberately exploitative. At a basic level abuse may take a variety of forms: a. physical violence, including corporal punishment, incarceration – including being locked in one’s home or not allowed out –, over- or misuse of medication, medical experimentation or involvement in invasive research without consent, and unlawful detention of psychiatric patients; b. sexual abuse and exploitation, including rape, sexual aggression, indecent assault, indecent exposure, forced involvement in pornography and prostitution; c. psychological threats and harm, usually consisting of verbal abuse, constraints, isolation, rejection, intimidation, harassment, humiliation or threats of punishment or abandonment, emotional blackmail, arbitrariness, denial of adult status and infantilising disabled persons, and the denial of individuality, sexuality, education and training, leisure and sport; ... 3. These abuses require a proportional response – one which does not cut across legitimate choices made by individuals with disabilities but one which recognises vulnerability and exploitation. The term ‘abuse’ therefore refers to matters across a wide spectrum, which includes criminal acts, breaches of professional ethics, practices falling outside agreed guidelines or seriously inadequate care. As a consequence, measures to prevent and respond to abuse involve a broad range of authorities and actors, including the police, the criminal justice system, the government bodies regulating service provision and professions, advocacy organisations, user networks and patient councils, as well as service providers and planners. II. Principles and measures to safeguard adults and children with disabilities against abuse 1. Protection of human rights Member States have a duty to protect the human rights and fundamental freedoms of all their citizens. They should ensure that people with disabilities are protected at least to the same extent as other citizens. Member States should recognise that abuse is a violation of human rights. People with disabilities should be safeguarded against deliberate and/or avoidable harm at least to the same extent as other citizens. Where people with disabilities are especially vulnerable, additional measures should be put in place to assure their safety. 2. Inclusion of people with disabilities Member States should acknowledge that safeguarding the rights of people with disabilities as citizens of their country is a State responsibility. They should combat discrimination against people with disabilities, promote active measures to counter it and ensure their inclusion in the socio-economic life of their communities. They should recognise that all people with disabilities are entitled to dignity, equal opportunity, their own income, education, employment, acceptance and integration in social life, including accessibility, health care as well as medical and functional rehabilitation. They should guarantee that people with disabilities are ensured protection – to at least the same extent as other citizens – in their use of services of all kinds. 3. Prevention of abuse Member States should increase public awareness, promote open discussion, develop knowledge, and improve education and professional training. They should encourage cooperation between authorities and organisations in finding measures to prevent abuse, to improve detection and reporting of abuse, and to support the victims. They should create, implement and monitor legislation concerning the standards and regulation of professionals and care settings, in order to make abuse of people with disabilities less likely through action taken or through failure to act. 4. Legal protection Member States should ensure access to the criminal justice system and provision of redress and/or compensation to people with disabilities who have been victims of abuse at least to the same extent as other citizens. Where necessary additional assistance should be provided to remove physical and other barriers for people with disabilities. People with disabilities are applicants under civil law whose rights should be safeguarded. Member States should therefore ensure that professionals working within the criminal justice system treat people with disabilities without discrimination and in such a way as to guarantee them equality of opportunity in the exercise of their rights as citizens. ...” B. Parliamentary Assembly 78. The relevant parts of Resolution 1642 (2009) of the Parliamentary Assembly on access to rights for people with disabilities and their full and active participation in society (adopted on 26 January 2009) read as follows. “1. More than one person in every 10 suffers from some form of disability, representing a total of 650 million people worldwide, with an even greater ratio of up to 200 million in Europe alone. There is a correlation between age and disability: as the population ages and health care improves, the number of people with disabilities in Europe grows, and it will continue to grow. 2. The Parliamentary Assembly recalls that the Council of Europe’s European Convention on Human Rights (ETS No. 5) protects all people, including those with disabilities, and that Article 15 of the revised European Social Charter (ETS No. 163) explicitly guarantees people with disabilities the effective exercise of the right to independence, social integration and participation in the life of the community. A more recent and eagerly awaited text, the United Nations Convention on the Rights of Persons with Disabilities, came into force with effect from 3 May 2008. The Assembly welcomes this text, which gives a detailed description of the rights of people, including children, with disabilities, and will certainly contribute to the change of perception needed to improve the situation of people with physical or mental disabilities. 3. The Assembly notes that, in practice, the access of people with physical or mental disabilities to their rights on an equal basis with those of people without disabilities frequently remains wishful thinking and proves inadequate. It therefore welcomes the preparation by the Council of Europe of the Disability Action Plan to promote the rights and participation of people with disabilities in society for 2006-2015 (Recommendation Rec(2006)5 of the Committee of Ministers), which endeavours to find practical responses to the most serious and most common problems encountered by people with disabilities, to foster equality of opportunities, and which advocates a number of measures to improve the situation of people with disabilities in all aspects of everyday life. ... 18. Whereas the attitude of society, prejudice and fixed mindsets remain the main obstacle to the access to rights for people with disabilities and their full and active participation in society, the Assembly invites member States to: 18.1. step up their campaigns drawing public attention to, and providing information about, disability-related issues; 18.2. take legal action against and penalise discriminatory practices and unacceptable attitudes towards people with disabilities, especially abuse, committed either by isolated individuals or in health-care establishments; 18.3. disseminate examples of good practices in all spheres of everyday life, so as to make clearer − to all, and particularly to young people − the scope of this question in civil society, the working environment and the world of education; 18.4. ensure the full and active participation of people with disabilities in all of these processes. ...” i. to nurture receptiveness to the rights of persons with disabilities; ii. to promote positive perceptions and greater social awareness towards persons with disabilities; iii. to promote recognition of the skills, merits and abilities of persons with disabilities, and of their contributions to the workplace and the labour market; b. Fostering at all levels of the education system, including in all children from an early age, an attitude of respect for the rights of persons with disabilities; c. Encouraging all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the present Convention; d. Promoting awareness-training programmes regarding persons with disabilities and the rights of persons with disabilities.” Article 15 – Freedom from torture or cruel, inhuman or degrading treatment or punishment “1. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation. 2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.” Article 16 – Freedom from exploitation, violence and abuse “1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects. 2. States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender- and age-sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of exploitation, violence and abuse. States Parties shall ensure that protection services are age-, gender- and disability-sensitive. 3. In order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities. 4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account gender- and age-specific needs. 5. States Parties shall put in place effective legislation and policies, including women- and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.” Article 17 – Protecting the integrity of the person “Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.” | This case concerned the complaint by a mother and her mentally and physically disabled son that they had been harassed, both physically and verbally, for over four years by children living in their neighbourhood, and that the authorities had failed to protect them. These attacks had left the first applicant deeply disturbed, afraid and anxious. The applicants had on numerous occasions complained to various authorities. They had also rung the police many times to report the incidents and seek help. Following each call, the police arrived at the scene, sometimes too late, and sometimes only to tell the children to disperse or stop making a noise. They also interviewed several pupils and concluded that, although they had admitted to having behaved violently towards the first applicant, they were too young to be held criminally responsible. |
647 | Journalists and publishing companies | 2. The applicant, Mr Emídio Arnaldo Freitas Rangel, was a Portuguese national who was born in 1947 and lived in Lisbon. He was represented before the Court by Mr R. Correia Afonso, a lawyer practising in Lisbon. By a letter of 9 September 2015, the applicant’s representative informed the Court that Mr Freitas Rangel had died on 13 August 2014 and that his daughters, Ms Ana Sofia Pereira Rangel and Ms Catarina Matias Rangel, had expressed their wish to pursue the application in his stead. 3. The Government were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney General. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case 5. The applicant was a renowned journalist in Portugal. 6. In February 2010 he was invited by the Socialist Party to give testimony at a hearing before the Parliamentary Commission on Ethics, Society and Culture ( Comissão Parlamentar de Ética, Sociedade e Cultura ) on the topic of freedom of expression and the media in Portugal. More than seventy personalities and entities were invited to give their views on this topic at the hearing, which was open to the public and the media. The discussion specifically concerned the following issues: (a) the conditions for the exercise of freedom of expression in Portugal; (b) the transparency of the ownership of the media and the influence of economic and political power on media outlets; (c) the precariousness of employment contracts in the journalism sector in Portugal and the consequent implications for the performance of that activity; (d) the conditions for the exercise of journalists’ right to participate in shaping the editorial stance of the media, in particular through their editorial boards; and (e) the influence of public entities on the media and the methods through which the media financed themselves. 7. On 6 April 2010 the applicant gave his testimony before the Parliamentary Commission on Ethics, Society and Culture. During his presentation, he blamed certain journalists for lowering the standards of journalism in the country, and he drew attention to the fact that the political and judicial classes were utilising journalism to pursue political goals. Before answering questions from members of parliament, he stated, inter alia, as follows: “... It is urgent that something is done. 90% of young journalists have not read the code of ethics. No one has ever been punished for bad journalistic practice. No one has been praised for good practice. Journalism is essential to democracy. There is no democracy without quality journalism. However, the situation has got worse. This circle has recently seen the entry – and this is the trend [ modismo ] of modern times – of the professional associations of judges and public prosecutors. These are two hubs managing information relating to judicial cases [ duas centrais de gestão de informação processual ], which is achieved through close ties with journalists. They obtain documents concerning judicial cases for journalists to publish, exchange these documents at coffee shops, in the open; if they can help to breach the duty of judicial confidentiality [ segredo de justiça ], they really will share the documents. This is not going to end well, Mr President, honourable members of parliament, if we do not return to a time with rules preventing the judiciary from engaging in politics.” 8. As he was leaving the parliamentary session, the applicant made the following statements to a journalist from the newspaper Público who had been present at the hearing: “Where does the material covered by judicial confidentiality come from? Can it only come from the justice system itself? ... If they were resolving issues to do with a professional association, but no, what I have seen is an extensive and broad political intervention with negative consequences ... They try to limit the decisions of the Attorney-General [ Procurador Geral da República ] and [to influence] public opinion, and they have privileged relationships with journalists to whom, from time to time, they pass on documents dealing with various topics.” 9. On the same day that the applicant addressed the parliamentary session, the National Board of the ASJP issued a public statement, which read as follows: “At the hearing that took place today before the Parliamentary Commission on Ethics, Society and Culture, the journalist Emídio Rangel asserted ... that the ASJP was connected to violations of judicial confidentiality by ‘obtaining documents concerning judicial cases for journalists to publish’ and exchanging these documents ‘at coffee shops, in the open’. This allegation is false and defamatory, insulting ... the good name of the ASJP with its thirty-five years of dedication to strengthening the prestige and the dignity of the judiciary, as well as the honour of the more than 2,050 judges who are members of the organisation. The journalist Emídio Rangel did not identify a single member of the governing bodies of the ASJP who might have shared a case file, a document, information, or anything else in violation of judicial confidentiality or the rules on professional conduct and ethics by which Portuguese judges are governed, for the simple reason that it never happened ...” 10. The applicant’s statements before Parliament and to the journalist from Público were widely covered in the media and reported on by at least ten different news organisations on 6, 7 and 9 April 2010. 11. On 7 April 2010, in an interview with the news agency Lusa, the applicant stated: “I stand by everything I said. The judiciary must be prudent and exercise its functions with modesty ...” Criminal Proceedings against the applicantFirst-instance proceedings First-instance proceedings First-instance proceedings 12. On 23 April 2010 and on 5 May 2010 respectively the ASJP and the SMMP lodged criminal complaints against the applicant for insulting a legal entity ( ofensa a pessoa colectiva ) on account of the statements he had made before the Parliamentary Commission on Ethics, Society and Culture. 13. After those complaints were lodged, criminal proceedings were initiated against the applicant by the Lisbon public prosecutor’s office. 14. On an unknown date the ASJP and the SMMP were granted leave to intervene in the proceedings as assistants to the prosecuting authority ( assistentes ). They also brought civil claims. 15. On an unknown date the ASJP and the SMMP filed their private prosecution submissions against the applicant in relation to two counts of defamation. The Lisbon public prosecutor’s office supported their submissions. 16. The applicant challenged the prosecution submissions by applying for the opening of a judicial investigation ( requerimento de abertura de instrução ). On an unknown date the Lisbon Criminal Investigation Court dismissed his application and sent the case for trial in the Lisbon Criminal Court. 17. During the trial, the applicant defended the impugned statements. He claimed that he had personally witnessed a journalist, E.D., exchanging files at a café with a member of the SMMP. E.D. denied those allegations during the hearing. 18. On 7 May 2012 the Lisbon Criminal Court convicted the applicant on two counts of insulting a legal entity, pursuant to Article 187 §§ 1 and 2 and Article 183 §§ 1 (a) and (b) and 2 of the Criminal Code (“the CC” – see paragraph 34 below). The court held that the applicant had made statements of fact which were unsubstantiated, and that there was no reason not to believe E.D.’s testimony. The applicant was convicted and ordered to pay a fine of 6,000 euros (EUR), or alternatively, sentenced to 200 days’ imprisonment. As compensation for non-pecuniary damage, he was also ordered to pay the SMMP and the ASJP EUR 50,000 each, plus interest, calculated from the date of the judgment. 19. In its decision, the Lisbon Criminal Court took the view that for Article 183 of the CC to apply, it was sufficient for the perpetrator to have acted with general criminal intent ( dolo genérico ); thus, it would suffice for the perpetrator to realise that he had attributed false facts, or even offensive value judgments, to the legal entities in question. The court held as follows: “The [applicant’s] desire to directly strike at and diminish the credibility and prestige of the assistentes in front of the members of parliament sitting on the Ethics Commission and before the whole country is well known. The offence directed against the assistentes took place in a solemn venue – Parliament – where the [applicant] read out a text written by him, in a context where media access to the hearing ... was unrestricted, which heightened the potential for the dissemination of the words spoken by the [applicant], as well as for the perpetuation of the offence to the assistentes. The statements made by the [applicant] were knowingly designed to endure in time ... considering that the applicant is a figure of reference in journalism in Portugal, and that his opinions are widely listened to. The immediate reporting ... by various media entities of the statements he made to the Ethics Commission, as a result of the ‘bandwagon effect’ [ efeito propulsor ] that they instantaneously acquired, carried the ‘viral load’ of the words and allowed them to persist in time. As they still persist. ... It is hard for us to accept that, in any circumstances, such statements may be considered harmless. It is hard for us to accept that, in any circumstances, they may be interpreted as not being offensive to, or unable to offend, the assistentes. And that the [applicant] did not seek to ‘back up’ [his statements] with any facts. He merely referred to a vague incident at a café ... involving the journalist E.D. and a judge belonging to the SMMP, whom he refused to identify. This is manifestly insufficient. ... Freedom of expression was, in this instance, dishonoured [ desvirtuada ].” Appeal proceedings 20. On an unknown date the applicant appealed against the Lisbon Criminal Court’s decision to the Lisbon Court of Appeal. 21. On 22 November 2012 the Lisbon Court of Appeal upheld the criminal conviction of the applicant. However, it held that the applicant had committed two counts of the offence of insulting a public entity under Article 187 §§ 1 and 2 and Article 183 § 2 of the CC, excluding the application of Article 183 § 1 (a) and (b) (see paragraph 34 below). The Lisbon Court of Appeal considered that the applicant was only to be convicted under Article 183 § 2 because the offence under that Article was more severe than the one under Article 183 § 1 (a) and (b) and therefore included the offences committed under those two sub-paragraphs as well. However, this would not have any impact on the total amount of the penalty. 22. In its judgment, the Lisbon Court of Appeal noted that it was necessary to make a proportionality assessment between the right to honour and freedom of expression, holding as follows: “... Given that the [Convention], like all treaty law to which Portugal is a contracting party, has infra-constitutional but supra-legal value, in determining whether certain conduct constitutes a crime against honour, account should be taken of the provisions of that Convention, as interpreted by the case-law of the [Court], specifically in respect of Article 10 (freedom of expression). According to the case-law of that court ‘... the exceptions to freedom of expression, notably to protect the honour of others, must be interpreted restrictively and the necessity for the restrictions must be convincingly established’. Thus, when public figures are involved, the limits of permissible criticism are wider, accepting, in the context of political and public controversies, the use of strong, exaggerated and scathing language. ... In the present case, the [applicant] claimed that the members of the assistentes had shared information on topics that were protected by judicial confidentiality [ segredo de justiça ] with journalists. Considering that the assistentes are associations whose members are exclusively members of the State legal service who must abide by special duties in respect of their legal obligations, such an act would be extremely serious, both criminally and in terms of professional conduct; therefore, the attribution of such acts [to the assistentes ] seriously damages the right of the assistentes to a reputation. [The present case] is not about opinions on the existence or handling of the assistentes, but rather the false attribution of serious acts, without the [applicant] having even proven that he had any grounds, in good faith, to believe in their veracity ... for this reason the limit of freedom of expression has been surpassed and the objective elements of the offence under Article 187 of the Criminal Code are met.” 23. As to civil liability, the Lisbon Court of Appeal lowered the amount to be paid in damages to the assistentes to EUR 10,000 each. The relevant parts of the judgment in this regard read as follows: “The [applicant] is an individual and the assistentes are legal entities (where the offender is a media company, the compensation must be increased, so that the revenue gained from the news which offends a person’s honour does not offset the respective consequences); on the other hand ..., the honour of legal entities stems from social dignity and not from ‘human dignity’, and, as a consequence, there is no suffering, as there is in the case of a human being, [and this] diminishes the duty to compensate. ... The [applicant] has a monthly income of about EUR 5,000 ... and no facts connected to the economic circumstances of the assistentes have been established ... [H]owever, the [applicant] did not have any basis to consider, in good faith, that the facts he attributed to the assistentes were true, and therefore the compensation should not be reduced for the purposes of Article 494 of the Civil Code. ... The statements were made before third parties (which necessarily leads to a higher award of compensation than in the case of statements made only in front of the victim), [and] read from a written text ... therefore, the words were well considered [ ponderado ] (which increases the duty to compensate), and reiterated several times ..., triggering a large amount of media attention ... which also leads to the duty to compensate ... The facts referred to [by the applicant] constitute an offence, which heightens the duty to compensate.” 24. On 21 February 2013 the applicant filed a plea of nullity in respect of the judgment of the Court of Appeal, but his plea was dismissed. 25. As far as the criminal conviction of the applicant was concerned, the judgment of the Lisbon Court of Appeal was not amenable to further appeal pursuant to Article 400 § 1 (e) of the Code of Criminal Procedure (see paragraph 35 below). Proceedings before the Supreme Court 26. On an unknown date the ASJP and the SMMP lodged an application with the Supreme Court for judicial review, arguing that the amount that the applicant had been ordered to pay them in damages was too low. 27. On 5 June 2013 the Supreme Court held partly in their favour, increasing to EUR 25,000 the amount of compensation for non-pecuniary damage to be paid by the applicant to each of the ASJP and the SMMP. 28. The relevant part of the Supreme Court’s judgment reads as follows: “The right to a good name and reputation is a fundamental right based on Article 26 § 1 of the Constitution .... With regard to legal entities, the right to a good name is specifically enshrined, from a civil point of view, in Article 484 of the Civil Code, and, at the same time, the violation of this legal interest [ bem juridico ] is also an offence under the Criminal Code ... ... with regard to legal entities, the insult to their credibility and good name may entail serious damage that affects not only the self-image and the prestige that they enjoy, but also the trust that the public may place in them ... In the [present] case, it is undeniable that the insults to the good name (credibility, prestige and trust) of the claimants were severe, both because of the extent of their unlawfulness (the seriousness of the insults, the knowledge of their falsehood, the form in which they were produced, the outlet that they had), and because of the established guilt, with a particularly severe level of intent ... Now, the facts are particularly serious owing to the offensive nature of the statements and the coverage that they had; with regard to negligence [ culpa ], as we have already seen, the [applicant] acted with gross negligence [ culpa grave ] – the most serious form of negligence, and the level of unlawfulness is also high within this type of offence. Both the Professional Association of Judges and the Professional Association of Public Prosecutors demonstrated, through their executive bodies, that they were profoundly affected by the statements made, especially considering that these associations are representatives of prosecutors and judges in their socio-professional field, striving for the protection of the values connected to professional and ethical conduct, such as independence, immunity and objectivity, which are characteristics of the exercise of their respective roles that are enshrined in the Constitution and in their statutes. The allegations made by the applicant imply a total disrespect for the principles by which judges and prosecutors ... must be governed ... ... This was combined with the aggravating fact that the [applicant] acted freely, voluntarily and consciously and with the intention of offending the legal entities in question ... while knowing the falsehood of his statements ... ... The determination of compensation, in contrast to what the [applicant] suggests, must have, in the present case, the nature of a sanction, with a preventive purpose ... The value of the compensation for non-pecuniary damage and as a civil sanction is established on the basis of the degree of fault [ culpabilidade ], the unlawfulness [of the act], the economic situation of both the perpetrator [ lesante ] and the victim, and the overall circumstances of the case. Considering that the negligence [ culpa ] in this case fell into the most serious category ... in the form of intent [ dolo ], and was especially severe within that category, on account of its high degree of unlawfulness; considering the damaging consequences, the [applicant’s] manner of operating and the universe of people making up the collective entities; and bearing in mind the economic situation of the claimants and the [applicant], the amount of EUR 10,000 determined by the Court of Appeal is too low.” Enforcement proceedings 29. On 5 December 2014 the Lisbon Criminal Court declared the sentence completed after the applicant had finished paying the fine of EUR 6,000. 30. The ASJP initiated enforcement proceedings against the applicant in respect of the sum of EUR 25,000 in compensation which he had been ordered to pay. This amount was seized from the applicant and transferred to the ASJP. On 18 November 2014 the enforcement proceedings instituted by the ASJP were terminated. 31. On an unknown date, the applicant agreed to the payment of the sum of EUR 25,000 to the SMMP in instalments. On 1 July 2014 he paid the first instalment in the amount of EUR 500. 32. The applicant died on 13 August 2014 (see paragraph 2 above). On 3 September 2015 the debt which remained to be paid to the SMMP was transferred to the applicant’s estate within the inventory proceedings, which, as of 30 July 2018, the date of the latest information available to the Court, were still pending before a notary. | This case concerned the conviction of the applicant, a very well-known journalist, for statements made about the professional bodies for judges and for public prosecutors at a hearing of a parliamentary committee. In particular, he had linked the judiciary and the prosecution service to, among other things, interference in politics and widespread breaches of confidentiality. He had been convicted and had had to pay 56,000 euros in fines and damages in total. |
737 | Noise pollution | I. THE CIRCUMSTANCES OF THE CASE 7. The applicants in application no. 43449/02, Ms Pepa Vladimirova Mileva and Ms Meri Vladimirova Mileva, were born in 1934 and 1936 respectively and live in Sofia. They are sisters. 8. The applicants in application no. 21475/04, Mr Hristo Ivanov Evtimov, Ms Lilia Kirilova Evtimova and Ms Kalina Hristova Evtimova, were born in 1939, 1943 and 1977 respectively and live or lived in Sofia. The first two were husband and wife, and the third is their daughter. As mentioned in paragraph 2 above, Mr Hristo Evtimov died in 2007. A. The applicants and their flats 9. At the material time the applicants in application no. 43449/02 (“the Milevi sisters ”), both of whom are retired, owned a flat on the first floor of entrance “B” of a U ‑ shaped block of flats in the centre of Sofia. Both of them had lived in that flat since 1963. They submitted that as a result of the events described below, they were forced to move out of the flat. On 11 March 2004 they sold it to a limited liability company for 61,000 euros. On 22 April 2004 they bought a smaller flat in another neighbourhood, and on 15 June 2004 went to live there. 10. The applicants in application no. 21475/04 (“ the Evtimovi family ”) own and live in a flat on the first floor of entrance “C” of the same block of flats. Ms Kalina Evtimova ’ s daughter, born on 28 September 2000, also lives there. B. The flat converted into a computer club 11. In May 2000 a company rented a flat on the ground floor of entrance “B” of the block, below the flat of the Milevi sisters. It started operating a computer club there, without obtaining the necessary permits. 12. In March 2002 the club moved into a flat situated opposite the original one, again on the ground floor of entrance “B”. That flat was located diagonally below both the flat of the Milevi sisters and that of the Evtimovi family. 13. According to four affidavits, the first of which was drawn up by Mr Hristo Evtimov and Ms Lilia Evtimova, and the rest by witnesses asked by the applicants to describe the situation, the club had forty ‑ six computers and two vending machines. It was open twenty ‑ four hours a day, seven days a week. The services it offered were chiefly computer gaming and Internet surfing. The club ’ s clients, mostly teenagers and young adults, often gathered in front of the building, chatting loudly and shouting, drinking alcohol, and smoking cigarettes and allegedly even narcotic drugs. They would often break the door of the building and enter the passageway, where they drank and smoked. The noise and the vibrations generated by them, both while inside the club and while entering or leaving the premises, could be clearly heard and felt in the flats of the Milevi sisters and of the Evtimovi family. 14. The Milevi sisters produced a certificate in which their general practitioner attested that from the middle of 2002 both of them started complaining of constant headaches, insomnia, irritability and anxiety, had high blood pressure, and had lost weight. In 2003 Ms Meri Mileva developed a sinus tachycardia. As a result of her increasingly frequent cardiac crises, she had to be hospitalised. According to the doctor, those health problems were due to the constant disturbance and noise caused by the club ’ s operations, and gradually subsided after the Milevi sisters went to live elsewhere in June 2004. 1. The residents ’ resolution to ban the club ’ s operations 15. On 28 June 2002 the general meeting of the block ’ s occupants resolved, by twelve votes and three abstentions, that the club ’ s operations should be stopped, and that no commercial activities should be allowed in the building. It stated that the club ’ s operations caused serious disturbances to all inhabitants. The club ’ s manager, who was present at the meeting, said that he disagreed and would do everything necessary to keep the club open. 2. The applicants ’ complaints to the police 16. Having earlier made numerous complaints by telephone, the applicants made written complaints to the police on 28 May, 13 and 20 June, and 19 and 20 November 2002. They submitted that those complaints had prompted only a cursory inspection of the club, which had produced no tangible results. 17. On 21 February 2003 the head of the local police station told the applicants that when asked to do so, the club ’ s manager had been able to produce all necessary permits, and that no breaches of public order had been found. The manager had been warned not to allow breaches of public order and had undertaken to inform the police of any disturbances. The head of the local station further said that the police had no power to shut down commercial premises. On 26 February 2003 the applicants protested against the passiveness of the police. 18. On 8 November 2004 the club ’ s manager called at the Evtimovi ’ s flat and allegedly threatened Mr Evtimov with violence if he persisted in his efforts to have the club ’ s operations stopped. The same day Mr Evtimov complained to the police, but apparently nothing ensued. 3. The applicants ’ complaints to the municipal authorities 19. On 27 May 2002 the applicants asked the borough mayor to order the cessation of the club ’ s operations. The same day the municipal services wrote to the police, informing them that the club was operating without the requisite licence. 20. On 7 June 2002 municipal inspectors visited the premises and noted that the club was operating unlawfully. On 24 June 2002 the municipality sent the file to the Sofia Regional Building Control Directorate. 21. However, on 26 June 2002 the chief architect of the municipality approved a plan for the conversion of the flat into commercial premises. On 1 July 2002 Mr Hristo Evtimov, acting in his capacity as chairman of the condominium, contested that decision before the Sofia Regional Building Control Directorate. On 23 August 2002 the Directorate, while noting that section 38 of the 2001 Territorial Organisation Act (see paragraphs 50 and 51 below) had not been complied with, said that that did not constitute grounds for invalidating the legalisation of the conversion under section 156(2) of the Act (see paragraph 52 below) and upheld the mayor ’ s decision. 22. Despite the applicants ’ repeated complaints to the municipal authorities, they took no further action. 23. On 28 November 2003 the chief architect of the municipality granted the club an operating permit, on the condition that its clients entered through the back door and not through the passageway used by the building ’ s residents. On 7 July 2004 the applicants challenged that decision before the Sofia Regional Building Control Directorate, arguing that the condition imposed by the mayor was impossible to comply with, as the only access to the back door was through the passageway. They requested that the permit be set aside and that the club be closed. It does not seem that the permit was annulled. 4. The building control authorities ’ prohibition on use of the flat and the ensuing judicial review proceedings 24. On 28 May 2002 the applicants requested the Sofia Regional Building Control Directorate to prohibit the use of the flat. 25. In a decision of 2 July 2002 the Directorate prohibited the use of the flat. It also ordered that its electricity and water supplies be cut off. It noted that the flat had been converted into a computer club without a building permit and that the club had started operating without a use permit, in breach of section 178(1) of the 2001 Territorial Organisation Act (see paragraph 53 below). It also observed, referring to section 217(1)(3) of the Act ( ibid. ), that any application for judicial review of the decision would not automatically suspend its enforcement. 26. The flat ’ s owner appealed to the National Building Control Directorate. On 4 November 2002 the Directorate rejected the appeal as inadmissible, noting that the impugned decision was not subject to an appeal to a higher authority but only to judicial review. On 7 November 2002 the National Directorate instructed the Regional Directorate to enforce the decision. 27. On 15 October 2002 the flat ’ s owner sought judicial review. She asked the court to suspend enforcement as an interim measure. 28. The same day the Sofia City Court ( Софийски градски съд ) granted her request. It noted that by law the decision was enforceable immediately, even if it had been challenged by way of judicial review. However, the courts could in their discretion suspend enforcement and it was justified in doing so because the file did not contain any indications that the conditions envisaged by section 16 of the 1979 Administrative Procedure Act, which governed the enforcement of non ‑ final administrative decisions (see paragraph 70 below), were fulfilled. In addition, the court allowed the condominium and the company operating the computer club to intervene in the proceedings, and fixed a hearing on the merits of the case for 25 February 2003. 29. On 27 February 2003 the applicants appealed to the Supreme Administrative Court ( Върховен административен съд ). On 19 June 2003 it reversed the lower court ’ s ruling, saying that the courts could suspend the enforcement of the decision only if it would engender irreparable harm or frustrate the object of the proceedings. However, the flat ’ s owner had not shown that these prerequisites were satisfied, nor had the lower court made such a finding. It had merely referred to section 16 of the 1979 Administrative Procedure Act, which was not applicable. 30. The applicants subsequently asked the Sofia Regional Building Control Directorate to enforce the decision. It seems that they did not receive a reply. 31. On 10 July 2003 the Sofia City Court, acting pursuant to a fresh request by the flat ’ s owner, again suspended the enforcement of the decision. It held that its immediate enforcement would impede the proper course of the main proceedings and result in damage for the club ’ s owner. There was no indication that the life or health of others were at risk, that with time enforcement would grow more difficult or be blocked, or that important State interests were at stake. 32. On an appeal by the applicants, on 8 October 2003 the Supreme Administrative Court reversed that order. It found that in principle administrative decisions should be immediately enforced only if, inter alia, that was necessary to safeguard the life or health of others, or to protect important State or public interests. However, where the law specifically provided for the immediate enforcement of certain decisions, there was a presumption that such a need existed. Therefore, it was possible to suspend the enforcement of a decision which was immediately enforceable by operation of law only if that would put at risk an opposing interest of the same intensity as the one sought to be protected, which was not the case. Any pecuniary damage sustained by the club ’ s owner was not of such a nature, as it could be fully compensated for by the payment of money. 33. After that the applicants made numerous requests for the decision to be enforced. However, they were informed that on 28 November 2003 the local authorities had permitted the use of the club (see paragraph 23 above), and that therefore the decision could not be enforced. The applicants complained about that situation to the prosecuting authorities, but to no avail. 34. In the meantime, the Sofia City Court tried to hold a first hearing on the merits of the case on 25 February 2003. However, the flat ’ s owner had not been properly summoned and the court adjourned the proceedings. It fixed the next hearing for 26 March 2004. On 11 December 2003 the applicants complained about the delay to the Supreme Administrative Court. On 5 February 2004 that court, noting that according to section 219 of the 2001 Territorial Organisation Act (see paragraph 53 in fine below), the proceedings had to follow a fast ‑ track procedure, instructed the Sofia City Court to bring forward the date of its hearing. The Sofia City Court accordingly rescheduled the hearing for 9 March 2004. However, as the flat ’ s owner had again not been properly summoned, the hearing was adjourned. 35. On 14 April 2004 the applicants made a new complaint about delays. On 17 May 2004 the Supreme Administrative Court rejected it, finding that the Sofia City Court had made all possible efforts to allow the proper progress of the proceedings and that, in view of that court ’ s busy calendar, the listing of a hearing for 6 July 2004 did not amount to an unjustified delay. 36. At the hearing on 6 July 2004 the Sofia City Court started to examine the merits of the case. At the next hearing, held on 21 September 2004, the flat ’ s owner declared that she wished to withdraw her application for judicial review, and the court accordingly discontinued the proceedings. 5. Other developments 37. On 8 November 2004 the Sofia Regional Building Control Directorate found that the computer club was operating in breach of the condition laid down in the permit of 28 November 2003 (see paragraph 23 above), as its clients were entering through the passageway used by the building ’ s residents and not through a separate entrance. 38. On 16 November 2004 the flat ’ s owner informed the authorities that the computer club had ceased its operations. On 25 November 2004 the Sofia Regional Building Control Directorate, having found after an inspection on 19 November 2004 that the vending machines and two computers had still not been taken out of the club, again prohibited its use and ordered that its electricity and water supplies be cut off. 39. Some time after that the flat was rented by another company, which apparently used it as an office until January 2008. 40. In the meantime, on 1 September 2003, the Milevi sisters asked the Sofia City Court to exempt them from paying court fees for a tort claim which they intended to bring against the persons operating the club. On 12 September 2003 the court ’ s president refused to examine the request, saying that it could be made only if a claim had already been brought, or if it had been lodged concomitantly with the statement of claim. That ruling was later upheld by the Sofia Court of Appeal and the Supreme Court of Cassation. It seems that the Milevi sisters did not bring a claim against the persons operating the club. C. The flat converted into an electronic games club 41. Having obtained a building permit on 11 May 2002, in August 2003 the owner of the flat occupied by the computer club until March 2002 (see paragraph 12 above) started transforming it into an electronic games club. The works involved pulling down internal walls, installation of high ‑ voltage cables and changing the flat ’ s windows. 42. On 29 August 2003 the Milevi sisters complained about that to the Sofia Regional Building Control Directorate, saying that no assent had been sought from them under section 38 of the 2001 Territorial Organisation Act (see paragraphs 50 and 51 below). On 29 September 2003 the Directorate replied that the works were lawful as they had been carried out under a permit. 43. The Milevi sisters then complained to the National Building Control Directorate. On 2 December 2003 it instructed the Regional Directorate to check the lawfulness of the works. Apparently nothing ensued. 44. In the meantime, on 13 October 2003, the Milevi sisters contested the building permit before the Sofia Regional Building Control Directorate. On 26 November 2003 the Directorate rejected the challenge as being out of time. On an appeal by the Milevi sisters, on 5 April 2004 the Sofia City Court set that decision aside and instructed the Directorate to examine the challenge on the merits. The Directorate appealed against that ruling, but on 26 October 2004 the Supreme Administrative Court upheld it. 45. In the meantime, the Milevi sisters made numerous complaints about the conversion to both the building control authorities and the police, apparently to no avail. D. The flat converted into an office 46. In 2002 a company rented the flat adjacent to the flat of the Milevi sisters and started using it as an office. The Milevi sisters asserted that after that they could hear telephones ringing and conversations, loud voices, moving of furniture and banging of doors. 47. On 18 April 2002 the applicants complained to the municipality, stating that the company had not sought their assent for using the flat as an office, in breach of section 38(3) of the 2001 Territorial Organisation Act (see paragraph 50 below ). On 17 June 2002 municipal inspectors visited the building and noted that the flat was being used as an office. However, the owner was not present and the inspectors were not allowed access to the premises to make more detailed findings. They sent a summary of their findings to the Sofia Regional Building Control Directorate. 48. After repeated complaints by the Milevi sisters, on 15 November 2002 the Directorate instructed the municipality to gather more evidence that the flat was indeed being used as commercial premises entailing regular visits by outsiders. As a result, on 30 January 2003 the inspectors made a second visit. However, they were refused access to the flat and the police, who had been called in aid, did not show up. 49. Apparently the office continued operating undisturbed throughout that period. | This case concerned the noise and nuisance caused by the running of a computer club in the building in which the applicants lived. The applicants complained in particular about the authorities’ failure to do everything possible to stop the noise and nuisance. |
429 | Challenging the lawfulness of detention | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1962 in the Uzbek SSR of the Soviet Union. Since 1990 he has been living in St Petersburg, Russia. It appears that he did not acquire any nationality following the break-up of the USSR. A. Expulsion proceedings 6. On 19 July 2011 the police stopped the applicant for an identity check and discovered that he had no identity documents. On the same day a judge of the Sestroretsk District Court of St Petersburg found him guilty of an administrative offence under Article 18.8 of the Code of Administrative Offences (breach of residence regulations in Russia), fined him 2,000 Russian roubles (RUB ) and ordered his expulsion from Russia. The court ruled that the applicant should be detained in the detention centre for aliens until his expulsion. 7. Officers of the Federal Migration Service ( FMS ) interviewed and fingerprinted the applicant, who had no passport or other identity documents. He told them that he had been born in Tashkent and, prior to his arrival in Russia, had had a registered place of residence in the Tashkent Region. 8. On 30 November 2011 the director of the detention centre for aliens asked the Embassy of Uzbekistan to issue travel documents ( return certificates ) to thirteen individuals, including the applicant, who were described as being Uzbek nationals. No reply was received. 9. Further similar requests sent on 10 February, 29 March, 31 July and 11 November 2012 did not elicit any reply from the Embassy of Uzbekistan either. 10. On 7 June 2012 counsel for the applicant sent an inquiry to the Embassy of Uzbekistan in Russia, seeking to find out whether or not the applicant had Uzbek nationality and whether he could be removed to Uzbekistan. No reply was received. 11. On the same day counsel asked the FMS to inform him what measures had been taken with a view to expelling the applicant from Russia, whether or not his identity had been established and why the applicant had already spent more than eleven months in detention. In reply, the FMS refused to give any information, citing the law on the protection of personal data. 12. On 14 November 2012 counsel applied to the Sestroretskiy District Court for an order discontinuing the enforcement of the expulsion order of 19 July 2011. He pointed out that the enforcement was impossible since the Uzbek authorities would not accept the applicant, who was not a national of that State. 13. On 10 December 2012 a judge of the Sestroretskiy District Court rejected the application, without hearing the parties or the applicant. According to the judge, a failure to take measures with a view to expelling the applicant was not a ground for discontinuing the enforcement of the expulsion order. Counsel submitted an appeal, in which he complained in particular about the absence of a periodic judicial review of the applicant ’ s detention in breach of Article 5 § 4 of the Convention and about the State authorities ’ failure to show special diligence in the conduct of the expulsion proceedings, contrary to the requirements of Article 5 § 1 (f) of the Convention. On 14 March 2013 a judge of the St Petersburg City Court rejected the appeal in a summary fashion. 14. Counsel also attempted to challenge the applicant ’ s detention as unlawful. By decision of 26 November 2012, the Krasnoselskiy District Court of St Petersburg disallowed the complaint, finding that the decision of 19 July 2011 constituted a sufficient lawful basis for the ensuing detention. It noted in particular that the applicant would remain in custody “until his expulsion from Russia”. On 24 January 2013 the St Petersburg City Court upheld the District Court ’ s decision. 15. By letter of 5 February 2013, the consular department of the Embassy of Uzbekistan informed the FMS that the applicant was not a national of Uzbekistan and could not therefore be issued with a travel document. On 25 March 2013 the Ministry of Internal Affairs of Uzbekistan sent a further letter to the FMS, stating that the applicant was not an Uzbek national. 16. On 29 July 2013 the applicant was released on the basis of the expiry of the two-year time-limit for enforcement of the administrative-expulsion decision. B. Conditions of detention in the detention centre for aliens 17. The detention centre for aliens ( Центр для содержания иностранных граждан ) is located in Krasnoye Selo in St Petersburg and operated at the material time under the authority of the FMS. 18. The centre, an eight-storey building designed to hold 176 inmates, actually accommodated no fewer than 300 people at any one time and the number rose to 400 in the summertime and during special raids. 19. The applicant was initially held in cells 604 and 605. Each cell measured no more than ten square metres and housed five or six people. In the last ten months of his detention the applicant was held in cell 615, an eighteen-square-metre cell which he shared with four and occasionally up to seven other people. 20. There was no sink or access to drinking water from within the cells; there was one toilet and one shower per floor which were used by approximately forty inmates. 21. Up until March 2013 the applicant was allowed twenty to thirty minutes ’ outdoor exercise once every two or three weeks in a tiny yard. 22. The facility did not offer any meaningful activities: no television, radio, newspapers or magazines were available. | This case concerned the detention of a stateless person, whom the authorities initially took to be a national of Uzbekistan, with a view to his expulsion. The applicant complained in particular of the conditions of his two-year detention in the detention centre for aliens. He also submitted that his detention had been unlawful, both on account of its excessive length and the impossibility to enforce the order for his expulsion, and that he had been unable to obtain a judicial review of his detention. |
87 | Religious upbringing of children | 2. The applicant was born in 1973 and lives in F. He was represented by Mr L. Marsella, a lawyer practising in Rome, and Mr O. Nardi, a lawyer practising in Castelfidardo. 3. The Government were represented by their Agent, Mr L. D’Ascia, State Attorney. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In 2004 the applicant started a relationship with S.G. A child, E., was born from that relationship on 15 September 2006. The applicant and S.G. cohabitated out of wedlock. 6. The applicant and S.G. broke up in 2008. 7. In 2009, the applicant started to attend meetings of the Jehovah’s Witnesses at the F. Kingdom Hall. In July 2011, he was baptised and became a member of that religion. At that time, the applicant used to bring E. with him to the services, two or three times per month. 8. In 2012 the applicant married E.B., who was also a Jehovah’s Witness and the mother of a child, S. A child was born of their marriage. 9. In September 2013 S.G. commenced non contentious proceedings (see § 20 below) before the Livorno District Court, following disagreements between her and the applicant regarding E.’s custody and visiting arrangements. S.G. argued that the applicant, without S.G.’s agreement, took E. to Jehovah’s Witness religious services, prevented the daughter from attending ballet classes and took her along to distribute religious magazines in the street. The applicant emphasised that “E. did not grow up in a Roman Catholic environment, she did not receive any Catholic education, nor did she receive any kind of example or teaching from her mother, who has herself never been a practising Catholic”. S.G. confirmed that their approach had been confined to allowing the girl to attend a private Roman Catholic kindergarten, attend other children’s birthday parties and Carnival parties and ballet school, as well as attending catechism classes with a view to any future first communion. 10. On 3 February 2014 E. was heard by the District Court. Before the court, she voiced discomfort about her father bringing her to the Kingdom Hall on Saturdays and expressed a wish to spend more time playing with him. At the same time, she affirmed that she was perfectly aware of the fact that S.G. did not agree with the applicant taking her to the Kingdom Hall, and that she felt irritated and disturbed by her mother’s comments on the applicant’s religious activities. She also said that that she has been to Mass twice (once for Christmas and once to check the dates for starting catechism classes). 11. On 11 March 2014, the Livorno District Court settled all matters pending between the applicant and S.G. apart from the religion issue. In particular, the applicant and S.G. were granted joint custody of E., and they agreed that the latter should reside at S.G.’s home and that the applicant would spend at least 12 days per month with the daughter. The trial court invited the social services to assess the influence which the religious activities of both parties were having on E. from the psychological and behavioural points of view. 12. At a hearing of 27 May 2014, the applicant finally agreed that as of 7 June 2014 the girl could participate in the ballet show. 13. On 22 July 2014 the applicant also agreed that E. could in future take the “sacraments” (first communion) in the Roman Catholic Church and requested that she also attend the Kingdom Hall. S.G. requested that the latter be ruled out. In view of the social services’ inertia, the Livorno District Court appointed an expert, P.C., to evaluate the influence of E.’s parents’ religious activities on her behaviour. 14. P.C. submitted her technical expert report on 30 December 2014. She concluded that it was not detrimental to E. to know that the parents had different religious beliefs. However, P.C. pointed out that the means which the applicant had been employing, such as concealing from S.G., and asking E. also to conceal, her attendance at the meetings in the Kingdom Hall, were harmful. P.C. added that forcing E. to actively participate in specific religious activities and to change her habits, without an agreement with S.G., was detrimental. 15. P.C. concluded that it would have been appropriate for both parents to refrain from actively involving E. in religious activities and to respect E.’s choices not to be actively involved in such activities. However, given the social context in which the child was being raised (her school activities and her participation in birthday or Carnival parties) it would have been prejudicial to her if she had not been allowed to take part in Catholic-oriented activities. P.C. referred to the fact that E. had been baptised in the Roman Catholic Church and that all her friends belonged to that religion. 16. On 20 January 2015, following the expert’s conclusions, the Livorno District Court issued a decision ordering the applicant to refrain from involving his daughter E. in his religion (“ inibisce allo stato al ricorrente il coinvolgimento della figlia nella propria scelta religiosa” ). The District Court stated that it would not have been in the child’s interests to be involved in a religion other than Roman Catholicism (she was used to the Catholic Church by reason of the familial and social context in which she had been raised and was living), and that E.’s situation was distressing because of her attendance at the Kingdom Hall, as shown by her personal statements. The District Court stated in the reasoning of the above order what follows: “ the court-appointed expert’s report and the examination of the child lead this court to consider that the child’s interests take precedence over the practice of a religion differing from Catholicism, in which both parents had brought her up since her birth ... (the applicant having started attending the Kingdom Hall after his separation); considering that, indeed, the child’s young age (eight years old), lacking mature discernment, prevents her from autonomously choosing a religion, and that, therefore, a religion that differs from the one adopted by the family and the social environment in which she is growing up would appear detrimental to her, by virtue of the principle of continuity governing the child’s religious education, in order to shield her from disturbance and confusion at a time when she is seeking and developing her own identity (see, in this regard, Court of Cassation rulings nos. 24683/13 and 9546/12); considering that in the present case a distressing situation emerged caused by the child’s father’s religion and by her attendance at the Kingdom Hall, the child having been heard by both the court and the afore-mentioned court-appointed expert, whose report highlighted that practising two different religions may cause confusion and tension for the child in the family context in which she lives; considering that, as concerns the Catholic religion practised by the child, there is no dispute between the parties, in the light of the declarations made by Mr T.C. at the hearing dated 22 July 2014”. 17. On 17 July 2015 the applicant appealed against that judgment. On 23 February 2016 the Florence Court of Appeal dismissed the applicant’s appeal. Nevertheless, it clarified the operative part of the first-instance judgment and interpreted it as meaning that the applicant must refrain from actively involving E. in his religious activities but not from communicating his beliefs to her. 18. The applicant appealed to the Court of Cassation on 4 May 2016. On 29 May 2017 he further filed a motion with the latter requesting that his appeal be decided on an expedited basis in view of the detrimental effects which the lower courts’ judgments had had on his relationship with his daughter. 19. The Court of Cassation ultimately dismissed the applicant’s claims on 24 May 2018. | This case concerned a dispute between the applicant and the mother of his daughter from a previous relationship over their child’s religious upbringing. The applicant had become a Jehovah’s Witness after the split in the relationship. Following proceedings brought by the mother in the courts, the applicant was ordered to refrain from actively involving his daughter in his religion. |
65 | Action for disavowal of paternity | I. THE PARTICULAR CIRCUMSTANCES OF THE CASE 8. The applicant, Mr. Per Krohn Rasmussen, is a Danish citizen, born in 1945. He currently works as a clerk and resides in Nyborg. He was married in 1966. During the marriage, two children were born, a boy in 1966 and a girl, Pernille, on 20 January 1971. The applicant had grounds, even before the latter's birth, for assuming that another man might be the father; however, in order to save the marriage, he took no steps to have paternity determined. 9. In June 1973, Mr. Rasmussen and his wife applied for a separation (separation ved bevilling), which they obtained on 9 August. In accordance with their agreement, Mrs. Rasmussen retained custody of the children and the competent authority issued a decision to the effect that Mr. Rasmussen should pay maintenance for them from 1 September 1973. He in fact did so from that date until 1 June 1975. 10. In March 1975, the applicant, who had previously still nurtured hopes of preserving the marriage, took some steps to institute proceedings to challenge his paternity of Pernille. To this end, he applied for legal aid. However, he did not pursue the matter since, on 28 April 1975, he and his wife signed an agreement whereby she waived all claims for maintenance for the child and he undertook to refrain from bringing any such proceedings. 11. In June 1975, the applicant and his wife applied for a divorce (skilmisse ved bevilling), which was granted on 16 July. On this occasion, he reaffirmed before the authorities that the mother should have sole custody of the children and was once more ordered to pay maintenance for them. He did not raise any objection. 12. On 16 January 1976, four days before Pernille's fifth birthday, the applicant's former wife wrote to him asserting that she was not bound by the agreement of 28 April 1975. She later lodged with the public authorities a renewed petition for maintenance, which was granted by order effective from 1 March 1976. Since then, Mr. Rasmussen has regularly paid the maintenance. 13. On 27 January 1976, Mr. Rasmussen sought leave from the Eastern Court of Appeal (Østre Landsret) to institute proceedings out of time to determine the paternity of the girl (see paragraph 19 below). In accordance with the normal procedure, the police, at the Court of Appeal's request, interviewed Mr. Rasmussen and his former wife in March 1976 and recorded their statements in a report. 14. The Court of Appeal refused the application on 12 April 1976, for the reason that the statutory conditions for granting leave at that time were not satisfied (see paragraph 19 below). The applicant did not appeal against the decision within the statutory time-limit. However, on 27 July 1976, he petitioned the Ministry of Justice for leave to appeal out of time to the Supreme Court (Højesteret), but this was refused on 3 September 1976. 15. On 20 November 1978, Mr. Rasmussen applied again to the Court of Appeal for leave to institute paternity proceedings. His former wife opposed the application, on the ground that such proceedings would have a detrimental effect on the child. By a decision of 11 December 1978, the Court of Appeal refused the application for the reason that the applicant had not brought the action contesting paternity within the time-limits provided for in section 5(2) of the 1960 Act on the Legal Status of Children ("the 1960 Act" - Lov nr. 200 af 18.5.1960 om børns retsstilling; see paragraph 19 below) and that there was no cause to grant him any exemption since the conditions laid down in section 5(3) were not met. A similar decision was given by the Supreme Court on 12 January 1979. | This case concerned the fact that the applicant was prevented from bringing proceedings to challenge his paternity of a child, following his separation from his wife, because of a 1960 Act that placed a time-limit on a father’s right to challenge paternity of a child born in wedlock but permitted the mother to challenge the paternity of a child at any time. |
1,083 | Dismissal | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1961 and lives in Vilnius. 10. On 1 November 1997 the applicant was recruited by the embassy of the Republic of Poland in Vilnius (“the embassy ” or “the Polish embassy” ), to the post of secretary and switchboard operator ( korespondentė-telefonistė ). 11. The contract of employment provided in Article 1 that the applicant ’ s responsibilities and tasks were limited by the scope of her (secretarial and switchboard-related) duties. If the applicant agreed, she could be assigned other tasks not covered by this agreement. In such circumstances, a new contract would have to be signed. According to Article 6 of the contract, the applicant had to comply with Lithuanian laws, was liable for any damage she might cause to her employer and could be subjected to disciplinary action for failing to fulfil her professional obligations or to observe safety regulations at work. In return for extra work, the applicant could receive remuneration, bonuses, discretionary benefits or compensatory leave. Article 8 provided that any disputes arising under the contract were to be settled in accordance with the laws of Lithuania : the Constitution, the Employment Contracts Act, the Labour Remuneration Act, the Leave Act and the Employees ’ Social Security Act. Lastly, the contract could be terminated in accordance with sections 26, 27, 29 and 30 of the Employment Contracts Act ( enacted on 28 November 1991 with a number of subsequent amendments ). 12. The applicant ’ s duties – as set out in a schedule to her employment contract – included the following: “1. Operating the switchboard of the embassy and Consulate- General and recording international telephone conversations. 2. Typing texts in Lithuanian and Polish. 3. Operating the fax machine. 4. Providing information in Polish, Lithuanian and Russian. 5. Helping to organise small receptions and cocktail parties. 6. Photocopying documents. 7. Performing other work at the request of the head of the mission. ” 13. In 1999 the applicant lodged a complaint before the Equal Opportunities Ombudsman, alleging sexual harassment by one of her male colleagues, a member of the diplomatic staff of the embassy. Following an inquiry, the Ombudsman reported that the applicant was indeed a victim of sexual harassment. The applicant alleged that she had fallen ill because of the tension she was experiencing at work. 14. The applicant was on sick leave from 1 September to 29 October 1999. On 29 October 1999 she went to work but was not authorised to enter the embassy building. On 22 November 1999 the applicant was again refused entry when she arrived for work. The same thing occurred again on 23 November 1999. 15. On 26 November 1999 the applicant wrote a letter to the ambassador, informing her about the incidents. On 2 December 1999 the applicant was notified that she had been dismissed on the ground of her failure to come to work from 22 to 29 November 1999. 16. The applicant brought a civil claim, requesting compensation for unlawful dismissal. She did not claim reinstatement. The Polish Minister for Foreign Affairs issued a note verbale claiming immunity from the jurisdiction of the Lithuanian courts. On 2 August 2000 the Vilnius Regional Court discontinued the proceedings for lack of jurisdiction. On 14 September 2000 the Court of Appeal upheld the decision. The final decision was taken by the Supreme Court on 25 June 2001. 17. The Supreme Court established, inter alia, that the 1993 agreement on legal assistance between Lithuania and Poland had not resolved the question of State immunity, that Lithuania had no laws on the question, and that the domestic case-law in this area was only just being developed. The Supreme Court therefore considered it appropriate to decide the case in the light of the general principles of international law, in particular the 1972 European Convention on State Immunity. 18. The Supreme Court observed that Article 479 of the Lithuanian Code of Civil Procedure, as then in force, established the principle of absolute State immunity, but that that provision had become inapplicable in practice. It noted that the prevailing international practice was to adopt a restrictive interpretation of State immunity, granting such immunity only for acts of sovereign authority ( acta jure imperii ), as opposed to acts of a commercial or private-law nature ( acta jure gestionis ). The Supreme Court further held, in particular, as follows : “... in the Supreme Court ’ s view, it is possible to apply the principle of restrictive immunity to the Republic of Poland. Having regard to the fact that Lithuania recognises that foreign nationals may bring actions in respect of private-law disputes, it must be accepted that, in order to defend their rights, individuals or entities from the Republic of Lithuania are entitled to take proceedings against foreign States. It is thus necessary to establish in the present case whether the relationship between the claimant and the Republic of Poland was one of a public-law nature ( acta jure imperii ) or a private-law nature ( acta jure gestionis ). Besides that, other criteria are applicable and should allow [the court] to determine whether the State concerned enjoys immunity ... in employment disputes. These criteria include, in particular, the nature of the workplace, the status of the employee, the territorial connection between the country of employment and the country of the court, and the nature of the claim. Regard being had to the plea of immunity by the Ministry of Foreign Affairs of the Republic of Poland ... it is possible to conclude that there was a public -service relationship governed by public law ( acta jure imperii ) between the claimant and the embassy of the Republic of Poland, and that the Republic of Poland may lay claim to immunity from the jurisdiction of foreign courts. This conclusion is supported by other criteria. With regard to the nature of the workplace, it should be noted that the main function of the embassy ... is directly related to the exercise of sovereignty of the Republic of Poland. With respect to the status of [the] employee ... while the parties had entered into a contract of employment, the very fact that the employee was a switchboard operator implies that the parties developed a relationship akin to that which characterises a public- service function ... The court was unable to obtain any information allowing it to establish the scope of the claimant ’ s actual duties. Thus, merely from the title of her position, it can be concluded that the duties entrusted to her facilitated, to a certain degree, the exercise by the Republic of Poland of its sovereign functions. ... It must also be established whether the country of employment is the country of the court, since a court in the country of employment is best placed to resolve a dispute that has arisen in that country. In this respect, it is to be recognised that the exercise of the sovereign powers of the forum State is severely restricted with regard to an embassy, even though it is not a foreign territory as such ( section 11 ( 2 ) of the Status of Diplomatic Missions of Foreign States Act). As to the nature of the claim ... it should be noted that a claim for recognition of unlawful dismissal and for compensation cannot be regarded as violating the sovereignty of [another] State, since such a claim pertains solely to the economic aspect of the impugned legal relationship[;] there is no claim for reinstatement ... However, by reason of this criterion alone, it cannot be unconditionally asserted that the Republic of Poland cannot invoke State immunity in this case. ... [The claimant ] has submitted no [other] evidence to confirm the inability for the Republic of Poland to enjoy State immunity (Article 58 of the Code of Civil Procedure). Against the background of the above criteria, [in view of] the aspiration of Lithuania and Poland to maintain good bilateral relations ... and respect the principle of sovereign equality between States ..., the chamber concludes that the courts [below] properly decided that they had no jurisdiction to entertain this case. ... The Supreme Court notes that both the Regional Court of Vilnius and the Court of Appeal based the decision to apply jurisdictional immunity to the Republic of Poland merely on the fact that the latter had refused to appear in the proceedings. Those courts did not examine the question of the application of restrictive jurisdictional immunity in the light of the criteria developed by the Supreme Court. However, this breach of procedural rules does not constitute, in the Supreme Court ’ s view, a ground for quashing the decisions of the courts below. ... The application of jurisdictional immunity by the courts of the Republic of Lithuania does not prevent the claimant from taking proceedings before the Polish courts .” | The applicant, a Lithuanian national, worked as a secretary and switchboard operator with the Polish Embassy in Vilnius. In 1999 she complained to the Lithuanian Equal Opportunities Ombudsperson of sexual harassment by a male colleague. Although her complaint was upheld, the Embassy dismissed her on the grounds of unauthorised absence from work. The Lithuanian courts declined jurisdiction to try an action for unfair dismissal brought by the applicant after finding that her employers enjoyed State immunity from jurisdiction. The Lithuanian Supreme Court found that the applicant had exercised a public-service function during her employment at the Embassy and that it was apparent from her job title that her duties had facilitated the exercise by Poland of its sovereign functions, so justifying the application of the State-immunity rule. |
289 | (Suspected) terrorists | 2. The applicant was born in 1978 and was detained in Amasya E-type Prison at the time of lodging the application with the Court. He was represented by Mr S. Çelebi and Mrs K. Yılmaz, lawyers practising in Diyarbakır. 3. The Government were represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 30 October 1995 F.K., who was accused of membership of a terrorist organisation, made statements to the police, submitting, inter alia, that an organisation member with the code name “Avarej”, a “warrior” from Diyarbakır, had taken part in an attack carried out on 24 September 1995 in Mazgirt. 6. On 12 May 1996 Y.A., who was accused of membership of a terrorist organisation, made statements to the police in the absence of a lawyer, submitting, inter alia, that an organisation member with the code name “Avareş” had taken part in armed activities on 22 September 1995 in Mazgirt. He further stated that “Avareş” was a warrior under the command of another PKK member with the code name “Navdar” and that he had been carrying a Kalashnikov rifle and wearing metal-rimmed glasses. Moreover, “Avareş” was twenty-five years old, 1.75 metres tall, slim and dark-skinned with black wavy hair. 7. On 17 November 1999 S.Y., who was accused of membership of a terrorist organisation, made statements to the gendarmerie submitting, inter alia, that an organisation member with the code name “Avareş” had taken part in an armed conflict between PKK members and the security forces around May or June 1997. According to her police statements dated 21 November 1999, “Avareş” was a “warrior” from Diyarbakır. 8. On 30 November 1999 A.T., who was accused of membership of a terrorist organisation, made statements to the police in the absence of a lawyer submitting, inter alia, that an organisation member whom he had known by the code name “Avreş” had taken part in an armed clash with the security forces in autumn 1997 in Mazgirt. According to page fifteen of A.T.’s police statements, “Avreş” was from Ergani and had been arrested, whereas according to page fifty-three of the document, which contained details of the armed clash, “Avreş” was from Kulp. In describing the physical appearance of “Avreş”, A.T. stated that he was short and dark-skinned with lines on his face. 9. On 5 November 2003 the Mazgirt Magistrate’s Court ordered the detention in absentia of thirteen individuals, including the applicant, for their alleged involvement in an armed attack on a police checkpoint on 3 September 1997, which had resulted in the death of two privates and another private being injured. 10. On 7 December 2009 the applicant went to the public prosecutor’s office and voluntarily handed himself in, submitting that he had been a member of the PKK for eleven years, from 1994 to 2005. 11. On 10 December 2009 he made statements to the Diyarbakır Anti ‑ Terrorist Branch in the presence of his lawyer in respect of the accusations levelled against him, namely the offences of membership of the PKK/KONGRA-GEL terrorist organisation and carrying out armed activities for the rural cadres of the organisation. In his statements, he described how he had become involved in the terrorist organisation and stated the code names given to him, the places he had been to, the activities he had participated in, the training he had received, the activities of the organisation, the names of those who had engaged in them and the names of other organisation members he knew. In particular, he submitted that he had first been given the code name “Kendal”, but that it had later (after two months) been changed to “Avareş-Tekoşin” as there had been another person with the code name “Kendal”. When the police officers asked him whether he was the person referred to as “Avareş” in the various statements given by other PKK members at different times, the applicant provided detailed explanations about two other members with the code name “Avareş”, at the same time pointing out that his code name had been “Avareş ‑ Tekoşin” and not just “Avareş”. He also identified certain other organisation members from photographs. At the end of his statements, the applicant expressed his regret for joining the PKK and asked to benefit from Article 221 of the Criminal Code entitled “Active repentance”, which provided for a reduction in the sentence he could be given in exchange for information. 12. On 10 December 2009 the applicant made statements to the public prosecutor in the presence of his lawyer and essentially confirmed the statements he had made to the police. He once again stressed that his code name had been “Avareş ‑ Tekoşin”. 13. On the same day, when the applicant was questioned by the investigating judge in the presence of his lawyer, he essentially reiterated his earlier statements. 14. On 5 January 2010 the Malatya public prosecutor filed a bill of indictment against the applicant with the Second Division of the Erzurum Assize Court, which had special jurisdiction to hear cases relating to the aggravated crimes specified in Article 250 § 1 of the Code of Criminal Procedure, as in force at the material time (hereinafter “the Malatya Specially Authorised Assize Court” or “the trial court”), charging him under Article 125 of the former Criminal Code with carrying out activities aimed at bringing about the secession of part of the national territory. The applicant was accused of having taken part in three specific armed activities: (i) an armed attack on a police checkpoint on 3 September 1997, which had resulted in the death of two privates and another private being injured (“incident 1”, see paragraph 9 above); (ii) an armed assault on two police officers, abduction of a prison guard and an armed attack on a block of flats allocated to police officers with a rocket launcher on 22 September 1995 (“incident 2”, see paragraph 6 above); and (iii) an armed conflict between PKK members and the armed forces on 30 May 1997 resulting in the injury of two gendarmes (“incident 3”, see paragraph 7 above). 15. On 13 January 2010 the trial court held a preparatory hearing in the absence of the parties and ordered copies of statements S.Y. and A.T. had made to the public prosecutor and the investigating judge in the context of other sets of criminal proceedings. 16. At the first hearing, held on 18 February 2010, the applicant gave evidence in person and reiterated his previous statements but submitted that he had not taken part in any armed activities. The public prosecutor asked the trial court to record the applicant’s physical appearance. It was noted that he was around 1.60 cm tall, slim and dark-skinned with black hair and lines on both sides of his face due to his being slim. The applicant’s lawyer pointed out that the applicant’s code name had been “Avareş-Tekoşin”, that there had been approximately six or seven organisation members in Tunceli with the code name “Avareş” and that the descriptions given of the perpetrators of the armed activities were different from that of the applicant. The applicant’s lawyer also requested that the trial court examine those who had testified that the applicant had taken part in the armed activities and order an in-person confrontation between them and the applicant. The public prosecutor asked the trial court to reject the request for a confrontation, claiming that it would not contribute to the case file given the amount of time that had passed since the armed activities. At the end of the hearing, the trial court decided to deal with that request upon receiving copies of the statements made by S.Y. and A.T. 17. At a hearing held on 1 April 2010 the applicant’s lawyer repeated his request for a confrontation to be held between the applicant and S.Y., A.T., Y.A. and F.K. The trial court ordered that photographs be taken of the applicant and stated that a confrontation would take place once the addresses of the individuals had been ascertained. 18. On 13 and 16 April 2010 the trial court sent four different letters of request to the courts of the witnesses’ places of residence, asking them to (i) obtain statements from the witnesses; (ii) show them photographs of the applicant and ask them to confirm whether he had been the organisation member with the code name “Avareş-Tekoşin-Kendal”, and (iii) inform the applicant’s lawyer of the hearings during which the witnesses would give evidence. The applicant was in pre-trial detention at the time and remained there until his conviction. 19. On 28 April 2010 the Elbistan Assize Court heard evidence from Y.A. in the absence of the applicant’s lawyer. Y.A. submitted that he had neither known the applicant nor about the three incidents mentioned in the indictment and whether the applicant had participated in them. Likewise, he was unable to identify the applicant from the seven photographs shown to him. When the court reminded him of the statements he had made on 12 May 1996, Y.A. stated that he did remember a person with the code name “Avareş” “as mentioned in his police statements”. Nevertheless, he was still unable to identify the applicant from the photographs, arguing that “fifteen years” had passed since he had given those statements to the police. At the end of the hearing, the Elbistan Assize Court decided to send a summons to the applicant’s lawyer and to secure Y.A.’s presence at the next hearing on 26 May 2010. Although the applicant’s lawyer attended the hearing in question, Y.A. was not present as, according to a one-page letter he had sent to the court, he was unwell. 20. On 6 May 2010 a third hearing was held before the trial court, during which the applicant’s lawyer submitted that, contrary to the testimony of S.Y. and A.T., the applicant’s code name had not been “Avareş” and he was not from Ergani. 21. On 26 May 2010 the Ninth Division of the Istanbul Assize Court, which had special jurisdiction to hear cases relating to the aggravated crimes specified in Article 250 § 1 of the Code of Criminal Procedure, as in force at the material time, heard evidence from S.Y. in the absence of the applicant and his lawyer. S.Y. submitted that there had been two or three people with the code name “Avareş”, but that she had not known the applicant. It appears that on 30 April 2010 the court had sent a letter to the applicant’s lawyer, inviting him to attend the examination of S.Y. 22. On 27 May 2010 the Muş Assize Court heard evidence from A.T., after noting that the applicant’s lawyer had been duly notified of the hearing. A.T. stated that he had not known anyone with the code name “Avareş” or “Avareş-Tekoşin-Kendal” or the people in the photographs shown to him. 23. At a hearing held on 29 July 2010 the trial court noted that F.K.’s work address in Istanbul had been found. 24. At a hearing held on 10 August 2010 the Twelfth Division of the Istanbul Assize Court (hereinafter “the Istanbul Court”) noted that the summons sent to F.K.’s work address had been returned as he had not been at that address. 25. At a hearing held on 24 September 2010 the Istanbul Court noted that a letter had been sent to the Istanbul Security Directorate to secure F.K.’s presence, but that no answer had been received. As a result, the court decided to call F.K.’s mobile telephone to request his attendance at the hearing. According to a police report dated 6 October 2010, the police could not locate F.K. because the street name of his address was missing. 26. At a hearing held on 22 October 2010 the Istanbul Court noted that F.K. could not be reached by his mobile telephone and decided to return the letter of request to the trial court. 27. At a hearing held on 11 November 2010 the trial court decided to revoke its decision to hear F.K. because it had been impossible to locate him. 28. On 14 April 2011 the trial court found the applicant guilty as charged and sentenced him to life imprisonment. In convicting the applicant, the trial court relied, inter alia, on the evidence given by him and eleven other witnesses, including S.Y., A.T., Y.A. and F.K. In that connection, it held that the fact the applicant had been a “warrior” within the PKK had been established by his confessions and the statements given by the eleven other witnesses. 29. As regards the first incident, the trial court pointed out that the physical description given by A.T. of the perpetrator of the armed activities perfectly matched that of the applicant. In its view, it was noteworthy that the applicant had lines on his face, as indicated by A.T., since the likelihood of two persons having lines on their face was very small. 30. As regards the second incident, the trial court noted that although Y.A. had stated in 1995 that a person with the code name “Avareş” had taken part in it, he had not known where “Avareş” was from. However, F.K. had indicated in his statements in 1996 that the “Avareş” he had known who had taken part in that incident was from Diyarbakır. The trial court thus found it established that the “Avareş” who had taken part in the second incident was the applicant. 31. As regards the third incident, the trial court noted that S.Y. had testified in her statements in 1999 that a person with the code name “Avareş” had taken part in that incident who had been a warrior from Diyarbakır under the command of a person with the code name “Karker”. Noting that three other witnesses (including A.T.) had also stated that “Avareş” and “Karker” had been in the same group, the trial court concluded that the “Avareş” indicated in S.Y.’s statements was the applicant. 32. Moreover, the trial court went on to hold that the reason why A.T., S.Y. and Y.A. had stated that they could not recall their previous statements was because they had been trying to protect the PKK members or had had fear of reprisals from the PKK. 33. With regard to the applicant’s allegations regarding possible confusion with the code names, the trial court held that his initial code name had been “Kendal” and that it had been changed to “Avareş” as the former had already been used by another member of the organisation. In the trial court’s view, that was the usual practice of the PKK, aimed at preventing any confusion within the organisation. Therefore, even assuming that there had been more than one person using the code name “Avareş” within the PKK, the probability of there being another person (i) from Diyarbakır, (ii) active in the Dersim region, and (iii) with the codename “Avareş” was at odds with the above-mentioned practice of the organisation. Accordingly, and having regard to the applicant’s admission that he had been in Dersim at the time the incidents had taken place and the fact that the evidence given by the different members of the PKK arrested at different times and places had been consistent, the trial court rejected the applicant’s defence submissions. 34. In appeal submissions dated 2 June 2011, the applicant’s lawyer mainly criticised the trial court’s stance vis-à-vis the applicant, who had voluntarily handed himself in to the authorities, arguing that it had failed to consider that the applicant had joined the PKK at the age of sixteen, when he had been thoughtless. The lawyer also pointed out that the applicant’s submission that there had been three other persons from Diyarbakır with the code name “Avareş” within the PKK had been verified and that the trial court had failed to respond to his submission that his code name had been “Avareş ‑ Tekoşin” and not merely “Avareş”. In those submissions, the lawyer also stated: “... even though we asked for a confrontation with a view to uncovering the truth, the trial court sent letters of request to the relevant places for photographic identifications. None of the witnesses was able to identify the applicant, as could be understood by the replies given to the letters of request. Moreover, it was decided not to take statements from F.K. because they could not be taken. Although all these developments were in favour of the applicant, the trial court did not release [him]. Accordingly, the applicant was convicted and an unlawful judgment was handed down.” 35. On 5 April 2012 the Court of Cassation upheld the trial court’s judgment in a summary fashion. | This case concerned the applicant’s trial on terrorism-related charges, in particular the use of evidence that had been given in other jurisdictions in the absence of the applicant or his counsel following letters of request (talimat). The applicant complained that he had not had a fair trial as he had been prevented from confronting certain witnesses in person. |
304 | Prevention of terrorism | I. THE CIRCUMSTANCES OF THE CASE A. Schedule 7 5. Schedule 7 to the Terrorism Act 2000 (“TACT”) empowers police, immigration officers and designated customs officers to stop, examine and search passengers at ports, airports and international rail terminals. No prior authorisation is required for the use of Schedule 7 and the power to stop and question may be exercised without suspicion of involvement in terrorism. However, questioning must be for the purpose of determining whether the person appears to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism. If someone fails to co-operate he or she is deemed to have committed a criminal offence and could face up to three months in prison, a fine or both. B. The facts of the present case 6. The applicant, a French national, is ordinarily resident in the United Kingdom. Her husband, who is also a French national, is in custody in France in relation to terrorist offences. 7. On 4 January 2011, following a visit to her husband in France, the applicant and her three children returned to the United Kingdom on a flight from Paris. The flight landed at East Midlands Airport at approximately 8.05 p.m. 8. At the United Kingdom Borders ’ Agency (“UKBA”) desk the applicant and her children were stopped but she was not formally detained or arrested. She was told that she was not under arrest and that the police did not suspect her of being a terrorist, but that they needed to speak to her to establish if she might be “a person concerned in the commission, preparation or instigation of acts of terrorism”. She was therefore taken to an examination room with her youngest child. As the applicant had arranged for someone to meet her at the airport, her two older children were permitted to proceed to Arrivals. The applicant ’ s luggage was taken to another room and searched. 9. The applicant asked to consult a lawyer and for an opportunity to pray. At approximately 9 .00 p.m., while she was praying, one of the officers spoke with her lawyer and indicated that she would be free to speak to him in fifteen minutes. When she finished praying, she was told that she could telephone her lawyer after she had been searched. 10. At approximately 9.23 p.m., after the applicant had been searched, she spoke with her lawyer by telephone. However, the officers made it clear that they would not delay the examination pending his arrival. 11. In or around 9.30 p.m. the applicant was taken to an examination room and served with a form TACT 1 (see paragraph 42 below). The contents of the form were also read to her. In response, she informed the officers that she would only answer questions after her lawyer arrived. Thereafter, she was asked a number of questions about her family, her financial circumstances and her recent visit to France. She refused to answer most of those questions. 12. At around 10.00 p.m., following the conclusion of the examination, the applicant was cautioned and reported for the offence of failing to comply with her duties under Schedule 7 by refusing to answer questions. She was also told that she was “free to go”. 13. The applicant ’ s lawyer arrived at approximately 10.40 p.m. 14. The applicant was subsequently charged with three offences: wilfully obstructing a search under Schedule 7; assaulting a police officer contrary to section 89 of the Police Act 1996; and wilfully failing to comply with a duty under Schedule 7. The first and second charges were eventually dismissed. 15. On 12 December 2011 the applicant appeared before Leicester Magistrates ’ Court, where she pleaded guilty to the third charge and was sentenced to be conditionally discharged. That plea followed a ruling by the District Judge that he had no power to stay the proceedings as an abuse of process on the grounds advanced by the applicant; namely, that the powers given to the police under Schedule 7 had infringed her rights under Articles 5, 6 and 8 of the Convention and her right to freedom of movement between Member States of the European Union under Articles 20 and 21 of the Treaty on the Functioning of the European Union. 16. The applicant appealed to the High Court against the District Judge ’ s ruling. C. The judgment of the High Court 17. On appeal, the applicant alleged that there had been an abuse of process based on a violation of her rights under Articles 5, 6 and 8 of the Convention and her freedom-of-movement rights. She also sought a declaration of incompatibility; or, if no declaration were to be granted, she contended that her rights under the above-mentioned Convention Articles had been infringed. 18. With respect to her Convention rights, she argued that the powers under Schedule 7 were in breach of Articles 5 and 8 of the Convention because they were neither sufficiently circumscribed nor subject to adequate safeguards to be “in accordance with the law”; or, in the alternative, that the interference with her Article 8 rights was not proportionate. She further argued that her rights under Article 6 had been engaged at the latest when she was obliged to answer questions exposing her to the risk of self ‑ incrimination without her lawyer in attendance. 19. The High Court delivered its judgment on 28 August 2013. In respect of the Article 8 complaint, the court considered that the present case was distinguishable from that of Gillan and Quinton v. the United Kingdom, no. 4158/05, ECHR 2010 (extracts). Unlike the Code of Practice relating to the powers exercised under section 44 of TACT (the provisions under consideration in Gillan and Quinton ), in the present case the relevant Home Office Code of Practice and accompanying Practical Advice (see paragraphs 42 and 43 below ) afforded a measure of legal protection against arbitrary interferences by the Executive. Moreover, port and border control was very different from the power to stop and search, exercisable anywhere in the jurisdiction, and conclusions as to the arbitrariness of the latter did not readily translate to conclusions as to the former. The United Kingdom, as an “island nation”, concentrated controls at its national frontiers and the court was therefore of the view that it was to be accorded a wide margin of appreciation in carrying out these controls. 20. Not being constrained by the authority of Gillan and Quinton, the court went on to find that the Schedule 7 powers were sufficiently circumscribed and were therefore “in accordance with the law”. First, it noted that many exercises of Schedule 7 powers were unlikely even to engage Article 8 as the intrusions would fall below the threshold of a minimum level of seriousness. Secondly, it considered that the arguments which served to distinguish Gillan and Quinton likewise served to emphasise the important and particular position of port and border controls and the need for such powers. Thirdly, the Schedule 7 powers were applicable only to a limited category of people: namely, travellers in confined geographical areas. Furthermore, while there was no room for complacency, the statistics collated by the Independent Reviewer (see paragraphs 48 - 49 and 56 - 61 below ) did not suggest arbitrary overuse or misuse in respect of members of ethnic-minority communities. Fourthly, the Schedule 7 powers could only be exercised in respect of that limited category for the purpose of determining whether the person questioned appeared to be a person who was or had been concerned in the commission, preparation or instigation of acts of terrorism, and these limitations told against the powers being arbitrary. Fifthly, the Schedule 7 powers were principally an aspect of port and border control rather than of a criminal investigation and it was therefore not surprising that there was no requirement of “reasonable suspicion” for the powers to be exercised. Sixthly, the court noted that the underlying purpose of the Schedule 7 powers was to protect the public from terrorism. 21. In this regard, the court observed: “The manifest importance of that purpose and the utility of the powers do not, of course and of themselves, entail the conclusion that these powers are not arbitrary and thus compatible with Art. 8. However, the exercise of Schedule 7 powers is subject to cumulative statutory limitations. Their exercise is governed by the Code. Over and above the possibility of legal challenge if misused in an individual case, they are subject to continuing review by the Independent Reviewer. The absence of a requirement of reasonable suspicion is both explicable and justifiable. For the reasons already given, we are not at all persuaded that these powers render the public vulnerable ‘ ...to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than for which the power was conferred ’ – Lord Bingham ’ s test for arbitrariness, in Gillan (HL), at [34], set out above. Equally, we are not persuaded that these are unfettered powers, falling foul of the test applied in Gillan (Strasbourg), at [76] – [77], also set out above; for our part, the ‘ level of precision ’ of these powers ( ibid ) falls and falls comfortably on the right side of the line. ” 22. The court also found that the exercise of Schedule 7 powers was proportionate. For the reasons already given, it did not accept that they were too broad. Furthermore, it noted that there was an objective justification for the focus on ports, airports and border areas, which, in the United Kingdom, provided a particularly appropriate venue for detecting, deterring and disrupting potential terrorist activity. With regard to the circumstances of the applicant ’ s case, the court found that the interference with her Article 8 rights had been justified. As she had been returning to the United Kingdom after visiting her husband, who was imprisoned in France for terrorism offences, she was not stopped and examined on a random basis. Moreover, the questions asked of her were rationally connected to the statutory purpose and were in no way disproportionate. 23. In view of the court ’ s conclusions in respect of Article 8, it found that the applicant ’ s Article 5 argument could be dealt with summarily. As the respondent accepted that there had been an interference with the applicant ’ s rights, and the applicant accepted that the interference was “in order to secure the fulfilment of any obligation prescribed by law”, the only issue to be determined was whether the interference was “lawful”, and the conclusions in respect of Article 8 had determined that it was. 24. Finally, the court considered the applicant ’ s argument under Article 6 of the Convention. However, it found that on the facts of her case, Article 6 was not engaged as her examination under Schedule 7 was not an inquiry preparatory to criminal proceedings but rather an inquiry related to border control with the specific public interest of safeguarding society from the risk of terrorism. Furthermore, the examination was not carried out for the purpose of obtaining admissions or evidence for use in such proceedings, and the fact that the applicant ’ s answers might have yielded information potentially of evidential value did not of itself suffice to engage Article 6. Even if the applicant ’ s rights had been engaged, the court found that there would have been no violation since it was fanciful to suppose that permission would be granted in criminal proceedings for any admissions obtained pursuant to a Schedule 7 examination to be adduced in evidence. D. The judgment of the Supreme Court 25. The applicant was granted permission to appeal to the Supreme Court, which gave judgment on 22 July 2015. 26. Prior to the judgment, Schedule 7 was amended by the Anti-Social Behaviour, Crime and Policing Act 2014, which required examining officers to take a person into detention if they wished to examine him or her for longer than one hour; reduced the maximum period of detention from nine hours to six hours; required the periodic review of detention by a review officer; provided that the questioning of an examinee should not commence until after the arrival of a requested solicitor; and stipulated that examining officers should be designated and trained for this purpose (see paragraphs 52 - 53 below). The Code of Practice was amended to reflect these changes (see paragraphs 54 - 55 below). In considering the applicant ’ s complaints, the Supreme Court had regard to the amended Schedule 7 power. 1. The opinion of the majority (a ) Article 8 27. With regard to the Article 8 complaint, Lord Hughes (with whom Lord Hodge agreed) also considered that Gillan and Quinton (cited above) was distinguishable on its facts since the Schedule 7 power was confined to those passing through ports of entry/exit, while the section 44 power was exercisable in relation to any person anywhere in the street. Furthermore, while there was evidence that the safeguards provided in the case of section 44 were ineffective, none of these applied to the powers under Schedule 7. Having regard to the safeguards which applied in respect of Schedule 7, their Lordships were satisfied that the principle of legality was met. In particular, they had regard to the restriction of the power to those passing in and out of the country; the restriction to the statutory purpose; the restriction to specially trained and accredited police officers; the restrictions on the duration of questioning; the restrictions on the type of search; the requirement to give explanatory notice to those questioned, including a procedure for complaint; the requirement to permit consultation with a solicitor and the notification of a third party; the requirement for records to be kept; the availability of judicial review; and the continuous supervision of the Independent Reviewer. 28. Lords Neuberger and Dyson agreed that there were important differences between the statutory provisions and modus operandi of the Schedule 7 system and section 44 system, and that those differences established that the powers in the case at hand were more foreseeable and less arbitrary than those considered in Gillan and Quinton. 29. Lords Hughes and Hodge further accepted that the interference with the applicant ’ s private life had been proportionate: the intrusion itself had been comparatively light, as it was not beyond the reasonable expectations of those who travel across the United Kingdom ’ s international borders, and, in view of the relevant safeguards, a fair balance could be said to have been struck between the rights of the individual and the rights of the public at large. Lords Neuberger and Dyson agreed that the appeal, insofar as it was based on proportionality, should fail, given that the interference was slight, the independent justification was convincing, the supervision impressive, the safeguards and potential benefits substantial, and no equally effective but less intrusive proposal had been forthcoming. 30. Lords Neuberger and Dyson added that: “Legality is said to give rise to a problem for the powers granted under paragraph 2 of Schedule 7 because those powers can be exercised randomly. However, it is important to the effectiveness of these powers that they can be exercised in this way. Furthermore, if the power to stop and question under Schedule 7 infringes the Convention because it is exercisable randomly, the logical conclusion must be either that the valuable power must be abandoned or the power must be exercised in a far more invasive and extensive way, namely by stopping and questioning everyone passing through ports and borders. The former alternative would be unfortunate in terms of deterring and hindering terrorism, whereas the latter alternative would seem to put proportionality and legality in irreconcilable tension.” (b ) Article 5 31. Although Lords Hughes, Hodge, Neuberger and Dyson agreed with the Divisional Court that the comments made in relation to safeguards in the context of Article 8 also applied in respect of Article 5, in their view it did not follow that the power of detention was automatically justified. The level of intrusion occasioned by detention for up to six hours was of a different order to the intrusion occasioned by compulsory question and search, and safeguards which were adequate for one would not necessarily be sufficient for the other. Furthermore, it did not follow that the fair balance between the rights of the individual and the interest of the public would fall in the same place. However, although their Lordships expressed doubts about whether detention for as long as six hours could ever be justified, on the facts of the present case they found that, to the extent that there was any deprivation of liberty, it was clear that it was for no longer than necessary to complete the process and therefore there had been no breach of Article 5. (c ) Article 6 § 1 32. In respect of the applicant ’ s complaint under Article 6, Lords Hughes, Hodge, Neuberger and Dyson accepted that the privilege against self ‑ incrimination did not apply where a person was being questioned pursuant to Schedule 7. However, their Lordships considered port questioning and search under Schedule 7 to be separate from a criminal investigation and, since the applicant had been at no time a defendant to a criminal charge, no question of a breach of her right to a fair trial could arise. In reaching this conclusion, they noted that any use in a criminal prosecution of answers obtained under compulsion would breach Article 6 of the Convention; consequently, Schedule 7 material could never be adduced in a subsequent criminal trial (unless the prosecution concerned the failure to comply with the Schedule 7 duty). 2. Lord Kerr ’ s dissenting opinion (a ) Legality 33. Lord Kerr disagreed with the majority that the Schedule 7 powers were “in accordance with the law”. In fact, he considered that comparison with the section 44 powers illustrated the greater ambit of the Schedule 7 powers. In particular, he observed that no authorisation was required for an examining officer to have resort to the Schedule 7 powers; the examining officer did not have to consider the use of those powers expedient for the prevention of acts of terrorism; there was no geographical or temporal limitation on the use of those powers, other than that they were to be used at a port of entry into or exit from the United Kingdom; and there was no provision for their automatic lapse, nor was there any question of their renewed authorisation being subject to confirmation. Furthermore, Lord Kerr noted that certain features were common to both sets of powers: the width of the powers was similar (in both instances there was no requirement of either reasonable or even subjective suspicion) and challenges to their use on conventional judicial review grounds faced the same difficulties identified in Gillan and Quinton (namely, if an examining officer was not required to have a reasonable suspicion, how was the proportionality of the exercise of his powers to be reviewed?). 34. In response to the majority ’ s reliance on the fact that Schedule 7 powers could only be used in respect of persons passing through ports of entry or exit, Lord Kerr made two points. First, being subjected to border controls, such as the requirement to provide proof of identity and entitlement to enter, was entirely different from being required to answer questions about one ’ s movements and activities and facing criminal sanction for refusing. Secondly, and more importantly, the fact that people were accustomed to intrusion moving through ports of entry or exit did not bear on the question of whether the circumstances in which the Schedule 7 powers could be exercised were too widely drawn to satisfy the test of “in accordance with the law”. In other words, an unfettered power which might be arbitrarily or capriciously used did not become legal just because people generally did not take exception to its use. 35. Furthermore, given that there were 245 million passenger movements through United Kingdom ports every year, the fact that the Schedule 7 power was used sparingly could have no bearing on its legality. A power on which there are insufficient legal constraints does not become legal simply because those who may have resort to it exercise self-restraint. It was the potential reach of the power – and not its actual use – which had to be judged. In any case, although the percentage of travellers subjected to the use of the power was small, in absolute terms the number was not inconsequential, since on average five to seven people each day were examined for more than an hour. 36. Finally, Lord Kerr expressed concern about the potential for arbitrary and discriminatory exercise of the power since there was no clearly obvious means of policing the requirement that persons should not be stopped and questioned just because of their ethnic background or religion. In any case, the Code of Practice contemplated that ethnic origin or religious adherence could be at least one of the reasons for exercising the power, just so long as it was not the sole ground. Lord Kerr considered that the fact that the legislation authorised the use of a coercive power, at least partly, on grounds of race and religion should be starkly confronted since it permitted direct discrimination, which was entirely at odds with the notion of an enlightened, pluralistic society all of whose members were treated equally. (b ) Proportionality 37. Lord Kerr was not persuaded that the interference with the applicant ’ s rights under Articles 5 and 8 was “necessary”. In this regard, he noted that there was no evidence that a suspicion-less power to stop, detain, search and question was the only way to achieve the goal of combatting terrorism. (c ) Privilege against self-incrimination 38. Lord Kerr considered the requirement that a person questioned under Schedule 7 must answer on pain of prosecution for failing to do so to be in breach of that person ’ s common law privilege against self-incrimination and therefore incompatible with Article 6 of the Convention. In Lord Kerr ’ s opinion, it was inescapable that there was a real and appreciable risk of prosecution if the answers to the questions asked proved to be self ‑ incriminating, and the fact that the applicant in the present case was not suspected of being a terrorist was nothing to the point. If she was asked questions designed to establish whether she appeared to be a terrorist, the potential of her answers to incriminate her if they were of an inculpatory character was indisputable. This remained the case even if those self ‑ incriminating answers could not be adduced in evidence, as they might prompt enquiry which could lead to the obtaining of independent evidence. | This case concerned the use of counter-terrorism legislation, namely Schedule 7 of the Terrorism Act 2000, giving police and immigration officers the power to stop, search and question passengers at ports, airports and international rail terminals. The applicant had been stopped and questioned when she arrived at East Midlands Airport in January 2011 following a visit to her husband, who was in prison in France for terrorism offences. She complained about the police powers under Schedule 7 of the counter-terrorism legislation. |
422 | Challenging the lawfulness of detention | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1954 in Ukraine and lives in Tallinn. A. Background of the case 6. The applicant is a former Soviet and Russian Army officer who served from 1983 in the territory of Estonia. After the restoration of Estonian independence, he was refused an extension of his residence permit in that country. His complaints were dismissed by the domestic courts; the final judgment was delivered by the Supreme Court ( Riigikohus ) on 17 April 2003. Subsequently, he lodged an application with the Court, alleging, among other complaints, that his right to respect for his private and family life, guaranteed under Article 8 of the Convention, had been violated by the Estonian authorities. On 5 January 2006 this application was declared inadmissible (see Mikolenko v. Estonia (dec.), no. 16944/03, 5 January 2006 ). 7. The circumstances of the applicant ’ s stay in Estonia and the Estonian authorities ’ refusal to extend his residence permit, as well as a summary of the relevant domestic and international legal provisions may be found in the decision mentioned above. In brief, although the Estonian authorities had finally refused to extend the applicant ’ s residence permit, he – backed by the Russian Government – was of the opinion that he was still entitled to stay in Estonia under the terms of the agreement concerning social guarantees for retired military personnel of the armed forces of the Russian Federation in Estonia, concluded on 26 July 1994. The agreement provided that retired military personnel, that is persons discharged from the army service and receiving pension could apply for a residence permit in Estonia. According to the Russian Government the applicant was dismissed from the military service on 20 July 1994 for health reasons and excluded from the lists of the military unit on 18 October 1994. 8. The Estonian authorities, to the contrary, considered that he did not fall under the agreement concerning social guarantees but rather under the treaty on the withdrawal of the Russian troops from the Estonian territory, also concluded on 26 July 1994, as he had been in the active military service at the time of the conclusion of the treaty. He had only been assigned to the reserve forces on 4 August 1994 and discharged from the military unit as of 18 October 1994. Accordingly, he had been obliged to leave Estonia under the treaty. B. The applicant ’ s detention 9. On 21 July 2003 the Citizenship and Migration Board ( Kodakondsus- ja Migratsiooniamet – hereinafter “the Board”) ordered the applicant to leave the country on 17 September 2003 at the latest. He was warned that in the event of failure to comply with the order, he would be expelled immediately. The applicant challenged the order before the Tallinn Administrative Court ( halduskohus ) which, on 24 October 2003, dismissed the complaint. The applicant appealed, but his appeal was dismissed by the Tallinn Court of Appeal ( ringkonnakohus ). On 27 October 2004 the Supreme Court refused leave to appeal. 10. In the meantime, on 29 October 2003, the applicant was arrested. His immediate expulsion was not possible as he only presented his expired passport on arrest, saying that he did not know where his valid Russian passport was. On 31 October 2003 the Tallinn Administrative Court decided, at the request of the police, that the applicant was to be taken to a deportation centre for execution of the deportation order. The Administrative Court authorised his detention for up to two months, starting from 3 November 2003, giving him some time to find his valid passport. The Government have submitted to the Court a copy of the applicant ’ s Russian passport valid until 24 January 2008. The applicant did not present this document in the subsequent proceedings. 11. According to the applicant he lodged an appeal against the Administrative Court ’ s decision of 31 October 2003 but since his detention was subsequently, on 30 December 2003, extended by the Administrative Court, the appeal became void of substance and had to be withdrawn. According to the Government the applicant filed a notice of his intention to appeal, as required by the applicable rules of procedure, but he never actually lodged an appeal. 12. From 4 November 2003 the applicant was detained in the deportation centre in Harku, Harju County. 13. The Government in their submissions have described the deportation centre as an institution with a guarded perimeter kept under visual and electronic supervision. It can accommodate 42 persons in rooms designed for four persons but as a rule no more than two persons are placed in one room. The detainees can use eating and rest areas equipped with television, radio, newspapers and literature. There is table tennis equipment and various board games and the detainees have free access to toilets and shower. Washing and drying machines are available. There are four periods a day (totalling almost ten hours) for outdoor walks. The detainees are served three meals a day, including at least two hot meals; there is a nurse present in the centre four hours a day and, if the need arises, a general practitioner is available. A psychiatrist and a psychologist visit the centre regularly. The detainees can buy additional food and other items through the centre; they are also allowed to receive parcels, send and receive letters and use the telephone. Furthermore, they can meet consular officials of their country of nationality, defence counsel and ministers of religion. Subject to authorisation they can also be visited by other persons, such as family members. 14. At the request of the Board, the applicant ’ s detention was extended by the Tallinn Administrative Court once every two months. It was open to the applicant to appeal against the rulings of the Administrative Court to the Tallinn Court of Appeal and, thereafter, to the Supreme Court. He did so in some but not in all cases. On each occasion the higher courts dismissed the appeals. 15. The courts found that the applicant ’ s detention was lawful and justified for the purpose of ensuring his expulsion. According to the courts ’ rulings, the applicant had allegedly lost his valid Russian passport and despite the requests by the Board to the Embassy of the Russian Federation in Estonia (“the Embassy”) the latter had not been able to issue a new travel document to the applicant because of his refusal to fill in the required application forms. The Board was ready to issue the applicant a temporary travel document but according to the Russian Embassy it was not possible to add an entry permit to such a document. The courts considered that detention was an appropriate measure to motivate the applicant to co - operate with the authorities and avoid a situation where an expulsion order could not be executed merely because of the applicant ’ s unwillingness. They were of the opinion that the length of the applicant ’ s detention in the deportation centre depended on him alone. The courts also noted that the applicant ’ s deportation might be possible under the Agreement between the European Community and the Russian Federation on readmission once it entered into force. 16. On 8 October 2007 the Tallinn Administrative Court refused to further extend the applicant ’ s detention. It found that the length of his detention had become disproportionate and, in the circumstances, unconstitutional. He was released from the deportation centre the next day. C. Measures taken by the authorities for the applicant ’ s removal 17. The Board and the Ministry of Foreign Affairs sought possibilities to secure travel documents for the applicant so that he could be removed; they were in contact with the Embassy to that end throughout the applicant ’ s detention. Furthermore, the Board on several occasions requested the applicant to fill in forms required by the Embassy to issue him a passport, but the applicant persistently refused. 1. Measures taken by the Board 18. The Board ’ s attempts to achieve the applicant ’ s removal included the following steps. 19. On 17 November 2003 the Board asked the Russian Embassy to issue the applicant a return certificate. On 10 December 2003 the Embassy replied that the applicant could return to Russia only on the basis of a Russian foreign passport, which he could apply for in person or through a representative. 20. On 4 February and 7 April 2004 the Board informed the Embassy that the applicant refused to fill in the required forms. They requested the Embassy ’ s assistance in issuing documents for the applicant and expressed their readiness to provide the applicant with a temporary travel document. The Embassy did not reply to the letters. 21. On 14 June 2004 the Board again reminded the Embassy of the situation and sought their agreement to affix an entry visa to a temporary travel document the Board was ready to issue. On 18 June 2004 the Embassy replied that this was not possible under Russian law. 22. On 23 July 2004 the Board asked the Ministry of Foreign Affairs to request the Embassy to provide the applicant with the requisite papers. 23. On 13 April 2006 the Board requested the Embassy ’ s assistance in issuing documents to the applicant. On 19 April 2006 the Embassy replied that they could issue him a passport upon his request. 24. On 11 June 2007 the Board submitted a request to the Embassy for the applicant to be readmitted on the basis of the readmission agreement. On 26 June 2007 the Embassy replied that the Russian party was of the view that the applicant did not fall under the readmission agreement as he had a legal basis for residing in Estonia (the Estonian-Russian agreement of 1994). 25. On 25 July 2007 the Board again asked the Ministry of Foreign Affairs to request the Embassy to provide the applicant with the requisite papers. 26. On 13 September 2007 the Board asked the Ministry of Foreign Affairs to contact the Immigration Service of the Russian Federation to provide the applicant with papers under the readmission agreement. On 30 October 2007 the Ministry of Foreign Affairs replied that the Russian authorities did not wish to consider the applicant ’ s readmission under the readmission agreement and therefore the readmission application concerning him had not been submitted to the Immigration Service of the Russian Federation. A meeting with the Russian party had been scheduled for November. On 19 November 2007 the Ministry of Foreign Affairs nevertheless transmitted the readmission application to the Immigration Service of the Russian Federation. On 1 December 2007 the Immigration Service replied that the applicant was not subject to readmission under the readmission agreement as he had a legal basis for residing in Estonia. 2. Measures taken by the Estonian Ministry of Foreign Affairs 27. In 2002 and 2003 the Embassy and the Ministry of Foreign Affairs exchanged several notes and memoranda related to the Estonian authorities ’ refusal to extend residence permits for some retired Russian Federation servicemen. On 2 February 2004 the Ministry of Foreign Affairs expressed readiness to hold bilateral consultations to regulate the matter, as proposed by the Embassy. 28. On 5 June 2006 the Ministry of Foreign Affairs sent a note to the Embassy drawing the Russian authorities ’ attention to the fact that on 5 January 2006 the European Court of Human Rights had declared inadmissible the applicant ’ s application related to the Estonian authorities ’ refusal to extend his residence permit. The Ministry of Foreign Affairs asked the Russian authorities to take the necessary steps for the applicant ’ s repatriation and requested their assistance in providing him with papers. On 16 June 2006 the Embassy expressed their readiness to issue the applicant identity documents, provided that the applicant submitted an application in writing. 29. On 26 July 2007 the Ministry of Foreign Affairs requested the Embassy to issue the applicant with the documents necessary for his readmission on the basis of the readmission agreement and transmitted a readmission application in respect of him to the Embassy. On 21 August 2007 the Embassy replied that retired servicemen of the Russian Federation, including the applicant, did not fall under the readmission agreement as they had a legal basis for residing in Estonia. They proposed regulating the matter by negotiation, through diplomatic channels. On 7 September 2007 the Ministry of Foreign Affairs agreed to hold negotiations. 30. On 25 December 2007 the Embassy reiterated that the Russian authorities considered that the applicant did not fall under the readmission agreement. 31. On 4 February 2008 the Ministry of Foreign Affairs confirmed its position that the applicant was subject to the readmission agreement. 32. On 19 February 2008 the Embassy emphasised that the main aim of the readmission agreement, as stated in its preamble, was to strengthen co-operation in order to combat illegal immigration. Any attempt to apply it to other situations was contrary to the principle of implementing international treaties in good faith. In particular, the readmission agreement was not applicable to the retired servicemen to whom the agreement of 1994 concerning social guarantees to retired military personnel applied. 33. In addition, the representatives of the Ministry of Foreign Affairs repeatedly met Russian officials to discuss possible solutions for the applicant ’ s case. In connection with the readmission agreement there have also been joint committee meetings to discuss issues related to the agreement and to conclude its implementing protocols. In March and September 2007 the Estonian authorities submitted a draft implementing protocol of the readmission agreement to the Russian party; a copy of the draft protocol was resubmitted to the Russian authorities on 4 March 2008. On 28 April 2008 the Embassy informed the Estonian authorities that the Immigration Service was ready to hold consultations at expert level concerning the implementing protocols in May 2008. 34. The Embassy sent the applicant several letters informing him of the Russian authorities ’ position in the matter and giving reassurances that the Russian party would try to solve the issues through bilateral dialogue. D. Subsequent developments 35. On 8 October 2007, the day the applicant ’ s release was ordered by a court (see paragraph 16 above), the Board gave him a written reminder that his expulsion order was still in force. Some further measures were applied as well – the applicant had to reside in his fixed residence, to report to the Board at certain intervals, and to inform the Board of any change in his place of residence or if he left it for an extended period. 36. On 5 February 2008 the Harju County Court, in misdemeanour proceedings, sentenced the applicant to ten days ’ detention for staying in Estonia without a legal basis. The judgment was upheld in substance by the Tallinn Court of Appeal. On 14 May 2008 the Supreme Court refused, on procedural grounds, to examine the applicant ’ s appeal as it had not been drawn up by a lawyer as required by law. | The applicant, a Russian national, complained that following the Estonian authorities’ refusal to extend his residence permit, he had been detained unlawfully in 2003 in a deportation centre and had been kept there for too long, until his release in 2007. |
406 | Deprivation of liberty / Restriction on the freedom of movement | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1980 and 1981 respectively. A. The applications for asylum and for residence and their outcome 1. The first applicant 7. The first applicant arrived in Belgium at Brussels National Airport on flight SN 211 from Freetown (Sierra Leone) on 27 December 2002, carrying a Lebanese travel document stating that he was a Palestinian refugee. He was refused entry to Belgium as he did not have the necessary visas. The carrier which had provided the flight was informed that, pursuant to section 74 ( 4 ) of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980, it was responsible for paying the costs of his return to his country of origin. 8. On the same date the first applicant requested recognition of his refugee status, maintaining that his life was in danger in Lebanon, and was issued with a document certifying that he had applied for asylum. 9. Also on the same date, 27 December 2002, a decision to keep the first applicant in a designated place at the border was taken on the basis of section 74/5 ( 1 )( 2 ) of the Act of 15 December 1980. Pursuant to that decision, the first applicant was taken to Transit Centre no. 127 on the premises of Brussels National Airport. 10. A decision refusing asylum was taken on 31 December 2002 by the Aliens Office and served on the first applicant on the same date. The first applicant lodged an appeal with the Office of the Commissioner General for Refugees and Stateless Persons. 11. On 21 January 2003 the Commissioner General's Office upheld the decision refusing asylum; it pointed out the inconsistencies between the various accounts given by the applicant in question and concluded that on the evidence he had no reason to fear that he was in personal danger in Lebanon. 12. An application for judicial review of the decision of 21 January 2003 of the Commissioner General's Office and an application to stay its execution were lodged with the Conseil d'Etat on 19 February 2003. At the hearing before the Court, the parties explained that those applications were declared inadmissible in 2005 on the ground that the first applicant was no longer on Belgian territory and the continued examination of his case was thus devoid of purpose. 2. The second applicant 13. This applicant arrived in Belgium at Brussels National Airport on a flight from Freetown on 24 December 2002 at 5.12 a.m. As he did not have a transit visa allowing him to travel onwards to London, steps were taken to refuse him entry to Belgian territory and the carrier which had provided the flight was requested to take him, or have him taken, back to the country of origin or to another State where he could be allowed entry. The second applicant was rerouted to Beirut, via Budapest. 14. When he underwent a check in the transit zone on the same date this applicant stated that he did not wish to go to Beirut and requested recognition of his refugee status, maintaining that his life was in danger in Lebanon. He was issued with a document certifying that he had applied for asylum. 15. Also on the same date, 24 December 2002, a decision to keep the second applicant in a designated place at the border was taken on the basis of section 74/5 ( 1 )( 2 ) of the Act of 15 December 1980. Pursuant to that decision, the second applicant was taken to Transit Centre no. 127. 16. A decision refusing the application for asylum was taken by the Aliens Office on 6 January 2003. That decision was served on the same date on the second applicant, who lodged an appeal with the Office of the Commissioner General for Refugees and Stateless Persons. 17. On 21 January 2003 the Commissioner General's Office upheld the decision refusing asylum, as it was not familiar with the Palestinian organisation to which the second applicant claimed to belong. An application for judicial review and an application for a stay of execution were also lodged with the Conseil d'Etat on 19 February 2003. Like the applications lodged by the first applicant, these applications were dismissed in 2005 as they had become devoid of purpose. B. Detention in Transit Centre no. 127 and in the closed centre in Bruges 18. The first applicant remained in Transit Centre no. 127 from 27 December 2002 pursuant to the decision to keep him in a designated place at the border (see above). The second applicant remained there, on the same basis, from 24 September 2002. 19. Following an attempted collective break-out from Transit Centre no. 127 during the night of 21 to 22 January 2003, the two applicants and three of their compatriots were transferred on 22 January 2002 to the Closed Centre for Illegal Aliens in Bruges (the Government explained that this institution was, by a legal fiction, treated as a centre at the border ). 20. In January 2003 their lawyer lodged an application for release on behalf of each of them before the chambre du conseil of the Brussels Court of First Instance, by registered letter posted on 14 January 2003. The chambre du conseil allowed that application by an order of 20 January 2003, being of the view that the grounds put forward by the administrative authorities to justify the deprivation of liberty were not sufficient. 21. On the same day on which that order was made, State Counsel's Office notified the Aliens Office, by means of a form, that it had decided to lodge an appeal, which it did on the following day. On account of that appeal, the applicants remained in the closed centre, and any procedures for their repatriation were suspended pending the judgment of the Indictment Division. 22. On 24 January 2003 the authorities arranged for both applicants to be booked on a flight to Freetown on 6 February 2003. 23. By a judgment of 30 January 2003 the Brussels Indictment Division upheld the order made on 20 January for the first applicant's release, being of the view that the detention order did not contain “sufficient reasons in concreto ”. 24. Following that judgment, Principal State Counsel at the Brussels Court of Appeal ordered the first applicant's immediate release. As a result of that decision, the Aliens Office had him transferred to the transit zone at Brussels National Airport (see below ). 25. On 3 February 2003 a similar judgment was delivered in respect of the second applicant. On the same date Principal State Counsel and the Aliens Office took decisions identical to those taken in respect of the first applicant, whom the first applicant rejoined in the transit zone at Brussels National Airport on 3 February 2003. C. The stay in the transit zone in Brussels National Airport 26. On 30 January 2003 the first applicant, as explained below ( see paragraph 28), was placed in the transit zone in Brussels National Airport. He was taken there at 6.45 p.m., together with Ab., another Palestinian national who had arrived in Belgium on 25 December 2002 in the same circumstances as the first applicant. 27. They were informed that they were being released, their luggage was returned to them and they were each given an envelope containing their personal possessions, with the exception of their passports, which remained in the possession of the federal police at the airport, and were allowed to make a telephone call to a person of their choice. They stated that they wished to telephone their lawyer. 28. On 1 February 2003 at 1.30 p.m. they went to the federal police border inspection post and declared that they had no money or food. They were told that they could go on a voluntary basis to the “ INADS Centre” at the airport and remain there pending their removal. They were taken to that centre, where the first applicant signed a statement, after the content thereof had been translated for him, agreeing to remain voluntarily at the centre and to observe its rules. According to a document from the centre, the first applicant arrived there on 1 February 2003 and left on 3 February 2003; in fact, an unsuccessful attempt to remove the applicant to Freetown was made on 3 February 2003, but he refused to board the aeroplane. Following his refusal to board, he was taken back to the transit zone. 29. Also on 3 February 2003, the lawyer acting for the first applicant and Ab. wrote to the Minister for the Interior, claiming that her clients had suffered degrading treatment by having to spend three days in the transit zone without food or drink. She explained that a few hours after arriving in the “ INADS Centre” they had simply been returned to the transit zone and told to fend for themselves in order to obtain food, drink and a return ticket. 30. On the same date, 3 February 2003, at 6.40 p.m. the first applicant and Ab. were joined in the transit zone by the second applicant (see paragraph 28 above). Upon being transferred there he was given the same explanations as the two others and stated that he was “no longer happy with that decision” and wished to contact his lawyer. He also stated that he had no money and had only a telephone card. He again asked where the “other men” were. 31. On 4 February 2003 the applicants'counsel applied under the extremely urgent procedure to the President of the Brussels Court of First Instance, who dismissed the application on 9 February 2003 on the ground that the applicants did not have a personal right of access to the territory, as such a right was not conferred either by the submission of an application for asylum or by the orders for their release. 32. In the meantime a fresh attempt to remove the three persons to Freetown had been made on 6 February 2003. A further attempt to remove two of them was made on 8 February 2003. The first applicant refused to board the plane but Ab. did board it. 33. On 9 February 2003 the applicants'counsel lodged an application to shorten the period of notice of a hearing, arguing that keeping her clients in the transit zone constituted an illegal act that infringed their right to liberty, a right confirmed by the decisions delivered in respect of their detention in the transit centre. She further maintained that keeping them in the transit zone constituted a violation of Articles 3 and 8 of the Convention. By an order of 10 February 2003 the President of the Brussels Court of First Instance granted leave to summon the Belgian State to appear at a hearing on 12 February 2003. 34. On 11 February 2003 the applicants summoned the Belgian State, represented by the Minister for the Interior, to appear before the President of the Brussels Court of First Instance, sitting as the urgent applications judge, for the purpose of securing an order for the State to allow them to enter Belgian territory, together with a penalty of 1,000 euros (EUR) per hour from notification of the order in the event of failure to comply. The applicants submitted that by keeping them in a closed space, despite the fact that the chambre du conseil of the Indictment Division had ordered their release, the State was in breach of the domestic and international provisions guaranteeing the right of personal liberty. In addition, they were completely destitute, without lodging or resources and left to their own devices in the transit zone, where they had no proper facilities and for several days had had neither food nor drink, which constituted inhuman and degrading treatment. They further submitted that some members of the federal police had violently struck and beaten them inside the Muslim place of worship in the transit zone. 35. On 12 February 2003 the authorities arranged for the applicants to be booked on a flight to Beirut on 15 February 2003. 36. In submissions filed with the President of the Court of First Instance, counsel for the State objected, in particular, that the applicants had not applied for judicial review of the decisions of the Commissioner General's Office or for a stay of their execution. 37. By an order of 14 February 2003 the President of the Brussels Court of First Instance ordered the State to allow the applicants to leave the transit zone freely and without restriction, with a penalty of EUR 1,000 per hour with effect from notification of the order in the event of failure to comply. The decision delivered in the context of application no. 29787/03 reads as follows: “ It is common ground that the applicant is at present subject to a decision of 3 January 2003 to remove him from national territory, upheld on 21 January 2003. The time-limit for bringing an action for a stay of execution and for judicial review does not have suspensive effect; nor does the application for regularisation under section 9(3) of the Act of 15 December 1980 which the applicant submitted on 28 January 2003. As the applicant's administrative status is binding on the court, it must take note of the fact that the applicant is therefore not entitled to remain on Belgian territory. Nonetheless, the decision of the Indictment Division is also binding on the court and in the present case, that division ordered the applicant's immediate release. It is also common ground that the Indictment Division was aware of the applicant's administrative status and in particular of the decision of the CGRA and therefore ordered his release with full knowledge of the facts. It is not for this court to adjudicate on that status but, rather, on the way in which that decision to release the applicant is implemented by the Belgian State, all other things being equal. The defendant maintains that, in view of the fact that the applicant has not been authorised to enter national territory as such, it was correct to take the view that the applicant's release should be effected in the transit zone, since that zone is not an area where the law does not apply but is in fact part of the Belgian Kingdom for persons in transit in Belgium and those who have not yet been authorised to enter the national territory as such. The Court of Cassation has held that'as regards the access, residence, establishment and removal of aliens, it does not follow from the legal distinction between the port area and the rest of the territory of the Kingdom that the transit zone is not part of the Kingdom and that the law referred to does not apply there'( Court of Cassation, 22 June 1999, Pas. 1999, 957). The closed centres are in reality nothing more than extensions of the transit zones, antechambers to the territory of the Kingdom, the only difference being that, unlike the transit zone, they are designed to be capable of accommodating persons for a more or less long period in what are assumed to be decent conditions. While the defendant's reasoning can therefore be followed in so far as it considers that by being present in the transit zone the applicant was in fact on Belgian territory, that reasoning cannot be followed where it considers that such presence amounts to'release'. It cannot be accepted that the legislature, by creating centres at the borders, specially equipped to accommodate persons who are being held pending leave to enter the Kingdom or pending deportation, and by providing that persons held in those centres have a right of appeal to the chambre du conseil, took the view that if their release was ordered by the chambre du conseil and then by the Indictment Division, those persons could be sent to the transit zone, which is wholly unequipped to receive them, since this would place them in an even more precarious and adverse situation. If release limited to the transit centre were to be accepted, that would amount to allowing the Belgian State unilaterally to block a court decision ordering release on the basis of a person's administrative status, when that administrative status had been taken into consideration by that court and must have constituted a ground of its decision ordering release. Since 21 January 2003 the parties have both known that the removal order is enforceable, since the applicant's appeal to the CGRA was rejected and no urgent application for a stay of its execution was made. Since then the applicant has shown no intention of complying voluntarily with the removal order. Nor has the Belgian State forcibly removed him since then. Since the State is now required to comply with the decision ordering the applicant's release, there are two possibilities: either the defendant prefers to wait until the applicant decides to leave voluntarily, but in that case, while awaiting his departure, the State must allow him to move freely within the territory (in observance of res judicata ), or the defendant assumes its responsibilities and provides itself with the means to enforce the order for the applicant's return in order to ensure compliance with its own administrative decisions. In that regard, the Law allows the Belgian State to order the alien in question to reside in a specified place pending implementation of the order for his removal (section 73 of the Act of 15 December 1980). What is unacceptable and contrary to the rule of law in the present case is that the Belgian State should place the applicant in another closed place (the transit zone) in which the living conditions are inhuman and degrading, in the hope that the applicant will then decide to implement the removal order'voluntarily'. In transferring the applicant from the closed centre at Melsbroek to the transit zone, the Belgian State committed an illegal act. On the basis of the file as it currently stands, the release ordered by the Indictment Division necessarily means that, until such time as he is removed, the applicant is free to leave the transit zone, without prejudice to the Ministry's right to order the applicant to reside in a specific place (section 73). That solution to a wholly contradictory situation is the only one possible if the procedure under section 71 of the Act of 15 December 1980 is not to be reduced to a farce. In the light of the foregoing, the application must be allowed in accordance with the operative part of the present order.” The decision delivered in connection with application no. 29810/03 is based on the same reasoning. 38. The applicants'lawyer sent that decision by fax on 14 February 2003 to the Aliens Office, which cancelled the booking made for the flight on 15 February 2003. On 15 February 2003 the Office was instructed to allow the applicants to leave the transit zone, without restriction. 39. The orders of 14 February 2003 were served on the Belgian State, by bailiff, first on 17 February 2003 to the office of the Minister of Justice; the order made in favour of the first applicant was served for a second time, on 28 February 2003, on the federal police border inspection post at Brussels National Airport. 40. Both applicants left the transit zone on 15 February 2003, in the late morning; the precise time was not stated. 41. The parties differed as to the situation which the two applicants encountered in the transit zone. 42. The applicants stated that the transit zone had no bedrooms and, a fortiori, no beds, and that they were housed in the mosque located there. They were taken in by the Muslim counsellor, who took them in again after the various attempts to remove them. They remained for several days without food or drink, receiving food only irregularly from the cleaning staff, the company running the airport, the Muslim counsellor or the lay counsellor at the airport. The two counsellors explained in their testimony that the applicants'situation was unbearable, mentioning that they had been abandoned or “deserted” by the authorities. The applicants were unable to wash themselves or to launder their clothes. They were often checked by the airport police; on several occasions they were placed in a cell and left there for several hours without food or drink, in an attempt to force them to agree to leave the country voluntarily, then taken back to the transit zone. They were also violently struck and beaten inside the mosque by certain members of the federal police. 43. The Government submitted that, following the criticisms in a report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) in 1993, the situation in the transit zone at Brussels National Airport had been remedied by, inter alia, setting up the “ INADS Centre” on the airport premises. The centre was able to take in, on a voluntary basis, persons staying in the transit zone and provide them with bed and board. In its 1997 report on its visit to Belgium, the CPT observed that the material conditions and the activities offered in the “ INADS Centre” could generally be described as satisfactory for a stay of not more than a few days, with just one exception (the lack of provision for those staying in the centre to enjoy fresh air). In addition, persons in the transit zone awaiting a reservation on a flight for the purpose of their removal were able to receive meals via the control services. A federal police circular of 31 October 2003 confirmed that practice and reminded the various services of their obligations in that regard. It was apparent from that circular that the team dealing with the case of a particular alien was responsible for distributing meals to him or her and that upon arriving in the transit zone aliens were informed that they could go to the “arrivals” level three times a day to be given a meal. The team responsible ordered three meals per person per day at the “ INADS Centre”. Although that procedure had been properly confirmed only by the circular of 31 October 2003, the fact nonetheless remained that the first applicant had been informed on 1 February 2003 that he could be housed and fed on a voluntary basis in the “ INADS Centre”. D. The applicants'detention in the Merksplas closed centre 44. On 15 February 2003 at 11.30 a.m. the applicants, after leaving the transit zone, were subjected to an identity check by officials of the federal police responsible for border control. After finding that the applicants were not in possession of a valid residence permit, the police drew up an administrative report for each of them. The reports stated that the applicants were travelling together and that they spoke English in addition to their mother tongue. The police contacted the Aliens Office at 12.30 p.m. and were instructed to detain the applicants so that they could be served with an order to leave the territory together with a decision ordering their removal and a decision ordering their detention for that purpose. A decision to that effect was served on them on the same date, at an unspecified time, by an officer from the Aliens Office. Both applicants refused to sign. 45. The first applicant was informed of those measures and was told that, with a view to their implementation, he was being taken to the Merksplas centre for illegal aliens. He stated that he objected, on the advice of his counsel. During the journey to Merksplas this applicant complained that the handcuffs placed on him were too tight around his wrists. The journey was interrupted at 2.45 p.m. so that the handcuffs could be loosened. 46. The second applicant was informed of those measures and told that he would be taken to the centre for illegal aliens and he too stated that he objected, on the advice of his counsel, and resisted the police who were putting him in the van being used to transfer the two applicants. A few minutes after the van was closed, it was noted that, although he was handcuffed, the second applicant had intentionally injured himself by banging his head against the van window, which was protected by a grille. It was then decided to take him to Merksplas in a police vehicle and Velcro bands were placed round his arms and legs to prevent any mutilation. According to the report drawn up on that occasion, the applicant told the members of the escort that he would use his self-inflicted injuries as evidence to support a complaint against the police. Upon arriving at Merksplas he was examined by the doctor at the centre, who noted the presence of external injuries, namely a bruise and a small wound ( “ klein wondje ” ) on his forehead. 47. On 19 February 2003 the lawyer representing the two applicants wrote to the Minister for the Interior to complain about his clients being placed in a closed centre in spite of the orders made on 14 February 2003. On the same date he had lodged an application with the Conseil d'Etat for judicial review of the decision of 21 January 2003 of the Commissioner General's Office and an application for a stay of its execution (see above). E. The applicants'removal 1. The first applicant 48. On 20 February 2003, measures were taken to remove the first applicant to Beirut, but the order for his repatriation was subsequently set aside. On 24 February 2003 the Aliens Office instructed the Border Inspection Department to make arrangements for his removal as soon as possible. His repatriation was rearranged for 8 March 2003. 49. On 8 March 2003 the first applicant left Merksplas and his personal effects, his luggage and the sums of EUR 45, 250 United States dollars (USD) and 1,000 Lebanese pounds which he had been carrying on his arrival were returned to him. He had previously been informed of the repatriation procedure that would be followed and of the measures of physical restraint that might be taken. Following a discussion, he stated that he no longer objected to being repatriated, but expressed the wish that certain conditions should be observed. He asked, in particular, that he should not be handcuffed and that he should carry his passport. He was told that those conditions could not be met, in view of the circumstances. 50. The applicant was repatriated on a flight to Beirut, via Moscow, escorted by three police officers. The first applicant was placed in fabric handcuffs before being taken on board. The handcuffs were removed after take-off. During the flights and while waiting in the transit zone at Moscow Airport he was given food and drink. The members of the escort reported no incident. 2. The second applicant 51. On 21 February 2003, measures were taken to remove the second applicant to Beirut, but the order for his repatriation was subsequently set aside. 52. The second applicant was repatriated on 5 March 2003. Upon his departure from Merksplas, his personal effects, his luggage and a sum of EUR 150 were returned to him. According to the report drawn up in connection with his removal, he arrived at the airport at 4.45 p.m. He was searched and placed in a cell. At 8.35 p.m. the officials in charge of his repatriation questioned him in order to determine the extent of his cooperation with the removal order. During that interview, he indicated that he had realised that he had to return to Beirut. He allegedly added that he had not been happy with his situation for two months and that he had the impression that he had been a pawn in a game between his lawyer and the Ministry officials. He was allowed to telephone his family and contacted his sister, who was informed of the precise details of the flight and of the scheduled time of arrival. In order to prevent any attempt at resistance, the members of the escort decided, in view of the information in their possession and the circumstances of the transfer on 15 February 2003, to use measures of physical restraint. The applicant was wearing fabric handcuffs and had Velcro around his ankles when he boarded the flight to Beirut via Moscow. The boarding of the plane, the flight and the transit passed without incident. The applicant was released from his restraints as soon as the plane reached cruising altitude and he was given food, drink and cigarettes during the journey. Upon his arrival in Beirut his passport was returned to him. Members of his family were waiting for him there. The Belgian consul in Beirut was also present at the airport. ... | The applicants, Palestinian nationals, complained in particular about the conditions in which they had been detained in the transit zone of Brussels National Airport following their unlawful entry into Belgian territory. |
781 | Medical negligence and liability of health professionals | I. THE CIRCUMSTANCES OF THE CASE A. Background to the case 6. The applicants are brothers. Mr Stuart Gray (the “first applicant”) lives in Blakedown, United Kingdom, whereas Mr Rory Gray (the “second applicant”) lives in Darmstadt, Germany. 7. The applicants are the sons of the late David Gray (hereinafter referred to as “Mr Gray ” or “the deceased” ) who died in the evening of 16 February 2008 at the age of 71 at his home in Cambridgeshire, United Kingdom. 8. Mr Gray suffered from kidney stones and from 2004 on he had regularly been attended at home by his doctor, a General Practitioner (“GP”) working for the United Kingdom ’ s National Health Service (“NHS”) which is represented at local level by NHS Primary Care Trusts (“PCTs”), in the instant case by Cambridgeshire NHS Primary Care Trust (“Cambridgeshire PCT”). The GP had routinely administered injections of opiates, in particular pethidine at a dosage of 100mg, for pain relief. On several occasions between 2006 and 2008 Mr Gray had recourse to out-of-hours medical services by “Take Care Now” (“TCN”), a private agency that recruits locum doctors within the United Kingdom or from abroad to supply out-of-hours medical care for several PCTs, including the Cambridgeshire PCT. Out-of-hours services concern the periods outside business hours of GP surgeries on weekdays as well as weekends and bank holidays. 9. Since TCN clinicians do not routinely carry pethidine, the deceased had on some of these occasions been injected with 10mg doses of the opiate diamorphine, contained in a sealed palliative care box TCN doctors were provided with for the purpose of home visits at that time. Such palliative care boxes were stocked with 10mg and 30mg vials of diamorphine for acute pain relief together with a much larger ampoule of 100mg intended for patients receiving palliative care. Attached to each box was a list of the drugs contained as well as a form with instructions for doctors, and inside a document that listed the relative potencies of the drugs. 10. On Saturday 16 February 2008 Mr Gray developed a severe renal colic. In the afternoon his partner contacted the TCN call centre to arrange for an urgent home visit by a doctor. She explained Mr Gray ’ s medical history to the TCN clinician who carried out the first telephone triage consultation and specified what medication Mr Gray had received on the occasion of previous home visits. The case was then assigned to doctor U., a German national, who had recently been recruited by TCN through an agency on a self-employed basis to provide out-of-hours care. U., at the time aged 65, had qualified as a doctor in Germany in 1972 where he was practising as an aesthetic surgeon but where he was also formally qualified as a GP. For the purpose of working as a locum doctor in the United Kingdom he had obtained registration with the British General Medical Council (GMC) in 2006 and had applied to be admitted to one of the Medical Performers Lists maintained by each of the local PCTs. Once a GP is admitted to a PCT ’ s Performers List he may work in the area of any other PCT in England. U. had withdrawn a first application to join Leeds Performers List after being notified that he had not reached a sufficient score in the required English language test. However, the Cornwall and Isles of Scilly PCT authorities, unaware that U. had already tried to register with another PCT, approved a subsequent application and admitted him to their Performers List in July 2007 without verifying his English language skills. 11. U. arrived in the United Kingdom on Friday, 15 February 2008 for his first shift as a locum doctor scheduled for the coming weekend. According to an induction report established by a TCN doctor on 15 February 2008 there had not been sufficient time to assess U. ’ s professional competence prior to his first assignment the next day. 12. U. attended Mr Gray at his home in the late afternoon of 16 February 2008. He was told by Mr Gray and his partner that in similar situations in the past he had either received injections of 100mg of pethidine for acute pain relief or, where the out-of-hours services did not carry pethidine, had been treated with diamorphine. U. administered 100mg of diamorphine from the respective ampoule included in the palliative care box by intra ‑ muscular injection. Some two hours after U. had left, Mr Gray ’ s partner realised that he was no longer breathing and called an ambulance. The attending emergency services confirmed that Mr Gray had died. The police was informed and attended on-site. 13. On Sunday 17 February 2008 TCN suspended U. from duty, terminated his engagement with immediate effect and advised him to return to Germany where he arrived the following day. Subsequently, two other incidents were reported where U. on the occasion of home visits on 16 February 2008 had failed to administer the appropriate medical treatment. 14. On 29 February 2008 U. returned to London to attend a hearing before the GMC in connection with the incidents on 16 February 2008. By an order of the same date, the GMC suspended the applicant from the British medical register on an interim basis. 15. On 4 March 2008 U. informed the competent public health authorities at the Arnsberg District Government ( Bezirksregierung ), Germany, and by letter of 11 March 2008 his German professional indemnity insurance company of the incident. He explained that when treating the deceased he had committed a grave mistake with fatal outcome that had resulted from the confusion between the drugs pethidine and diamorphine, the latter being a drug not used by on-call services in Germany and with which he had been unfamiliar. On the day of the incident he had further been overtired following his journey from Germany to the United Kingdom and had found himself in a tremendous stress situation. 16. By a letter of 17 April 2008 in reply to a complaint lodged by the first applicant following his father ’ s death, TCN confirmed that U. had satisfied the requirements generally expected from locum doctors working for the TCN and had completed the compulsory induction process all clinicians had to undergo before they could be assigned to clinical shifts. 17. A post mortem report issued on 25 June 2008 by a forensic pathologist in the United Kingdom established as the cause of Mr Gray ’ s death diamorphine poisoning in association with alcohol intoxication as well as hypertensive heart disease and myocardial fibrosis. The report further stated that the diamorphine injection had more than minimally contributed to the death and that in view of the large dose administered there was no need to necessarily invoke the additional effect of alcohol in causing death. 18. By a letter of 10 July 2008 to the deceased ’ s partner and the first applicant, U. apologised for the medical malpractice in connection with the deceased ’ s treatment and again explained that he had confused the opiates and referred to the stress situation he was subject to when making the mistake. 19. On 8 August 2008 the applicant attended a further hearing before the GMC in London where his suspension from the medical register was confirmed. B. The criminal proceedings instituted against U. in the United Kingdom and Germany 20. Following Mr Gray ’ s death the Cambridgeshire police commenced criminal investigations against U. for manslaughter by gross negligence. 21. On 5 March 2008 Cambridgeshire Constabulary, through Interpol London, made an application for assistance to the German Federal Office of Criminal Investigation ( Bundeskriminalamt ) requesting in particular the supply of data with respect to U. ’ s personal record and past professional career. The request was forwarded to the competent Bochum police department which provided the Cambridgeshire police with the requested information and documentation by mid-March 2008. 22. On 21 April 2008 the English Crown Prosecution Service (CPS) sent a formal letter of request to the Ministry of Justice of the Land North Rhine ‑ Westphalia, Germany, in accordance with the European Convention on Mutual Assistance in Criminal Matters 1959, requesting assistance in obtaining information with respect to U. ’ s medical qualifications and the authenticity of the related certificates submitted by him to the British authorities when applying to be admitted as a locum doctor. The letter gave a short summary of the circumstances of Mr Gray ’ s death and specified that while no criminal proceedings had yet been instigated in the United Kingdom, the offence investigated constituted manslaughter, i.e. the unlawful killing of a human being, an offence contrary to Common Law and punishable on conviction by a term of life imprisonment. The CPS asked the German authorities to carry out the respective investigations and to arrange for hearings of the relevant witnesses in Germany in the presence of representatives of Cambridgeshire Constabulary. 23. The request was forwarded by the North Rhine-Westphalia Ministry of Justice to the Hamm General Prosecution Authorities ( Generalstaatsanwaltschaft ) as well as to the locally competent Bochum prosecution authorities. By a decision of the Bochum Chief Public Prosecutor ( Oberstaatsanwalt ) of 6 June 2008 the request for assistance was granted and by letter of the same date the Bochum police department was informed accordingly and invited to provide the requested assistance and to coordinate any future investigation measures with Cambridgeshire police. 24. Simultaneously, the Bochum Chief Public Prosecutor ex officio initiated preliminary criminal proceedings ( Ermittlungsverfahren ) against U. in Germany under file no. 49 Js 174/08 on suspicion of having negligently caused the death of Mr Gray pursuant to Article 152 § 2 of the German Code of Criminal Procedure in conjunction with Articles 222 and 7 § 2 no. 1 of the German Criminal Code (see Relevant domestic and international law and practice below). In a letter of the same date the Chief Public Prosecutor instructed the Bochum police to conduct the necessary investigations also in respect of the domestic preliminary proceedings, in particular to interview the suspect U., who was represented by counsel. He further explicitly invited Bochum police to permit the presence of English police officers also on the occasion of such interview. 25. In accordance with the letter of request dated 21 April 2008, Cambridgeshire police officers visited Germany on several occasions in the period from July until September 2008 and were provided with assistance by the German police in their investigations against U. The investigations focussed on the authenticity of the certificates U. had submitted to the English health authorities as evidence of his medical qualifications as well as on the question whether U. ’ s treatment of the deceased had amounted to medical malpractice. At the request and in the presence of officers of Cambridgeshire police, German police officers heard, inter alia, representatives of U. ’ s professional indemnity insurance company, of the public health authorities at the Arnsberg District Government and the Westphalia- Lippe Medical Association ( Ärztekammer ) as witnesses. The originals of the protocols of the witness hearings conducted as well as the material obtained in the course of the investigations were handed over to Cambridgeshire police. On 10 July 2008 German and British police officers visited U. at his surgery in Witten, Germany, and informed him that criminal investigations were pending against him in Germany and the United Kingdom. U. availed himself of his right not to testify. He also declined a subsequent request by the Cambridgeshire police to be interviewed in the United Kingdom. 26. Furthermore, at the request of the Cambridgeshire Constabulary a forensic expert opinion was obtained from a professor of Essen university hospital on the question whether the treatment of the deceased by U. had complied with medical standards. The expert established his report on the basis of the information contained in the Cambridgeshire police ’ s investigation files. He presented his preliminary findings to representatives of Cambridgeshire Constabulary on the occasion of one of their visits to Germany in September 2008. In his final report issued on 18 September 2008 the expert confirmed that the cause of Mr Gray ’ s death had been an overdose of diamorphine. He pointed out that notwithstanding the fact that the therapeutical use of diamorphine was in general not permitted in Germany and therefore doctors in Germany were as a rule not trained in its use, U. had not sufficiently investigated the cause of Mr Gray ’ s acute pain and had not verified whether the medication administered and its dosage had been an appropriate therapy under the circumstances. The expert concluded that U. ’ s treatment of the deceased had thus been inadequate and had violated basic principles of medical care. 27. According to a file note by a Bochum police officer of 23 September 2008, the Cambridgeshire police, for their part, had provided their German counterparts upon request with certain documents for use in the preliminary proceedings conducted against U. in Germany, namely with the post mortem report of 25 June 2008 as well as protocols of statements made by Mr Gray ’ s partner following the latter ’ s death. 28. By a letter of 1 October 2008 counsel for the second applicant practising in Germany informed the Bochum prosecution authorities that his client was the son of a patient who had possibly been killed by U. on 16 February 2008 through medical malpractice. Counsel asked for information whether preliminary criminal proceedings were pending against U. and, should this be the case, requested access to the relevant investigation files. By a letter of 23 October 2008 counsel for the second applicant reiterated his request for information whether preliminary proceedings had been instituted against U. Pursuant to a file note by the Bochum public prosecution authorities dated 30 October 2008 counsel was informed about the pending preliminary proceedings and forwarded copies of excerpts of the investigation file such as the forensic expert opinion of 18 September 2008 and the letter of March 2008 by which U. had notified the incident to his professional indemnity insurance company. 29. By a letter dated 6 November 2008, Cambridgeshire Constabulary, referring to a telephone conversation of the previous day, requested the German public prosecution authorities to assure that no criminal proceedings would be instituted against U. in Germany prior to finalisation of the investigations in the United Kingdom and that none of the information gathered in the course of the investigations carried out jointly by German and British police officers on the occasion of their visits to Germany would be disclosed to U., Mr Gray ’ s relatives or their respective counsel. According to a file note by the Bochum public prosecution authorities of 5 November 2008, the German prosecution authorities had informed Cambridgeshire Constabulary in reply to a similar request made over the phone that day that they had been obliged by operation of law to institute preliminary criminal proceedings against U. in Germany and that they were also obliged under German criminal procedure to grant counsel for the accused as well as counsel for the victim ’ s relatives acting as joint plaintiffs to the prosecution ( Nebenkläger ) the right to inspect the files in such preliminary proceedings. 30. On 6 November 2008, German counsel for the second applicant, referring to the preliminary proceedings conducted under file no. 49 Js 174/08 against U., transmitted the latter ’ s apology letter of 10 July 2008 to the deceased ’ s partner and the first applicant as well as the TCN ’ s letter to the first applicant dated 17 April 2008 to the Bochum prosecution authorities for inclusion in the investigation file. 31. On 27 February 2009 an arrest warrant was issued against U. by the Huntingdon Magistrates ’ Court, Cambridgeshire. On 12 March 2009 the Colchester Magistrates ’ Court issued a European Arrest Warrant (”EAW”) against U. for allegedly having caused the death of Mr Gray with an overdose of morphine. 32. On the same day, 12 March 2009, the Bochum Chief Public Prosecutor ordered that the preliminary criminal proceedings against U. be terminated and applied to the Witten District Court for a penal order ( Strafbefehl ) to be issued against U. convicting him of having caused Mr Gray ’ s death through negligence pursuant to Article 222 of the Criminal Code and imposing a suspended prison sentence of 9 months as well as a payment of 5,000 euros (EUR) to the treasury. A draft of the penal order was attached to the application. Following previous discussions with the public prosecution authorities, U., represented by counsel, had declared that he would accept the envisaged sentence. 33. The Chief Public Prosecutor ’ s assessment of the facts of the case and U. ’ s guilt set out in the draft penal order relied on the circumstances of the case as reflected in the deceased partner ’ s statements following the incident, the post mortem report of 25 June 2008, the forensic expert opinion of 18 September 2008, the explanatory letter by TCN to the first applicant of 17 April 2008, U. ’ s notification to his professional indemnity insurance company dated 11 March 2008 as well as his apology letter to the deceased ’ s family of 10 July 2008. The Chief Prosecutor found that while the fact that U. did not have a criminal record, had made a full confession and had apologised to the victim ’ s relatives had to be considered in his favour and notwithstanding the fact that an ampoule with a fatal dose of morphine had been included in the care box, U. had nevertheless committed a grave error in the deceased ’ s treatment and had thus violated basic principles of the medical profession. 34. On 13 March 2009 the EAW was forwarded by the British authorities to the German Federal Office of Criminal Investigation. 35. By email of 17 March 2009 the Cambridgeshire police asked the Bochum public prosecution authorities for information about the procedure to be followed by the German authorities after transmission of the EAW. In their reply of the same day the Bochum public prosecution authorities specified that the Hamm General Prosecutor ( Generalstaatsanwalt ) was the competent authority to deal with questions regarding U. ’ s extradition and pointed out that extradition might be hindered on the ground that criminal proceedings were also pending against U. in Germany. On the occasion of a phone call later the same day Cambridgeshire police was informed by the Hamm General Prosecution authorities that execution of the EAW was halted in view of the criminal proceedings pending against U. in Germany in accordance with section 83b (1) of the Act on International Cooperation in Criminal Matters (see Relevant domestic and international law and practice below). 36. On 20 March 2009 the Witten District Court issued the penal order (file no. 49 Js 174/08) against U. as applied for by the prosecution authorities. By a decision of the same day, the District Court determined that the probation period for U. was two years starting from the date the penal order became final. 37. By a letter dated 23 March 2009 the CPS asked the Ministry of Justice of the Land of North Rhine-Westphalia for information why the EAW had not yet been executed and for clarification whether any criminal or other proceedings were conducted, pending or envisaged against U. in Germany as well as for copies of related court decisions. 38. By fax dated 14 April 2009 newly appointed counsel for the second applicant practising in Germany asked the Bochum prosecution authorities for information whether the preliminary proceedings against U. had meanwhile been terminated and whether a bill of indictment had been issued. Counsel further asked for information whether a possible trial was to be conducted in Germany or in the United Kingdom. He finally requested to be granted access to the files in the proceedings under file no. 49 Js 174/08. It follows from a subsequent letter by counsel dated 19 May 2009 that his request for inspection of the files was granted. However, it is not clear on what date between 14 April and 19 May 2009 counsel actually obtained access to the file. 39. On 15 April 2009, no appeal having been lodged by U., the penal order of 20 March 2009 became final in accordance with Article 410 of the German Code of Criminal Procedure (see Relevant domestic and international law and practice below). 40. By written submissions dated 6 May 2009 the Hamm General Prosecution Authorities ( Generalstaatsanwaltschaft ) requested the Hamm Higher Regional Court ( Oberlandesgericht ) to declare U. ’ s extradition to the United Kingdom inadmissible since U. had been convicted by final decision of a German court for the offence underlying the extradition request and the sentence imposed upon him was currently in the process of being executed. His extradition would therefore be contrary to the ban on double jeopardy as reflected in section 9 (1) no. 1 of the Act on Cooperation in Criminal Matters as well as Article 3 no. 2 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JI) (see Relevant domestic and international law and practice below). 41. By a decision of 14 May 2009 the Hamm Higher Regional Court, endorsing the reasoning of the Hamm General Prosecution Authorities, declared U. ’ s extradition inadmissible. 42. By a letter of 27 May 2009 the Hamm Chief Prosecutor communicated the Higher Regional Court ’ s decision to the Colchester Magistrates ’ Court in Chelmsford, United Kingdom. 43. By a letter of the same day the Bochum Chief Public Prosecutor, in reply to the CPS ’ s information request of 23 March 2009, explained that he had been obliged by operation of domestic law to instigate criminal investigations against U. after having learned of the circumstances of Mr Gray ’ s death through the CPS ’ s request for assistance dated 21 April 2008. He specified that the domestic proceedings had meanwhile been terminated and that U. had been convicted by a final decision of the Witten District Court for having negligently caused Mr. Gray ’ s death. A copy of the related penal order of 20 March 2009 was attached to the letter. 44. On 1 July 2009 a meeting between the representatives of the Bochum prosecution authorities, the CPS and Cambridgeshire police took place at Eurojust in The Hague with a view to providing explanations on the conduct of the criminal investigations and proceedings in Germany. The content of these discussions is confidential. 45. In August 2009 and April 2010 counsel for the second applicant was again granted access to the files in the terminated criminal proceedings against U. under file no. 49 Js 174/08. 46. As a consequence of the German authorities ’ decision not to extradite U., the criminal investigations in the United Kingdom were discontinued. C. Subsequent investigations and proceedings against U. in Germany 1. The proceedings regarding U. ’ s fitness to practice medicine before the Arnsberg District Government 47. After U. had informed the Arnsberg District Government of Mr Gray ’ s death in March 2008, the competent District health authorities commenced investigations regarding U. ’ s fitness to practice as a doctor ( approbationsrechtliches Verfahren ). Within the scope of their investigations the health authorities, inter alia, conducted interviews with U. on two occasions in March 2009 and November 2010 with a view to clarifying the circumstances of the incidents of 16 February 2008 and with a view to examining U. ’ s fitness to practice in general. Furthermore, at the applicants ’ request a meeting was arranged between them and representatives of the Arnsberg District Government on 27 September 2010 on the occasion of which they provided further information on the circumstances of the case. 48. Following completion of their investigations by the end of 2010 the health authorities, considering U. ’ s professional conduct over the last 30 years in Germany, the fact that he had committed himself to refrain from practising medicine abroad in the future and taking into account the particular circumstances under which U. ’ s medical malpractice had occurred, found that there was nothing to establish that U. would commit a similar error of treatment in Germany or that he lacked the necessary qualifications for practising medicine. Consequently, the health authorities held that there was no need to suspend or revoke U. ’ s licence to practice medicine in Germany and discontinued the proceedings regarding U. ’ s fitness to practice. 2. The disciplinary proceedings before the Münster Administrative Court 49. By written submissions of 15 April 2010 the Westphalia- Lippe Medical Association applied for the opening of disciplinary proceedings against U. for breach of his professional duties in connection with the incidents in the United Kingdom on 16 February 2008. 50. By a decision dated 27 April 2011 of the competent Münster Administrative Court sitting in a special formation as disciplinary jurisdiction for the healthcare professions ( Berufsgericht für Heilberufe ) U. was reprimanded for having disregarded the standards of the medical profession on the occasions of three patient consultations on 16 February 2008 in the United Kingdom, in particular for having committed a grave error in the treatment of Mr Gray, and fined him 7,000 EUR. The decision became final on 4 June 2011. D. Subsequent investigations and proceedings against U. in the United Kingdom 51. A number of further investigations and proceedings were instituted in the United Kingdom following Mr. Gray ’ s death. An Inquest into the circumstances of the incident was held by the Cambridgeshire Coroner from 14 January to 4 February 2010. The latter not only returned the verdict that the deceased had been unlawfully killed as a consequence of the inadequate treatment administered by U. but also pointed explicitly to the deficiencies in the recruitment, training and supervision of foreign locum doctors in the United Kingdom. These deficiencies were at the origin of a subsequent report by the Coroner to the Secretary of Health and resulted in investigations by the House of Commons Health Committee as well as in an independent inquiry by the Care Quality Commission, a public body overseen by the Department of Health, which came to similar conclusions as the Inquest and identified related shortcomings in the British health system. Moreover, on the occasion of proceedings conducted by the General Medical Council regarding U. ’ s fitness to practice in the period from 2 to 18 June 2010, the circumstances of Mr Gray ’ s death were further investigated and additional evidence from expert witnesses and the deceased ’ s next of kin was considered. The GMC Fitness to Practice Panel considered that U. had breached several of the basic principles of good medical practice and decided to formally strike U. ’ s name from the medical register in the United Kingdom. In addition, in 2009 the applicants brought civil claims for damages for unlawful killing arising out of negligence with the High Court against U., TCN as well as Cambridgeshire PCT in the United Kingdom. The applicants ’ compensation claims were settled with respect to all three defendants by consent orders of December 2009, January and August 2010. | This case concerned the death of a patient in his home in the United Kingdom as a result of medical malpractice by a German doctor, who had been recruited by a private agency to work for the British National Health Service. The patient’s sons complained that the authorities in Germany, where the doctor was tried and convicted of having caused the death by negligence, had not provided for an effective investigation into their father’s death. |
296 | Prevention of terrorism | 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 on them a remote control device to be used to explode a bomb, were shot dead on the street by SAS (Special Air Service) soldiers in Gibraltar. The applicants, who are representatives of their estates, alleged that the killing of the deceased by members of the security forces constituted a violation of Article 2 (right to life) of the Convention. |
16 | Taking of children into care | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants live in Astrakhan. 7. The first applicant has been or is a guardian ( a foster parent ) of the second to eighth applicants. R. was a minor, who remained in the first applicant ’ s care from 20 July 2001 until 26 July 2010. 8. At birth R. was diagnosed with several serious health conditions. He spent the first eight months of his life in hospital. As his condition remained very serious and unstable, his natural parents considered themselves unfit to attend to his needs and agreed for their son to be put into the care of the first applicant, who had qualifications in medicine and was an experienced paediatrician. 9. On 20 July 2001 the first applicant took R. from hospital and brought him at her place of residence. 10. On 23 November 2001 the Trusovskiy District Council in Astrakhan appointed the first applicant to act as R. ’ s guardian. The decision stated that R. ’ s parents were unable to ensure proper care of their child, who had serious congenital diseases, and that therefore they gave their consent in writing to the first applicant ’ s guardianship over R., and to his transfer into her care. 11. Eventually, at various dates in the period from 2003 to 2009 the first applicant also was appointed guardian to the second to eighth applicants. 12. Between 2001 and 2007, the first applicant and R. ’ s parents maintained good relations. 13. In 2007 R. ’ s state of health became more stable, and his parents expressed their wish to take him back into their care. The first applicant refused to return the boy. A. Proceedings concerning deprivation of parental authority 14. On an unspecified date the first applicant brought a claim against R. ’ s parents in an attempt to have them deprived of their parental authority over him. She argued that they had left R. in the children ’ s hospital shortly after his birth; that they had not expressed any interest in his life, health and development; that they had not visited him; and that financial support they had given had been inadequate given the child ’ s special needs. According to the first applicant, R. ’ s parents were now interested in the boy only with a view to improving their living conditions, as having a disabled child in their care could entitle them to better social housing. The first applicant thus insisted that R. ’ s parents had evaded their parental duties and thus should be divested of their parental authority over R. 15. In the proceedings before the first-instance court, the Ministry of Education and Science of Astrakhan Region ( hereinafter “the childcare authority”) provided an expert report on the issue, in which they considered that R. ’ s parents “ [ did ] not show any interest in his life or health condition, they [ did ] not participate in his upbringing, they [ did ] not provide any financial maintenance and [had] chosen not to fulfil their parental duties”. The report concluded that they should be deprived of their parental authority. 16. On 11 November 2008 the Trusovskiy District Court of Astrakhan (“the District Court”) dismissed the first applicant ’ s claim. In particular, it rejected as unfounded the first applicant ’ s argument that R. ’ s parents had abandoned him in the children ’ s hospital; it observed in this connection that no evidence had been submitted to it – in the form of a written statement by R. ’ s parents or certificates from any health institutions – to show that R. ’ s parents had ever formally renounced their parental authority over the boy. The court further observed that the decision to transfer their son under the first applicant ’ s guardianship had been taken by the child ’ s parents at a very difficult time of their lives, when they had faced a very stressful situation of being unable, on their own, to attend to their son ’ s needs. 17. The District Court also rejected the first applicant ’ s allegation concerning R. ’ s parents ’ unwillingness or failure to visit their son in the absence of any obstacles. In the latter connection, the court observed that the first applicant had had a negative attitude towards R. ’ s parents ’ unexpected visits, and she had never informed them of the child ’ s absence from his place of residence ( for outings and trips abroad). Also, R. ’ s parents had been unable to obtain information about R. ’ s heath from the relevant healthcare institutions, as the latter had refused give them any such information at the first applicant ’ s written request. 18. The court also referred to statements of a number of witnesses which confirmed that R. ’ s parents had helped the first applicant with his maintenance, both financially and by providing various services requested by the first applicant; in particular, they had had maintenance and repair work in the first applicant ’ s housing done; they had ensured private transport for R. ’ s visits to medical appointments; they had supplied medicine and food for R. ’ s special diet; they had taken his clothes for cleaning and brought him clean clothes. 19. The court further considered the deprivation of parental authority to be an extraordinary measure that could only be applied on the grounds established in Article 69 of the Russian Family Code (see paragraph 68 below). In the circumstances of the case, the court did not discern any grounds justifying such a measure. At the same time, the court urged R. ’ s parents “ to change their attitude towards [ R. ’ s] upbringing” and imposed on the competent childcare authority an obligation to monitor their compliance with their parental obligations”. It also noted that the financial support provided by R. ’ s biological parents was insufficient and ordered that they pay the first applicant one quarter of their monthly income as child maintenance. 20. On 12 March 2009 the Astrakhan Regional Court (“the Regional Court”) upheld the first-instance judgment on appeal. B. First set of proceedings concerning the determination of R. ’ s place of residence 21. On 26 February 2009 the District Court dismissed an application by R. ’ s parents to have their son returned to them. 22. It established, in particular, that the first applicant had been taking good care of R.; that she had actively involved relevant specialist healthcare professionals to ensure that he had received the necessary medical treatment and constant care; she had created all conditions necessary for his life and development, taking into account his special needs. The court also noted that for the period when R. had remained in the first applicant ’ s care, there had been improvements in his state of his health and progress in his physical and psychological development. It furthermore referred to the evidence confirming that the first applicant ’ s foster children lived in good living conditions; that they played as a group; that their leisure activities were well organised, and included group nature outings. 23. The District Court also established, with reference to the available written evidence and witness statements, that, until that moment, R. ’ s parents had not maintained contact with R., and had never enquired as to his health. 24. It further observed, with reference to the opinions of healthcare professionals and representatives of the childcare authority who had monitored R., that an abrupt change of surroundings, separation from the people he knew and immediate transfer to his biological parents could seriously traumatise the boy, endanger and harm his psychological state and thus aggravate his conditions. The boy would need a lengthy adaptation period to get used to his natural parents. 25. The court thus concluded that it would be in the child ’ s best interests to continue living with the first applicant for the time being. 26. The judgment became final on 13 March 2009. C. Proceedings concerning R. ’ s parents ’ access to him 27. On an unspecified date, R. ’ s parents brought a claim against the first applicant. They complained that she had been obstructing their contact with R. and requested that the court grant them access to the boy, and determine the manner in which they could exercise their contact rights. 28. By a judgment of 7 May 2009 the District Court determined R. ’ s parents ’ rights of contact with the boy. It established that they should have access to him each Friday from 4.30 to 5.30 pm at the first applicant ’ s home, and each Sunday from 2 to 4 pm at their home in the first applicant ’ s presence. 29. On 10 June 2009 the Regional Court upheld the first-instance judgment on appeal. 30. The case file reveals that R. ’ s parents complied with the established order of their contact with R. D. Second set of proceedings concerning the determination of R. ’ s place of residence 31. On an unspecified date R. ’ s parents brought another claim against the first applicant and the childcare authority before the District Court. They asked for their son ’ s return and termination of the first applicant ’ s guardianship over him. 32. In the ensuing proceedings both parties were represented by lawyers. 33. In the context of those proceedings, two reports were drawn up by psychologists of the childcare authority. They reflected the results of monitoring by psychologists of contact sessions between R. and his parents. 34. The first report dated 29 December 2009 described two contact sessions that had taken place at various times on 25-27 December 2009. It stated, in particular, that R. ’ s parents had established good psychological contact with the child, and that they had showed a caring and loving attitude towards the boy. The report furthermore stated that, in view of R. ’ s special condition and the considerable delay in his physical and psychological development, his interaction with the adults was very limited; however, the parents managed to establish tactile and emotional contact with him. Overall, in so far as his conditions made it possible to ascertain, the child felt psychologically comfortable and calm in the presence of his parents. At the same time, the experts pointed out that the child was very fragile and that, for his psychological comfort, he constantly needed the presence of the first applicant. The experts also stated that R. ’ s parents had insufficient understanding of their son ’ s emotional state and interests, the particularities of his psychological condition and his capabilities. The report concluded that it was necessary to continue the process of the child ’ s adaptation to his parents and to that end the duration of the contact sessions between R. and his parents should be extended. 35. The second report dated 4 May 2010 described two contact sessions that had taken place on 29 and 30 April 2010. It noted the child ’ s very serious condition, which greatly limited his interaction with the outside world. It further stated, in particular, that R. ’ s parents had successfully established psychological contact with their son; that they understood adequately his psychological particularities, emotional state, needs and capabilities. According to the report, when with his parents, R. felt calm and comfortable. In the course of their interaction, R. ’ s parents had created a warm and beneficial environment propitious for the child ’ s development. 36. In the proceedings before the court, the childcare authority expressed a generally favourable opinion regarding R. ’ s return to his biological parents, but pointed out that, in view of R. ’ s state of health, his integration into his family should be gradual. In particular, the duration of his contact sessions with the parents, which to then had taken place twice a week in daytime, could be extended and could include night - time contact. 37. On 4 May 2010 the District Court allowed R. ’ s parents ’ claims. 38. It examined in detail the circumstances of R. ’ s transfer to the first applicant ’ s care and the relations between the first applicant, R. ’ s parents and R. from that time forward. It pointed out, in particular, that R. ’ s parents had surrendered their son to the first applicant ’ s care given his very serious condition and her experience as a paediatrician; at that time they had considered themselves incapable of ensuring the specialist care he needed. 39. It rejected as untenable on the facts the first applicant ’ s argument that R. ’ s parents had abandoned their son in the hospital without valid reasons. It noted in this connection : “ Neither the statements made by [R. ’ s ] parents nor relevant medical documents [to confirm that argument] were presented to the court. The [ defendants ] denied this fact. They submitted that they had not abandoned their child. On the contrary, they wanted him to get better and to return to his family. It follows from the material in the case file that [ R. ] was given into the care of the guardian after his parents ’ futile attempts to provide him with due medical care and in the child ’ s [best] interests ... [ R. ’ s parents] did not intend to abandon their child ... Even though he was under the [first applicant ’ s] guardianship, [his] family took an interest in his life and health, they provided ... financial support. ” 40. The District Court further referred to statements of various witnesses. In particular, eleven witnesses described the first applicant as a kind, caring and empathetic person, who helped other families with children with disabilities. They also stated that she had taken good care of R., that as a paediatrician she had attended to his needs, and that his condition had visibly improved owing to her efforts. The witnesses furthermore stated that the first applicant went with her foster children on trips, within the country and abroad. With respect to those statements the District Court noted that they confirmed only the first applicant ’ s good and caring attitude towards R. and the fact that she had duly performed her obligations towards him. However, in the court ’ s view, those statements did not show that R. ’ s parents were unable to take good care of the boy, nor that in view of R. ’ s physical and psychological condition he should continue living with the first applicant. 41. The court also referred to statements of Ms Z., a paediatrician, who submitted that she had known and been treating R. since he had been eight months old when he had been given into the first applicant ’ s care. The child had suffered from a serious congenital illness and had spent considerable time in hospital. At that time, his condition was stable, yet serious owing to his diagnosis – a central nervous system disorder and mobility impairments. The child needed constant appropriate care and supervision rather than mere medical treatment. The child had grown in ten years, had changed emotionally. He reacted to the people around him. However, he could not take care of himself. He could not eat, drink or walk on his own. He was in need of constant care. Ms Z. also added that she had accompanied the first applicant when she had taken R. to Austria for medical treatment. The boy had had a different reaction when the first applicant had held him in her arms and when Ms Z. had held him in her arms. 42. Ms M., one of the psychologists who had drawn up the reports of 29 December 2009 and 4 May 2010 (see paragraphs 34 and 35 above), submitted that it had been established in the course of monitoring that R. ’ s parents had learnt to identify and adequately understand specific psychological and physical particularities of their son. They showed genuine interest in the child and surrounded him with truly parental attention, love and care. They regularly consulted psychologists concerning the psychological condition of a child with developmental difficulties, asking about the requisite material and toys for, and how they should build communication, with such a child. 43. The District Court went on as follows : “ Accordingly, as a result of monitoring of the contact sessions, it has been established that [ R. ’ s] parents communicated with [him] in a calm, sincere and benevolent manner. They successfully established psychological contact with him. They understood adequately his psychological particularities, emotional state, needs and capabilities. When with his parents, [ R. ] felt calm and comfortable. In the course of their interaction, they created a warm and beneficial environment favourable for the child ’ s development. According to the report on the plaintiffs ’ living conditions ... in a two-room flat, the conditions were found satisfactory and corresponding to the family ’ s needs and favourable for children ’ s upbringing and living. [ R. ’ s] parents provided the conditions necessary for [ his ] living and upbringing. ... The adduced materials reveal that [ R. ’ s] parents are a stable ... family. They are well-to-do and make an adequate living. They have permanent employment [and a] stable income. They provided positive personal references from their employers and from their place of residence. They do not have a history of psychiatric diseases or criminal records. Accordingly, they meet all the conditions and can raise the child and provide him with due care. ” 44. The court dismissed the first applicant ’ s argument that R. ’ s parents were seeking to cancel her guardianship in order to obtain better social housing. According to the court, this allegation had been refuted in the course of the proceedings by the explanations provided by R. ’ s parents, and by the evidence proving that their minor children, including R., owned shares in their flat. 45. It further rejected the argument advanced by the childcare authority that the child should be gradually integrated into his parents ’ family (see paragraph 36 above). In the court ’ s view, such gradual integration would have a negative impact on the child ’ s psychological state. Furthermore, it would interfere with his right to live and be brought up in his family. The court further stated that R. ’ s parents were his natural parents; they showed due care and love for him, and had by that time established psychological contact with him on the basis of contact sessions that had taken place over a considerable period of time, in particular in their flat. The child understood that his mother and father were his parents, in so far as his psychological development allowed it. The court also pointed out that the childcare authority had admitted that the reunification of R. with his family ultimately served his interest. 46. The District Court thus considered that “no convincing evidence [had been] submitted to show that [R. ’ s] parents [ had been ] unable to bring up their child with due care and attention”, and concluded as follows: “ Regard being had to the above, the court holds that the plaintiffs ’ claim should be granted and they should be reunited with their child in order for them to continue exercising their parental rights in respect of the child ’ s education and development. ... the court holds that the [administrative] decision ... [of] 23 November 2001 ... should be terminated as no longer needed .” 47. The first applicant appealed against the first-instance judgment. 48. On 23 June 2010 the Regional Court examined the first applicant ’ s appeal submissions, where she and her lawyer made their case in person. 49. It then upheld the judgment of 4 May 2010 on appeal. It considered that the District Court had thoroughly examined the case and accurately established the relevant circumstances; that on the basis of various pieces of written evidence, the report of 4 May 2010 regarding the effects of R. ’ s parents ’ contact with him and a report on their living conditions being amongst their number, as well as on the basis of numerous witness statements, the first- instance court had taken a justified and well-reasoned decision that R. ’ s transfer to his biological family had been in his best interests. 50. On 26 July 2010 R. was transferred to his parents. E. Proceedings concerning the applicants ’ access to R. 51. On an unspecified date the first applicant brought an action against R. ’ s parents on behalf of herself and on behalf of the other applicants in an attempt to gain access to R. She averred, in particular, that for the nine years during which R. had remained in her care, she and her foster children – the other applicants – had formed a family with a special bond existing between them; she further complained that, after R. ’ s transfer to his parents, there had been no contact between R. and the applicants, as R. ’ s parents had obstructed their attempts to maintain contact. 52. On 19 April 2011 the Sovetskiy District Court of Astrakhan (“the District Court”) dismissed the applicants ’ claim. 53. It observed, in particular, that Article 64 of the Russian Family Code (see paragraph 65 below) vested the authority to represent and protect a child ’ s interests in his or her natural parents, unless the latter ’ s interests stood in conflict with their child ’ s. The District Court stated, with reference to the available evidence and witness statements, that after R. ’ s transfer to his biological parents, they had established all the requisite conditions for the boy ’ s life and education, and had been fully able to attend to his needs. In particular, R. had undergone all the necessary medical examinations; and his parents had complied with healthcare professionals ’ recommendations as regards his care and medical assistance. The court concluded that R. ’ s parents were acting in his interests. 54. The District Court further noted that R. ’ s parents as well as the childcare authority objected to the applicants ’ communication with R. It also observed that it was impossible to find out R. ’ s opinion on the matter in view of his medical conditions. 55. The District Court went on to observe that the first applicant was not a member of R. ’ s family or a relative, within the meaning of Article 67 of the Russian Family Code (see paragraph 66 below ), nor did she have any legal ties with him after her guardianship over the boy had been terminated by a court decision, with the result that she did not pertain to the category of individuals entitled to seek access to the child under the Russian Family Code. In the court ’ s view, statements of a number of witnesses confirming R. ’ s attachment to the first applicant and her taking good care of him “ were not grounds for including the first applicant in the category of individuals entitled under the relevant legal provision to claim access to the child ”. 56. The first applicant appealed arguing, in particular, that the first ‑ instance court had erred, in the absence of a forensic expert examination of the matter, in its finding that the second applicant had been incapable of having and forming attachments to her and the other applicants; she complained that her request to have such an expert examination ordered had been rejected by the District Court. The applicant also argued that the first-instance court should have applied Article 67 of the Russian Family Code by analogy, as the relationship between the applicants and R. had been similar to that between biological family members. 57. On 8 June 2011 the Regional Court upheld the judgment of 19 April 2011 on appeal. It noted, in particular : “When dismissing the [first applicant ’ s] claims, the [first-instance] court considered that, as set forth in Article 67 of the Family Code of the Russian Federation, the right of access to a child is granted to grandfathers, grandmothers, brothers, sisters and other relatives, while [the first applicant] is, as a matter of law, not regarded as a member of the family or a relative of a minor or any other person whose relationship with him is governed by family law ( appointed guardians, custodians, de facto guardians ) given that her guardianship has been terminated. The [Regional Court] upholds the above finding of the first-instance court. By virtue of the Family Code of the Russian Federation, the right of access to a child is granted to a grandmother, a grandfather, brothers and sisters, [and] the child ’ s close relatives who take part in his upbringing and education. Accordingly, the legislation protects [the relevant rights] of close relatives. The right of access to a child is not guaranteed to other individuals. ” 58. As regards the first applicant ’ s argument that the first-instance court should have applied Article 67 of the Russian Family Code by analogy and should have considered her as R. ’ s family member given the nature of ties between them, the appellate court noted as follows: “ When resolving the dispute, the court did not apply the law by analogy. ... [T]he members of the family, as a matter of law, are understood only as the individuals directly indicated in the Family Code of the Russian Federation. The resolution of a dispute by analogy would otherwise contradict the essence of the family relationship. ” 59. The court also rejected the applicant ’ s argument that the first ‑ instance court had failed to determine the degree of R. ’ s attachment to the applicants; it stated in this connection that the argument in question “ lacked a legal basis”. 60. The Regional Court also endorsed the District Court ’ s findings that R. ’ s parents had provided the requisite care to R.; and that they had carried out necessary medical and rehabilitation measures. It “[ discerned] no evidence that R. ’ s rights or interests [ had been ] infringed ” and dismissed the first applicant ’ s argument to that end as unsubstantiated. | This case concerned a child, who was cared for by a foster mother, the first applicant in the case, for nine years and was then returned to his biological parents. The first applicant and her remaining children complained about the Russian courts’ decisions to return the child to his parents, to terminate the first applicant’s guardianship rights and to deny them all access to the child. |
191 | Domestic violence | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1972 and lives in Diyarbakır. 8. The applicant ’ s mother married A.O. in a religious ceremony. In 1990 the applicant and H.O., A.O. ’ s son, started a relationship and began living together. They officially married on 12 November 1995. They had three children, in 1993, 1994 and 1996. The applicant and H.O. had heated arguments from the outset of their relationship. The facts set out below were not disputed by the Government. A. The first assault by H.O. and A.O. against the applicant and her mother 9. On 10 April 1995 the applicant and her mother filed a complaint with the Diyarbakır Public Prosecutor ’ s Office, alleging that H.O. and A.O had been asking them for money, and had beaten them and threatened to kill them. They also alleged that H.O. and his father wanted to bring other men home. 10. On the same day, the applicant and her mother were examined by a doctor. The applicant ’ s medical report noted bruises on her body, an ecchymosis and swelling on her left eyebrow and fingernail scratches on the neck area. The medical report on the applicant ’ s mother also noted bruises and swellings on her body. On 20 April 1995 definitive reports were issued, which confirmed the findings of the first report and stated that the injuries in question were sufficient to render both the applicant and her mother unfit to work for five days. 11. On 25 April 1995 the public prosecutor lodged indictments against H.O. and A.O. for death threats and actual bodily harm. On 15 June 1995 the Diyarbakır First Magistrate ’ s Court discontinued the assault case, as the applicant and her mother had withdrawn their complaints and had thereby removed the basis for the proceedings under Article 456 § 4 of the Criminal Code. 12. On 11 September 1995 the Diyarbakır Second Magistrate ’ s Court also acquitted the defendants of making death threats on account of the lack of evidence, and again discontinued the assault case, noting that it had been previously heard by the Diyarbakır First Magistrate ’ s Court. B. The second assault by H.O. against the applicant 13. On 11 April 1996, during an argument, H.O. beat the applicant very badly. The medical report drawn up on that occasion recorded surface bleeding on the applicant ’ s right eye, bleeding on her right ear, an ecchymosis on her left shoulder and back pain. The report concluded that the applicant ’ s injuries were sufficient to endanger her life. On the same day, at the request of the public prosecutor and by a decision of a single judge, H.O. was remanded in custody. 14. On 12 April 1996 the public prosecutor filed a bill of indictment with the Diyarbakır Criminal Court, accusing H.O. of aggravated bodily harm under Articles 456 § 2 and 457 § 1 of the Criminal Code. 15. On 15 April 1996 H.O. filed a petition with the Presidency of the First Magistrate ’ s Court, requesting his release pending trial. He explained that during an argument with his wife he had become angry and had slapped his wife two or three times. Then his mother-in-law, who worked at a hospital, had obtained a medical report for his wife and that report had led to his detention for no reason. He stated that he did not want to lose his family and business and that he regretted beating his wife. 16. On 16 April 1996 the Second Magistrate ’ s Court dismissed H.O. ’ s request for release pending trial and decided that his pre-trial detention should be continued. 17. At the hearing on 14 May 1996, the applicant repeated her complaint. The public prosecutor requested that H.O. be released pending trial, considering the nature of the offence and the fact that the applicant had regained full health. Consequently, the court released H.O. 18. At a hearing of 13 June 1996, the applicant withdrew her complaint, stating that she and her husband had made their peace. 19. On 18 July 1996 the court found that the offence fell under Article 456 § 4 of the Criminal Code, for which the applicant ’ s complaint was required in order to pursue the proceedings. It accordingly discontinued the case on the ground that the applicant had withdrawn her complaint. C. The third assault by H.O. against the applicant and her mother 20. On 5 February 1998 the applicant, her mother, her sister and H.O. had a fight, in the course of which H.O. pulled a knife on the applicant. H.O., the applicant and her mother sustained injuries. The medical reports certified injuries which rendered them unfit to work for seven, three and five days respectively. 21. On 6 March 1998 the public prosecutor decided not to prosecute anyone in respect of this incident. He concluded that there was insufficient evidence to prosecute H.O. in connection with the knife assault, and that the other offences such as battery and damage to property could be the subject of civil lawsuits. There was thus no public interest in pursuing the case. 22. The applicant went to stay with her mother. D. The fourth assault by H.O. against the applicant and her mother: threats and assault (using a car) leading to initiation of divorce proceedings 23. On 4 March 1998 H.O. ran a car into the applicant and her mother. The applicant ’ s mother was found to be suffering from life - threatening injuries. At the police station, H.O. maintained that the incident had been an accident. He had only wished to give the applicant and her mother a lift, which they had refused before they continued walking. They had then thrown themselves in front of the car. The applicant ’ s mother alleged that H.O. had told them to get into his car and that he would kill them if they refused. Since they did not want to get into the car and had started running away, H.O. had driven his car into the applicant, who had fallen. While the applicant ’ s mother tried to help her daughter, H.O. reversed and then drove forward, this time into the mother. The applicant ’ s mother regained consciousness in hospital. In her statements to the police the applicant confirmed her mother ’ s statements and alleged that her husband had tried to kill them with his car. 24. On 5 March 1998 a single judge at the Diyarbakır Magistrate ’ s Court remanded H.O. in custody. 25. On 19 March 1998 the public prosecutor initiated criminal proceedings against H.O. in the Diyarbakır Third Criminal Court for making death threats and inflicting grievous bodily harm. On the same day the Forensic Medicine Institute submitted a medical report which noted grazes on the applicant ’ s knees. The report concluded that the applicant ’ s injuries rendered her unfit to work for five days. 26. On 20 March 1998 the applicant brought divorce proceedings against H.O. on the grounds that they had intense disagreements, that he was evading his responsibilities as a husband and a father, that he was mistreating her ( as proved by medical reports ), and that he was bringing other women to their home. The applicant submits that she later dropped the divorce case due to threats and pressure from her husband. 27. On 2 April 1998 the applicant and her mother filed a petition with the Diyarbakır Chief Public Prosecutor ’ s Office, asking for protective measures from the authorities subsequent to the death threats issued by H.O. and his father. 28. On 2 and 3 April 1998 police officers took statements from the applicant, her mother, her brother and the latter ’ s wife as well as H.O. and his father. The applicant and her mother stated that H.O. had attempted to kill them with his car and that he had threatened to kill them if the applicant did not return to H.O. They noted that the applicant had already commenced divorce proceedings and that she did not want to return to live with H.O. The applicant ’ s brother and his wife alleged that the applicant was discouraged by her mother from going back to her husband and that they knew nothing about the threats issued by H.O. and his father. H.O. contended that his only intention was to bring his family together, but that his mother-in-law was preventing this. He also alleged that he had gone to the applicant ’ s brother and family elders for help, but to no avail. He maintained that he had never threatened the applicant or her mother and that their allegations were slanderous. H.O. ’ s father maintained that the applicant ’ s mother wanted her daughter to divorce H.O. and to marry somebody else. 29. In a report dated 3 April 1998, the Director of the Law and Order Department of the Diyarbakır Security Directorate informed the Chief Public Prosecutor ’ s Office of the outcome of the investigation into the allegations made by the applicant and her mother. He concluded that the applicant had left her husband and gone to live with her mother. H.O. ’ s repeated requests for the return of his wife had been turned down by the applicant ’ s mother and the latter had insulted H.O. and made allegations that H.O. had issued death threats against her. H.O. had spent twenty - five days in prison for running a car into his mother - in-law and, following his release, had asked a number of mediators to convince his wife to return home. However, the mother did not allow the applicant to go back to H.O. Both parties had issued threats against each other. Furthermore, the mother had wished to separate her daughter from H.O. in order to take revenge on her ex-husband, had constantly made slanderous allegations and had also “wasted” the security forces ’ time. 30. On 14 April 1998 the Diyarbakır Chief Public Prosecutor indicted H.O. and his father A.O. and charged them with issuing death threats against the applicant and her mother, contrary to Article 188 § 1 of the Criminal Code. 31. On 30 April 1998 the Diyarbakır Criminal Court released H.O. pending trial. It further declared that it had no jurisdiction over the case and sent the file to the Diyarbakır Assize Court. 32. On 11 May 1998 the Assize Court classified the offence as attempted murder. During the hearing of 9 July 1998, H.O. repeated that the incident had been an accident; the car door was open, and had accidentally hit the complainants when he moved the car. The applicant and her mother confirmed H.O. ’ s statement and maintained that they no longer wished to continue the proceedings. 33. On 23 June 1998 the Diyarbakır Assize Court acquitted H.O. and his father of the charges of issuing death threats, for lack of sufficient evidence. The court noted that the accused had denied the allegations and the complainants had withdrawn their complaints. The applicant again resumed living with H.O. 34. On 9 July 1998 the applicant ’ s mother was given another medical examination, which found that her injuries were not life-threatening but were sufficient to render her unfit for work for twenty - five days. 35. At the hearing of 8 October 1998 the applicant and her mother withdrew their complaints. They stated that the car door had been open and that H.O. had accidentally hit them. When questioned about their complaints against H.O., the applicant and her mother stated that they had had a fight with H.O. and that they had made those allegations in anger. 36. On 17 November 1998 the Diyarbakır Assize Court concluded that the case should be discontinued in respect of the offence against the applicant, as she had withdrawn her complaint. However, it decided that, although the applicant ’ s mother had also withdrawn her complaint, H.O. should still be convicted of that offence, since the injuries were more serious. Subsequently, the court sentenced H.O. to three months ’ imprisonment and a fine; the sentence of imprisonment was later commuted to a fine. E. The fifth assault by H.O. against the applicant : causing grievous bodily harm 37. On 29 October 2001 the applicant went to visit her mother. Later that day H.O. telephoned and asked the applicant to return home. The applicant, worried that her husband would again be violent towards her, said to her mother “this man is going to tear me to pieces!” The applicant ’ s mother encouraged the applicant to return home with the children. Three-quarters of an hour later one of the children went back, saying that his father had stabbed and killed his mother. The applicant ’ s mother rushed to the applicant ’ s house. She saw that the applicant was lying on the floor bleeding. With the help of neighbours, she put the applicant into a taxi and took her to the Diyarbakır State Hospital. The hospital authorities told her that the applicant ’ s condition was serious and transferred her to the Dicle University Hospital, which was better equipped. The medical report on the applicant noted seven knife injuries on different parts of her body. However, the injuries were not classified as life-threatening. 38. At about 11.30 p.m. on the same day, H.O. handed himself in at a police station. The police confiscated the knife which he had used during the incident. H.O. maintained that his wife and children were still not at home when he came back at 6 p.m. He had telephoned them and asked them to come back. On their return, he asked the applicant, “Why are you wandering outside? Why haven ’ t you cooked anything for me?” The applicant replied, “We ate at my mother ’ s”, and brought him a plate of fruit. They continued arguing. He told her, “Why are you going to your mother so often? Don ’ t go there so much, stay at home and look after the children!” The argument escalated. At some point, the applicant attacked him with a fork. They started fighting, during which he lost control, grabbed the fruit knife and stabbed her; he did not remember how many times. He claimed that his wife was bigger than him, so he had to respond when she attacked him. He added that his wife was not a bad person and that they had lived together peacefully until two years previously. However, they started fighting when the applicant ’ s mother began interfering with their marriage. He stated that he regretted what he had done. H.O. was released after his statement had been taken. 39. On 31 October 2001 the applicant ’ s mother ’ s lawyer petitioned the Diyarbakır Public Prosecutor ’ s Office. In her petition, she stated that the applicant ’ s mother had told her that H.O. had beaten her daughter very badly about five years earlier, after which he was arrested and detained. However, he was released at the first hearing. She maintained that her client and the applicant had been obliged to withdraw their complaints due to continuing death threats and pressure from H.O. She further stated that there was hearsay about H.O. being involved in trafficking women. Finally, she referred to the incident of 4 March 1998 (see paragraph 23 above), arguing that, following such a serious incident, H.O. ’ s release was morally damaging and requested that he be detained on remand. 40. On 2 November 2001 the applicant ’ s lawyer filed an objection with the Chief Public Prosecutor ’ s Office against the medical report of the Dicle Medical Faculty Hospital, which had concluded that the applicant ’ s injuries were not life-threatening. The lawyer requested a new medical examination. 41. On 9 November 2001 the applicant filed a petition with the Diyarbakır Chief Public Prosecutor ’ s Office, complaining that she had been stabbed many times by H.O. subsequent to an argument with him. She asked the public prosecutor to send her to the Forensic Institute for a new medical examination. 42. On 8 November 2001 the applicant underwent a new medical examination at the Forensic Institute in Diyarbakır on the instructions of the public prosecutor. The forensic medical doctor noted the presence of wounds caused by a knife on the left - hand wrist (3 cm long), on the left hip (5 cm deep), another 2 cm-deep wound on the left hip and a wound just above the left knee. He opined that these injuries were not life-threatening but would render the applicant unfit for work for seven days. 43. On 12 December 2001 the public prosecutor filed a bill of indictment with the Diyarbakır Magistrate ’ s Court, charging H.O. with knife assault under Articles 456 § 4 and 457 § 1 of the Criminal Code. 44. By a criminal decree of 23 May 2002, the Diyarbakır Second Magistrate ’ s Court imposed a fine of 839,957,040 Turkish liras (TRL) on H.O for the knife assault on the applicant. It decided that he could pay this fine in eight instalments. F. The sixth incident whereby H.O. threatened the applicant 45. On 14 November 2001 the applicant lodged a criminal complaint with the Diyarbakır Public Prosecutor ’ s Office, alleging that H.O. had been threatening her. 46. On 11 March 2002 the public prosecutor decided that there was no concrete evidence to prosecute H.O. apart from the allegations made by the applicant. G. The applicant ’ s mother filed a complaint with the public prosecutor ’ s office alleging death threats issued by H.O. and A.O. 47. On 19 November 2001 the applicant ’ s mother filed a complaint with the public prosecutor. In her petition, she stated that H.O., A.O. and their relatives had been consistently threatening her and her daughter. In particular, H.O. told her, “I am going to kill you, your children and all of your family!” He was also harassing her and invading her privacy by wandering around her property carrying knives and guns. She maintained that H.O. was to be held liable should an incident occur involving her and her family. She also referred to the events of 29 October 2001, when the applicant was stabbed by him (see paragraph 37 above). In response to this petition, on 22 November 2002, the public prosecutor wrote a letter to the Security Directorate in Diyarbakır and asked them to take statements from the complainant and H.O. and to submit an investigation report to his office. 48. In the meantime, on 14 December 2001 the applicant again initiated divorce proceedings in the Diyarbakır Civil Court. 49. On 23 December 2001 the police took statements from H.O. in relation to the applicant ’ s mother ’ s allegations. He denied the allegations against him and claimed that his mother-in-law, who had been interfering with his marriage and influencing his wife to lead an immoral life, had issued threats against him. The police took further statements from the applicant ’ s mother on 5 January 2002. She claimed that H.O. had been coming to her doorstep every day, showing a knife or shotgun and threatening to kill her, her daughter and her grandchildren. 50. On 10 January 2002 H.O. was charged under Article 191 § 1 of the Criminal Code with making death threats. 51. On 27 February 2002 the applicant ’ s mother submitted a further petition to the Diyarbakır Public Prosecutor ’ s Office. She maintained that H.O. ’ s threats had intensified. H.O., together with his friends, had been harassing her, threatening her and swearing at her on the telephone. She stated that her life was in immediate danger and requested that the police tap her telephone and take action against H.O. On the same day, the public prosecutor instructed the Directorate of Turkish Telecom in Diyarbakır to submit to his office a list of all the numbers which would call the applicant ’ s mother ’ s telephone line over the following month. In the absence of any response, the public prosecutor repeated his request on 3 April 2002. 52. On 16 April 2002 the Diyarbakır Magistrate ’ s Court questioned H.O. in relation to his knife assault on his mother-in-law. He repeated the statement he had made to the police, adding that he did not wish his wife to visit her mother, as the mother had been pursuing an immoral life. H. The killing of the applicant ’ s mother by H.O. 53. The applicant had been living with her mother since the incident of 29 October 2001. 54. On an unspecified date the applicant ’ s mother made arrangements with a removal company to move her furniture to İzmir. H.O. learned of this and allegedly said, “Wherever you go, I will find and kill you!”. Despite the threats, on 11 March 2002 the furniture was loaded onto the removal company ’ s pick-up truck. The pick-up truck made two trips between the company ’ s transfer centre and the house. On its third trip, the applicant ’ s mother asked the driver whether she could drive with him to the transfer centre. She sat on the front seat, next to the driver. On their way, a taxi pulled up in front of the truck and started signalling. The pick-up driver, thinking that the taxi driver was going to ask for an address, stopped. H.O. got out of the taxi. He opened the front door where the applicant ’ s mother was sitting, shouted something like, “Where are you taking the furniture?” and shot her. The applicant ’ s mother died instantly. I. The criminal proceedings against H.O. 55. On 13 March 2002 the Diyarbakır Public Prosecutor filed an indictment with the Diyarbakır Assize Court, accusing H.O. of intentional murder under Article 449 § 1 of the Criminal Code. 56. In his statements to the police, the public prosecutor and the court, H.O. claimed that he had killed the applicant ’ s mother because she had induced his wife to lead an immoral life, like her own, and had encouraged his wife to leave him, taking their children with her. He further alleged that on the day of the incident, when he asked the deceased where she was taking the furniture and where his wife was, the deceased had replied “F... off, I will take away your wife, and sell [her]”. He stated that he had lost his temper and had shot her for the sake of his honour and children. 57. In a final judgment dated 26 March 2008, the Diyarbakır Assize Court convicted H.O. of murder and illegal possession of a firearm. It sentenced him to life imprisonment. However, taking into account the fact that the accused had committed the offence as a result of provocation by the deceased and his good conduct during the trial, the court mitigated the original sentence, changing it to fifteen years and ten months ’ imprisonment and a fine of 180 Turkish liras (TRY). In view of the time spent by the convict in pre-trial detention and the fact that the judgment would be examined on appeal, the court ordered the release of H.O. 58. The appeal proceedings are still pending before the Court of Cassation. J. Recent developments following the release of H.O. 59. In a petition dated 15 April 2008, the applicant filed a criminal complaint with the Kemalpaşa Chief Public Prosecutor ’ s Office in İzmir, for submission to the Diyarbakır Chief Public Prosecutor ’ s Office, and asked the authorities to take measures to protect her life. She noted that her ex ‑ husband [1], H.O., had been released from prison and that in early April he had gone to see her boyfriend M.M., who worked at a construction site in Diyarbakır, and had asked him about her whereabouts. Since M.M. refused to tell him her address, H.O. threatened him and told him that he would kill him and the applicant. The applicant claimed that H.O. had already killed her mother and that he would not hesitate to kill her. She had been changing her address constantly so that H.O. could not find her. Finally, she asked the prosecuting authorities to keep her address, indicated on the petition, and her boyfriend ’ s name confidential and to hold H.O. responsible if anything untoward happened to her or her relatives. 60. On 14 May 2008 the applicant ’ s representative informed the Court that the applicant ’ s husband had been released from prison and that he had again started issuing threats against the applicant. She complained that no measures had been taken despite the applicant ’ s request. She therefore asked the Court to request the Government to provide sufficient protection. 61. In a letter dated 16 May 2008, the Registry transmitted the applicant ’ s request to the Government for comments and invited them to inform the Court of the measures to be taken by their authorities. 62. On 26 May 2008 the Director of the International Law and Relations Department attached to the Ministry of Justice faxed a letter to the Diyarbakır Chief Public Prosecutor ’ s Office in relation to the applicant ’ s complaints to the European Court of Human Rights. He informed the Chief Public Prosecutor ’ s Office of the applicant ’ s pending application before the Court and asked them to provide information on the current state of execution of H.O. ’ s sentence, the state of proceedings with regard to the applicant ’ s criminal complaint filed with the Kemalpaşa Chief Public Prosecutor ’ s Office in İzmir and the measures taken to protect the applicant ’ s life. 63. On the same day, a public prosecutor from the Diyarbakır Chief Public Prosecutor ’ s Office wrote to the Diyarbakır Governor ’ s Office and asked him to take measures for the protection of the applicant. 64. By a letter of 28 May 2008 from the Diyarbakır Chief Public Prosecutor ’ s Office to the Şehitler Central Police Directorate in Diyarbakır, the Public Prosecutor (A.E.) asked the police to summon H.O. to his office in relation to an investigation. 65. On 29 May 2008 A.E. questioned H.O. in relation to the criminal complaint filed by the applicant. H.O. denied the allegation that he had issued threats against the applicant and claimed that she had made such allegations in order to disturb him following his release from prison. He maintained that he did not feel any enmity towards the applicant and that he had devoted himself to his family and children. 66. On 3 June 2008 A.E. took statements from the applicant ’ s boyfriend, M.M. The latter stated that H.O. had called him and asked him for the applicant ’ s address, and had told him that he would kill her. M.M. did not meet H.O. Nor did he file a criminal complaint against H.O. He had, however, called the applicant and informed her about the threats issued by H.O. 67. In a letter dated 20 June 2008, the Government informed the Court that the applicant ’ s husband had not yet served his sentence but that he had been released pending the appeal proceedings in order to avoid exceeding the permissible limit of pre-trial detention. They also stated that the local governor ’ s office and the Chief Public Prosecutor ’ s Office had been informed about the applicant ’ s complaint and that they had been instructed to take precautions for the protection of the applicant. 68. Finally, on 14 November 2008 the applicant ’ s legal representative informed the Court that his client ’ s life was in immediate danger since the authorities had still not taken any measures to protect her from her former husband. The Registry of the Court transmitted this letter on the same day to the Government, inviting them to provide information about the measures they had taken to protect the applicant. 69. On 21 November 2008 the Government informed the Court that the police authorities had taken specific measures to protect the applicant from her former husband. In particular, the photograph and fingerprints of the applicant ’ s husband had been distributed to police stations in the region so that they could arrest him if he appeared near the applicant ’ s place of residence. The police questioned the applicant in relation to the allegations. She stated that she had not been threatened by her husband over the past month and a half. | The applicant alleged that the Turkish authorities had failed to protect the right to life of her mother, who had been killed by the applicant’s husband, and that they had been negligent in the face of the repeated violence, death threats and injury to which she herself had been subjected by him. She further complained about the lack of protection of women against domestic violence under Turkish domestic law. |
439 | Medical assistance for prisoners with a physical illness | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1948 and lives in Fougaron. 8. On 12 June 1996 the Haute- Garonne Assize Court sentenced the applicant to fifteen years' imprisonment for armed robbery carried out as part of a gang, false imprisonment and fraud. He was detained in Lannemezan Prison ( département of Hautes-Pyrénées ). 9. In late 1998 his health deteriorated. 10. On 8 January 1999 a doctor from the Outpatient Consultation and Treatment Unit ( unité de consultation et de soins ambulatoires – “the UCSA”) at Lannemezan Prison issued a medical certificate, which stated: “This patient has a history of serious [medical] problems ... He was recently found to have B-cell chronic lymphocytic leukaemia, with some evidence of tumour ... The leukaemia is currently not accompanied by any alteration of the other cell lines; in particular, there is no sign of anaemia or thrombocytopenia. However, bilateral axillary adenopathy is present, predominantly on the right-hand side. This certificate has been issued at the patient's request and handed to him in connection with an application for parole on medical grounds.” 11. On 30 September 1999 a further medical report stated: “This patient has chronic lymphocytic leukaemia, which has caused severe asthenia. Furthermore, there are signs of orthopaedic disorders as a result of an injury to the left knee and the left ankle causing osteoarthritis of the left patellofemoral and tibiofemoral joints and making it painful for him to remain for long periods in a seated position with his legs bent. In addition, on account of the orthopaedic disorders observed in his left lower limb, the patient has to use a walking stick to move about. His condition is not compatible with the use of restraints on his lower limbs.” 12. On 6 December 1999 the UCSA doctor advised against applying restraints to the applicant's lower limbs. 13. The applicant applied to the French President for a pardon on medical grounds, but his application was refused on 7 March 2000. 14. On 31 March 2000 International Prison Watch (IPW) issued the following press release: “ No early release for prisoners with serious illnesses On 7 March 2000 the Minister of Justice refused applications for a pardon lodged on behalf of a prisoner suffering from a rapidly progressive disease. 52-year-old Jean Mouisel is currently in Lannemezan Prison. He was diagnosed with chronic lymphocytic leukaemia in November 1998. Jean Mouisel has served two-thirds of his sentence. If remissions of sentence are taken into account, he will be due for release in 2002. On 24 February 2000 a doctor from the UCSA at Lannemezan Prison drew up a certificate attesting that the disease was transforming into lymphoma and that an extended course of cancer treatment involving chemotherapy was therefore necessary. This prisoner is taken to hospital once a week and has to endure his illness while in detention. He is allowed only one visit a week from his relatives, in accordance with the prison's rules. His doctor and various associations applied for a pardon on his behalf. The Ministry of Justice, which centralises such applications and takes an initial decision, did not see fit to refer his case to the President's Private Office. IPW wishes to stress that 'no one shall be subjected to torture or to inhuman or degrading treatment or punishment' (Article 3 of the European Convention on Human Rights).” 15. On 12 May 2000 the UCSA doctor drew up a further medical certificate, which stated: “This patient has chronic lymphocytic leukaemia, which was diagnosed in November 1998 and is currently transforming into lymphoma. The lymphoma was diagnosed in early February 2000 during a check-up at the haematology department at Purpan Hospital in Toulouse. Mr Mouisel's condition currently requires him to undergo cancer treatment in the form of chemotherapy sessions as a hospital outpatient every three weeks. At the moment, he is receiving chemotherapy at Lannemezan Hospital 's medical and surgical centre. The patient's haematological condition will need to be reassessed in early August 2000 once he has finished the chemotherapy he is currently receiving. It is subsequently envisaged that he will begin oral chemotherapy, depending on the reassessment to be carried out at Toulouse University Hospital. The compatibility of his condition with his continued detention remains to be determined by an expert.” 16. On 3 June 2000 the applicant wrote to tell the prison governor about a chemotherapy session that had taken place at Lannemezan Hospital on 30 May 2000 : “... After an hour and forty-five minutes, the force of my drip was causing me too much pain. My suffering was so great that I had to lower the speed of the drip. That action was not appreciated by the warder in charge of my escort, Mr T., who came into the room red with anger, yelling and screaming. He told me that if the nurse had turned the drip on full, then I was not to touch it. As he put it, 'he and the other member of the escort were not going to spend all day at the hospital'. I was surprised at how aggressive they were being towards me, and I wanted to pull out the drip. The pain was too intense; it was making me suffer and was becoming unbearable ... The intervention of the doctor and nurse ... persuaded me to end the chemotherapy session. After the doctor had gone, the chief escort officer told me that the matter would be dealt with when we got back to the prison. At the end of the chemotherapy session, I felt worse than ever as the injection had made me feel much weaker ... I was duly handcuffed and dragged with brute force along the hospital corridors on a chain which the warder was holding, no doubt as a form of retribution. When we got back that morning, I was handcuffed in the usual way without force. I am being treated for leukaemia, a cancer of the blood which is nothing like a mere case of the flu! In my case, unfortunately, there is no possible cure; the disease I have caught here at Lannemezan Prison is incurable. I am therefore entitled to conclude that the prison staff who escort me to the hospital regularly ask the nurses to make sure that I am injected as quickly as possible so that they do not have to spend all day waiting around for me. As there is currently no way of solving the problem on an administrative level, I shall have to give up the chemotherapy sessions for the time being. I am not refusing the treatment, but the conditions in which I am receiving it are not satisfactory ... This has been going on for several months and I cannot stand it any longer. My physical condition cannot allow it and my morale is getting lower every day. I am dying, but I would like to die peacefully and not in an atmosphere of conflict.” 17. Following a further application for a pardon on medical grounds, the Ministry of Justice instructed an expert at the Pau Court of Appeal to assess the applicant's state of health, the treatment he required and the manner in which it should be administered, the likelihood of any changes (for example, regarding life expectancy), and whether his condition and the forms of treatment in progress or envisaged were compatible with detention in a specialist unit. The expert's report, completed on 28 June 2000, read as follows: “... Recent developments According to the certificate of 12 May 2000, Mr Mouisel has a form of chronic leukaemia which was diagnosed in 1998 and is currently transforming into lymphoma ... His condition has necessitated an intensive course of chemotherapy administered following the insertion of a'portacath '. His condition has also required him to be taken to hospital in a non-emergency ambulance for chemotherapy sessions (at the outpatient department of Lannemezan Hospital 's medical and surgical centre), initially every week and subsequently every three weeks ... Clinical condition on the date of the examination Functional symptoms complained of by the patient: – permanent asthenia and fatigue; – waking up in pain during the night; – ... – muscle fatigue and breathlessness; – alleged psychological impact of stress on his life expectancy and deterioration of his health (this condition has led to his being prescribed a course of antidepressants, which he is currently taking) ... It should be noted that these functional symptoms are to a large extent attributable to the chemotherapy he has been undergoing ... Particular mention should be made of a problem relating to the escort and supervision arrangements during visits to hospital for chemotherapy sessions. Indeed, since 20 June 2000 the patient has not consented to treatment. Clinical examination ... It should be noted that, according to the documents produced, Mr Mouisel's current degree of disablement was assessed at 80% by the COTOREP [Occupational Counselling and Rehabilitation Board] in a decision of 6 April 2000, and he was awarded a disabled adult's allowance for the period from 2 February 1999 to 2 February 2001. Conclusion By the date of the examination the applicant's health had deteriorated as a result of the progression of his haematological disorder, diagnosed in November 1998 as leukaemia ... Mr Mouisel is currently undergoing intensive chemotherapy as an outpatient at Lannemezan Hospital, where he is taken for treatment every three weeks by medical transport (a non-emergency ambulance). The cancer treatment, ... which is already scarcely compatible with imprisonment, is at present causing problems as a result of the position he has adopted recently in not consenting to treatment in the conditions in which he is currently being detained (this has lasted since 20 June 2000, the date scheduled for his treatment). His not consenting to treatment, in spite of all the information received from the UCSA medical team in Lannemezan, is likely to bring about the rapid progression of the disorder observed recently and a reduction in his life expectancy. Accordingly, he should be looked after in a specialist unit.” 18. On 19 July 2000 the applicant was transferred as a matter of urgency to Muret Prison (so that he would be nearer to Toulouse University Hospital ) and given a cell of his own. 19. On 3 October 2000 the applicant applied to the département of Haute- Garonne's Health and Social Affairs Department for acknowledgment of a vaccination-related accident, claiming that he had contracted cancer as a result of a hepatitis-B vaccination. On 24 October 2000 he received a reply from the Ethics and Law Office of the Ministry of Social Affairs and Solidarity informing him that strict liability could not be imposed on the State except for damage sustained as a result of the compulsory vaccinations provided for in the Public Health Code. Hepatitis-B vaccinations were compulsory only for certain occupational groups exposed to a risk of contamination, and the applicant did not belong to any such group. 20. On 14 November 2000 the applicant was notified of a reply by the Regional Director of the Prison Service to his complaints concerning the application of Article 803 of the Code of Criminal Procedure (“the CCP”) on the use of handcuffs or restraints (see “Relevant domestic law and practice” below): “... The provisions of the Article do not establish an absolute prohibition on the use of handcuffs or restraints and do not expressly refer to the detainee's health. They leave the matter to the discretion of those responsible for laying down, and enforcing, security measures: gendarmes, police officers or prison warders. Moreover, Article D 283 CCP provides that handcuffs or restraints are to be used solely in connection with 'precautions against absconding', except where a person is being brought before a judicial authority. Where a long sentence is being served for criminal acts causing bodily harm, the appropriate measures are applied.” 21. On 20 November 2000 the Minister of Justice refused an application for a pardon lodged on the applicant's behalf by the Ligue des droits de l'homme (Human Rights League). 22. On 24 November 2000 the applicant received a letter from the doctor who had treated him in Lannemezan : “... As regards your condition, there does seem to be a change taking place at the moment ... I think it is always worth fighting an illness, whatever it may be; even if there is no possible cure, a remission in the disease is still possible, especially as Dr N. is offering you a new course of chemotherapy, which I would strongly advise you to agree to ...” 23. A medical certificate issued on 21 February 2001 by a doctor from the haematology department at Toulouse Hospital reads as follows: “Mr Mouisel has been treated by our department since February 2000 for chronic lymphocytic leukaemia, initially with tonsillar hypertrophy on both sides causing dysphagia, and substantial axillary adenopathy on the right-hand side (15 cm in diameter). He was initially given chemotherapy once a week using the COP protocol, then once a month with CVP, and subsequently with chlorambucil. The results obtained were satisfactory, but in November 2000 we noticed a renewed increase in the size of the right axillary adenopathy and therefore resumed monthly chemotherapy using the CVP protocol. A biopsy of the lymph nodes in January revealed the presence of Hodgkin's disease. Three cycles of chemotherapy using the ABVD protocol are therefore envisaged, followed by additional radiotherapy.” 24. In an order of 22 March 2001 the judge responsible for the execution of sentences at the Toulouse tribunal de grande instance released the applicant on parole until 20 March 2005, subject to an obligation to receive medical treatment or care: “Admissibility Mr Mouisel exercises parental responsibility over his daughter, born on 4 September 1993 ..., and no ancillary penalties have been imposed on him entailing the forfeiture of that right. Article 729-3 CCP empowers the judge responsible for the execution of sentences to decide cases concerning prisoners who have less than four years of their sentence to serve and who exercise parental responsibility over a child under the age of 10. Merits It appears from the medical certificates adduced in evidence (dated 7 December 2000 and 3 January and 21 February 2001) that the applicant's condition has become incompatible with his continued detention, on account of the medical care he requires during regular visits to hospital. It is therefore appropriate, notwithstanding his criminal record, to release the applicant on parole, subject to his staying at his wife's home (see the declaration of 30 January 2001 ) and receiving treatment in accordance with a medical protocol at Purpan Hospital. ...” | Serving a prison sentence of fifteen years, the applicant was diagnosed with lymphatic leukaemia in 1999. When his condition worsened, he underwent chemotherapy sessions in a hospital at daytime. He was put in chains during the transport to the hospital and claimed that during the chemotherapy sessions his feet were chained and one of his wrists attached to the bed. He decided to stop the treatment in 2000, complaining of these conditions and of the guards’ aggressive behaviour towards him. He was subsequently transferred to another prison in order to be closer to the hospital and in 2001 released on licence subject to an obligation to undergo medical treatment or care. Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, the applicant complained that he had been kept in detention despite being seriously ill and of the conditions of his detention. |
541 | Shooting spree at Roma family’s home | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants are a married couple of Roma origin. They were born in 1986 and live in Hurbanovo. A. Events of 16 June 2012 6. On 16 June 2012, around 9 a.m., Mr J., a municipal police officer who was off duty that day, took an illegally purchased gun with two full magazines and some extra ammunition and drove in his private car to the town of Hurbanovo, where around a thousand Roma people live. 7. Around 10 a.m. he stopped in front of the applicants’ family house, entered the property and, without saying a word, started firing bullets at the family members who happened to be in the yard. He stopped shooting when the cartridge of the gun was empty. Three members of the applicants’ family, namely the second applicant’s father, brother, and brother-in-law, were shot dead. The first applicant was seriously injured in the hips and thighs and the second applicant in the liver, lower appendix, stomach, and elbow. 8. After the shooting, Mr J. returned to the car. On his way, he met two other Roma men, members of the applicants’ family, and threatened to kill them. Then he got into his car and drove away. Eventually, he arrived at the house of the mayor of Hurbanovo, in front of which he was arrested. B. Criminal proceedings 1. Pre-trial stage 9. Mr J. was charged on 17 June 2012 with premeditated first-degree murder, partly accomplished and partly attempted ( zločin úkladnej vraždy, sčasti dokonaný a sčasti v štádiu pokusu ), in connection with the offences of prohibited acquisition and possession of a firearm and forcible entry into a dwelling. (a) Questioning of Mr J. 10. During his pre-trial questioning on 16 and 17 June and 12 July 2012 Mr J. provided several statements concerning his recollection of the above events, confessed to the charges on all counts, and expressed remorse. 11. His first statement of 16 June 2012 reads as follows: “... I woke up at around 8.30-9.00 a.m. and I don’t know what came into my mind but I told myself that I must do something with those Roma people, it was nothing specific ... I put on my boiler suit and slippers, took a gun – a pistol which I had in my wardrobe ... this morning I loaded the gun, ... got into my car and went to deal with everything, including the Roma ... Afterwards, I wanted to shoot myself; somehow it weighed heavily [on my mind] ... I went down to Hurbanovo, where I arrived at around 9.20 a.m. ... I went across the city of Hurbanovo and I came to the houses at the end of the city, where Roma live. I slowed down nearby one house [and] looked into the yard, but there was only one girl, so I drove further to another house. ... By the next house ... I saw a gate opened and Roma in the yard, I pulled up, got out of the car and entered the yard ... I had the gun already in my hand as I was getting out of the car ... they were sitting and I started to fire shots at them ... I wanted to kill them. ...” The investigator further asked why Mr J. had entered that particular yard and started shooting. Mr J. answered: “... I did not care which yard I entered, if there had been more Roma in that first yard where only one girl had been, I would have entered there and opened fire in that first yard.” 12. During a second interview on 17 June 2012, Mr J. stated, inter alia, that he was not able to explain the reasons for his actions, that he did not remember most of the events, and that he had wanted to commit suicide shortly after the shooting. He had just fired at some people – not at a specific person – and could not remember how many times he had fired. He also declared that he did not know the applicants’ family personally, only by sight, having had dealings with them as a municipal police officer. He had often gone to Hurbanovo to deal with problems of public order and remembered meeting some members of the applicants’ family – in particular, the late brother of the second applicant, since he had once slapped him because of his aggressive behaviour after he had been caught stealing. In particular, his statement reads as follows: “The investigator: What brought you to the decision to go and shoot at those people? Mr J.: This I don’t know ... maybe because I have been working as a policeman for twenty years and there were always problems with Roma, but I have never been aggressive towards them. ... Investigator: Why did you enter that particular yard and start shooting? Mr J.: Because there were people; if there had been people in the first yard, I would have maybe gone in there. The investigator: Did you care about the nationality, age, ethnicity of those people in the yard? Mr J.: I did not think about that. ...” 13. At a third interview conducted on 12 July 2012, Mr J. confirmed his previous statements and further stated: “... these thoughts that I had about dealing with the Roma in Hurbanovo – that is to say to do something with them – had been crossing my mind. When I was loading the gun with bullets I might have been thinking also about a radical solution, as eventually happened ... I had been thinking about my work, how to resolve the public ‑ order issue in the town. I felt that I had been dealing with this for a long time without any success, that there had been some kind of a failure or ineffectiveness ... I could have been nervous because of all this; I could have been tense and all this resulted in my actions.” (b) Statements of witnesses 14. On 16 June 2012 several witnesses were interviewed, including the applicants’ relatives. In general, they did not know of any particular racially motivated behaviour on the part of Mr J. against Roma. However, one of the witnesses, Mr D.L., stated that Mr J. was harsher on Roma than on other people. Other witnesses – including Mr J’s daughters, the mayor of Hurbanovo and Mr J.’s direct supervisor – stated that he had not shown any anti-Roma sentiment. 15. The police conducted further interviews on 19 June and 20 June 2012. The witnesses, including colleagues of Mr J., stated that he had not expressed any anti-Roma opinions or comments. 16. On 3 July 2012 the police interviewed other witnesses; they also again interviewed Mr D.L., who stated that approximately a week or two before the incident Mr J. had had a conflict with his nephew, M. who had been shot dead during the attack. M. had been caught stealing in a scrap yard with two other Roma boys. Mr J. had allegedly tried to kick one of them, slapped M. and told them that they were lucky that it was not him who had caught them. (c) Expert opinion 17. On 16 July 2012 the investigator requested expert examinations of Mr J. by two experts in psychiatry and one expert in clinical psychology. They drafted a joint expert opinion. 18. The experts were asked questions, inter alia, about Mr J.’s mental state and possible illness or disorder, his ability to recognise the lawfulness of his actions, his ability to control his own behaviour, a possible motive for his actions from a psychological point of view, his ability to fully comprehend the course of events, and his credibility. 19. The report concluded that Mr J. did not remember clearly what had happened. However, he was able to credibly reconstruct some events and acknowledge that he had fired at someone. During the examination, he had also mentioned some incidents that he and his colleagues had experienced involving people of Roma origin, his worries, his fear of them, and his despair at his inability to deal with them. In particular, he had also stated: “This family has paid for all of them ...” 20. The report further concluded that Mr J. had been suffering mounting emotional tension for a long time, which had been released by “the escalation effect” and had possibly been affected by the alcohol he had consumed the night before. He was suffering from a temporary mental disorder, known as “abnormal short-term reaction failure with the clinical result of the escalation effect” ( abnormná skratová reakcia s klinickým priebehom vystupňovaného afektu ), which had resulted in his becoming of unsound mind at the critical moment. Therefore, while he had been committing the crime in question he had had a significantly reduced ability to recognise the unlawfulness of his actions and to control them. 21. Furthermore, the clinical psychologist concluded that Mr J. was not suffering from any mental illness such as psychosis, or from any dependency. Rather, he had been developing a paranoid personality connected to an intense fear of the aggressive behaviour of some “Roma fellow citizens” towards him or people close to him. This had triggered a perceived need to protect himself, born of paranoia. The psychologist considered that Mr J. had: “... the paradoxically altruistic motive of [finding] a radical solution to public order issues in the town, in particular towards that part of it which contained the non ‑ adaptable and problematic Roma people. [Mr J.’s] ambition to personally deal with the public order issues in the town, in particular as regards the Roma minority, is evidently overdesigned [ predimenzovaná ] [and] is beyond the actual capabilities of one person ... it can be stated that [Mr J.] had been developing burnout syndrome as another of the possible motivating factors.” 22. In his conclusion, the psychologist found that an important motive determining his behaviour before and during the crime could have been his continual frustration about his own work and the fact that he had been unable to resolve the public-order issues in the town – in particular, the problems concerning the Roma part of the population. He had been developing burnout syndrome as well. However, the immediate motive for his behaviour at the critical moment was unclear. 23. On 23 November 2012 the investigator interviewed the psychologist, who further confirmed that Mr J.’s aggression had manifested itself shortly before the attack against the Roma boys who had been caught stealing and that this aggression had been internally intensified by a growing feeling of helplessness and fear of danger from the Roma. Furthermore, the expert noted that Mr J. had believed that he could solve the “Roma question” and that his action was in the interest of society. He also stated that: “... the anger, rage and hatred of the accused concerned those from the Roma ethnic minority, who had been repeatedly subject to his interventions ...” 24. The expert concluded that he could not confirm unequivocally a racial motive. (d) The indictment 25. On 11 December 2012 the special prosecutor filed a bill of indictment with the Specialised Criminal Court ( Špecializovaný trestný súd ) (hereinafter “the SCC”), charging Mr J. with (i) premeditated first-degree murder under Article 144 § 1 and § 2 (c) of the Criminal Code, with reference to Article 138 (j) of the Criminal Code, partly accomplished and partly attempted ( zločin úkladnej vraždy, sčasti dokonaný a sčasti v štádiu pokusu ), and (ii) the offence of carrying a concealed weapon under Article 294 § 1 and § 2 of the Criminal Code, in concurrence with the offence of illegal entry into a dwelling under Article 194 § 1 and § 2 (a) of the Criminal Code, with reference to Article 138 (a) of the Criminal Code. 26. The special prosecutor referred to, inter alia, the testimony of Mr J., of the applicants, and of other witnesses, as well as the expert reports and the statements given by the experts when they had been interviewed, including the psychologist’s statements concerning the earlier violent confrontation between Mr J. and Roma children, and Mr J’s growing feelings of helplessness, his fear of the Roma, and his belief that in acting as he had he had believed that he was solving an issue with the Roma. 27. As regards the legal classification of the offence of murder, the bill of indictment reads, in the relevant part, as follows: “it is necessary to classify ... the action of the accused, as far as it concerns the shooting [and killing] of the five members of the Lakatoš family ... as ... the offence of first-degree murder within the meaning of Article 144 §§ 1 and 2 (c) of the Criminal Code ... In the present case, there was no accidental behaviour (murdering) caused by the arising of a situation (for example, an argument or ... outburst at the place in question); rather, the murder was premeditated (that is to say a motive had been considered in advance). ... [T]he term “in advance” is not confined to a particular time and ... the motive could have been formed ... over years, months, hours, or several minutes ... In the case of the accused, he had committed himself to the decision to kill ... when he ... decided to drag out a weapon from its hiding place ... and left the house. ... [M]oreover, the experts also identified a longer and continuing internal feeling of dissatisfaction with the state of affairs ... which resulted exactly in the decision to go and shoot with an intention to kill and which had also manifested itself for several moments externally; for example, by the earlier obtaining of an illegal weapon.” The special prosecutor furthermore argued that the intention to kill was obvious from the manner in which the accused had acted. The special prosecutor identified one aggravating factor in the offence under Article 144 § 2 (c) of the Criminal Code – namely, that Mr J.’s attack had been directed simultaneously against five persons. The ethnicities of the victims or racial motives were not mentioned and addressed. 2. Hearing 28. Between 25 and 28 March 2013 a public hearing took place, during which Mr J. gave no evidence, stated that he did not deny the charges, and responded affirmatively to the presiding judge’s questions as to whether he understood the facts of the crime, whether his defence rights had been properly granted, whether he comprehended the legal status of the offence, whether he had been informed of the penalties under the law for the criminal offences in question, and whether he had confessed to the crime voluntarily. 29. The applicants, together with six other members of the family, joined the criminal proceedings as civil parties. Their lawyer claimed compensation for damage on their behalf. 30. On 26 March 2013 two of the experts testified and referred to the conclusions of their report. To the applicants’ representative’s questions, the expert in psychiatry stated that it was not within their remit to assess the issue of racism. Later, the representative also attempted to question the clinical psychologist regarding Mr J.’s aggression towards Roma. However, since a civil party could raise only issues concerning a claim for damages (see paragraph 53 below), the court did not allow him to ask those questions. In his final remarks, the applicants’ representative expressed doubts about the objectivity and accuracy of the expert opinion, and in relation to the Mr J.’s motive stated that: “... the assessment of the motivational foreground is, in my opinion, inadequate. The experts ... underestimated or misjudged the racial motive of the offender’s actions.” The applicants’ representative proposed that a second expert opinion be ordered. This was rejected by the court. The court reasoned that the issue of the accused’s motive for the purposes of the claim for damages was of a legal nature and could thus not be assessed by such experts. 3. Judgment and following proceedings 31. On 27 March 2013 the SCC delivered a simplified version of the judgment. Owing to the fact that Mr J., his lawyer, and the prosecutor had all waived their right to appeal, the judgment contained only a brief description of the criminal act in question and the sentencing part, pursuant to Article 172 § 2 of the Code of Criminal Procedure. The judgment did not contain any legal reasoning. 32. The SCC found Mr J. guilty of a serious criminal offence as charged, killing three people and injuring two. The court established that: “[The accused] ... after he woke up at around 9 a.m. ... with a view to definitively resolving the problem with the unintegrated [ neprispôsobiví ] citizens of Hurbanovo by causing their deaths, took a weapon [and] loaded it with two full magazines; in addition ... he took twelve pieces of single 7.62 x 25 mm ammunition and ... drove himself to the front of the family house ... in Hurbanovo, where at around 10.10 a.m. he left the vehicle, unlawfully entered the yard ... and without a word ... aimed and shot eight times at persons at the yard ...” 33. Mr J. was sentenced to nine years’ imprisonment. The sentence was exceptionally reduced owing to Mr J.’s diminished soundness of mind, pursuant to Article 39 § 2 (c) of the Criminal Code. His gun was forfeited and protective psychological treatment in an institution was ordered for him, together with protective supervision amounting to three years. 34. The applicants’ claim for damages was referred to the civil courts. 35. As can be seen from the file, on 19 April 2013 two appeals were lodged. The first appeal was lodged by Ms I.L. She argued, inter alia, that the court had failed to consider the possibility of a racial motive. The second appeal was lodged (through their representative) by all members of the family, including the applicants and Ms I.L. In their appeal, they cited procedural errors, including the lack of any reasoning for the impugned judgment. 36. On 18 September 2013 the applicants’ appeal was dismissed by the Supreme Court ( Najvyšší súd ). It concluded that the applicants, as civil parties, did not have the right to challenge the judgment in respect of the guilt of and sentence imposed on Mr J. and that their appeal could only have been directed against the ruling on compensation for damage. However, since the applicants had been referred to civil courts to claim such compensation, and having regard to the fact that those proceedings were ongoing at the material time, the Supreme Court considered their appeal premature in this part. 37. On 26 June 2013 and 4 March 2014 the applicants, together with other injured parties, sought leave from the Minister of Justice to lodge an extraordinary appeal on points of law. Such leave was refused by the Minister of Justice on 17 September 2013 and 3 April 2014, respectively. C. Constitutional proceedings 38. On 24 May 2013 the applicants lodged a constitutional complaint ( ústavná sťažnosť ) against the judgment delivered by the SCC. They alleged a violation of Articles 2, 6, 8, 13 and 14 of the Convention and the corresponding provisions under the Constitution. In sum, they claimed that the SCC had erroneously concluded that Mr J. had had diminished soundness of mind at the time that the crime had been committed, and that as a consequence the SCC had imposed an inappropriately low sentence, which could not serve to discourage the future occurrence of the behaviour in question. 39. They furthermore complained of the ineffectiveness of the criminal prosecution owing to the questionable quality of the expert report and the alleged bias of its authors, the court’s refusal to order a second expert opinion, the fact that it had been impossible for their lawyer to ask questions and cross-examine the expert witnesses, the absence of any reasoning in the final judgment, and the lack of any assessment of the racial overtones of the crime. They also alleged a lack of reasoning in the SCC’s judgment and that they had had no opportunity to challenge the conviction in their position as civil parties in the criminal proceedings, apart from the part concerning compensation for damage. 40. On 27 May 2015 the Constitutional Court ( Ústavný súd ) dismissed the applicants’ complaint. It held that the impugned judgment had been delivered in accordance with the Code of Criminal Procedure. It furthermore held that even if it had found the lack of reasoning incorrect it could not have found any violation of the applicants’ constitutional rights on the basis of that conclusion. The court noted that: “... the sole fact that the impugned judgment ... is not reasoned complicates the assessment of its constitutionality. The Constitutional Court can assess other applicants’ complaints only generally on the basis of other documents from the [respective] case file (in particular, the expert opinion and minutes from the main hearing).” 41. In so far as the applicants complained of the failure of the criminal justice authorities to address the racial motive of the attack, as well as their inability to challenge the conviction and the sentence, the Constitutional Court considered that these complaints were directed against provisions of the Code of Criminal Procedure and the position of an injured party under Slovak criminal law. However, the court observed that the applicants could not challenge the compatibility of the law with the Constitution and the Constitutional Court had no competence to address their grievances. 42. In addition, the court scrutinised the adequacy of the sentence and summarised that the accused had been diagnosed with diminished soundness of mind at the time of the commission of the crime. This was the conclusion reached by a lawfully obtained expert report, which had also examined the motive of the accused and provided a comprehensive explanation in that regard. The criminal court had had discretion to impose such a reduced sentence, as long as it was done in accordance with the law. As to the applicants’ complaint about the lack of a decision on their claim for damages in the criminal proceedings and the lack of any reasoning given by the court in respect of their claim for damages, the Constitutional Court referred to the Supreme Court’s reasoning and rejected this part of the complaint. D. Other relevant proceedings 43. On 10 October 2012 the family of the applicants’ late relatives lodged a civil claim for damages with the Komárno District Court ( okresný súd ). After the SCC referred the applicants to the civil courts with their claim for damages, on 30 May 2013 they requested to be allowed to join the pending proceedings. 44. By a decision of 22 October 2013, the District Court dismissed the applicants’ request. Following an appeal by the applicants, the Nitra Regional Court ( krajský súd ) quashed that decision on 31 January 2014 and allowed the applicants to join the pending proceedings in respect of damages. 45. On 22 November 2016, at the hearing before the District Court, the applicants withdrew their claims and the court discontinued the proceedings. 46. On 18 June 2013 the Ministry of Justice awarded the first applicant the sum of 2,358 euros (EUR) and the second applicant EUR 7,545.60, in accordance with Act no. 215/2006 Coll. on compensation for victims of violent crimes. Furthermore, the second applicant received EUR 4,090 in respect of his father’s death. 47. On 9 March 2015 the District Prosecutor’s Office dismissed a criminal complaint lodged by the applicants against Mr J., which was based on the suspicion that he had committed a criminal offence by disposing of property in order to defraud creditors ( poškodzovanie veriteľa ) by transferring the title to his house to his daughter and giving EUR 5,000 to his wife as a gift. | This case concerned a shooting spree in 2012 by an off-duty police officer at the home of a Roma family. The two applicants in the case, a married couple, were seriously injured and three members of their family were killed. When questioned by the police, the officer stated that he had been thinking about “a radical solution” for “dealing with” Roma people. He was ultimately given a reduced sentence of nine years’ imprisonment owing to diminished responsibility. The ruling was adopted in the form of a simplified judgment which contained no legal reasoning. The applicants essentially complained that the Slovakian authorities had failed to conduct an effective investigation into whether the attack on their family had had racial overtones. |
699 | Hate speech and right of others to respect for private life | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1950 and 1945 and live in İstanbul and Ankara respectively. They are university professors specialising, inter alia, in human rights protection. A. The facts common to the three applications 1. The applicants ’ appointment to the Consultative Council on Human Rights 6. On 5 February 2002 the applicants were appointed as members of the Consultative Council on Human Rights ( “the Consultative Council” ), a public body answerable to the Prime Minister which was set up under Law No. 4643 of 12 April 2001 and is responsible for providing the Government with opinions, recommendations, proposals and reports on the whole range of issues relating to the promotion and protection of human rights. 7. At its first meeting on 26 February 2003 the Consultative Council elected Mr Kaboğlu as its chairman. At its second meeting on 9 May 2003 the Consultative Council elected Mr Oran chairman of the Working Group on issues relating to minority and cultural rights. 2. Report on minority and cultural rights 8. On 1 October 2004 the General Assembly of the Consultative Council discussed and adopted a report on minority and cultural rights ( “ the report ” ), presented by the above- mentioned working group. On 22 October 2004 the report, as amended by Mr Oran in line with the comments put forward by members of the Consultative Council at the meeting on 1 October 2004, was submitted to the Deputy Prime Minister responsible for Human Rights Affairs. The report first of all dealt with the concept and definition of and the historical background to the protection of minority and cultural rights in worldwide and in Turkey. It then went on to consider issues relating to the protection of minorities in Turkey, relying on the relevant provisions of the Treaty of Lausanne, national legislation and practice and the case-law of the higher courts. According to the report, there were two primary reasons for the problematical situation of minorities in Turkey: a theoretical reason tending to define the supra-identity in terms of “race” ( ırk ) and religion as Turkish ( Türk ) and not as Türkiyeli (“coming from Turkey”, “citizen of Turkey”), which resulted in alienating the infra-identities of citizens who do not belong to the Turkish “race” or the Muslim religion; and an historical/political reason stemming from the paranoia ( paranoya ) inherited from the dismantling of the country in the recent past, a syndrome referred to in the report as “the Sèvres syndrome” [1]. 9. Having explained that the Governments in the 1920 s and 1930 s had attempted to create a homogeneous and monocultural nation, the report stated that, having regard to the presence in the country of a patchwork of different cultures and identities, and in the light of global developments as regards the organisation of society up until the 2000 s, now was the time to revise the citizenship concept and to adopt, like all the European nations, a multi-identity, multicultural, democratic, liberal and pluralist societal model. It consequently proposed rewriting the Constitution and the relevant legislation from a liberal, pluralist and democratic angle, including the participation of the organised fringes of society; guaranteeing the rights of persons laying claim to different identities and cultures to preserve and develop those identities on the basis of equal citizenship; making central and local administrations more transparent and democratic such as to ensure participation and oversight by the citizens; signing and unreservedly ratifying the international treaties laying down the universal standards of human rights, and in particular the Council of Europe ’ s Framework Convention for the Protection of National Minorities; and, as regards international treaties, discontinuing the practice of entering reservations or interpretative declarations tending to negate infra-identities in Turkey. 3. Reactions and events following the adoption of the report 10. Following the publication of the report, several articles were published in broadly ultranationalist newspapers disparaging the text and criticising the applicants. Furthermore, a number of political leaders and senior officials criticised the report and its authors. On 26 October 2004, for example, an MP speaking in the National Assembly used, with regard to the authors of the report in question, expressions such as “ hired boffins” ( entel devşirme ), “ individuals spitting their venomous saliva ”, “ people in the pay of foreigners ”, “ persons who hate the words ‘ Turkish nation ’ ”, “ traitors ”, “ those who want to split up the Republic of Turkey ”, and “ enemy of the Turks ”. The Deputy Prime Minister spoke of a “ marginal report by marginal people ”, claiming that the authors had drawn it up without informing the Government of its content. The Minister of Justice described the report as “sowing intellectual discord ”. The Deputy Chief -of- Staff also criticised the report, declaring that the unitary structure of the State was beyond question. Moreover, the Director of Human Rights at the Prime Minister ’ s Office questioned the validity of the report by alleging that there had been no quorum when it had been adopted by the Assembly of the Consultative Council. 11. On 1 November 2004 Mr Kaboğlu, in his capacity as Chairman of the Consultative Council, organised a press conference in order to reply to the criticisms of the report in question. At the beginning of the conference, which was shown on television, an ultranationalist trade unionist, F.Y., who was also a member of the Consultative Council, interrupted the meeting by ripping up a copy of the report in front of Mr Kaboğlu and saying “this report is fake and unlawful, we will not allow it to be read. ” 12. In February 2005 the Prime Minister ’ s Office informed the applicants and twelve other members of the Consultative Council that their term of office would end on 5 February 2005. The Consultative Council has not been reconvened by the Government since that date. 13. On 14 November 2005 the Ankara public prosecutor brought proceedings against the applicants on charges of incitement to hatred and hostility and denigration of the State judicial organs on account of the content of the report. After criminal proceedings lasting some four years and seven months, the applicants were acquitted on the charge of incitement to hatred and hostility; as regards the charge of denigration of the State judicial organs, since the Justice Minister had not consented to the opening of criminal proceedings – a legal precondition for that particular offence – the case was struck off the list. 14. In that context, the applicants received death threats from ultranationalist groups and individuals by mail and email. In view of the threats and at the request of counsel for Mr Kaboğlu, the Istanbul Police Department granted him personal protection as from 2007, which protection has been renewed every year since that date. In January 2007 the Ankara police department decided ex officio to task a police officer with protecting Mr Oran. In January 2013 the measure was converted into one of on-call protection. B. Application no. 1759/08: proceedings concerning the articles authored by N.K.Z., B.A. and A.T. 1. Civil proceedings against N.K.Z. 15. On 28 October 2004 the daily newspaper Halka ve Olaylara Tercüman published an article by N.K.Z. on the subject of the report on minority and cultural rights. In the article, the author stated the following: “ These people should not be considered as liberal intellectuals. Some of them may be bona fide liberals. But their ringleaders are nothing less than traitors ...; there are no two ways about it : the Turkish nation, the Turkishness of Turkey and the Republic of Turkey are facing all-out treason ...; if [ the country ’ s Turkish majority ] begins to growl, shout and roar, the traitors will find no hiding or breathing place ...; you obscurantists ( karanlıkçılar ) who present yourselves as liberal intellectuals ..., you can stick your phoney minorities up your Europe ( siz o uydurma azınlıklarınızı alın da gidin Avrupa ’ nıza sokun )! ... I would warn some of [ those who are going too far ] not to play with fire. ” 16. On 31 December 2004 the applicants brought civil proceedings against the author of the article and the newspaper publishers. They claimed compensation for the non-pecuniary damage which they had sustained on account of the insulting and threatening language used by the author of the article against them. 17. By judgment of 25 January 2005 the Ankara Regional Court dismissed the applicants ’ claim. The court ruled that the impugned article had not directly targeted the claimants since their names had not been cited, and that it was only to be expected that opinions which had been set out in a scientific report designed to guide government policies, but which had prompted concern about the preservation of Turkey ’ s unitary structure, should be severely criticised. 18. On 20 April 2006 the applicants appealed on points of law. They submitted that since the author of the article had referred to their report he had obviously been directing his insults and threats at them and not at any unnamed persons. They further argued that the court ’ s refusal to condemn the impugned article, which, they submitted, had comprised insults and incited to violence against them, had amounted to an infringement of their right to freedom of expression. 19. On 14 June 2007 the Court of Cassation upheld the first-instance judgment on the grounds that it complied with the requisite procedure and law and that it had not been based on any erroneous assessment of the evidence. That judgment was served on counsel for the applicants on 10 July 2008. 2. Civil proceedings against B.A. 20. On 27 October 2004 the daily newspaper Yeniçağ published an article relaying statements made by B.A., the Chairman of the Public Employers ’ Union Confederation, Kamu -Sen, concerning the applicants ’ report. B.A. had said : “ This report is a real piece of treachery, and those who wrote it should have it ripped to shreds over their heads. Those who want to see the Turkish nation as a minority in this country will have us to contend with. ” 21. On 8 November 2004 the daily newspaper Ortadoğu also published B.A. ’ s statements, including the following : “ This report is the result of a line of thought that has been put about for years with a view to dividing and separating us ... I would appeal to those responsible, and I swear that the price of the soil is blood, and if need be blood will be shed. ” 22. On 7 January 2005 the applicants brought civil proceedings against B.A. They claimed compensation for the non-pecuniary damage which they considered they had sustained on account of the insults and threats against them contained in those two statements. 23. By judgment of 25 July 2006 the Ankara Regional Court dismissed the applicants ’ claim on the grounds that their report was the subject of public debate, that in view of their social status they should tolerate criticism, including virulent critiques, and that B.A. ’ s statements had remained within the bounds of acceptable criticism. The court also considered that the expression “the price of the soil is blood, and if need be blood will be shed” was a popular saying which meant that people could lay down their lives for their country, rather than being a threat to the applicants. Furthermore, the statement “those who want to see the Turkish nation as a minority in this country will have us to contend with” was only a criticism of the opinions expressed in the report. 24. The applicants appealed on points of law. They argued that the impugned statements by B.A. had amounted to a clear and concrete call to violence, and had been intended to intimidate them and single them out as targets. 25. On 22 October 2007 the Court of Cassation upheld the first-instance judgment on the grounds that it had complied with the requisite procedure and law and that it had not been based on any erroneous assessment of the evidence. That judgment was served on counsel for the applicants on 26 November 2007. 3. Civil proceedings against A.T. 26. On 26 October 2004 A.T. published an article in the daily newspaper Yeniçağ including the following passages: “ The rapporteur for the second set of Sèvres negotiations, Prof. Dr Baskın Oran ... ”, “ the treasonous report ( ihanet raporu ) penned by Baskın Oran ”, “ when the time is ripe, they will be held to account for having prepared a treasonous report ... ” 27. Another article by A.T., published on 31 October 2004 in the same newspaper, contained the following passage: “ ... The report, concerning minority and cultural rights, [ was drafted by ] twenty-four leftist, separatist, subversive [persons] unhappy about the unity of the country [ who deserve ] the death penalty ... ” 28. On 4 November 2004 the Yeniçağ newspaper published another article signed by A. T. which included the following sentences : “ F.Y. vehemently protested against İbrahim Kaboğlu and Baskın Oran, who had prepared and defended a report which might as well be called the ‘ report on the second set of Sèvres negotiations ’ ”; “ the leaders of the traitor networks say that there are millions of ülkücü [ ‘ idealists ’, extreme right-wing activists ] ...: so all these people are idiots and you are intelligent, is that it? Kaboğlu ’ s and Oran ’ s bad faith has been revealed on many occasions. Irregularities in the operation of the Consultative Council have been exposed. Why do these gentlemen ignore the protests against the irregularities committed during the preparation of this report, [ and why ] do they prefer to attack those who exercise their right to tear up this bumph dubbed as a ‘ report ’? ” 29. In another article published on 5 November 2004 in the same paper, A.T. stated the following : “ ... The lickspittles with their report on minorities and cultural rights are threatening the country ’ s integrity ... İbrahim Kaboğlu says ‘ Atatürk did not say Türk, he said Türkiyeli ’ ... Anyone who goes so far as to hijack the words of Mustafa Kemal shows his bad faith, separatist aims and treachery ...” 30. Another article by A.T., published on 6 November 2004 in Yeniçağ, contained the following statements and expressions: “ Within the Prime Minister ’ s office people are working on dismantling Turkey, and when we intervene we are accused of using brute force ...; be careful, twenty-four persons did vote for this report, but they did not sign it. The traitors are emerging when Turkey is weakened. ... The main pro- Sèvres cheerleader, Kaboğlu, ... was going to present the report to the public ... No one sees the unlawfulness, the deviousness, the betrayal underlying this case. They condemn as brutal F.Y. ’ s act of snatching the report from the hands of the pro- Sèvres cheerleader and ripping it up. If someone had kicked and punched the pro- Sèvres leader and his treacherous assistants, that would have been brutality. In my view, if those individuals had been beaten up, people would have been relieved. The Sèvres apologists deserved a good thrashing... No punches were thrown, and yet they consider the ripping up of the bumph as a brutal act ... ” 31. On 7 November 2004, A.T. wrote the following in his article published in the same newspaper: “ ... No one mentions the fact that the intention had been to publish the treasonous document [ clandestinely ]. They pay scant attention to the treachery, but on the other hand they consider that in tearing up the report F.Y. had committed a brutal act ... just because they sup from the same dog- bowl as İbrahim Kaboğlu and Baskın Oran. ” 32. On 31 December 2004 the applicants brought an action for damages against A.T. and the company owning the newspaper having published the impugned articles. 33. By judgment of 25 July 2006, the Ankara Regional Court dismissed the applicants ’ claim on the grounds that the statements in the impugned articles fell within the ambit of the provisions protecting their author ’ s freedom of expression. The court held that insofar as the report in issue contained virulent criticism of the governments of the Republic and dismissed those who objected to their ideas as paranoiacs, the applicants should also tolerate the same kind of criticism, or indeed even more virulent criticism, short of actual violence. 34. The applicants appealed on points of law. They complained that the Regional Court had failed to protect them in the exercise of their freedom of expression and had considered that the insults against them had fallen within the ambit of the legal provisions protecting freedom of expression. 35. By judgment of 12 November 2007 the Court of Cassation upheld the impugned judgment on the grounds that it had complied with the requisite procedure and law and that it had not been based on any erroneous assessment of the evidence. In a dissenting opinion, one member of the Court of Cassation considered that A.T. ’ s articles had overstepped the bounds of the right to criticism as protected under the right to freedom of expression, on the grounds that those articles had comprised insulting expressions explicitly targeting the applicants. The judgment was served on counsel for the applicants on 2 January 2008. C. Applications nos. 50766/10 and 50782/10: proceedings relating to S.K. ’ s article 36. In an article published in the daily newspaper Akşam on 27 October 2004, S.K. wrote the following on the subject of the applicants ’ report : “ ... After the European Union ’ s ‘ never make any progress ’ report of 6 October 2004, it was expected, as a ‘ conditioned reflex ’, that those in the pay of the wild west ( vahşi batının beslemeleri ), almost all of whom are former ... communists, would follow their masters, and even surpass them. The comparison is perfectly apt. Like little dogs rolling over and wagging their tails when their food is served in their dog- bowls or when [they are promised] a bone, they begin their subtle attacks ... Those who pose as the eyes, ears and spleen of the Trojan horse infiltrating our country, the fools and idiots posing as smart alecs ...; in this report on minorities prepared by this insolent, perfidious and pathetic minority, the losers, who would never have dared commit this type of treason before, are clearly targeting the indivisible integrity of the State and the nation ...; some losers who, their whole lives long, have never got rid of their paranoia about Turks ... designate as ‘ Sèvres paranoia ’ the watchful and persevering attitude of those who represent the heart, head and intelligence of our nation against the new Sèvres dictates and are attempting to insult them, driven on by their wilfulness; their shared characteristic is apostasy ...; someone has said ‘ he who is not a communist at the age of twenty is an ass, and he who is not a capitalist at the age of thirty is the ass ’ s son ’. Being a liboş [ a derogatory word for liberals in Turkey ] under the auspices of the [ European Union] suits these ex-communist apostates perfectly. Just look at this assailant ( baskıncı [2] eleman ) who drew up this scandalous report on minorities on behalf of the Consultative Council on Human Rights ... This is the treacherous dagger which this man, ... disguised as a scientist, and the minority which he is using, has perfidiously stabbed into the heart of the Republic of Turkey and into the unity and peace of our nation...! And there is another man whose life depends on the fact of eating and swallowing; the more dogfood he eats, the more applause he attracts ... A miserable spy and apostate. Are his windows flung open not to the world, but to his stomach? Alongside a Statesman, the miniature poodle aspires to the status of a large poodle. Now he constantly growls. Perhaps he thinks [that if he continues to ] bark ever more loudly, his western masters will one day make a man of him. Oh the poor little chap! God has made him a dogfood gobbler. Calm down a little, [ you might scratch ] the Rolex on your front paw. Carry on anyway with your bird - brain dividing, dismantling and growling. In any case we are not forced to listen to you. The most you will manage to do is tug at the backs of a few trouser legs. We have seen lots of crawlers like you, you know, and how many have we stoned? If someone like you, rootless and without a pedigree, can [ bark ] at people, how unfortunate for you! Oh crack-voiced, short-breathed bootlicker! Go on then! Waste your saliva! What a pity [you are allowed to] talk, what a shame [you are listened to and people are allowed] to listen to you ... ” 37. On 7 January 2005 the applicants brought an action for damages for insult and defamation against the author of that article and the company owning the newspaper which had published it. 38. By judgment of 8 June 2006 the Ankara Regional Court upheld the applicants ’ claim. Considering that the impugned article overstepped the bounds of admissible criticism and infringed the dignity of the applicants, the court ordered the defendants to pay the latter damages in respect of the non-pecuniary damage sustained. 39. By judgment of 31 January 2008 the Court of Cassation (4 th Civil Chamber ) quashed the first-instance judgment. It found that the first section of the impugned article had consisted of severe criticism of the attitude of Turkish intellectuals to national issues, that the second section on Baskın Oran had amounted to a statement of a critical opinion on the report in question, and that the expressions used in the last section had not concerned the applicants. The Court of Cassation consequently considered that the article in question had comprised not any gratuitous attacks on the applicants but a series of acerbic and virulent critiques of their report, and that it had not overstepped the bounds of admissible criticism. In a separate dissenting opinion, one member of the Court of Cassation expressed the view that the first- instance judgment should be confirmed. 40. On 20 November 2008 the Ankara Regional Court decided not to follow the Court of Cassation ’ s judgment and to uphold the judgment which it had delivered on 8 June 2006. 41. On 3 June 2009 the Plenary Assembly of the Civil Chambers of the Court of Cassation, upholding the arguments put forward in the cassation judgment of 31 January 2008, set aside the Ankara Regional Court ’ s judgment. 42. By judgment of 3 December 2009 the Ankara Regional Court, bound by the judgment of the Plenary Assembly of the Civil Chambers, dismissed the action brought by the applicants. That judgment was served on counsel for the applicants on 28 January 2010. | This case concerned newspaper articles containing threats and hate speech against the applicants, two university lecturers, attacking them for the ideas they had presented in a report addressed to the Government concerning questions of minority and cultural rights. The applicants lost their cases before the domestic courts, which took the view that the offending articles fell within legislation protecting freedom of expression. The applicants complained that the national authorities had not protected them from the insults, threats and hate speech directed against them in the press on account of the ideas they had expressed in their report. |
234 | The definition of idem | I. THE CIRCUMSTANCES OF THE CASE 11. The applicant was born in 1966 and lives in Voronezh. A. The events of 4 January 2002 12. The events, as described by the parties and related in the relevant documents, unfolded on that day in the following manner. 13. On the morning of 4 January 2002 the applicant was taken to police station no. 9 of the Department of the Interior in the Leninskiy district of Voronezh (“the police station”) for the purpose of establishing how he had managed to take his girlfriend Ms P. into a restricted military compound. 14. At the police station the applicant was firstly taken to the office of the passport service. He was drunk and verbally abusive towards the passport desk employee Ms Y. and the head of the road traffic department Captain S. The applicant ignored the reprimands and warnings issued to him. After pushing Captain S. and attempting to leave, he was handcuffed. The police officers considered that the applicant ’ s conduct amounted to the administrative offence of minor disorderly acts. 15. The applicant was taken to the office of Major K., the head of the police station. Major K. drafted a report on the applicant ’ s disorderly conduct which read as follows: “ This report has been drawn up by Major K. , head of police station no. 9, Voronezh ‑ 45, to record the fact that on 4 January 2002 at 9.45 a.m. Mr Zolotukhin, who had been brought to police station no. 9 with Ms P. , whom he had taken into the closed military compound unlawfully, uttered obscenities at police officers and the head of [unreadable], did not respond to reprimands, ignored requests by police officers to end the breach of public order, attempted to escape from police premises and was handcuffed, that is to say, he committed the administrative offences set out in Articles 158 and 165 of the RSFSR Code of Administrative Offences. ” 16. Captain S. and Lieutenant-Colonel N. were also present in the office while Major K. was drafting the report. The applicant became verbally abusive towards Major K. and threatened him with physical violence. He again attempted to leave and kicked over a chair. 17. After the report was completed the applicant was placed in a car to be taken to the Gribanovskiy district police station (ROVD ). The driver Mr L., Major K., Lieutenant-Colonel N. and Ms P. rode in the same car. On the way, the applicant continued to swear at Major K. and threatened to kill him for bringing administrative proceedings against him. B. Administrative conviction of the applicant 18. On 4 January 2002 the Gribanovskiy District Court found the applicant guilty of an offence under Article 158 of the Code of Administrative Offences of the Russian Soviet Federative Republic (RSFSR), on the following grounds : “Zolotukhin swore in a public place and did not respond to reprimands.” 19. The applicant was sentenced to three days ’ administrative detention. The judgment indicated that the sentence was not amenable to appeal and was immediately effective. C. Criminal prosecution of the applicant 20. On 23 January 2002 a criminal case was opened against the applicant on suspicion of his having committed “disorderly acts, including resisting a public official dealing with a breach of public order” – an offence under Article 213 § 2 (b) of the Criminal Code of the Russian Federation – on 4 January 2002 at the police station. On the following day, the applicant was taken into custody. On 1 February 2002 two further sets of proceedings were instituted against the applicant on other charges. 21. On 5 April 2002 the applicant was formally indicted. The relevant parts of the charge sheet read as follows: “ On the morning of 4 January 2002 Mr Zolotukhin was taken to police station no. 9 in the Leninskiy district of Voronezh, for elucidation of the circumstances in which his acquaintance Ms P. had entered the territory of the closed military compound Voronezh-45. In the passport office at police station no. 9 Mr Zolotukhin, who was inebriated, flagrantly breached public order, expressing a clear lack of respect for the community, and began loudly uttering obscenities at those present in the passport office, namely Ms Y. , a passport official in the housing department of military unit 25852, and Captain S. , head of the road traffic department in police station no. 9; in particular, he threatened the latter, in his capacity as a police officer performing official duties, with physical reprisals. Mr Zolotukhin did not respond to Captain S. ’ s lawful requests to end the breach of public order; he attempted to leave the premises of the passport office, actively resisted attempts to prevent his disorderly conduct, provided resistance to Captain S. , pushing him and pulling out of his reach, and prevented the passport office from operating normally. Hence, through his intentional actions Mr Zolotukhin engaged in disorderly acts, that is to say, a flagrant breach of public order expressing clear disrespect towards the community, combined with a threat to use violence, and resisting a public official dealing with a breach of public order; the above amounts to the offence set out in Article 213 § 2 ( b ) of the Criminal Code. As a result of his disorderly behaviour, Mr Zolotukhin was taken to the office of Major K. , head of police station no. 9, Leninskiy district, Voronezh, who was present in his official capacity, so that an administrative offence report could be drawn up. [Major] K., in performance of his official duties, began drafting an administrative offence report concerning Mr Zolotukhin, under Articles 158 and 165 of the RSFSR Code of Administrative Offences. Mr Zolotukhin, seeing that an administrative offence report was being drawn up concerning him, began publicly to insult [Major] K. , uttering obscenities at him in his capacity as a police officer, in the presence of Lieutenant-Colonel N. , assistant commander of military unit 14254, and Captain S., head of the road traffic department in police station no. 9, thus intentionally attacking the honour and dignity of a police officer. Mr Zolotukhin deliberately ignored Major K. ’ s repeated requests to end the breach of public order and insulting behaviour. Mr Zolotukhin then attempted to leave the office of the head of the police station without permission and kicked over a chair, while continuing to direct obscenities at Major K. and to threaten him with physical reprisals. Hence, Mr Zolotukhin intentionally and publicly insulted a public official in the course of his official duties, that is to say, he committed the offence set out in Article 319 of the Criminal Code. After the administrative offence report had been drawn up in respect of Mr Zolotukhin, he and Ms P. were placed in a vehicle to be taken to the Gribanovskiy district police station in the Voronezh region. In the car, in the presence of Ms P. , Lieutenant ‑ Colonel N. , assistant commander of military unit 14254, and the driver [Mr] L. , Mr Zolotukhin continued intentionally to attack the honour and dignity of Major K. , who was performing his official duties, uttering obscenities at him in his capacity as a police officer and thus publicly insulting him; he then publicly threatened to kill Major K. , the head of police station no. 9, for bringing administrative proceedings against him. Hence, by his intentional actions, Mr Zolotukhin threatened to use violence against a public official in connection with the latter ’ s performance of his official duties, that is to say, he committed the crime set out in Article 318 § 1 of the Criminal Code. 22. On 2 December 2002 the Gribanovskiy District Court delivered its judgment. As regards the offence under Article 213 § 2 of the Criminal Code, the District Court acquitted the applicant for the following reasons : “ On the morning of 4 January 2002 in ... police station no. 9 [the applicant], in an inebriated state, swore at ... Ms Y. and Captain S., threatening to kill the latter. He refused to comply with a lawful request by Captain S. , ... behaved aggressively, pushed [Captain] S. and attempted to leave. Having examined the evidence produced at the trial, the court considers that [the applicant ’ s] guilt has not been established. On 4 January 2002 [the applicant] was subjected to three days ’ administrative detention for the same actions [characterised] under Articles 158 and 165 of the Code of Administrative Offences. No appeal was lodged against the judicial decision, nor was it quashed. The court considers that there is no indication of a criminal offence under Article 213 § 2 ( b ) in the defendant ’ s actions and acquits him of this charge.” 23. The District Court further found the applicant guilty of insulting a State official under Article 319 of the Criminal Code. It established that the applicant had sworn at Major K. and threatened him while the latter had been drafting the report on the administrative offences under Articles 158 and 165 of the RSFSR Code of Administrative Offences in his office at the police station. Major K. ’ s statements to that effect were corroborated by depositions from Captain S. , Lieutenant ‑ Colonel N. and Ms Y ., who had also been present in Major K. ’ s office. 24. Finally, the District Court found the applicant guilty of threatening violence against a public official under Article 318 § 1 of the Criminal Code. On the basis of the statements by Major K. , Lieutenant - Colonel N. and the applicant ’ s girlfriend it found that, after the administrative offence report had been finalised, the applicant and his girlfriend had been taken by car to the Gribanovskiy district police station. In the car, the applicant had continued to swear at Major K. He had also spat at him and said that, once released, he would kill him and abscond. Major K. had perceived the threat as real because the applicant had a history of abusive and violent behaviour. 25. On 15 April 2003 the Voronezh Regional Court, in summary fashion, upheld the judgment on appeal. | In January 2002 the applicant was arrested for bringing his girlfriend into a military compound without authorisation. A district court found him guilty of “minor disorderly acts” under the Code of Administrative Offences and sentenced him to three days’ detention. Subsequently, criminal proceedings were brought against him, under Article 213 § 2 (b) of the Criminal Code, concerning his disorderly conduct before the police report was drawn up and, under Articles 318 and 319 of the Criminal Code, concerning his threatening and insulting behaviour during and after the drafting of that report. In December 2002 the same district court found the applicant guilty of the charges under Article 319 of the Criminal Code. He was, however, acquitted of the charges under Article 213 as the court found that his guilt had not been proven to the standard required in criminal proceedings. The applicant was sentenced to five years and six months’ imprisonment in a correctional colony and ordered to follow treatment for alcoholism. He complained that, after having already served three days’ detention for disorderly conduct as a result of administrative proceedings against him, he was detained and tried again for the same offence in criminal proceedings. |
651 | Lawyers | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1974 and lives in Paris. 6. The applicant is a lawyer at the Paris Bar. He acted for S.A. in criminal proceedings on a charge of criminal conspiracy for the preparation of an act of terrorism constituting one of the offences provided for in Article 421-1 of the Criminal Code. 7. In 2000 the domestic security and intelligence agency ( Direction de la surveillance du territoire – the “ DST ” ) sent an intelligence report to the Paris public prosecutor ’ s office stating that in Frankfurt the German police had dismantled a network of Islamist terrorists who were likely to be preparing attacks on French territory. In this context, one S.A., who was a suspect in criminal proceedings in France, was arrested in Damascus on 12 July 2003. The French authorities were apprised of this arrest on 18 July 2003. 8. On 1 April 2004 the investigating judges in charge of the case, in the “anti-terrorism” judicial investigation division of the Paris tribunal de grande instance, issued an international letter of request to the Syrian military authorities for the purpose of questioning S. A. 9. From 2 to 7 May 2004, one of the investigating judges, M. B., accompanied by members of the DST, went to Damascus for the execution of the letter of request. 10. During the questioning S.A. was allegedly tortured. 11. On 11 May 2004, after the file had been received in reply to the letter of request, the investigating judges issued an international arrest warrant. S.A. was extradited and remanded in custody on 17 June 2004. 12. By a decision of 15 December 2005 the investigating judge committed S.A. and two other persons to stand trial before the Paris Criminal Court on charges of participating in a criminal conspiracy for the preparation of an act of terrorism. Prior to that decision there had been no applications to the investigation division for the annulment of any investigative acts, neither by the lawyer previously assigned to S.A., nor by the prosecutor or the investigating judges ... Therefore, under Article 174 of the Code of Criminal Procedure, the parties were no longer entitled to raise grounds of nullity in respect of procedural acts or evidence, “ except where they could not have been aware of [those grounds] ”. 13. Before the Criminal Court the applicant requested in his written pleadings that documents that had been obtained, according to him, through torture by the Syrian secret services, be excluded from the file: the written “ confession ” of S. A. , the report by the Syrian secret services dated 3 May 2004 and the interview records of 30 April and 2, 3, 4 and 5 May 2004. He alleged that there had been “ complicity on the part of the French investigating judges in the use of torture against S. A. in Syria by military personnel of the secret service ” (see, for details of these pleadings, their reproduction by the Paris Court of Appeal, paragraph 15 below). 14. In a judgment of 14 June 2006 the court excluded the documents obtained through the international letter of request and sentenced S.A. to nine years ’ imprisonment. It took the view, in the light of statements by the Director of the World Organisation against Torture, a member of the French section of Amnesty International and the Secretary of the International Federation of Human Rights, called by S.A. as witnesses, and who were unanimous as to the almost systematic use of torture by the Syrian security bodies (since a military decree of 1963), that it was “likely that the statements made by S.A. in Syria, to the Palestine Section, had been given under torture, and that his confession had thus been obtained by this method”. The court continued as follows: “Moreover, in his report on his mission to Damascus for the execution of his international letter of request of 1 April 2004 ..., M. B ., investigating judge (First Vice- President ) in charge of the investigation, specified that at the first working meeting with Syrian intelligence officials, he was told that S. A. ‘ had already been questioned on 30 April and 2 May 2004 ’ and that ‘ his interviews were continuing on the basis of the list of questions contained in the international letter of request and additional questions which he [M.B.] wanted to be put, particularly in the light of the answers already recorded ’. However, the judge stressed that he had ‘ not been allowed to participate in the questioning of S.A. but only to follow it in real time ’. On 4 and 5 May the questioning thus continued under the same conditions as the day before. For his part, S.A. emphasised that his entire interrogation had taken place without the French investigating judge being present. When presented to that judge on 17 June 2004 he indicated that he was ‘ tired ’, that he ‘ wished to see a doctor immediately ’, and that he was ‘ worried about his wife and daughter ’. He subsequently described his conditions of detention in Syria and the torture to which he had been subjected during the interrogation. As a result, the French investigating judge was not able to exercise any real control over the conditions in which S. A. was interrogated in Syria, even though he was being held in the ‘ Palestine Section ’, which was known to be a very harsh section, according to witnesses, in which many cases of torture had been reported. It is therefore almost certain that the admissions or ‘ confession ’ of S.A. were obtained under torture and must be excluded as evidence against him and his co-defendants. Accordingly, S.A. ’ s handwritten statement, his interview records from Syria and the report prepared by the Syrian secret services must be removed from the case file .” 15. S.A. appealed against the judgment. The applicant lodged with the Paris Court of Appeal his pleadings in defence of S.A., extending to more than eighty pages, at paragraph 5 of which he again sought the exclusion of the documents obtained under torture. To that end, he relied on Articles 3 and 6 of the Convention, as well as Articles 3 and 15 of the Convention against Torture of 10 December 1984, and referred to the reports of non-governmental organisations concerning the practice of torture in Syria and to the evidence taken at first instance. In particular, he wrote as follows : “Page 25: ‘ it was thus blindly that the investigating judges did not want to try and avoid the torture to which Mr. [S.A.] was subjected in the hands of the Syrian secret services in Damascus. ’ Page 47: ‘ the French investigating judges allowed the Syrian secret services to torture [S.A.] without intervening, and it can even be shown that they promoted torture – this amounts to a judicial outsourcing of torture. ’ Page 68, paragraph entitled : ‘ Complicity of the French investigating judges in the use of the torture against Mr. [S.A.] in Syria by military personnel of the secret services ’. Page 69: ‘ The investigating judges, who had felt from the beginning of the proceedings that they should be brought against Mr. [S.A.], allowed torture to be used against him by military personnel of the Syrian secret services ... They chose to accept the outsourcing of torture. ’ Page 70: ‘ the international letter of request issued by the French investigating judges provides the Syrian secret service officers with the answers to be obtained from the questions to be asked : it encourages torture. ’ ” 16. In a judgment of 22 May 2007 the Court of Appeal upheld S.A. ’ s conviction and sentenced him to ten years ’ imprisonment, after excluding the documents in question: “the defendant ’ s statements, as they had been obtained in Syria, were included in documents whose lawfulness in terms of French procedural rules and the Convention could not be guaranteed”. It rejected the applicant ’ s submissions “relating to complicity in acts of torture committed by the investigating judges and the criticisms about the conduct of the judicial investigation” as being “prejudicial to the dignity of the investigating judges and without any basis or moderation”. The judgment of the Court of Appeal indicated that its president had asked the applicant “to moderate his remarks concerning the allegations of complicity on the part of the investigating judges in the use of the torture against S. A. ( see p. 68 et seq. of the pleadings ) ”. 17. In a letter of 17 January 2008 the Chairman of the Paris Bar Association informed the public prosecutor at the Paris Court of Appeal, who had sent him a copy of the pleadings, that he did not intend to act upon this matter. 18. In a formal referral to the disciplinary body dated 4 February 2008, pursuant to Article 188 § 1 of the decree of 27 November 1991 concerning the organisation of the legal profession ... the public prosecutor asked that body to bring disciplinary proceedings against the applicant for disregarding the essential principles of honour, tactfulness and moderation governing the legal profession. He indicated the passages in the applicant ’ s pleadings which, in his view, had seriously impugned the honour of the investigating judges, namely the statements on pages 25, 47 and 68 to 70 (see paragraph 15 above). He pointed out that the criminal immunity for words spoken in court as provided for in section 41 of the Law of 29 July 1881 on the freedom of the press (“the 1881 Act”, ...) was not applicable in disciplinary matters. 19. In a decision of 30 September 2008 the Disciplinary Board of the Paris Bar Association dismissed all the charges against the applicant. It considered that his objective had been to ensure the removal from the case file of the documents which emanated from the Syrian authorities. It observed in this regard that although the practice of torture by the Syrian secret services was notorious, the investigating judges had failed to issue an international arrest warrant immediately but had, on the contrary, waited until 1 April 2004 to issue a letter of request to the Syrian military authorities, and “that letter was, according to S. A. ’ s lawyers, executed with astonishing speed”. It thus found that “ it was on this basis and in support of the request for the exclusion from the case file of the documents from the Syrian authorities that [the applicant] called into question, in the terms for which he is reproached, the conduct of the investigating judges”. The Disciplinary Board further found that the applicant should benefit from judicial immunity in so far as the impugned remarks were not unrelated to the case. Relying on the case-law of the Court of Cassation on this point ..., and on the protection under Article 10 of the Convention of the lawyer ’ s freedom of speech in court (referring to the judgment in Nikula v. Finland, no. 31611/96, ECHR 2002- II), it pointed out that the applicant ’ s impugned remarks did not constitute personal attacks on the judges, but sought to call into question the manner in which they had conducted the proceedings, and that the remarks were “obviously not unrelated to the facts of the case”. The disciplinary body finally pointed out that the applicant was justified in believing that the argument as to the procedural conduct of the investigating judges had not been without influence on the first-instance decision to exclude the Syrian statements from the case file and that he had been justified in using these arguments before the Court of Appeal, irrespective of their vitriol, whereas the raising of this issue in the court below had not even led to any reaction on the part of the prosecution. 20. On 3 October 2008 the Principal Public Prosecutor appealed against that decision. 21. In a judgment of 25 June 2009 the Paris Court of Appeal quashed the decision of the Bar Association and issued the applicant with a reprimand accompanied by disqualification from professional bodies for a period of five years. The Court of Appeal observed that the immunity of the courtroom could not be invoked in disciplinary matters. Stressing that lawyers ’ freedom of expression was not absolute, it took the view that the remarks at issue were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of S.A. ’ s statements during his interrogation, they also called into question the moral integrity of the investigating judges at a personal level. It found that the applicant “ had visibly sought to ‘ do as he pleased ’ even to the extent of harming his client (whose sentence was extended by a year by the Court of Appeal) ”. The court took the view that the accusation of complicity had been pointless in relation to the interests of his client, and gratuitous, since the judges had mentioned in a mission report the difficulties they had encountered with the Syrian authorities, who had prevented them from attending the interviews (see paragraph 14 above). The Court of Appeal pointed out that the documents in question had been excluded by the court below and that “ there was no need for [the applicant], in the interest of S. A. , to claim without any proof that the French investigating judges had been complicit in the torture of S. A .”. It concluded that the attacks were not proportionate to the aim pursued and that the impugned remarks constituted a breach of the essential principles of the legal profession, namely dignity, honour, tactfulness and moderation. 22. The applicant lodged an appeal on points of law. The Chairman of the Paris Bar Association did likewise. In his grounds of appeal, the applicant relied in particular on Articles 6 and 10 of the Convention to argue that the immunity provided for by the 1881 Act was applicable in disciplinary proceedings. He also pointed out that the fact of denouncing the shortcomings of the justice system on the basis of a letter of request issued to the Syrian secret services had been necessary for his client ’ s defence, and such denunciation could not be considered as a disciplinary offence given the absolute nature of the prohibition of torture. 23. In a judgment of 14 October 2010 the Court of Cassation declared inadmissible the appeal by the Chairman of the Bar Association on the ground that he was not a party to the proceedings. As to the applicant ’ s appeal on points of law, it was rejected in the following terms : “However, firstly, the judgment states precisely that the provisions of sections 41 and 65 of the Law of 29 July 1881 are not applicable in disciplinary matters. Having rightly observed that, while the lawyer has the right to criticise the functioning of the justice system or the conduct of a particular judge, his freedom of expression is not absolute because it is subject to restrictions which derive, in particular, from the need to protect the reputation or rights of others and to maintain the authority and impartiality of the judiciary, the Court of Appeal found that the offending remarks were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of statements made by the suspect during interviews conducted for the execution of the international letter of request issued by the French investigating judges, but personally impugned the moral integrity of those judges, accusing them of deliberately promoting the use of torture and of being actively complicit in the ill-treatment inflicted by the Syrian investigators. Having noted that these serious accusations were both pointless in relation to the client ’ s interests and gratuitous, since the judges, in the report of their mission to Damascus, had described the difficulties they had encountered with the Syrian authorities, who had refused to allow them to attend the interviews, the court rightly inferred that the offending remarks did not fall under the protection of freedom of expression, but breached the principles of honour and tactfulness. On those grounds, without there being any lack of impartiality or any breach of the principle of the presumption of innocence, it legally justified its decision to impose on the lawyer a mere reprimand together with a temporary disqualification from membership of professional bodies and councils; ...” ... | This case concerned a disciplinary sanction imposed on the applicant, as lawyer acting for a suspected terrorist, for remarks made in his pleadings before the Court of Appeal. He claimed that the French investigating judges had been complicit in the torture of his client by the Syrian secret services and thus sought the exclusion of statements obtained through the use of torture. The applicant complained about the disciplinary sanction imposed on him. |
Subsets and Splits