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816 | Prohibition of discrimination (Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention) | THE CIRCUMSTANCES OF THE CASE 7. The applicants were born in 1962 and 1939 respectively and live in Armaçao dos Buzios ( Brazil ). The second applicant is the first applicant ’ s mother and guardian. 8. The first applicant has been deaf since birth, speaks her mother tongue with great difficulty and has no capacity of discernment on account of a severe disability which has required comprehensive therapeutic provision throughout her life. She was granted an extraordinary invalidity insurance pension ( “ enhanced pension for congenitally disabled persons ” ) as from 1 September 1980, and a disability allowance as of 1 September 1997. From January 2009 to March 2010 (15 months ) the Cantonal Social Insurance Office of the Canton of Geneva granted the first applicant allowances to a total of CHF 39, 900 ( approximately 35, 400 euros at current rates ). 9. The legal provisions applicable in this sphere state that beneficiaries of the extraordinary pension and the disability allowance, which are non- contributory benefits, must have a private address and their habitual residence in Switzerland ( see paragraphs 21 and 25 below ). 10. During review proceedings brought in July 2009, the Geneva Canton Disability Insurance Office obtained information, in particular, from the second applicant and from Michel Belli, the first applicant ’ s divorced parents. 11. In fact, the second applicant had decided to settle in Brazil with her new husband, a French national – with whom the applicants submit they have been living since 1982 – in order to purchase and run a hotel. The first applicant, who had been placed under the second applicant ’ s parental authority in summer 2009, had been living with her in Brazil for several years, visiting her father in Switzerland for about three weeks every three months. 12. By decision of 3 December 2010, the Disability Insurance Office for Insured Persons Resident Abroad (OAIE) rescinded the first applicant ’ s entitlement to the extraordinary invalidity pension and the disability allowance with effect from 1 April 2010. 13. On 5 October 2012 the Federal Administrative Court dismissed the applicants ’ appeal against that decision. In short, the court held that the first applicant was no longer entitled to the benefits in question because she did not have a private address or her habitual residence in Switzerland. 14. Exercising their right to lodge a public -law appeal, the applicants invited the Federal Court to set aside the judgment of the Federal Administrative Court and the decision of 3 December 2010, and to order the OAIE to pay “uninterruptedly” to the first applicant, in respect of costs and expenses, the extraordinary invalidity pension and the disability allowance with 5% annual interest. The applicants submitted that the withdrawal of the benefits on the grounds that they were non- exportable amounted to a disproportionate and therefore unjustified interference with their private and family life, as well as their private home as protected by Article 8 of the Convention. If the withdrawal were upheld, the first applicant would be forced to return to Switzerland in order to receive the benefits which were necessary for her quality of life, which meant that either she would have to live separately from her mother or the latter would be obliged, in order to avert such separation, to return to Switzerland to live with her daughter, which would entail separation from her current husband. The right to respect for the home would also be affected, since the insured person would be forced to move to Switzerland. The applicants took the view that the said infringement was also discriminatory within the meaning of Article 14 of the Convention, read in conjunction with Article 8, because the benefits had been withdrawn for reasons linked to the nature of the insured person ’ s disability: she had been born with a health impairment and had therefore not been able to contribute to the disability insurance scheme before the disability had occurred. 15. By judgment of 15 April 2013, notified on 26 April 2013, the Federal Court dismissed the appeal lodged by the two applicants. In short, the Federal Court found that the withdrawal of the right to an extraordinary invalidity pension and a disability allowance on account of the lack of a private address and residence in Switzerland did not fall within the ambit of Article 8 of the Convention. In that connection, the court emphasised that the benefits in question had not pursued the aim of protecting family life or intervening in personal or family relations. “ 4.1 ... Art. 8 para. 1 ECHR also protects the individual ’ s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect of the home are not confined to concrete or physical breaches, such as unauthorised entry into a person ’ s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference ( see ECtHR judgment Moreno v. Spain, 16 November 2004, ECHR Reports 2004-X p. 307 § 53). 4.2 According to the constant case-law of the ECtHR, Art. 8 ECHR does not give rise to direct entitlement to social insurance benefits. The Court has indeed acknowledged that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may, in certain circumstances, be positive obligations inherent in effective respect for private or family life (see, among other authorities, Botta, § 33). However, it has held that Art. 8 ECHR does not impose on the Contracting States any obligation to provide specific financial assistance or to guarantee a specific standard of living ( see Petrovic v. Austria, 27 March 1998, Reports 1998-II p. 579 § 26 et seq., and the inadmissibility decision in Pancenko v. Latvia, 28 October 1999). That provision places no restriction on the Contracting States ’ freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme ( see Stec and Others v. the United Kingdom, 12 April 2006, ECHR Reports 2006-VI p. 159, § 53). The ECtHR has thus considered that a refusal to grant a parental leave allowance cannot amount to a failure to respect family life, since Article 8 of the Convention does not impose any positive obligation on States to provide the financial assistance in question ( see Petrovic, § 26). Consequently, given that Art. 8 ECHR does not give rise to entitlement to a specific standard of living or to a positive obligation to provide a social insurance benefit, the withdrawal of the benefits in question owing to the insured person ’ s departure from Switzerland does not amount to an interference with private or family life. Nor does this measure impinge on the necessary respect for the home within the meaning of Art. 8 ( 1 ) ECHR and the European Court ’ s case-law, which the appellants have interpreted broadly, as it does not involve any practical infringement of the area in which their private and family life develops. Furthermore, it is plain that the appellants were not impeded by the Swiss authorities in their choice of way of life and the development of their family relations in Switzerland or abroad; in particular, they were not prevented from maintaining family and social relations in this country, from settling in it or leaving it as they wished. It should be pointed out here that in all cases where the European Court has considered a denial of specific social insurance benefits in the light of the rights secured under the ECHR, it has relied on Protocol No. 1 of 20 March 1952 to the ECHR, as, for example, in Moskal v. Poland, 15 September 2009, § § 93 et seq ., cited by the appellants ( see also Stec and Others, § 53, and Koua Poirrez v France, 30 September 2003, ECHR Reports 2003-X p. 45 § § 43 et seq. ). Since Switzerland has not ratified that protocol, it is not bound by the Court ’ s case-law concerning the non- discriminatory granting of social security benefits based on Article 1 of the protocol. 4.3 Contrary to the appellants ’ subsequent submissions, the withdrawal of the social insurance benefits in question does not, from a thematic perspective, fall within the scope of Art. 8 ECHR, which would enable them to pray in aid Art. 14 ECHR. That provision, which complements the other substantive provisions of the ECHR, can apply in the absence of an infringement of those provisions, provided that the facts of the case fall within the ambit of one or more of them (see, among many other authorities, Konstantin Markin v Russia, 22 March 2012, § 129 ...). Generally speaking, the insurance invalidity benefit provided for in Swiss law is a social insurance benefit designed to offset the loss of earnings sustained by an insured person on account of the effects of a health impairment on his or her ability to work, or to compensate for an inability to perform everyday actions as a result of a health problem. The extraordinary invalidity pension pursues the same aim for individuals who have been disabled since birth ( or have become disabled without having acquired entitlement to an ordinary pension ). As regards the invalidity allowance, it is awarded on the basis of a long-term need for assistance by others or for the personal supervision of the insured person concerned in performing ordinary everyday actions on account of a health impairment. Those social insurance benefits are paid regardless of the beneficiaries ’ lifestyle, that is, irrespective of whether they live alone, with family or in an institution ( with certain exceptions irrelevant to the present case: see, for example, section 42 ( 5 ) LAI and section 35bis ( 3 ) RAI). From that angle, the benefits are, precisely, intended to enable adult beneficiaries to lead as autonomous a life as possible, without having to depend on help and assistance from members of their families. They are not designed to promote family life or to intervene in personal or family relationships. Contrary to the examples cited by the appellants, and according to a legal opinion to which they refer (Matthias Kradolfer, op. cit., p. 73), to wit a parental leave allowance ( see Petrovic, § 27) and an ‘ assistance pension ’ paid to the parents of a disabled child ( see Moskal v Poland § 93), the Swiss extraordinary invalidity pension and disability allowance are not aimed at enabling one of the parents to remain at home in order to look after their (adult) child. Accordingly, the withdrawal of those benefits on account of the non-fulfilment of the criterion of ordinary residence in Switzerland laid down in domestic law does not fall within the scope of Article 8 ECHR. ” 16. In declaring Article 8 of the Convention inapplicable in the instant case the Federal Court saw no need to assess the existence of discrimination within the meaning of Article 14 of the Convention. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Non - contributory benefits in Swiss law 1. Preliminary remarks 17. It should be pointed out at the outset that Switzerland has not concluded any international agreement with Brazil concerning disability benefits. 18. One of the main differences between ordinary pensions and, as in the instant case, extraordinary pensions and the disability allowance, is that the latter are granted on the condition of having a private address and ordinary residence in Switzerland. It follows that ordinary invalidity pensions, as contributory benefits, can be exported to a foreign country ( under the exportation principle ) and extraordinary invalidity pensions and the disability allowance cannot. The Report published by the Federal Commission of Experts for the introduction of disability insurance on 30 November 1956 explained that extraordinary pensions, as non- contributory benefits, were not paid abroad because they were primarily funded from public monies, to which persons residing outside Switzerland do not contribute. 19. Section 17 (2) of the Federal Law on Social Insurance ( general section ) (LPGA) of 6 October 2000 provides that : “ any long-term benefit granted pursuant to a decision which has become final shall, ex officio or on request, be increased or reduced accordingly, or else withdrawn, where the conditions for its grant have significantly changed. ” 2. Functional disability allowance (Hilflosenentschädigung) 20. Pursuant to section 9 of the LPGA, a person suffering from functional disability is anyone who, on account of a health impairment, needs permanent assistance from another person or personal supervision in order to perform ordinary everyday actions. 21. Section 42 (1) of the Federal Law on Disability Insurance of 19 June 1959 (LAI) provides: “ insured persons suffering from functional disability ... who have their private address and ordinary residence ... in Switzerland are entitled to a functional disability allowance. ” 22. Under section 77 (2) LAI, the functional disability allowance is funded exclusively by the Confederation. It is a non - contributory benefit. 23. Entitlement to a functional disability allowance does not depend on whether or not the person concerned is in receipt of an invalidity insurance benefit. The allowance is a cash benefit assessed according to the person ’ s needs in terms of assistance and supervision, irrespective of actual costs and actual recourse to the services of third persons. 3. Extraordinary disability insurance pension ( “ pension increased in respect of persons disabled from birth ” ) 24. Prior to 1 January 2008, a date which is decisive in the present case, persons with disabilities were eligible for an ordinary invalidity insurance pension if, at the onset of their invalidity, they had been contributing for at least one year. Persons who had not yet been subject to compulsory contributions for a full year were entitled to an extraordinary invalidity insurance pension. 25. Section 39 LAI mentions that the entitlement of Swiss nationals to extraordinary pensions is governed by the provisions of the 20 December 1946 Federal Law on pension insurance and survivors (LAVS). Section 42 LAVS provides : “ 1 Swiss nationals having their private home and ordinary residence ... in Switzerland are entitled to an extraordinary pension if they have the same number of years ’ insurance as other persons in the same age bracket but are not entitled to an ordinary pension because they have not been subject to compulsory payment of contributions for at least one year. .... 2 Any insured person who is granted a pension must personally satisfy the requirement of a private home and ordinary residence in Switzerland. ” ... 26. As regards the “ ordinary residence” requirement, section 13 (2 ) LPGA provides that “ a person is deemed to have his or her ordinary residence at the place where he or she resides or has resided for a period of time, regardless of the length of that period of time. ” 27. Section 13 (1) LPGA refers to the Swiss Civil Code of 10 December 1907, the relevant provisions of which provide : Article 23 CC : Private home ( domicile ) ( Definition ) “ 1 A person ’ s private home is the place where he or she resides with the intention of settling there; residence in a training institution or accommodation in an educational institution, a nursing or old people ’ s home, a hospital or a detention centre does not per se constitute a private home. 2 No one may have several private homes simultaneously. ... ” Article 26 CC: Private home of adults under general guardianship orders “ The private home of adults under general guardianship orders is the headquarters of the adult protection agency. ” B. Non-contributory benefits in international social security law 28. Article 9 of the International Covenant on Economic, Social and Cultural Rights of 16 December 1966, which came into force in respect of Switzerland on 18 September 1998, enshrines the right to social security. Nevertheless, in its General Comment No. 19 of 4 February 2008 (E/C.12/GC/19), the Committee on Economic, Social and Cultural Rights notes the following as regards the international implementation of the obligations deriving from the right secured (italics added): “ 56. States parties should ensure that the right to social security is given due attention in international agreements and, to that end, should consider the development of further legal instruments. The Committee notes the importance of establishing reciprocal bilateral and multilateral international agreements or other instruments for coordinating or harmonizing contributory social security schemes for migrant workers. ... ” 29. Article 32 (1) of ILO Convention No. 128 of 29 June 1967 concerning Disability, Old-Age and Survivors ’ Benefits, which came into force in respect of Switzerland on 13 September 1978, permits the suspension of “ a benefit to which a person protected would otherwise be entitled ... (a) as long as the person concerned is absent from the territory of the Member, except, under prescribed conditions, in the case of a contributory benefit. .... ” [ italics added ] 30. Pursuant to Article 11 of the European Convention on Social Security of 14 December 1972, designed as an instrument coordinating the Council of Europe social security schemes ( Council of Europe Treaty Series (CETS ) no. 078, not ratified by the Swiss Confederation, the following are excluded from the scope of that convention ( italics added ): “ (a) special non-contributory benefits granted to invalids who are unable to earn a living; ( b ) special non-contributory benefits granted to persons not entitled to normal benefits; .... ” C. Non- contributory benefits under comparative law 31. Comparison of legislation in thirty-four member States of the Council of Europe (Albania, Armenia, Austria, Belgium, Bosnia-Herzegovina, Bulgaria, Cyprus, Croatia, Estonia, France, Germany, Greece, Hungary, Ireland, Iceland, Italy, Liechtenstein, Lithuania, the former Yugoslav Republic of Macedonia, the Republic of Moldova, Monaco, the Netherlands, Poland, Portugal, Romania, the Russian Federation, San Marino, Serbia, Slovenia, Spain, Sweden, Turkey, Ukraine and the United Kingdom) and three non-member States (Canada, Hong Kong and the United States) led to the following conclusions. (1) The general rule in seventeen of the States compared is that contributory pensions are exportable, but that permanent residence is a precondition for entitlement to non- contributory benefits ( Albania, Armenia, Austria, Belgium, Canada, the United States, France, Germany, Hong Kong, Ireland, Italy, Lithuania, Poland, Portugal, San Marino, Turkey and Ukraine). Some of those States, however, lay down special rules on the exportability of non ‑ contributory benefits. In Austria and Germany, people with severe disabilities may apply for a “ severely disabled pass ” ( Schwerbehindertenausweis ) stating their degree of disability and facilitating the receipt of benefits. Foreign residents can also obtain this pass if there is a “sufficient link” with the State of origin. Italy allows beneficiaries of some benefits to retain them abroad, albeit only for six months or for serious medical reasons. Poland also permits the exportation of specific benefits in the event of a temporary absence from the country. Belgium and Ireland allow for derogations from the general rule of non- exportability, particularly in cases of extreme necessity. In Portugal, exportation is exceptionally possible where the disabled person is accompanying a close relative working abroad in the Portuguese national interest. (2) The general rule in eighteen of the States compared is that disability benefits are non- exportable, be they contributory or not ( Bosnia-Herzegovina, Bulgaria, Cyprus, Estonia, Greece, Hungary, Iceland, Liechtenstein, the former Yugoslav Republic of Macedonia, the Republic of Moldova, Monaco, the Netherlands, Romania, the Russian Federation, Serbia, Slovenia, Sweden and the United Kingdom ). (3) Two States fall into neither of those categories inasmuch as the exportability of a benefit is decided on a case -by- case basis, regardless of whether the benefit is contributory or not ( Croatia and Spain ). (4) Benefits may, however, be exportable if the State in question has concluded a bilateral international agreement on that subject. (5) Furthermore, EU Member States must comply with the relevant provisions of EU law set out below as regards the exportation of benefits within the European Union. D. Non-contributory benefits in European Union law 32. Social security benefits are coordinated within the European Union. Such coordination is governed by the principle of the exportability of social welfare benefits between EU countries. However, European law does not address the matter of the exportability of benefits to third States, and the legislative powers in this field and competence to conclude international agreements with third States remain at the national level. 33. The original texts on social security coordination in the European Union ( such as Regulation No. 1408/71/EEC of 14 June 1971 ) make no mention of special non-contributory cash benefits. Decisions were thus taken against a number of States which had refused to pay benefits to persons not residing in their territory. It was not until the enactment of Regulation No. 1247/92/EC that the category of special non- contributory cash benefits was created, specifying, within the ambit of Regulation No. 1408/71/EEC of 14 June 1971, that those benefits would not be exportable. 34. The Court of Justice of the European Union subsequently developed case-law concerning the conditions under which a benefit qualified as a special non- contributory cash benefit. Those conditions have now been codified in Regulation No. 883/2004/EC of 29 April 2004 (Article 70 paragraph 2) : “ 2. For the purposes of this Chapter, ‘ special non-contributory cash benefits ’ means those which: (a) are intended to provide either: (i) supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in Article 3(1), and which guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned; or (ii) solely specific protection for the disabled, closely linked to the said person ’ s social environment in the Member State concerned, and (b) where the financing exclusively derives from compulsory taxation intended to cover general public expenditure and the conditions for providing and for calculating the benefits are not dependent on any contribution in respect of the beneficiary. However, benefits provided to supplement a contributory benefit shall not be considered to be contributory benefits for this reason alone, and (c) are listed in Annex X. ” 35. The Regulation also states that disability benefits are subject to it, pursuant to Article 3 § 1 (c) : Article 3 “ Matters covered 1. This Regulation shall apply to all legislation concerning the following branches of social security: (c) invalidity benefits; ... ” 36. Article 70 (4) of the Regulation sets out the principle that special non - contributory cash benefits are not exportable : “ 4. The benefits referred to in paragraph 2 shall be provided exclusively in the Member State in which the persons concerned reside, in accordance with its legislation. Such benefits shall be provided by and at the expense of the institution of the place of residence. ” 37. Member States of the European Union must list the benefits which they grant and which satisfy the conditions governing special non- contributory benefits set out in Annex X to Regulation No. 883/2004/ EC of 29 April 2004 in order to obtain any derogation to the exportability of benefits. 38. However, the Court of Justice of the European Union does not verify whether the benefits listed in Annex X correspond to special non- contributory cash benefits. It transpires from its case-law that : (i) if the benefit is considered as a sickness cash benefit, it must be granted irrespective of the Member State in which the recipient is resident ( see CJEU, 5 May 2011, European Commission v. Federal Republic of Germany, C-206/10, para. 30); however, (ii) the grant of benefits closely linked with the social environment may legitimately be made subject to a condition of residence in the Member State concerned, for example if it is based on the minimum wage or the standard of living in that State (see CJEU, 5 May 2011, Ralph James Bartlett and Others v. Secretary of State for Work and Pensions, C-537/09, para. 38). 39. The Court of Justice has also restricted the possibility of invoking the residence condition against an EU citizen in respect of a special non- contributory cash benefit in cases involving freedom of movement. In a case concerning a man who was in receipt of benefits in the Netherlands until he moved to Belgium, when they were no longer paid even though he continued to work in the Netherlands, where he had also retained all his economic and social ties, the Court considered that the implementation of the conditions set out in the European regulation should not impinge on the rights deriving from the freedom of movement of workers beyond what was required to attain the legitimate object pursued by national law (see CJCE, Grand Chamber, 11 September 2007, H. v. Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen, C-287/05, para. 56). E. Applicability of Regulation No. 883/2004/ EC to Switzerland 40. Regulation No. 883/2004/ EC of 29 April 2004 has been applicable to Switzerland in its relations with the Member States of the European Union since 1 April 2012, in the framework of the Agreement on freedom of movement of persons between Switzerland and the European Union. The following Swiss benefits are listed in Annex X to the Regulation : “1. Supplementary benefits (Federal Supplementary Benefits Act of 6 October 2006 ) and similar benefits provided for under cantonal legislation. 2. Pensions in the case of hardship under invalidity insurance (Article 28 sub-paragraph 1a of the Federal Invalidity Insurance Act of 19 June 1959, as amended on 7 October 1994). 3. Non-contributory mixed benefits in the event of unemployment, as provided for under cantonal legislation. 4. Non-contributory extraordinary invalidity pensions for disabled persons (Article 39 of the Federal Invalidity Insurance Act of 19 June 1959) who have not been subject, before their incapacity for work, to the Swiss legislation on the basis of an activity as an employed or self-employed person. ” 41. In it judgment ATF 141 V 530 of 11 September 2015, the Federal Court pointed out that extraordinary invalidity pensions satisfied all the criteria to be considered as special benefits within the meaning of Article 70 § 2 of Regulation No. 883/2004. “ 7.3.3 In order to justify its position vis-à-vis the European institutions, the Swiss Confederation first of all observed that in order to be eligible for an ordinary disability insurance pension, insured persons had to have paid contributions for at least three years at the time when they became unfit for work. Persons who have been disabled since birth or childhood cannot fulfil that condition, given that they were unable to work before the age at which they would have begun to pay contributions. That is why such persons were entitled to a special pension corresponding to the amount of the minimum ordinary invalidity pension. That pension was granted to persons over the age of eighteen living in Switzerland ( see proposal of 28 June 2010 cited above, pp. 8 and 9). According to the explanations provided by the Swiss Confederation, it was justifiable to include the extraordinary invalidity insurance pension in the list of special non-contributory cash benefits, because it fulfilled all the criteria for being considered as a special non-contributory benefit within the meaning of Article 4 para. 2 bis of Regulation No. 1408/71 and the relevant CJEC case-law. It was first and foremost a mixed benefit : on the one hand it had specific social- security features in that the persons concerned had a clearly defined right to that benefit and it covered the invalidity risk; on the other hand it was also linked to social assistance in that it was not based on periods of work or contribution and was not aimed at mitigating a situation of need by providing a minimum living wage to a socially underprivileged group ( young persons with disabilities ). The extraordinary pension was also a special benefit, since it was an alternative allowance aimed at persons who did not fulfil the insurance conditions to obtain an ordinary invalidity pension; it was closely linked to the socio- economic situation in Switzerland, since it corresponded to the minimum pension in that State. Finally, the extraordinary pension was non- contributory, as it was not funded from contributions but exclusively by the Confederation ( see proposal of 28 June 2010 cited above, p. 8).” 42. The Federal Court also confirmed that disability allowances ( section 42 ( 1 ) LAI) constitute special non - contributory cash benefits (ATF 142 V 2, 17 December 2015). F. United Nations Convention on the Rights of Persons with Disabilities 43. The relevant provisions of the UN Convention on the Rights of Persons with Disabilities of 13 December 2006, ratified by Switzerland on 15 April 2014, read as follows : Article 2 ( 3 ) ( definitions ) “ ‘ Discrimination on the basis of disability ’ ” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation ... Article 3: General principles The principles of the present Convention shall be: (a) Respect for inherent dignity, individual autonomy including the freedom to make one ’ s own choices, and independence of persons; (b) Non-discrimination; (c) Full and effective participation and inclusion in society; (d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; (e) Equality of opportunity; (f) Accessibility; (g) Equality between men and women; (h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities. Article 5 : Equality and non-discrimination 1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. ... Article 19: Living independently and being included in the community States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: (a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; (b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; (c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs. Article 28: Adequate standard of living and social protection 1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability. 2. States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures: ... b) To ensure access by persons with disabilities, in particular women and girls with disabilities and older persons with disabilities, to social protection programmes and poverty reduction programmes; ... e) To ensure equal access by persons with disabilities to retirement benefits and programmes. ” | This case concerned the decision taken in respect of the first applicant, who was deaf and incapable of discernment owing to a severe disability affecting her since birth, discontinuing her entitlement to a special invalidity benefit and a disability allowance on the grounds that she was no longer resident in Switzerland22. Together with her mother and guardian since 2009 (the second applicant), she complained that they had been discriminated against in this respect. |
732 | Industrial pollution | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants are Ukrainian nationals residing in the hamlet of Vilshyna in the Lviv region. A. Preliminary information 7. The first to fifth applicants are members of an extended family residing in a house owned by the first applicant ( the Dubetska-Nayda family house). This house was built by the family in 1933. 8. The remaining applicants are members of an extended family residing in a house constructed by the sixth applicant ( the Gavrylyuk-Vakiv family house). This house was built by him in 1959. It is unclear whether a permit for construction of this house was obtained in 1959. Subsequently the house was officially registered, to which a property certificate of 1988 is witness. 9. The applicants'houses are located in Vilshyna hamlet, administratively a part of Silets village, Sokalskyy district, Lviv Region. The village is located in the Chervonograd coal-mining basin. 10. In 1955 the State began building, and in 1960 put into operation, the Velykomostivska No. 8 coal mine, whose spoil heap is located 100 metres from the Dubetska-Vakiv family house. In 2001 this mine was renamed the Vizeyska mine of the Lvivvugillya State Holding Company (“the mine ”; Шахта «Візейська» ДХК «Львіввугілля» ). In July 2005 a decision was taken to close the mine as unprofitable. The closure project is currently under way. 11. In 1979 the State opened the Chervonogradska coal processing factory (“the factory ”; Центрально-збагачувальна фабрика «Червоноградська» ) in the vicinity of the hamlet, initially managed by the Ukrzakhidvugillya State Company. In 2001 the factory was leased out to the Lvivsystemenergo Closed Joint Stock Company ( ЗАТ «Львівсистеменерго» ). Subsequently the Lvivsystemenergo CJSC was succeeded by the Lviv Coal Company Open Joint Stock Company. In 2007 a decision was taken to allow the factory to be privatised. It is not clear whether the factory has already been privatised. 12. In the course of its operation the factory has piled up a 60-metre spoil heap 430 metres from the Dubetska-Nayda family house and 420 metres from the Gavrylyuk-Vakiv family house. This spoil heap was not subject to privatisation and remained State property. B. The environmental situation in Vilshyna hamlet 1. General data concerning pollution emitted by the factory and the mine 13. According to a number of studies by governmental and non ‑ governmental entities, the operation of the factory and the mine has had adverse environmental effects. 14. In particular, in 1989 the Sokalskyy District Council Executive Committee (“the Sokalskyy Executive Committee”; Виконавчий комітет Сокальської районної ради ) noted that the mine's and the factory's spoil heaps caused continuous infiltration of ground water, resulting in flooding of certain areas. 15. According to an assessment commissioned by the State Committee for Geology and Mineral Resource Utilisation, jointly with the Zakhidukrgeologiya State geological company ( Державний комітет України по геології та використанню надр; Державне геологічне підприємство « Західукргеологія ») in 1998, the factory was a major contributor to pollution of the ground water, in particular on account of infiltration of water from its spoil heap. The authors of the assessment contended, in particular, that: “All the coal - mining industry operational in the region for over forty years has been negatively affecting the environment: spoil heaps from the mines and the coal-processing factory have been created, from which dust with a high concentration of toxic components spreads into the atmosphere and the soil ... systems of water drainage of the mines ... and cesspools ... of the coal - processing factory are sources of pollution of surface and underground waters ... Rocks from the spoil heaps contain a variety of toxic heavy metals, leaching of which results in pollution of soils, surface and underground waters ... Very serious polluters ... are cesspools of mining waters and factory tailing ponds .. ., which in the event of the slightest disturbance of the hydro-insulation cause pollution of surface and ground waters ... The general area of soil subsidence is about 70 square kilometres [2] ... the deepest subsidence (up to 3.5 metres) corresponds to areas with the most mining activity ... During construction of the water inlets ... deep wells were drilled which reached those [mineralised] waters. All this inevitably affected the health of people living in the area, first of all the children ... Extremely high pollution levels ... were found in the hamlet of Vilshyna, not far from the coal- processing factory and mine no. 8 spoil heaps, in the wells of Mr T. and Mr Dubetskyy. We can testify that even the appearance of this water does not give grounds to consider it fit for any use. People from this community should be supplied with drinking- quality water or resettled ... ” 16. In 2001 similar conclusions were proposed in a white paper published by Lviv State University. 17. On 20 April 2000 the Chervonograd Sanitary Epidemiological Service (“the Sanitary Service”; Червоноградська міська санітарно ‑ епідеміологічна служба ) recorded a 5.2-fold excess of dust concentration and a 1.2-fold excess of soot concentration in ambient air samples taken 500 metres from the factory's chimney. 18. On 1 August 2000 the Sanitary Service sampled water in the Vilshyna hamlet wells and found it did not meet safety standards. In particular, the concentration of nitrates exceeded the safety limits by three- to five-fold, the concentration of iron by five- to ten-fold and that of manganese by nine- to eleven-fold. 19. On 16 August 2002 the Ministry of Ecology and Natural Resources ( Міністерство екології та природних ресурсів ) acknowledged in a letter to the applicants that mining activities were of major environmental concern for the entire Chervonograd region. They caused soil subsidence and flooding. Heavy metals from mining waste penetrated the soil and ground waters. The level of pollution of the soil by heavy metals was up to ten times the permissible concentration, in particular in Silets village, especially on account of the operation of the factory and the mine. 20. On 28 May 2003 factory officials and the Chervonograd Coal Industry Inspectorate ( Червоноградська гірничо-технічна інспекція з нагляду у вугільній промисловості ) recorded infiltration of water from the foot of the factory's spoil heap on the side facing Vilshyna hamlet. They noted that water flowing from the heap had accumulated into one hectare of brownish salty lake. 21. In 2004 the Zakhidukrgeologiya company published a study entitled “Hydrogeological Conclusion concerning the Condition of Underground Waters in the Area of Mezhyriccha Village and Vilshyna Hamlet ”, according to which in the geological composition of the area there were water-bearing layers of sand. The study also indicated that even before the beginning of the mining works the upper water-bearing layers were contaminated with sodium and compounds thereof as well as iron in the river valleys. However, exploitation of the mines added pollution to underground waters, especially their upper layers. 22. On 14 June 2004 the Lviv Chief Medical Officer for Health ( Головний державний санітарний лікар Львівської області ) noted that air samples had revealed dust and soot exceeding the maximum permissible concentrations 350 metres from the factory, and imposed administrative sanctions on the person in charge of the factory's boiler. 23. In September 2005 Dr Mark Chernaik of the Environmental Law Alliance Worldwide reported that the concentration of soot in ambient air samples taken in Vilshyna hamlet was 1.5 times higher than the maximum permissible concentration under domestic standards. The well water was contaminated with mercury and cadmium, exceeding domestic safety standards twenty-five - fold and fourfold respectively. According to the report, the hamlet inhabitants were exposed to higher risks of cancer and respiratory and kidney diseases. 2. The applicants'accounts of damage sustained by them on account of the mine and factory operation 24. The applicants first submitted that their houses had sustained damage as a result of soil subsidence caused by mining activities and presented an acknowledgement of this signed by the mine's director on 1 January 1999. According to the applicants, the mine promised to pay for the repair of their houses but never did so. 25. Secondly, the applicants alleged that they were continuing to suffer from a lack of drinkable water. They contended that until 2009 the hamlet had no access to a mains water supply. Using the local well and stream water for washing and cooking purposes caused itching and intestinal infections. The applicants presented three photographs reportedly of the water available to them near their home. One photo entitled “water in a well in Vilshyna hamlet ” pictured a bucket full of yellow-orange water near a well. The second photo entitled “a stream near the house” pictured a small stream of a bright orange colour. The third photo entitled “ destruction of plant life by water from the coal-processing factory waste heap” depicted a brownish lake with many stumps and several dead bushes in the middle of it. 26. The applicants further contended that from 2003 the Lvivsystemenergo CJSC had been bringing, at its own expense, drinkable water into the hamlet by truck and tractor. However, this water was not provided in sufficient quantity. In evidence of this statement, the applicants presented a photograph picturing five large buckets of water and entitled “ weekly water supply ”. 27. The applicants further alleged that the water supply was not always regular. In support of this argument they produced letters from the Sokalskyy District Administration dated 9 July 2002 and 7 March 2006, acknowledging recent irregularities in supply of drinking water. 28. Thirdly, some of the applicants were alleged to have developed chronic health conditions associated with the factory operation, especially with air pollution. They presented medical certificates which stated that Olga Dubetska and Alla Vakiv were suffering from chronic bronchitis and emphysema and that Ganna Gavrylyuk had been diagnosed with carcinoma. 29. Fourthly, the applicants contended that their frustration with environmental factors affected communication between family members. In particular, lack of clean water for washing reportedly caused difficulties in relations between spouses. Younger family members sought to break away from the older ones in search of better conditions for their growing children. 30. The applicants, however, did not relocate. They alleged that they would not be able to sell houses located in a contaminated area or to find other sources of funding for relocation to a safer community without State support. In evidence, the applicants presented a letter from a private real estate agency, S., dated September 2009, stating the following: “since in Vilshyna hamlet ... there has been no demand for residential housing for the past ten years because of the situation of this hamlet in technogenically polluted territory and subsidence of soil on its territory ... it is not possible to determine the market value of the house.” C. Administrative decisions addressing the harmful effects of the factory and mine operation 1. Decisions aimed at improving the environmental situation in the region 31. In November 1995 the Sanitary Service ordered the factory to develop a plan for management of the buffer zone. 32. On 5 June 1996 the Sanitary Service found that the factory had failed to comply with its order and ordered suspension of its operation. In spite of this measure, the factory reportedly continued to operate, with no further sanctions being imposed on its management. 33. On 7 April 2000 and 12 June 2002 the State Commission for Technogenic and Ecological Safety and Emergencies (“The Ecological Safety Commission”; Державна комісія з питань техногенно ‑ екологічної безпеки та надзвичайних ситуацій ) ordered a number of measures to improve water management and tackle soil pollution in the vicinity of the factory. 34. On 14 April 2003 the Lviv Regional Administration ( Львівська обласна державна адміністрація ) noted that the overall environmental situation had not improved since the Ecological Safety Commission's decision of 7 April 2000, as no funds had been allocated by the State Budget for implementation of the relevant measures. 35. On 27 January 2004 the Sanitary Service found that the mine had failed to comply with its instruction of 4 December 2003 as to the development of a plan for management of the buffer zone, and ordered suspension of its operation. However, the mine reportedly continued to operate. 36. On 13 July 2005 the Marzeyev State Institute for Hygiene and Medical Ecology ( Інститут гігієни та медичної екології ім. О. М. Марзеєва АМН України ) developed a management plan for the factory buffer zone. The authors of the report acknowledged that the factory was polluting the air with nitrogen dioxide, carbon oxide, sulphuric anhydride and dust. They noted, however, that according to their studies ambient air samples taken more than 300 metres from the factory did not contain excessive pollution. The plan provided for implementation of a number of measures aimed at improvement of the hydro-insulation of the spoil heap, as well as reduction of its height to 50 metres. The authors concluded that in view of such measures it was possible to establish a general buffer zone at 300 metres for the entire factory site. 37. Later in the year the Ministry of Health ( Міністерство охорони здоров'я ) approved the Marzeyev Institute's plan, on an assumption that the height of the spoil heap would be reduced by August 2008. 38. On 29 April 2009 the Sanitary Service fined the factory director for failing to implement the measures in the factory buffer zone management plan. 2. Decisions concerning the applicants'resettlement 39. On 20 December 1994 the Sokalskyy Executive Committee noted that eighteen houses, including those of the applicants, were located within the factory spoil heap 500-metre buffer zone, in violation of applicable sanitary norms. It further allowed the Ukrzakhidvugillya company to resettle the inhabitants and to have these houses demolished. The Committee further obliged the company director to provide the applicants with housing by December 1996. This decision was not enforced. 40. In 1995 the Sokalskyy Executive Committee amended its decision and allowed the residents to keep their former houses following resettlement for recreational and gardening use. 41. On 7 April 2000 the Ecological Safety Commission noted that eighteen families lived within the limits of the factory buffer zone and commissioned the Ministry of Fuel and Energy and local executive authorities to ensure their resettlement in 2000-2001. The names of the families appear not to have been listed. 42. In December 2000 and 2001 the applicants enquired of the Ministry of Fuel and Energy when they would be resettled and received no answer. 43. In 2001 the Lviv Regional Administration included resettlement of eighteen families (names not listed) from the factory sanitary security zone in their annual activity plan, indicating the State budget as the funding source and referring to the Ecological Safety Commission's decision of 7 April 2000. 44. On 12 June 2002 the Ecological Safety Commission noted that its decision of 7 April 2000 remained unenforced and ordered the Sokalskyy District Administration, the Silets Village Council and the factory to work together to ensure the resettlement of families from the factory spoil heap buffer zone by the end of 2003. 45. In June 2002 the applicants, along with other village residents, complained to the President of Ukraine about the non-enforcement of the decisions concerning their resettlement. The President's Administration redirected their complaint to the Lviv Regional Administration and the Ministry of Ecology and Natural Resources for consideration. 46. On 16 August 2002 the Ministry of Ecology and Natural Resources informed the Vilshyna inhabitants in response to their complaint that it had proposed that the Cabinet of Ministers ensure prompt resettlement of the inhabitants from the factory buffer zone in accordance with the decision of the Ecological Safety Commission of 7 April 2000. 47. On 14 April 2003 the Lviv Regional Administration informed the applicants that it had repeatedly requested the Prime Minister and the Ministry of Fuel and Energy to provide funding for the enforcement of the decision of 7 April 2000. D. Civil actions concerning the applicants'resettlement 1. Proceeding brought by the Dubetska- Nayda family 48. On 23 July 2002 the Dubetska -Nayda family instituted civil proceedings in the Chervonograd Court ( Місцевий суд м. Червонограда ) seeking to oblige the factory to resettle them from its buffer zone. Subsequently the Lvivvugillya State Company was summoned as a co ‑ defendant. 49. The first hearing was scheduled for 28 October 2003. Subsequent hearings were scheduled for 12 November and 18 December 2003, 26 and 30 April, 18 May, 18 and 30 June, 19 July and 22 December 2004, and 25 November, 6, 20 and 26 December 2005. On some four occasions hearings were adjourned on account of a defendant's absence or following a defendant's request for an adjournment. 50. On 26 December 2005 the Chervonograd Court found that the plaintiffs resided in the mine's buffer zone and ordered the Lvivvugillya State Company holding it to resettle them. It further dismissed the applicants'claims against the factory, finding that their house was outside its 300-metre buffer zone. 51. This judgment was not appealed against and became final. 52. On 3 May 2006 the Chervonograd Bailiffs'Service initiated enforcement proceedings. 53. On 19 June 2006 the Bailiffs fined the mine's director for failing to ensure the enforcement of the judgment. The latter appealed against this decision. 54. On 26 June 2006 the director informed the Bailiffs that the mine could not comply with the judgment. It neither had available residential housing at its disposal nor was it engaged in constructing housing, as it had received no appropriate allocations from the State budget. 55. The judgment remains unenforced to the present date. 2. Proceedings brought by the Gavrylyuk -Vakiv family 56. On 23 July 2002 the Gavrylyuk- Vakiv family, similarly to the Dubetska-Nayda family, instituted civil proceedings at Chervonograd Court seeking to be resettled outside the factory buffer zone. 57. Subsequently the factory was replaced by the Lvivsystemenergo CJSC as a defendant in the proceedings. 58. The first hearing was scheduled for 29 September 2003. Subsequent hearings were scheduled for 6, 17 and 30 October 2003, and 15 and 30 April, 18 May, 18 and 21 June 2004. 59. On 21 June 2004 Chervonograd Court dismissed the applicants'claims. The court found, in particular that, although the plan for management of the factory buffer zone was still under way, there were sufficient studies to justify the 300-metre zone. As the plaintiffs'house was located outside it, the defendant could not be obliged to resettle them. Moreover, the defendant had no funds to provide the applicants with new housing. The court found the decision of 1994 concerning the applicants'resettlement irrelevant and did not comment on subsequent decisions concerning the matter. 60. On 20 July 2004 the applicants appealed. They maintained, in particular, that the law provided that the actual concentration of pollutants on the outside boundaries of the zone should meet applicable safety standards. In their case, the actual level of pollution outside the zone exceeded such standards, as evidenced by a number of studies, referring to the factory operation as the major source of pollution. Furthermore, the decision of the Sokalskyy Executive Committee of 1994 could not have been irrelevant, as it remained formally in force. 61. On 28 March 2005 the Lviv Regional Court of Appeal ( Апеляційний суд Львівської області ) upheld the previous judgment and agreed with the trial court's reasoning. In response to the applicants'arguments concerning the actual pollution level at their place of residence, the court noted that the hamlet was supplied with imported water and that in any event, while the applicable law included penalties against polluters, it did not impose a general obligation on them to resettle individuals. 62. On 23 April 2005 the applicants appealed on points of law, relying on essentially the same arguments as in their previous appeal. 63. On 17 September 2007 the Khmelnytskyy Regional Court of Appeal ( Апеляційний суд Хмельницької області ) dismissed the applicants'request for leave to appeal on points of law. | In this case the applicants complained that their health had suffered and their house and living environment had been damaged as a result of a State-owned coal mine operating near their houses. They also submitted that the Ukrainian authorities had done nothing to remedy the situation. |
844 | null | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1977 and lives in St Petersburg. 8. The applicant is the editor-in-chief of a publishing company and of an aviation magazine. He is also the chairperson of the St Petersburg branch of the Glasnost Defence Foundation, a non-governmental organisation ( NGO ) monitoring the state of media freedom in the Russian regions, which promotes the independence of the regional mass media, freedom of speech and respect for journalists ’ rights, and provides legal support, including through litigation, to journalists. 9. He subscribed to the services of several mobile-network operators. 10. On 23 December 2003 he brought judicial proceedings against three mobile-network operators, claiming that there had been an interference with his right to the privacy of his telephone communications. He claimed that pursuant to Order no. 70 (see paragraphs 115 - 22 below) of the State Committee for Communications and Information Technologies (the predecessor to the Ministry of Communications and Information Technologies – “the Ministry of Communications”), the mobile-network operators had installed equipment which permitted the Federal Security Service (FSB) to intercept all telephone communications without prior judicial authorisation. The applicant argued that Order no. 70, which had never been published, unduly restricted his right to privacy. He asked the court to issue an injunction ordering the removal of the equipment installed pursuant to Order no. 70, and to ensure that access to mobile-telephone communications was given to authorised persons only. The Ministry of Communications and the St Petersburg and Leningrad Region Department of the FSB were joined as a third party to the proceedings. 11. On 5 December 2005 the Vasileostrovskiy District Court of St Petersburg dismissed the applicant ’ s claims. It found that the applicant had not proved that the mobile-network operators had transmitted any protected information to unauthorised persons or permitted the unrestricted or unauthorised interception of communications. The equipment to which he referred had been installed to enable law-enforcement agencies to conduct operational-search activities in accordance with the procedure prescribed by law. The installation of such equipment had not in itself interfered with the privacy of the applicant ’ s communications. The applicant had failed to demonstrate any facts which would warrant a finding that his right to the privacy of his telephone communications had been violated. 12. The applicant appealed. He claimed, in particular, that the District Court had refused to accept several documents in evidence. Those documents had included two judicial orders retrospectively authorising the interception of mobile-telephone communications and an addendum to the standard service - provider agreement issued by one of the mobile-network operators. One of the judicial orders in question, issued on 8 October 2002, authorised the interception of several people ’ s mobile-telephone communications during the periods from 1 to 5 April, 19 to 23 June, 30 June to 4 July and 16 to 20 October 2001. The other judicial order, issued on 18 July 2003, authorised the interception of a Mr E. ’ s mobile-telephone communications during the period from 11 April to 11 October 2003. As to the addendum, it informed the subscriber that if his number were used to make terrorist threats, the mobile - network operator might suspend the provision of the telephone service and transfer the collected data to the law-enforcement agencies. In the applicant ’ s opinion, the judicial orders and the addendum proved that the mobile-network operators and law-enforcement agencies were technically capable of intercepting all telephone communications without obtaining prior judicial authorisation, and routinely resorted to unauthorised interception. 13. On 26 April 2006 the St Petersburg City Court upheld the judgment on appeal. It confirmed the District Court ’ s finding that the applicant had failed to prove that his telephone communications had been intercepted. Nor had he shown that there was a danger that his right to the privacy of his telephone communications might be unlawfully infringed. To establish the existence of such a danger, the applicant would have had to prove that the respondents had acted unlawfully. However, mobile-network operators were required by law to install equipment enabling law-enforcement agencies to perform operational-search activities and the existence of that equipment did not in itself interfere with the privacy of the applicant ’ s communications. The refusal to admit the judicial orders of 8 October 2002 and 18 July 2003 in evidence had been lawful, as the judicial orders had been issued in respect of third persons and were irrelevant to the applicant ’ s case. The City Court further decided to admit in evidence and examine the addendum to the service - provider agreement, but found that it did not contain any information warranting reconsideration of the District Court ’ s judgment. 14. It can be seen from a document submitted by the applicant that in January 2007 an NGO, Civilian Control, asked the Prosecutor General ’ s Office to carry out an inspection of the Ministry of Communications ’ Orders in the sphere of interception of communications in order to verify their compatibility with federal laws. In February 2007 an official from the Prosecutor General ’ s Office telephoned Civilian Control and asked for copies of the unpublished attachments to Order no. 70, saying that it had been unable to obtain them from the Ministry of Communications. In April 2007 the Prosecutor General ’ s Office refused to carry out the requested inspection. I. Judicial review 1. General provisions on judicial review of interception of communications as established by the OSAA 83. A person claiming that his rights have been or are being violated by a State official performing operational-search activities may complain to the official ’ s superior, a prosecutor or a court. If a citizen ’ s rights were violated in the course of operational-search activities by a State official, the official ’ s superior, a prosecutor or a court must take measures to remedy the violation and compensate the damage (section 5(3) and (9) of the OSAA ). 84. If a person was refused access to information about the data collected about him in the course of operational-search activities, he is entitled to know the reasons for the refusal of access and may appeal against the refusal to a court. The burden of proof is on the law ‑ enforcement authorities to show that the refusal of access is justified. To ensure a full and thorough judicial examination, the law-enforcement agency responsible for the operational-search activities must produce, at the judge ’ s request, operational-search materials containing information about the data to which access was refused, with the exception of materials containing information about undercover agents or police informers. If the court finds that the refusal to grant access was unjustified, it may compel the law-enforcement agency to disclose the materials to the person concerned (section 5(4 ), (5) and ( 6) of the OSAA ). 85. In its decision of 14 July 1998 (cited in paragraph 40 above), the Constitutional Court noted that a person who learned that he had been subjected to operational-search activities and believed that the actions of State officials had violated his rights was entitled, under section 5 of the OSAA, to challenge before a court the grounds for conducting such activities, as well as the specific actions performed by the competent authorities in the course of such activities, including in those cases where they had been authorised by a court. 86. As regards procedural matters, the Constitutional Court held that in proceedings in which the grounds for the operational-search activities or the actions of the competent authorities conducting such activities were challenged, as well as proceedings against the refusal to give access to the data collected, the law-enforcement authorities were to submit to the judge, at his request, all relevant operational-search materials, except materials containing information about undercover agents or police informers. 87. A person wishing to complain about interception of his communications may lodge a judicial - review complaint under Article 125 of the CCrP, a judicial - review complaint under Chapter 25 of the Code of Civil Procedure and Law no. 4866-1 of 27 April 1993 on judicial review of decisions and acts violating citizens ’ rights and freedoms (“ the Judicial Review Act ” ), which were repealed and replaced on 15 September 2015 by the Code of Administrative Procedure, or a civil tort claim under Article 1069 of the Civil Code. 2. A judicial - review complaint under Article 125 of the CCrP 88. The Plenary Supreme Court in its Ruling no. 1 of 10 February 2009 held that actions of officials or State agencies conducting operational-search activities at the request of an investigator could be challenged in accordance with the procedure prescribed by Article 125 of the CCrP (paragraph 4). Complaints lodged under that Article may be examined only while the criminal investigation is pending. If the case has already been transmitted to a court for trial, the judge declares the complaint inadmissible and explains to the complainant that he may raise the complaints before the relevant trial court (paragraph 9). 89. Article 125 of the CCrP provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor which are capable of adversely affecting the constitutional rights or freedoms of the participants to criminal proceedings. The lodging of a complaint does not suspend the challenged decision or act, unless the investigator, the prosecutor, or the court decides otherwise. The court must examine the complaint within five days. The complainant, his counsel, the investigator and the prosecutor are entitled to attend the hearing. The complainant must substantiate his complaint (Article 125 §§ 1, 2, 3 and 4 of the CCrP ). 90. Participants in the hearing are entitled to study all the materials submitted to the court and to submit additional materials relevant to the complaint. Disclosure of criminal - case materials is permissible only if it is not contrary to the interests of the investigation and does not breach the rights of the participants in the criminal proceedings. The judge may request the parties to produce the materials which served as the basis for the contested decision or any other relevant materials (paragraph 12 of Ruling no. 1). 91. Following the examination of the complaint, the court either declares the challenged decision, act or failure to act unlawful or unjustified and instructs the responsible official to rectify the indicated shortcoming, or dismisses the complaint (Article 125 § 5 of the CCrP ). When instructing the official to rectify the indicated shortcoming, the court may not indicate any specific measures to be taken by the official or annul or order that the official annul the decision that had been found to be unlawful or unjustified ( paragraph 21 of Ruling no. 1 of 10 February 2009 of the Plenary Supreme Court of the Russian Federation). 3. A judicial - review complaint under Chapter 25 of the Code of Civil Procedure, the Judicial Review Act and the Code of Administrative Procedure 92. Ruling no. 2 of 10 February 2009 of the Plenary Supreme Court of the Russian Federation provides that complaints concerning decisions and acts of officials or agencies performing operational-search activities that may not be challenged in criminal proceedings, as well as complaints concerning a refusal of access to information about the data collected in the course of operational-search activities, may be examined in accordance with the procedure established by Chapter 25 of the Code of Civil Procedure ( “ the CCP ” ) (paragraph 7). 93. Chapter 25 of the CCP, in force until 15 September 2015, established the procedure for examining complaints against decisions and acts of officials violating citizens ’ rights and freedoms, which was further detailed in the Judicial Review Act. On 15 September 2015 Chapter 25 of the CCP and the Judicial Review Act were repealed and replaced by the Code of Administrative Procedure (Law no. 21-FZ of 8 March 2015 – “the CAP”) which came into force on that date. The CAP confirmed in substance and expounded the provisions of Chapter 25 of the CCP and the Judicial Review Act. 94. The CCP, the Judicial Review Act and the CAP all provide that a citizen may lodge a complaint before a court concerning an act or decision by any State or municipal authority or official if he considers that it has violated his rights and freedoms (Article 254 of the CCP and section 1 of the Judicial Review Act). The complaint may concern any decision, act or omission which has violated the citizen ’ s rights or freedoms, has impeded the exercise of rights or freedoms, or has imposed a duty or liability on him (Article 255 of the CCP, section 2 of the Judicial Review Act and Article 218 § 1 of the CAP ). 95. The complaint must be lodged with a court of general jurisdiction within three months of the date on which the complainant learnt of the breach of his rights. The time-limit may be extended for valid reasons (Article 254 of the CCP, sections 4 and 5 of the Judicial Review Act and Articles 218 § 5 and 219 §§ 1 and 7 of the CAP ). The complaint must mention the identification number and the date of the contested decision or the date and place of commission of the contested act (Article 220 § 2 (3) of the CAP ). The claimant must submit supporting documents or explain why he is unable to submit them (Article 220 §§ 2 (8) and 3 of the CAP ). If the claimant does not meet the above requirements, the judge declares the complaint inadmissible (Article 222 § 3 of the CAP ). 96. The burden of proof as to the lawfulness of the contested decision, act or omission lies with the authority or official concerned. The complainant must, however, prove that his rights and freedoms were breached by the contested decision, act or omission (section 6 of the Judicial Review Act and Article 226 § 11 of the CAP ). 97. Under the CCP the complaint had to be examined within ten days (Article 257 of the CCP), while under the CAP it must be examined within two months (Article 226 § 1 of the CAP). If the court finds the complaint justified, it issues a decision annulling the contested decision or act and requiring the authority or official to remedy in full the breach of the citizen ’ s rights (Article 258 § 1 of the CCP, section 7 of the Judicial Review Act and Article 227 §§ 2 and 3 of the CAP ). The court may determine the time-limit for remedying the violation and/or the specific steps which need to be taken to remedy the violation in full (paragraph 28 of Ruling no. 2 and Article 227 § 3 of the CAP). The claimant may then claim compensation in respect of pecuniary and non-pecuniary damage in separate civil proceedings (section 7 of the Judicial Review Act). 98. The court may reject the complaint if it finds that the act or decision being challenged has been taken by a competent authority or official, is lawful and does not breach the citizen ’ s rights (Article 258 § 4 of the CCP and Articles 226 § 9 and 227 § 2 of the CAP ). 99. A party to the proceedings may lodge an appeal with a higher court (Article 336 of the CCP as in force until 1 January 2012, Article 320 of the CCP as in force after 1 January 2012, and Article 228 of the CAP ). The appeal decision come into force on the day of its delivery (Article 367 of the CCP as in force until 1 January 2012, Article 329 § 5 as in force after 1 January 2012, and Articles 186 and 227 § 5 of the CAP ). 100. The CCP provided that a judicial decision allowing a complaint and requiring the authority or official to remedy the breach of the citizen ’ s rights had to be dispatched to the head of the authority concerned, to the official concerned or to their superiors within three days of its entry into force (Article 258 § 2 of the CCP). The Judicial Review Act required that the judicial decision be dispatched within ten days of its entry into force (section 8). The CAP requires that the judicial decision be dispatched on the day of its entry into force (Article 227 § 7). The court and the complainant must be notified of the enforcement of the decision no later than one month after its receipt ( Article 258 § 3 of the CCP, section 8 of the Judicial Review Act and Article 227 § 9 of the CAP). 4. A tort claim under Article 1069 the of Civil Code 101. Damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. The tortfeasor is not liable for damage if he proves that the damage has been caused through no fault of his own (Article 1064 §§ 1 and 2 of the Civil Code). 102. State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions (Article 1069 of the Civil Code). Irrespective of any fault by State officials, the State or regional treasury is liable for damage sustained by a citizen on account of ( i ) unlawful criminal conviction or prosecution; (ii) unlawful application of a preventive measure, or (iii) unlawful administrative punishment (Article 1070 of the Civil Code). 103. A court may impose on the tortfeasor an obligation to compensate for non-pecuniary damage (physical or mental suffering). Compensation for non-pecuniary damage is unrelated to any award in respect of pecuniary damage (Articles 151 § 1 and 1099 of the Civil Code). The amount of compensation is determined by reference to the gravity of the tortfeasor ’ s fault and other significant circumstances. The court also takes into account the extent of physical or mental suffering in relation to the victim ’ s individual characteristics (Articles 151 § 2 and 1101 of the Civil Code). 104. Irrespective of the tortfeasor ’ s fault, non-pecuniary damage shall be compensated for if the damage was caused ( i ) by a hazardous device; (ii) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment; or (iii) through dissemination of information which was damaging to honour, dignity or reputation (Article 1100 of the Civil Code). 105. In civil proceedings a party who makes an allegation must prove that allegation, unless provided otherwise by federal law (Article 56 § 1 of the CCP ). 5. A complaint to the Constitutional Court 106. The Constitutional Court Act ( Law no. 1-FKZ of 21 July 1994) provides that the Constitutional Court ’ s opinion as to whether the interpretation of a legislative provision adopted by judicial and other law-enforcement practice is compatible with the Constitution, when that opinion is expressed in a judgment, must be followed by the courts and law-enforcement authorities from the date of that judgment ’ s delivery (section 79 (5)). J. Obligations of communications service providers 1. Obligation to protect personal data and privacy of communications 107. The Communications Act provides that communications service providers must ensure privacy of communications. Information about the communications transmitted by means of telecommunications networks or mail services, and the contents of those communications, may be disclosed only to the sender and the addressee or their authorised representatives, except in cases specified in federal laws (section 63(2) and (4) of the Communications Act). 108. Information about subscribers and the services provided to them is confidential. Information about subscribers includes their family names, first names, patronymics and nicknames for natural persons; company names and family names, first names and patronymics of company directors and employees for legal persons; subscribers ’ addresses, numbers and other information permitting identification of the subscriber or his terminal equipment; and data from payment databases, including information about the subscribers ’ communications, traffic and payments. Information about subscribers may not be disclosed to third parties without the subscriber ’ s consent, except in cases specified in federal laws (section 53 of the Communications Act). 2. Obligation to cooperate with law-enforcement authorities 109. The Communications Act imposes an obligation on communications service providers to provide the law-enforcement agencies, in cases specified in federal laws, with information about subscribers and services received by them and any other information the agencies require in order to achieve their aims and objectives (section 64(1) of the Communications Act). 110. On 31 March 2008 the Moscow City Council discussed a proposal to introduce an amendment to section 64(1) of the Communications Act requiring law-enforcement agencies to show judicial authorisation to communications service providers when requesting information about subscribers. The representatives of the FSB and the Ministry of the Interior informed those present that judicial decisions authorising interceptions were classified documents and could not therefore be shown to communications service providers. The proposal to introduce the amendment was later rejected. 111. Communications service providers must ensure that their networks and equipment comply with the technical requirements developed by the Ministry of Communications in cooperation with law-enforcement agencies. Communications service providers must also ensure that the methods and tactics employed by law-enforcement agencies remain confidential (section 64(2) of the Communications Act). 112. In cases specified in federal laws, communications service providers must suspend provision of service to a subscriber upon receipt of a reasoned written order by the head of a law-enforcement agency conducting operational-search activities or protecting national security (section 64(3) of the Communications Act). 113. The FSB Act requires communications service providers to install equipment permitting the FSB to carry out operational-search activities (section 15). 3. Technical requirements for equipment to be installed by communications service providers 114. The main characteristics of the system of technical facilities enabling operational-search activities to be carried out ( Система технических средств для обеспечения функций оперативно - разыскных мероприятий – “the SORM”) are outlined in a number of orders and regulations issued by the Ministry of Communications. (a ) Order no. 70 115. Order no. 70 on the technical requirements for the system of technical facilities enabling the conduct of operational-search activities using telecommunications networks, issued by the Ministry of Communications on 20 April 1999, stipulates that equipment installed by communications service providers must meet certain technical requirements, which are described in the addendums to the Order. The Order, with addendums, has been published in the Ministry of Communications ’ official magazine, SvyazInform, distributed through subscription. It can also be accessed through a privately maintained online legal database, which reproduced it from the publication in SvyazInform. 116. Addendums nos. 1 and 3 describe the technical requirements for the SORM on mobile - telephone networks. They specify that interception of communications is performed by law-enforcement agencies from a remote terminal connected to the interception equipment installed by the mobile-network operators. The equipment must be capable, inter alia, of (a) creating databases of interception subjects, to be managed from the remote terminal; (b) intercepting communications and transmitting the data thereby obtained to the remote terminal; (c) protecting the data from unauthorised access, including by the employees of the mobile - network operator; (d) providing access to subscriber - address databases (paragraphs 1.1 and 1.6 of Addendum no. 1). 117. More precisely, the equipment must ensure (a) interception of all the incoming and outgoing calls of the interception subject; (b) access to information about his whereabouts; (c) maintenance of interception capability where an ongoing connection is transferred between the networks of different mobile-network operators; (d) maintenance of interception capability in cases involving supplementary services, such as call forwarding, call transfer or conference calls, with the possibility of registering the number or numbers to which the call is routed; (e ) collection of communications data concerning all types of connections, including fax, SMS or other; (f ) access to information about the services provided to the interception subject (paragraph 2.1.2 of Addendum no. 1). 118. There are two types of interception: “total interception” and “statistical monitoring”. Total interception is the real-time interception of communications data and of the contents of all communications to or by the interception subject. Statistical monitoring is real-time monitoring of communications data only, with no interception of the content of communications. Communications data include the telephone number called, the start and end times of the connection, supplementary services used, location of the interception subject and his connection status (paragraphs 2.2 and 2.4 of Addendum no. 1). 119. The equipment installed must be capable of launching the interception of communications within thirty seconds of receiving a command from the remote terminal (paragraph 2.5 of Addendum no. 1). 120. Information about interception subjects or about the transmission of any data to the remote terminal cannot be logged or recorded (paragraph 5.4 of Addendum no. 1). 121. The remote terminal receives a password from the mobile - network operator giving it full access to the SORM. The remote terminal then changes the password so that unauthorised persons cannot gain access to the SORM. From the remote terminal, the SORM can be commanded, among others, to start interception in respect of a subscriber, interrupt or discontinue the interception, intercept a subscriber ’ s ongoing communication, and submit specified information about a subscriber (paragraph 3.1.2 of Addendum no. 3). 122. The remote terminal receives the following automatic notifications about the interception subjects: SMS sent or received by the interception subject, including their contents; a number being dialled; a connection being established; a connection being interrupted; use of supplementary services; and a change in the subject ’ s connection status or location (paragraph 3.1.4 of Addendum no. 3). (b ) Order no. 130 123. Order no. 130 on the installation procedures for technical facilities enabling the conduct of operational-search activities, issued by the Ministry of Communications on 25 July 2000, stipulated that communications service providers had to install equipment which met the technical requirements laid down in Order no. 70. The installation procedure and schedule had to be approved by the FSB (paragraph 1.4). 124. Communications service providers had to take measures to protect information regarding the methods and tactics employed in operational-search activities (paragraph 2.4) 125. Communications service providers had to ensure that any interception of communications or access to communications data was granted only pursuant to a court order and in accordance with the procedure established by the OSAA (paragraph 2.5). 126. Communications service providers did not have to be informed of interceptions in respect of their subscribers. Nor did they have to be provided with judicial orders authorising interceptions (paragraph 2.6). 127. Interceptions were carried out by the staff and technical facilities of the FSB and the agencies of the Ministry of the Interior (paragraph 2.7). 128. Paragraphs 1.4 and 2.6 of Order no. 130 were challenged by a Mr N. before the Supreme Court. Mr N. argued that the reference to Order no. 70 contained in paragraph 1.4 was unlawful, as Order no. 70 had not been published and was invalid. As to paragraph 2.6, it was incompatible with the Communications Act, which provided that communications service providers had an obligation to ensure the privacy of communications. On 25 September 2000 the Supreme Court found that the reference to Order no. 70 in paragraph 1.4 was lawful, as Order no. 70 was technical in nature and was therefore not subject to publication in a generally accessible official publication. It had therefore been published only in a specialised magazine. As to paragraph 2.6, the Supreme Court considered that it could be interpreted as requiring communications service providers to grant law-enforcement agencies access to information about subscribers without judicial authorisation. Such a requirement was, however, incompatible with the Communications Act. The Supreme Court therefore found that paragraph 2.6 was unlawful and inapplicable. 129. On 25 October 2000 the Ministry of Communications amended Order no. 130 by repealing paragraph 2.6. 130. In reply to a request for information by the NGO Civilian Control, the Ministry of Communications stated, in a letter dated 20 August 2006, that the repealing of paragraph 2.6 of Order no. 130 did not mean that communications service providers had to be informed of operational-search measures in respect of a subscriber or be provided with a copy of the relevant decision granting judicial authorisation for such surveillance. 131. Order no. 130 was repealed on 16 January 2008 (see paragraph 134 below). (c ) Order no. 538 132. Order no. 538 on cooperation between communications service providers and law - enforcement agencies, issued by the government on 27 August 2005, provides that communications service providers must be diligent in updating databases containing information about subscribers and the services provided to them. That information must be stored for three years. Law-enforcement agencies must have remote access to the databases at all times (paragraph 12). 133. Databases must contain the following information about subscribers: (a) first name, patronymic and family name, home address and passport number for natural persons; (b) company name, address and list of persons having access to the terminal equipment with their names, patronymics and family names, home addresses and passport numbers for legal persons; (c) information about connections, traffic and payments (paragraph 14). (d ) Order no. 6 134. Order no. 6 on requirements for telecommunications networks concerning the conduct of operational-search activities, Part I, issued by the Ministry of Communications on 16 January 2008, replaced Order no. 130. 135. It retained the requirement that communications service providers had to ensure transmission to the relevant law - enforcement agency ’ s remote terminal of information about (a) subscribers ’ numbers and identification codes, and (b) the contents of their communications. The information must be transmitted in real time following a request from the remote terminal. Communications service providers must also ensure that the subscriber ’ s location is identified (paragraphs 2, 3 and 5). 136. The remote terminal must have access to databases containing information about subscribers, including their numbers and identification codes (paragraphs 7 and 8). 137. Communications service providers must ensure that the interception subject remains unaware of the interception of his communications. Information about ongoing or past interceptions must be protected from unauthorised access by the employees of the communications service providers (paragraph 9). (e ) Order no. 73 138. Order no. 73 on requirements for telecommunications networks concerning the conduct of operational-search activities, Part II, issued by the Ministry of Communications on 27 May 2010, elaborates on certain requirements contained in Order no. 6. In particular, it provides that the equipment installed by communications service providers must ensure that agencies performing operational-search activities have access to all data transmitted through the telecommunications networks and are capable of selecting data and transmitting the selected data to its control terminal (paragraph 2). | This case concerned the system of secret interception of mobile telephone communications in Russia. The applicant, an editor-in-chief of a publishing company, complained in particular that mobile network operators in Russia were required by law to install equipment enabling law-enforcement agencies to carry out operational-search activities and that, without sufficient safeguards under Russian law, this permitted blanket interception of communications. |
661 | Private persons | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant is a Chilean national who was born in 1968 and lives in Bergen, Norway. He has worked inter alia as a kindergarten assistant for about 8 years. 7. The applicant has two sons L. and A. (born respectively on 11 June 1994 and 24 February 1996 ) with Ms H.T., a Norwegian national, with whom he entered into a relationship in 1992/1993 and cohabited from mid 1994 until the end of that year. In 1995 (before A. was born) the applicant and H.T. reached an agreement whereby he had certain access rights to L. 8. Since around 1997 he has cohabited with Ms G.A.D. and her adolescent son. 9. A dispute arose as to the applicant's access to L. and A. On 9 June 1997 H.T. reported him to the police for allegedly having sexually abused L. She based her allegations on statements made by L. The mother gave statements to the police and L. was interviewed by a judge without anything significant emerging in the case. In July 1998 the State Prosecutor discontinued the investigation, which decision the Director of Public Prosecutions confirmed on appeal in October 1998. 10. In the year 2000 the applicant brought judicial proceedings before the Bergen City Court ( byrett ), claiming a right of access to his two sons (sections 44 and 44A of the Children Act 1981). On 7 December 2000 the City Court refused a request by H.T. to have an expert witness appointed. 11. By a judgment of 18 April 2001 the City Court granted the applicant access every other week-end and for approximately half of the holiday periods and devised a plan for stepping up access. To give the above immediate effect, the City Court issued an interlocutory order. In reaching the above conclusions, the City Court rejected the accusations made by the boys'mother that the applicant had sexually abused L. It observed that according to H.T. there were only 10 occasions on which the applicant had been on his own with his son, namely in that they had been in a room with the door shut in H.T.'s apartment. In her view it was most probable that the abuse had occurred on these occasions, though she did not have concrete evidence to this effect. The City Court found it excluded on the evidence before it that the applicant had sexually abused L. It attached decisive weight to the fact that the applicant's access to his son had taken place each time under the supervision of at least one other person and that on the 10 occasions on which he and the son had been on their own in the latter's room, it was for a very short time and in a situation where the child's mother could have entered the room at any moment. The visits in question took place more than a year and a half ago - a very long period for a small child - before April 1997 when the son had made the statements that aroused the mother's suspicions that the applicant had sexually abused L. Finally, the City Court had regard to the fact that the physiological and psychiatric examinations carried out did not support the allegation that abuse had occurred. It found that the allegation had been the result of manipulation and fabrication by the mother as part of a strategy to obstruct the applicant's access. There was reason to assume that this had already had damaging effects on L., who had stated that he did not wish to live or to be with his father. The boy had become a go-between in a conflict between adults. The City Court stated that the applicant was more suitable than the mother to assume the daily care. 12. On 10 October 2001 H.T.'s lawyer lodged a disciplinary complaint against the judge who had heard the case before the City Court for having acted with prejudice against his client in expressing distrust and treating her with disrespect during her testimony. The judge was imposed a mild reprimand by the Ministry of Justice, which found that there were grounds for criticising his conduct of the proceedings. 13. H.T. appealed against the City Court's judgment and interlocutory injunction to Gulating High Court ( lagmannsrett ), requesting in the main that the applicant be refused a right of access to the children. She referred inter alia to the fact that the court appointed expert considered that L's strong negative attitude to his father was consistent with abuse having taken place. The applicant, denying that any abuse had occurred, requested the High Court to reject her appeal. 14. By a judgment of 27 September 2002, the High Court overturned the City Court's judgment and refused the applicant access to his two sons, inter alia after obtaining an expert report from a court appointed psychologist, dated 2 September 2002, and hearing evidence from the latter. It also had regard to a report of 11 September 2001 by a psychologist who had been counselling the boy at the mother's initiative and the psychologist's oral evidence to the court. 15. The High Court noted that from the psychologist's report of 2 September 2002 it emerged that the boy had felt great anxiety about the idea of meeting his father (he would kill himself rather than see his father); L. was unable to describe the reasons but his statements seemed founded on actual experience. Any access should be established gradually. Forcing the boy to have contact would be psychologically damaging. 16. The High Court observed that the applicant and L. met 23 times in 1996, 8 times in both 1997 and 1998, 3 times in 1999 and that no access had taken place during the last three years (since 11 August 1999 ). It did not consider that the mother had sabotaged access although it understood that the fact that access had to take place under supervision by her sister or her father had made it difficult for the applicant to exercise access. 17. The High Court's judgment included the following reasoning : “Two arguments have been made against the father being granted a right of access. Firstly, it is argued that the father has subjected [L.] to sexual assault. There is a complaint to the police dated 9 June 1997 from which it appears that an investigation of the case was initiated. The mother made statements to the police on 17 June and 18 December 1997, and there was also an interview of [L.] by a judge without anything of significance for the case coming to light. According to information presented, the case was dropped by the public prosecutor. This decision was appealed to the Director of Public Prosecutions on 22 October 1998 but the public prosecutor's decision was not reversed. The fact that there was insufficient evidence in the criminal case is, however, not decisive in this case, see Rt ( [ Norsk Retstidende ( Supreme Court Reports )] - 1989-320. It is further assumed that in a case involving minor children, no risk whatsoever may be taken in such circumstances, also concerning the issue of access rights, see Rt – 1994-940. In view of the information available in the case, where quite detailed descriptions have been provided of the abuse, together with [L.]'s strong objections to seeing his father, the High Court finds that there are many elements that may indicate that abuse has occurred. The High Court has nevertheless not found it necessary for its decision to go further into or take a stance on this. Secondly, it is contended that the implementation of access rights vis-à-vis the father is impossible in view of the fact that [L.] is opposed to this. In light of the information available, the High Court assumes that [L.] is opposed to having access to his father, which is to be accorded weight pursuant to section 31 of the Children Act. Nevertheless, the implementation of access may not, in principle, be made dependent on the child not being opposed to being with his father. This question will depend on the concrete circumstances. ... According to the report, the boy is unable to describe why he has such great anxiety about meeting his father. [ Psychologist O. ] considers the information he has obtained to be an expression of the boy's actual experiences. The report further states that if contact between the father and the boy is to be established, this must take place gradually over a longer period of time and in such a manner that [the child welfare services ] can constantly monitor how this develops. If [L.]'s strong anxiety is maintained, forced contact is at present deemed to constitute a psychological assault on the boy, according to the report. [ Psychologist O. ] has given testimony before the High Court, which in its essentials concords with the aforementioned report. According to [ Psychologist O .], [L.] has stated that he would not visit his father even in the presence of a third party, his mother or someone else. In his report, the expert states inter alia the following: ' On the whole [L.] has a good level of functioning, though everything having to do with his father is an obviously vulnerable and difficult point for him. My own impression from an interview with [L.] accords well with what [Psychologist O.] has described. [L.] indicates with his entire being both in the interview and afterwards that this is a very uncomfortable and difficult topic.' The expert evaluated three alternative resolutions for the access issue. The first alternative is an ordinary access arrangement between the father and the boys. The expert concluded that it is both impossible and indefensible to go straight to such an arrangement. He refers to the fact that [L.]'s aversion and emotional reactions to contact with his father are so strong that such an arrangement could not be started without strong physical coercive measures. Furthermore, he refers to the fact that [L.] has made serious threats about what he would do, namely take his own life. The expert also pointed to the strain this would inflict on [L.] and that this may jeopardise his further development. This would, in addition, inflict substantial strains on the mother. As the second alternative the expert considered a limited access arrangement, with supervision, possibly with the aim of increasing it to ordinary access. The expert pointed out that such a process may involve relatively high human (and financial) costs and that it would be a stressful process for [L.] and the rest of the family. Furthermore, it was noted that the outcome may be uncertain, since neither the mother nor [L.] will, at the outset, be very motivated to attaining concrete results in the form of contact with the father. The expert concluded that this is a possibility, but that it would require support by both parties and having sufficient resources in and around the family at their disposal. He also pointed out that the chances of failing abysmally would be present. The third alternative considered is no access at all between the father and the boys. To justify such a solution, the expert referred to the necessity of safeguarding the good progress the boys are making and of sparing them, especially [L.], from further uncertainty and conflicts connected with the issue of access. The expert did not reach any unambiguous conclusion in his report, except from finding that an ordinary access arrangement appears to be quite impossible to implement. As far as the other alternatives are concerned, he has kept the options more open. In his testimony before the court and after having been present during the appeal hearing, the expert expressed the view that he strongly favours that there should be no access between the father and the boys. In addition to [L.]'s clearly expressed unwillingness to have access to his father, the expert referred to the difficult situation that the family and [L.] in particular have been in over several years. He further referred to the fact that the mother was the sole provider for the children, and that she and the family had reached their'limit of tolerance'. It is also the understanding of the High Court that the expert deems the costs of a supervised arrangement to be too high and the benefits to be too uncertain for the expert to have been able to recommend access under supervision as an alternative. The High Court agrees that an ordinary access arrangement would not be an acceptable alternative, but has evaluated in particular whether an arrangement with supervised access would be possible. Like the expert, the High Court has concluded that such an arrangement would be disproportionately demanding and that it presumably may be difficult to find persons with the necessary competence who are willing to subject themselves to such a time consuming process as is in question here. The High Court also agrees with the expert that the strain that such a process will necessarily inflict on the family must also be considered, especially since the mother has sole care of the children. On the basis of its impressions during the hearing, the High Court agrees with the expert that the'tolerance limit'for whatever additional strains that can be inflicted appears to have been reached. Even if neither the [Psychologist O .] nor the expert appears to have been able to clarify the reasons for [L.]'s strong objections to having contact with his father, this must, on the basis of the circumstances of the case, be accorded substantial weight in the decision. In view of this, there would in the view of the High Court be an not unappreciable risk that the boy's development may be directly jeopardised by having to go through such a process that is under discussion here. In addition, considerable flexibility would be required of both parties, which, on the basis of the High Court's impressions from the hearing, is uncertain, on the part of the mother, but especially on the part of the father. Despite the fact that ..., a refusal to grant access may be justified only in very special circumstances, the High Court has concluded that there should be no access in this case since, on the basis of an overall assessment, this would not be in the best interest of the children. Even though the issue of access is at the outset to be considered separately with regard to each of the boys and even though it is assumed that [A.] does not have the same antagonistic relationship to his father as [L.], the High Court finds no reason to grant access with regard to [A.] as well. As the High Court understands the expert, it would cause unpleasant tensions within the family if only one of the children were to have access and that such an arrangement was not advisable, something with which the High Court agrees. Given the strains that the family has been under over several years, in the High Court's view, it is now important that peace prevails in this matter. Having reached this conclusion, the High Court does not find it necessary to establish a provisional arrangement in respect of the access issue. ” 18. The High Court Judgment contained the following unanimous conclusion regarding the substantive questions: “ [The applicant] is not granted a right of access to [L.], born on *,*, 1994, and [A.], born on *,*, 1996. “ 19. The applicant appealed against the High Court's judgment as a whole, asking primarily that it be quashed and in the alternative that he be granted a right of access to his children. He challenged the High Court's procedure, namely its omission to deal with the interim order by the City Court. He moreover appealed against the High Court's assessment of the evidence, notably its reasoning regarding the allegations on sexual abuse, including the following passage, which in his view was “curious”. “In view of the information available in the case, where quite detailed descriptions have been provided of the abuse, together with [ L.'s ] strong objections to seeing his father, the High Court finds that there are many elements that may indicate that abuse has occurred. The High Court has nevertheless not found it necessary for its decision to go further into or take a stance on this.” The applicant submitted that in the light of the evidence it was hard to understand the High Court's conclusion on sexual abuse, even more so when it was stated in the judgment that it “has not found it necessary for its decision to go further into or take a stance on this ”. In the applicant's view, this was obviously an error; should a judge find that there were many elements to indicate that sexual abuse had occurred, it was evident that this conviction would also have an effect on a decision regarding access for the parent found to be a probable abuser. The applicant further disputed the lawfulness of the High Court's rejection of any access rights, which decision could not be reconciled with the rule that the best interests of the child should prevail. In the applicant's view, L's horror picture of his father should be removed by arranging for access. This was a clear case of the so-called Parental Alienation Syndrome, with clear hatred, fear and anxiety, unlike the ambivalence shown by children who have been exposed to actual abuse. 20. On 20 December 2002, the Appeals Selection Committee of the Supreme Court refused the applicant leave to appeal. 21. The applicant has submitted a medical certificate dated 7 June 2003 by Dr R.K., which stated: “I the undersigned have known [the applicant] since December 2000. He has had a very tough time psychologically during the period since the judgment. He feels that he has been unjustifiably held liable of sexual abuse against his son and feels powerless in the system. He has been very depressed lately. He is struggling with problems of sleeplessness, bad appetite and loss of weight. He is isolating himself. At times he has had suicidal thoughts. This has adversely affected his family life and members of his family have had a particularly difficult time during the past six months.” 22. The applicant has moreover filed a statement by Dr H.V., Psychiatrist, of 4 September 2006, which concludes: “It is highly probable that [the applicant] has developed symptoms that are compatible with Post Traumatic Stress Disorder after what he had experienced in Chile. This has been further fortified by a situation combining anxiety and depression in the form of an adaptation disturbance as a result of his fight to get access to his children, especially when the court deprived him of his right of access. He presents a relatively high level of pressure from suffering but which he nevertheless manages to master satisfactorily. He receives regular treatment by a psychologist and medical treatment.” | In 1995 the applicant separated from the mother of his two sons. In June 1997 a dispute arose concerning access to his children following allegations made by the mother to the police which accused the applicant of having sexually abused one of the children. The investigation into those allegations was discontinued in 1998. The applicant complained about the unfairness of a High Court judgment in 2002 to refuse his right of access to his children, alleging in particular that a passage from the judgment amounted to an affirmation of suspicion that he had abused his son. He further claimed that, having been labelled a sexual abuser, he was suffering from anxiety and depression, as corroborated by medical reports. |
693 | Incitement to ethnic hatred | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant, Mrs Danutė Balsytė-Lideikienė, is a Lithuanian national, who was born in 1947. At present she lives in Lithuania. 8. The applicant is the founder and owner of a publishing company “ Metskaitliai ”. Since 1995 the company has published “ Lithuanian calendar ” ( Lietuvio kalendorius ), a yearly calendar with notes by the applicant and other contributors describing various historic dates from the perspective of its authors. The calendar could be purchased in bookstores. It was distributed in Lithuania and among Lithuanian immigrants living abroad. 9. On 4 January 2000 a Member of the Lithuanian Parliament (Seimas) distributed a public announcement, stating that the texts published in “ Lithuanian calendar 2000 ” insulted persons of Polish, Russian and Jewish origin. The relevant parts of “ Lithuanian calendar ” read as follows: [ First page of the calendar ] : “Lietuva – the land of the Lithuanians, as each footprint here bears traces of our Nation's blood” 15 February: “In 1998, on the eve of the 80 th anniversary of the restoration of the independence of Lithuania, a Pole insidiously killed nine Lithuanians living in Širvintų district's Draučių village – all the inhabitants of the village were shot. ( ... ) The Nation was informed about the tragedy after thirty six hours – during this time Lithuanian [high society] were celebrating and enjoying themselves, hugged the Polish president, put flowers [on the monuments] to Pilsudski's army, drank and danced their ghastly dance on the freshly spilled blood of Lithuanians whose whole village had been murdered. ” 17 March: “The new Lithuanian government ( ... ) puts on trial the Lithuanian nation for the extermination of the Jews ( ... ) but is not interested in the genocide of the Lithuanians and dances Jewish foxtrots to the music of the Wiesenthals and Zurroffs.” 26 April: “In 1944 in the vicinity of Rodūnia the Polish Krajova Army killed 12 Lithuanians for the sole reason that they were Lithuanians.” 15 June: “The soviet occupying power, with the help of the communist collaborators, among whom, in particular, were many Jews, for half a century ferociously carried out the genocide and colonisation of the Lithuanian nation.” 23 June: “In 1944 in Dubingiai and its surrounding area the Polish Krajova Army brutally killed more than a hundred Lithuanians ( ... ) among whom were women, little children, even babies and old people. This was the way the Poles, in war conditions, carried out ethnic cleansing. In the whole territory of Lithuania [the members of the Krajova Army] killed about 1 000, and in the ethnic Lithuanian lands about 3 000 more innocent people, for the sole reason that they were Lithuanians. The Dubingiai events should be regarded as the genocide of the Lithuanian nation. But the Lithuanian authorities [who associate themselves with the Poles] ignore obvious facts and do not even attempt to evaluate these war crimes.” 15 July: “Through the blood of our ancestors to the worldwide community of the Jews” 18 July: “In 1999 the monument to the victims of the Polish Krajova Army was put up and consecrated in Dubingiai. ( ... ) In 1944 in the environs of Dubingiai the Polish Krajova Army plundered and killed innocent people solely because they were Lithuanians. The killings of 8 March and 23 June 1944 are horrible [acts of] ethnic cleansing and cruel war crimes that cannot be solved by simply constructing a monument to the victims. There is no statutory time - limit on prosecution of war crimes, the war criminals should be identified and tried. ( ... )” 31 August: “ occupying Russian army”, “Russian occupants” 10 September: “The March of the Beggars. In 1997 ( ... ) about fifty Lithuanian beggars demonstrated in front of the Parliament. They were joined by a few thousand Vilnius residents. The purpose of this act was to attract the Parliament's and the Government's attention to poverty ( ... ) in Lithuania. Unfortunately, the public gathering of the beggars did not receive any attention from the heads of the Lithuanian State. At the same time a banquet for the Jews took place in Vilnius. The banquet cost Lithuania a million litas. A feast during the plague. ( ... ) The Jews were managing the Parliament; from the tribune of the Parliament the Jews were insulting and scolding the Lithuanian nation, asking for Lithuanian blood and Lithuanian property. The majority of the ruling Conservative party ( ... ) greeted the swearing Jews with standing ovations.” 24 November: “The Lithuanian nation will only survive by being a nationalist nation – no other way exists!” 5 December: “In 1991 the Supreme Council (Parliament) of the Republic of Lithuania ( ... ) adopted the “zero” citizenship law, proposed by V. Landsbergis. The law illegally gave citizenship to occupants and colonists and the Lithuanians became worthless .” 22 December: “ The politicians adopted legislation demonstrating their anti-Lithuanian attitude. This way, the conservative neo-Bolsheviks took their revenge on the Lithuanian nation, executing the will of the Jewish extremists. ” 24 December: “21 Lithuanians were brutally killed during the Christmas of 1944. Half a century passed and on Christmas Eve the Pharisees ( ... ) who took power started new executions against the Lithuanians and the Lithuanian nation, carrying out pro-Jewish politics.” 10. The back cover of “ Lithuanian calendar 2000 ” contained a map of the Republic of Lithuania. The neighbouring territories of the Republic of Poland, the Russian Federation and the Republic of Belarus were marked as “ethnic Lithuanian lands under temporary occupation”. 11. On 10 January 2000 a Seimas committee requested the Office of the Prosecutor General to investigate whether the publication was compatible with the Lithuanian Constitution and other legal acts. 12. On 12 January 2000 the Prime Minister wrote a letter to the State Security Department, requesting it to examine whether “the contents of'Lithuanian calendar 2000'contained the elements of violations of ethnic and racial equality”. 13. On the same date the Lithuanian Foreign Ministry also received a note from the Russian Embassy, expressing its dissatisfaction with the publication's map describing certain territories of the Russian Federation as “ethnic Lithuanian lands under temporary occupation”. 14. On 13 January 2000 a similar note was received from the Embassy of Belarus. 15. On 14 January 2000 the State Security Department requested Vilnius University to submit an experts'opinion as to whether “ Lithuanian calendar 2000 ” promoted ethnic, racial or religious hostility. In this regard the security intelligence authorities requested the experts to examine whether “ Lithuanian calendar 2000 ” contained anti-Semitic, anti-Polish, anti-Russian expressions, or assertions of the superiority of Lithuanians vis-à-vis other ethnic groups. 16. On 20 January 2000 two experts, history and political science professors at Vilnius University, found that “ Lithuanian calendar 2000 ” could be characterised as promoting the radical ideology of nationalism, which rejected the idea of the integration of civil society, incited ethnocentrism, contained xenophobic and offensive statements, in particular with regard to the Jewish and Polish populations, and promoted territorial claims and national superiority vis-à-vis other ethnic groups. The experts nonetheless noted that the calendar did not directly incite violence against the Jewish population, nor did it advocate implementing discriminatory policy against this ethnic group. 17. At the end of January 2000 the security intelligence authorities seized a number of copies of “ Lithuanian calendar 2000 ” in various bookstores in Lithuania. The distribution of the publication was stopped. 18. By a letter of 31 January 2000 the Prosecutor General informed the Prime Minister that, following the examination of the content of “ Lithuanian calendar 2000 ”, no elements of a criminal offence (instigation of ethnic or racial hatred) had been found in the applicant's releasing of the publication. However, the Prosecutor General held that in this respect the applicant should have been punished by way of the administrative procedure under Article 214 12 of the Code on Administrative Law Offences (Production, storage and distribution of information materials promoting ethnic, racial or religious hatred ). He stated that the security intelligence authorities had applied to an administrative court for a penalty to be imposed on the applicant under the domestic provision. The Prosecutor General also informed the Prime Minister that the distribution of the calendar had been suspended pending the determination of the case by a court. 19. On 14 February 2000 the officers of the State Security Department held that the applicant should be punished by the administrative procedure provided by Article 214 12 of the Code on Administrative Law Offences. 20. On 28 June 2000 the Vilnius City Second District Court found that the applicant had produced 3,000 copies of “ Lithuanian calendar 2000 ”, 588 of which had been sold. By reference mostly to the experts'conclusion of 20 January 2000, the court held that the applicant thereby intended to distribute material promoting ethnic hatred in breach of Article 214 12 of the Code of Administrative Law Offences. The Court imposed an administrative fine in the amount of 1,000 Lithuanian litai (LTL) on the applicant and ordered confiscation of all copies of “ Lithuanian calendar 2000 ” seized in the bookstores. 21. The court examined the case in the absence of the applicant or her lawyer. It was noted however that she had been duly informed of the date and place of the hearing, but that she had not submitted a request to postpone the examination or an explanation of the reasons for her absence. Therefore the court had concluded that the case could be examined without the applicant being present. 22. The applicant appealed, claiming in particular a violation of Article 10 of the Convention. She also argued that she had been tried in absentia. 23. On 16 August 2000 the Vilnius Regional Court quashed the first - instance judgment on the ground that the applicant had been in hospital from 27 June to 3 July 2000 and could not take part in the first - instance hearing. The case was remitted for a fresh examination at first instance. 24. On 28 September 2000 a judge of the Vilnius City Second District Court ordered another expert examination to be carried out. The court requested Vilnius University to form a group of experts representing various fields of social science in order to produce a conclusion on whether “ Lithuanian calendar 2000 ” promoted ethnic, racial or religious hatred, whether it contained anti-Semitic, anti-Polish, anti-Russian expressions, or assertions of the superiority of Lithuanians vis-à-vis other ethnic groups. 25. In reply to the court's decision, four separate expert opinions were produced, reflecting the point of view of Vilnius University professors specialising in the following fields: history, psychology, political science and library science. 26. On 12 March 2001 the applicant submitted a written request, received by the Vilnius City Second District Court the following day, by which she asked the court to postpone the hearing as the experts had not appeared at the hearing for the third time in a row. The applicant also asked the court to determine the reasons behind the experts'absence and to sanction them. The court did not grant the applicant's requests. 27. On 13 March 2001 the Vilnius City Second District Court found that by publishing and distributing “ Lithuanian calendar 2000 ” the applicant had breached Article 214 12 of the Code on Administrative Offences. The court imposed an administrative penalty in the form of a warning on her, while the unsold copies of the calendar and the means to produce it were confiscated. 28. By reference to the conclusions of the experts in the field of political science the court stated that a one-sided portrayal of relations among nations obstructed the consolidation of civil society and promoted ethnic hatred. The court also noted that “ Lithuanian calendar 2000 ” had caused negative reactions from part of society as well as from the diplomatic representations of some neighbouring States, including Poland, Belarus and Russia, who had expressed their concerns about the map denoting some of the territories of those countries as “ethnic Lithuanian lands under temporary occupation”. Relying on the conclusion of the bibliographic expert report the Vilnius City Second District Court noted that the publication did not meet the prescribed standards because, among other things, the calendar contained no indication of the sources and literature that had been used, and the name of the author of each statement in the calendar was not provided. The court concluded that the applicant had prepared, published and distributed the calendar and was therefore responsible for its content. 29. By reference to the conclusions of the experts in the fields of history and psychology the court held that the applicant's actions had not been deliberate, but reckless. The court relied on the psychological experts'report that “ Lithuanian calendar 2000 ” represented the personal character, values and emotions of the applicant. The court noted the conclusion of the experts in psychology that the publication did not contain expressions of hatred against the Polish population, the superiority of the Lithuanians over other nationals was not emphasised, and the negative statements about the Jewish population were not to be seen as anti-Semitic. However the Vilnius City Second District Court concluded that the psychology experts'conclusion did not refute the other evidence collected and the remaining evidence confirmed that there had been a violation of administrative law. 30. The court emphasised that the breach of the administrative law committed by the applicant was not serious, and that it had not caused significant harm to society's interests. The court also noted the applicant's disability and absence of previous convictions. 31. In view of those circumstances and given the negligent nature of the offence, the court decided to impose an administrative warning under Article 30 1 of the Code on Administrative Law Offences, which was a milder administrative penalty than the fine of between LTL 1,000 and LTL 10,000 prescribed by Article 214 12. 32. The case was examined in the presence of the applicant and a representative of the security intelligence authorities. The applicant left the hearing in the course thereof. At the hearing she was not represented by a lawyer. 33. The applicant appealed, claiming in particular that Article 10 of the Convention had been violated. She also complained that the first - instance court had not called the experts to the hearing, thereby violating her defence rights. 34. On 4 May 2001 the Supreme Administrative Court reviewed the case under written procedure. The applicant relied on the conclusion of the psychological experts'report, arguing that “ Lithuanian calendar 2000 ” did not promote hatred against the Poles, Jews or Russians, nor did it claim the superiority of the Lithuanians over other nations. According to the appellate court, these were the conclusions of experts in one field only, whereas the rest of the evidence, namely the political science and bibliographical experts'reports, attested that the comments in the calendar were based on the ideology of extreme nationalism, which rejected the idea of civil society's integration and endorsed xenophobia, national hatred and territorial claims. 35. The court disagreed with the applicant's argument that her defence rights had been violated because the first - instance court had failed to call the experts to have them challenged at the hearing. The Supreme Administrative Court stated: “The [ applicant's ] argument that the [ first-instance ] court violated procedural legal norms because the experts were not present at the court hearing, is not valid. The first - instance court, relying on its inner belief, evaluated the experts'conclusions both as to their reasonableness and as to their comprehensiveness. Article 277 § 1 of the Code on Administrative Law Offences provides for a possibility to summon the experts if there is a need to explain the conclusions the latter had presented. The fact, that this possibility had not been used, cannot be regarded as a violation of procedural legal norms.” Relying on the above arguments, the Supreme Administrative Court dismissed the appeal. 36. On an unspecified date the applicant left Lithuania. She applied for political asylum in Switzerland. Later the applicant returned to Lithuania. She lives in Vilnius. | The applicant owned a publishing company. In March 2001 the Polish courts found that she had breached the Code on Administrative Offences on account of her publishing and distributing the “Lithuanian calendar 2000” which, according to the conclusions of political science experts, promoted ethnic hatred. She was issued with an administrative warning and the unsold copies of the calendar were confiscated. The applicant alleged in particular that the confiscation of the calendar and the ban on its further distribution had infringed her right to freedom of expression. |
185 | State’s duty to protect physical and psychological integrity of individuals | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1979 and lives in Z. 1. Background to the case 5. On 21 April 2001 the applicant married B and on 14 May 2001 a daughter, C, was born of the marriage. On 13 December 2005 the applicant brought a civil action in the Z. Municipal Court ( Općinski sud u Z. ), seeking a divorce from B. On 7 November 2006 the court dissolved the marriage of the applicant and B. 6. For the purposes of criminal proceedings instituted against him in 2003, B, who was still the applicant's husband at the time, underwent a psychiatric examination. The relevant part of the report drawn up by two psychiatrists on 6 December 2004 indicated that B had been captured during the Homeland War and detained in a concentration camp from 3 April to 14 August 1992, where he had been tortured and had sustained serious bodily injuries. It also indicated that since 1992 he had been suffering from mental disorders such as anxiety, paranoia, epilepsy and post-traumatic stress disorder (PTSD). The relevant part of the report reads: “The patient is primarily an emotionally immature person who shows symptoms of chronic PTSD (lowered tolerance of frustration, egocentrism, latent aggressiveness, a tendency towards depressive reactions in stressful situations, as well as a worsening of his condition and impaired social functioning, in particular in family life). ... ” 2. Criminal proceedings against B on charges of violent behaviour within the family 7. On 21 November 2005 B was arrested and detained on suspicion that he had committed the criminal offence of violent behaviour within the family. On 20 December 2005 the Z. State Attorney's Office indicted B in the Z. Municipal Court on charges of violent behaviour within the family. The indictment alleged that from 12 November 2003 to 21 August 2005 B had verbally insulted and threatened the applicant, prevented her from leaving the house and physically assaulted her; on 12 November 2003 he had physically assaulted her by punching her in the belly, throwing her on the floor and continuing to hit and kick her in the body and head; on 7 August 2005 he had hit the applicant in the face, back and hands, causing lacerations; and on 21 August 2005 he had kicked her in the leg. 8. On 20 December 2005 B was released, after his mother gave a statement saying that she would immediately take B to their house in P. However, after having been released, he continued abusing the applicant and therefore on 9 January 2006 the applicant, together with C, moved to a women's shelter in Z. (hereinafter “ the shelter”) run by a non-governmental organisation. 9. The first hearing scheduled before the Z. Municipal Court for 29 March 2006 was adjourned because B did not appear. The second hearing was held on 25 April 2006. 10. On 22 May 2006 the Z. State Attorney's Office extended the indictment to the criminal offence of neglecting and molesting a child or a minor. The extended indictment alleged that between November 2003 and February 2006 B had continually abused the applicant, both verbally and physically, in front of their daughter C, as well as using inappropriate language in respect of C, and had on several occasions punched and kicked C. Consequently, the case was transferred to the juvenile division ( odjel za mladež ) of the Z. Municipal Court. 11. Further hearings scheduled for 7 December 2006 and 20 February 2007 were adjourned because B did not appear. A hearing scheduled for 17 April 2007 was adjourned until 9 May 2007 at the request of B's legal representative. At that hearing the judge ordered a psychiatric examination of B. 12. The psychiatric examination established that B suffered from several mental disorders, including PTSD. The report of 2 January 2008 concluded: “In view of his mental state and the need for continued control and supervision, I would recommend that the court order a security measure of psychiatric treatment. Treatment may be carried out in a day hospital and without detention. This would enable him to follow a regular programme of therapy which would preserve his current relatively stable mental condition and hence diminish the likelihood of his repeating the criminal offences and, in practical terms, remove the risk to his environment.” 13. Another hearing was held on 12 March 2008, at which the expert psychiatrist was questioned. The expert stated that, owing to his difficult war experiences, B suffered from PTSD; he was a neurotic person with a slightly below-average intellectual level, reduced emotional capacity and a passive-aggressive personality. For those reasons his understanding of his own actions and his ability to control his impulses were significantly reduced. The expert repeated his recommendation that a security measure of compulsory psychiatric treatment be applied. 14. A hearing scheduled for 29 April 2008 was adjourned until 4 June 2008 at the request of B's legal representative. That hearing was also adjourned because B did not appear. Hearings scheduled for 14 July and 3 October 2008 were adjourned because one of the witnesses, an employee of the Z. Social Welfare Centre, did not appear. 15. At a hearing held on 19 November 2008 the applicant gave evidence and the court accepted proposals by both parties to call further witnesses. At a hearing held on 10 December 2008 four witnesses gave evidence. Further witnesses were called for the hearing scheduled for 21 January 2009, but the hearing was adjourned until 4 March 2009 since B and one prosecution witness did not appear. The hearing scheduled for 4 March 2009 was also adjourned because B did not appear and the hearing scheduled for 2 April 2009 was adjourned because neither B nor the prosecutor appeared. 16. On 6 April 2009 judge M.B. asked to be allowed to step down from the case, since in March 2009 B had threatened her and she had reported B to the police (see paragraph 2 3 below). The president of the Z. Municipal Court granted her request on 21 April 2009. 17. On 9 March 2009 B was admitted voluntarily to a psychiatric hospital, where he stayed until 6 April 2009. On 18 April he again went to a psychiatric hospital voluntarily. On 13 May 2009 the new judge ordered an additional psychiatric examination of B, in order to establish whether he was fit to stand trial. The expert concluded that, even though B's mental condition had deteriorated somewhat, he was still capable of standing trial. B left the hospital on 28 May 2009. Owing to the change of presiding judge in the proceedings, all the evidence had to be presented again. The first hearing in front of the new judge was held on 11 November 2009. A hearing scheduled for 14 December 2009 was adjourned until 13 January 2010 at the request of B's legal representative. A hearing was held on 1 6 February 2010. The criminal proceedings are still pending. 3. Criminal proceedings against B on charges of making threats against the applicant and a police officer 18. On 1 March 2006 the Z. State Attorney's Office indicted B in the Z. Municipal Court on charges of making death threats against the applicant on 1 March 2006. 19. Further to that, on 30 June 2006 B was arrested and detained on suspicion of the criminal offence of making death threats against the applicant and a police officer, I.G. On 27 July 2006 the Z. State Attorney's Office indicted B on charges of making death threats against the applicant and I.G. 20. On 8 September 2006 the two sets of proceedings were joined. On 16 October 2006 B was found guilty of three counts of making death threats and sentenced to eight months'imprisonment. The relevant extracts from the operative part of the judgment read: “B ... is guilty on the grounds that 1. in the period from 29 May to 12 June 2006 ... on the official premises of the Social Welfare Centre, during meetings with minor child C, in order to incite feelings of fear in his former wife A, he whispered several times in her ear that she was a villain, that he was going to get rid of her, that she knew what he was capable of and that she would be swallowed up by darkness; on 14 June 2006 after the meeting with his minor child, he approached A on the street in front of the building of the Social Welfare Centre and whispered in her ear to beware of him and that he was going to get rid of her, which caused in A feelings of anxiety and fear for her own life ... 2. during November 2005, in Z., on the premises of ... police station during an interview [with the police conducted] following a criminal complaint against him on allegations of having committed the criminal offence of violent behaviour within the family ... told a policewoman ..., in order to incite in her feelings of fear, that she brought shame upon the Croatian police, that she was conspiring against him with his former wife, that he knew the head of the police ... and Minister ... that these were her last days in police service and that he was going to get rid of her; on 19 January 2006 in the Zagreb Minor Offences Court during her testimony, he repeated that she brought shame upon the Croatian police, that she was conspiring against him with his former wife and that he was going to get rid of her, that he was not going to beat her but would have done with her and would remember her, which caused in her feelings of fear and of a risk to her own life ... 3. on 21 November 2005 in Z., on the premises of ... police department, in order to incite in her feelings of fear and fear for her personal safety, called wife A several times on her cellular phone, telling her to withdraw her criminal complaint against him and, when she refused, told her that she would be swallowed up by darkness, to beware of him, that nothing was going to be as before and that he was going to put her in jail, which caused in A feelings of fear and fear for her personal safety ... ” 21. On 24 October 2006 B was released from detention. On the same day the Z. Municipal Court issued a restraining order against B, prohibiting access to the applicant at a distance of less than three hundred metres, and prohibiting contact with the applicant. 22. Both the Z. State Attorney's Office and B lodged appeals against the first - instance judgment. On 22 May 2007 the judgment was upheld by the Z. County Court and thus became final. The judgment has not yet been enforced. 4. Criminal proceedings against B on charges of making death threats against a judge and her minor daughter 23. On an unspecified date the Z. State Attorney's Office indicted B in the Z. Municipal Court on charges of making death threats against judge M.B. and her minor daughter (see paragraph 16 above). In the course of the proceedings B was arrested on 4 September 2009 and placed in pre-trial detention. On 19 October 2009 the Z. Municipal Court found B guilty as charged and sentenced him to three years'imprisonment and also ordered his compulsory psychiatric treatment. It seems that B is still in detention but no information has been provided as to where and whether any psychiatric treatment has been provided. 5. Minor offences proceedings against B (a) The first set of proceedings 24. On 7 January 2004 a police station lodged a request with the Z. Minor Offences Court ( Prekšajni sud u Z. ) for minor offences proceedings to be instituted against B. It was alleged that on 12 November 2003 B had assaulted the applicant and pushed her onto the floor, while kicking her in the body and head. 25. At a hearing held on 8 June 2004 the applicant refused to give evidence and the proceedings were discontinued. (b) The second and third sets of proceedings 26. On 14 November 2005 a police station lodged two requests with the Z. Minor Offences Court for minor offences proceedings to be instituted against B. 27. In the first request, it was alleged that on 21 August 2005 B had verbally abused the applicant in front of C and had kicked the applicant in the leg. In a decision of 20 November 2006 the court found B guilty of domestic violence and imposed a fine in the amount of 2,000 Croatian kuna (HRK). There is no indication that this fine has been enforced. 28. In the second request it was alleged that on 7 August 2005 B had first forcefully stopped the applicant from taking a bath and had hit her in the face, back and hands, causing lacerations. In a decision of 19 July 2007 the court found B guilty of domestic violence and imposed a fine in the amount of HRK 7,000. However, this decision did not become final because the proceedings were discontinued on 28 November 2007, having become time-barred. (c) The fourth set of proceedings 29. On 26 March 2006 the applicant lodged a request with the Z. Minor Offences Court under the Protection against Domestic Violence Act, for minor offences proceedings to be instituted against B. She alleged that since 29 March 2005 B had repeatedly assaulted her in front of C and caused her bodily injuries. These were described in the enclosed medical reports of 29 March and 16 August 2005 as contusions to the upper lip, right calf and right foot. The injuries were classified as minor bodily injuries. He had further threatened to kill her on 1 February 2006. 30. The applicant also requested that protective measures be immediately imposed in the form of prohibiting access to her proximity, a prohibition on harassing or stalking her and compulsory psycho-social treatment. The applicant explained that B had been diagnosed with several mental disorders and had been undergoing treatment for years. She requested that the proceedings be instituted as a matter of urgency. 31. The court held a preliminary hearing ( pripremno ročište ) on 27 June 2006, and subsequent hearings on 19 September 2006 and 26 September 2006. In a decision of 2 October 2006 the court found B guilty of domestic violence and imposed a fine in the amount of HRK 6,000. A protective measure prohibiting access to the applicant at a distance of less than one hundred metres for a period of one year was also ordered, as well as a protective measure of compulsory psycho-social treatment for a period of six months. The relevant extracts from the operative part of the decision read: “B is guilty on the grounds that on 1 February 2006 in their flat ... he threatened his wife with the following words :'I will kill you, you won't walk again ... you will never see your child again'in the presence of their minor child C ... which acts of violence he repeated on several subsequent occasions causing her physical injuries also ... ” 32. On 30 October 2006 the applicant lodged an appeal, arguing that a protective measure in the form of a prohibition on harassing or stalking her and C and a protective measure of prohibition of access to C should have also been applied. She argued further that the measure of prohibition on access to her was not sufficiently precise because the court had failed to specify the date on which the measure was to be implemented. B also lodged an appeal. 33. The appeals of B and the applicant were dismissed on 31 January 2007 by the High Minor Offences Court. 34. B paid HRK 1,000 of the fine. The remaining fine in the amount of HRK 5,000 was supplemented by a prison term which B has not served. The Government explained that this was because Z. Prison was full to capacity. Furthermore, B has not undergone the compulsory psycho-social treatment because of the lack of licensed individuals or agencies able to execute such a protective measure. Execution of the sentence became time-barred on 31 January 2009. 35. On 10 December 2007 the applicant informed the Z. Minor Offences Court that B had violated the restraining order and that in October 2007 he had hired a private detective who had come to her secret address where she had been living after leaving the shelter. The applicant reiterated her request for the application of an additional protective measure in the form of a prohibition on harassing and stalking a victim of violence. Her request was dismissed in a decision of the Z. Minor Offences Court of 12 December 2007 on the ground that she had not shown an immediate risk to her life. On 17 December 2007 the applicant lodged an appeal against that decision. The court dismissed her appeal on 7 January 2008. The applicant lodged a constitutional complaint against that decision on 18 February 2008. On 19 March 2008 the Constitutional Court found that it had no jurisdiction in the matter. 6. Other relevant facts 36. On an unspecified date the applicant and C left the shelter and went to live at a secret address. On 14 October 2007 an unknown man appeared at their door. The applicant's partner opened and the man at the door introduced himself as a private detective hired by B to find out the whereabouts of the applicant and C. 37. The applicant moved out and lived in a nearby village for five months. According to the applicant, she was not able to find new accommodation elsewhere because all the landlords she had approached answered that they had no wish to deal with her violent ex-husband. 38. In the course of the divorce proceedings between the applicant and B, the Z. Municipal Court issued an interim measure on 9 March 2006 and ordered contact between B and C twice a week for one hour on the premises of the Z. Social Welfare Centre, under expert supervision. The applicant did not comply with the decision, so on 23 May 2006 the court threatened her with a fine unless she complied with the order. After that decision the applicant complied with the interim measure until mid-June 2006. 39. On 7 November 2006 the Z. Municipal Court dissolved the marriage of the applicant and B and also ordered B to pay child maintenance for C. It further prohibited B from contacting C. Both parties lodged appeals, and on 11 September 2007 the Z. County Court ( Županijski sud u Z. ) upheld the divorce but quashed the first-instance judgment concerning the amount of maintenance to be paid in respect of C and the ban on contact between B and C, and remitted the case in that part. 40. On 7 October 2008 the Z. Municipal Court gave a fresh judgment on the amount of maintenance and ordered contact between B and C twice a month for two hours in a children's play centre in Z., under the expert supervision of the Z. Social Welfare Centre. Both parties lodged appeals, and on 27 January 2009 the Z. County Court upheld the part of the judgment concerning contact between B and C, quashed the decision on maintenance and remitted the case in that part. The proceedings on the child maintenance are still pending. III. COUNCIL OF EUROPE DOCUMENTS 45. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention. 46. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape and abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising any abuse of position by the perpetrator. The Recommendation also states that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children's rights are protected during proceedings. 47. With regard to violence within the family, the Committee of Ministers recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services. | The applicant’s now ex-husband (suffering from post-traumatic stress disorder, paranoia, anxiety and epilepsy) allegedly subjected her to repeated physical violence causing bodily injury and death threats over many years and also regularly abused her in front of their young daughter. After going into hiding, the applicant requested a court order preventing her ex-husband from stalking or harassing her. It was refused on the ground that she had not shown an immediate risk to her life. |
852 | Interception of communications, phone tapping and secret surveillance | I. CIRCUMSTANCES OF THE CASE 8. Mr Jean Kruslin, who is unemployed and has no fixed abode, is currently in custody at Fresnes (Val-de-Marne). 9. On 8 and 14 June 1982 an investigating judge at Saint- Gaudens (Haute- Garonne ), who was inquiring into the murder of a banker, Mr Jean Baron, at Montréjeau on the night of 7-8 June ("the Baron case"), issued two warrants to the commanding officer of the investigation section of the Toulouse gendarmerie. In the second of these the officer was instructed to tap the telephone of a suspect, Mr Dominique Terrieux, who lived in Toulouse. From 15 to 17 June the gendarmes intercepted seventeen telephone calls in all. The applicant, who was staying with Mr Terrieux at the time and occasionally used his telephone, had been a party to several of the telephone conversations and more especially to one between 9 p.m. and 11 p.m. on 17 June with someone calling him from a public telephone-box in Perpignan ( Pyrénées-Orientales ). During their short conversation the two men had spoken in veiled terms about a different case from the Baron case, concerning in particular the murder on 29 May 1982 of Mr Henri Père, an employee of the Gerbe d ’ Or jewellers in Toulouse ("the Gerbe d ’ Or case"). The gendarmes reported this the next day to colleagues from the criminal-investigation branch of the police. On 11 June 1982 an investigating judge in Toulouse had issued a warrant to these officers to investigate that case, and they now immediately listened to the recording of the telephone conversation in question, had it transcribed and appended the text to a report drawn up at midnight on 18 June; the original tape remained, sealed, with the gendarmerie. 10. At dawn on 18 June the gendarmes arrested Mr Kruslin at Mr Terrieux ’ s home and held him in custody in connection with the Baron case. Early that afternoon he was questioned about the Gerbe d ’ Or case by the police (who had already questioned him on 15 June and then released him after about four hours) and - the next day, it seems - he was charged together with Mr Terrieux and one Patrick Antoine with murder, aggravated theft and attempted aggravated theft. On 25 October 1982 the Toulouse investigating judge held a confrontation of the three men, during which after the seals had been broken in their presence - the aforementioned taperecording was heard in its entirety, including the conversation on the evening of 17 June. Mr Kruslin adopted the same attitude as when questioned by the police on 18 June: he protested his innocence and denied - in respect of this conversation but not of the others - that the voice was his. Mr Terrieux now said that he did not recognise the voice, whereas he had identified it earlier. The tape was resealed, again in the presence of the persons charged. The applicant refused to sign either the report or the form recording the sealing. He subsequently applied for an examination by experts, and the investigating judge granted the application in an order of 10 February 1983. In their report of 8 June 1983, however, the three experts who were appointed felt able to state "with 80% certainty" that the voice they had analysed was indeed Mr Kruslin ’ s. 11. Before the Indictment Division ( chambre d ’ accusation ) of the Toulouse Court of Appeal, to which the case was sent after the judicial investigation was completed, the applicant requested that the recording of the disputed conversation should be ruled inadmissible in evidence because it had been made in connection with proceedings which, he claimed, did not concern him - the Baron case. On 16 April 1985 the Indictment Division dismissed this plea in the following terms: "... while this telephone tapping was ordered by the investigating judge at the Saint- Gaudens tribunal de grande instance in connection with other proceedings, the fact remains that judges are not prohibited by either Article 11 [which lays down the principle that judicial investigations shall be confidential] or Articles R.155 and R.156 of the Code of Criminal Procedure from deciding to include in criminal proceedings evidence from other proceedings which may assist them and help to establish the truth, on the sole condition - which was satisfied in the instant case - that such evidence is added under an adversarial procedure and that it has been submitted to the parties for them to comment on ..." In so doing, the Indictment Division, it appears, took as its inspiration - and extended by analogy to the field of telephone tapping the settled case-law of the Criminal Division of the Court of Cassation, developed in respect of other investigative measures (see, for example, 11 March 1964, Bulletin (Bull.) no. 86; 13 January 1970, Bull. no. 21; 19 December 1973, Bull. no. 480; 26 May and 30 November 1976, Bull. nos. 186 and 345; 16 March and 2 October 1981, Bull. nos. 91 and 256). In the same decision the Indictment Division committed Mr Kruslin - with four others, including Mr Terrieux and Mr Antoine - for trial at the Haute- Garonne Assize Court on charges, in his case, of aiding and abetting a murder, aggravated theft and attempted aggravated theft. 12. The applicant appealed to the Court of Cassation on points of law. In the second of his five grounds of appeal he relied on Article 8 (art. 8) of the Convention. He criticised the Indictment Division of the Toulouse Court of Appeal for having "refused to rule that the evidence from telephone tapping in connection with other proceedings was inadmissible; whereas interference by the public authorities with a person ’ s private and family life, home and correspondence is not necessary in a democratic society for the prevention of crime unless it is in accordance with a law that satisfies the following two requirements: it must be of a quality such that it is sufficiently clear in its terms to give citizens an adequate indication of the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence, and it must define the scope and manner of exercise of such a power clearly enough to give the individual adequate protection from arbitrary interference; these requirements are not satisfied by any provision of French law, and particularly not by Article 81 of the Code of Criminal Procedure". In his supplementary pleadings of 11 June 1985 (pp. 5-8) counsel for Mr Kruslin relied on the case-law of the European Court of Human Rights, both in regard to telephone tapping ( Klass and Others judgment of 6 September 1978 and Malone judgment of 2 August 1984, Series A nos. 28 and 82) and in other respects ( Golder judgment of 21 February 1975, Sunday Times judgment of 26 April 1979 and Silver and Others judgment of 25 March 1983, Series A nos. 18, 30 and 61). The Criminal Division of the Court of Cassation dismissed the appeal in a judgment of 23 July 1985. As regards the point in question it gave the following reasons for its decision: "... An examination of the evidence shows that the transcript of a tape recording of conversations in calls made on Terrieux ’ s telephone line was included in the file of the murder investigation then being conducted by the Toulouse investigating judge following the death of Henri Père at the hands of a person or persons unknown; this recording had been made pursuant to a warrant issued by the investigating judge at Saint- Gaudens in connection with the investigation of another murder, likewise committed by a person or persons unknown; it was because of its relevance to the investigation into Père ’ s death that the transcription was made by senior police officers acting under a warrant issued by the investigating judge in Toulouse; The tenor of the conversations recorded was made known to the various persons concerned, notably Kruslin, who was asked to account for them both during the inquiries made pursuant to the investigating judge ’ s warrant and after he was charged; furthermore, an examination of the tape recording by an expert, whose report was subsequently added to the evidence, was made pursuant to a lawful decision by the investigating judge; That being so, the Indictment Division did not lay itself open to the objection raised in the ground of appeal by refusing to rule that the evidence from telephone tapping in connection with other proceedings was inadmissible; In the first place, there is no statutory provision prohibiting the inclusion in criminal proceedings of evidence from other proceedings which may assist the judges and help to establish the truth; the sole condition is that such evidence should be added under an adversarial procedure - which was so in this case, in which the documents were submitted to the parties for them to comment on; In the second place, it is clear from Articles 81 and 151 of the Code of Criminal Procedure and from the general principles of criminal procedure that, among other things, firstly, telephone tapping may be ordered by an investigating judge, by means of a warrant, only where there is a presumption that a specific offence has been committed which has given rise to the investigation which the judge has been assigned to undertake, and that it cannot be directed, on the off chance, against a whole category of offences; and, secondly, that the interception ordered must be carried out under the supervision of the investigating judge, without any subterfuge or ruse being employed and in such a way that the exercise of the rights of the defence cannot be jeopardised; These provisions governing the use of telephone tapping by an investigating judge, which have not been shown to have been infringed in the instant case, satisfy the requirements of Article 8 (art. 8) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; ..." (Bull. no. 275, pp. 713-715) 13. It appears from the file that the recording of the telephone conversation of 17 June 1982 was a decisive piece of evidence in the proceedings against the applicant. These proceedings ended, on 28 November 1986, with a judgment of the Haute- Garonne Assize Court. Mr Kruslin was acquitted of murder but sentenced to fifteen years ’ imprisonment for armed robbery and attempted armed robbery; an appeal by him to the Court of Cassation was dismissed on 28 October 1987. He seems always to have protested his innocence. 14. In the Baron case the Indictment Division of the Toulouse Court of Appeal likewise committed the applicant, on 2 June 1987, for trial at the Haute- Garonne Assizes, together with Mr Antoine and one Charles Croce. At that trial too he alleged that the telephone tapping carried out from 15 to 17 June 1982 was inadmissible; on 4 November 1987 the Criminal Division of the Court of Cassation dismissed this plea on grounds identical, mutatis mutandis, to those in its judgment of 23 July 1985 previously cited (see paragraph 12 above - Recueil Dalloz Sirey (DS) 1988, sommaires, p. 195). On 2 December 1988 the Assize Court sentenced the applicant to life imprisonment for premeditated murder; he lodged an appeal on points of law, but this was dismissed by the Criminal Division of the Court of Cassation on 6 November 1989. The complaints he made to the Commission, however, related solely to the telephone tapping whose results were used in the Gerbe d ’ Or case. | This case concerned a telephone tapping ordered by an investigating judge in a murder case. |
712 | Right to form, to join or not join a trade union | 12. Mr. Young, Mr. James and Mr. Webster are former employees of the British Railways Board ("British Rail"). In 1975, a "closed shop" agreement was concluded between British Rail and three trade unions, providing that thenceforth membership of one of those unions was a condition of employment. The applicants failed to satisfy this condition and were dismissed in 1976. They alleged that the treatment to which they had been subjected gave rise to violations of Articles 9, 10, 11 and 13 (art. 9, art. 10, art. 11, art. 13) of the Convention. II. BRITISH RAIL AND ITS CLOSED SHOP AGREEMENT 29. In 1970, British Rail had concluded a closed shop agreement with the National Union of Railwaymen ("NUR"), the Transport Salaried Staffs ’ Association ("TSSA") and the Associated Society of Locomotive Engineers and Firemen ("ASLEF"), but, with the enactment of the Industrial Relations Act 1971 (see paragraph 18 above), it was not put into effect. The matter was, however, revived in July 1975 when British Rail concluded a further agreement with the same unions. It was provided that as from 1 August 1975 membership of one of those unions was to be a condition of employment for certain categories of staff - including the applicants - and that the terms of the agreement were "incorporated in and form[ed] part of" each contract of employment. Like other staff of British Rail, Mr. Young, Mr James and Mr. Webster had, it appears, been supplied when engaged with a written statement containing a provision to the effect that they were subject to such terms and conditions of employment as might from time to time be settled for employees of their category under the machinery of negotiation established between their employer and any trade union or other organisation. The membership requirement did not apply to "an existing employee who genuinely objects on grounds of religious belief to being a member of any Trade Union whatsoever or on any reasonable grounds to being a member of a particular Trade Union". The agreement also set out the procedure for applying for exemption on these grounds and provided for applications to be heard by representatives of the employer and the unions. 30. In July/August 1975, notices were posted at the premises of British Rail, including those where the applicants were then working, drawing the attention of staff to the agreement with the unions and the change in conditions of employment. A further notice of September 1975 stated that it had been agreed that the exemption on religious grounds would be available only where a denomination specifically proscribed its members from joining unions. The notice added that "confining exemption only to religious grounds depends upon the passing through Parliament of the Trade Union and Labour Relations (Amendment) Bill" and that staff would be advised further on this point. As recorded in paragraph 23 above, the Amendment Act came into force on 25 March 1976. On the same date, a further agreement between British Rail and the railway unions came into effect. It was in identical terms to the July 1975 agreement, except that the words "or on any reasonable grounds to being a member of a particular Trade Union" (see paragraph 29 above) were omitted. 31. The applicants and the representative of the Trades Union Congress informed the Court that NUR, TSSA and ASLEF were the only unions actually operating in 1975 in those sectors of the railway industry in which Mr. Young, Mr. James and Mr. Webster worked. According to the Government, other unions did have members in, although they were not recruiting amongst, the relevant grades. It appears that, prior to the conclusion of the 1975 closed shop agreement, between 6,000 and 8,000 British Rail employees, out of a total staff of 250,000, were not already members of one of the specified unions. In the final event, 54 individuals were dismissed for refusal to comply with the membership requirement. 32. The applicants were not eligible for membership of ASLEF. As regards NUR and TSSA, intending members were required to sign an application form which, at the relevant time, embodied an undertaking to abide by the Rules of the union and "loyally to promote" its objects (NUR), or to use their "best endeavours to promote its objects and interests" (TSSA). The stated objects of NUR included the following: "... to secure the complete organisation of all workers employed by any Board, Company or Authority in connection with railways and other transport and ancillary undertakings thereto in the United Kingdom; to improve the conditions and protect the interests of its members; ... To further, if and when and so far as the same shall be or become a lawful object of a Trade Union, the interests of members by representation in Parliament and on local governing bodies, and to employ the Political Fund of the Union procuring such representation. To work for the suppression of the capitalist system by a Socialistic order of society. ... To make grants to and share in the management and control of any college or institution having for its object to educate and train Trade Unionists in social science in, and to take part in, the political and industrial life of the Labour Movement. ..." The stated objects of TSSA included the following: "(a) To organise the whole of the Clerical, Supervisory, Administrative, Professional and Technical employees in all Departments of any British or Irish Railway undertaking, or of any Railway Carting Agency, associated or other undertaking as defined in Rule 2. (b) To improve the conditions and protect the interests of its members. ... (g) To establish a Fund, or Funds, including the Political Fund referred to in Rules 45 and 46. ... (i) To secure or assist in securing legislation and the more effective administration of the existing laws which may affect the general and material welfare of its members and of any other workmen. (j) To provide financial assistance and to lend money, with or without interest or other equivalent, to any such organisation (incorporated or not incorporated) as the Executive Committee may deem advisable in the interests of or for carrying out the objects of the Association, and so far as the law for the time being in force may permit. ..." The objects of both unions also included the furtherance of the political objects specified in section 3 of the Trade Union Act 1913 and their Rules contained provisions reflecting that Act ’ s requirements in the matter of a political fund (see paragraph 28 above). In the case of TSSA, payments from its political fund could not be made unless the beneficiary was an individual member of the Labour Party or the purpose of the payment was in support of Labour Party policy; its general funds could be used for providing financial assistance for political purposes other than the "political objects" listed in the 1913 Act. III. FACTS PARTICULAR TO THE INDIVIDUAL APPLICANTS A. Mr. Young 33. Mr. Young, who was born in 1953, commenced employment with British Rail in 1972. 34. In September 1975, he had a meeting with his supervisor and a representative of TSSA who informed him about the closed shop agreement - the effect of which in his case was that, as a clerical officer, he was required to join either TSSA or NUR - and of the grounds of exemption applicable at that time (see paragraph 29 above). The applicant objected, though not on grounds of religious belief, to being a member of any trade union and in particular of TSSA or NUR. He believed that union membership should be a matter of personal choice based on conscience and political conviction. His reasons for not wanting to join TSSA, which he said also applied to NUR, may be summarised as follows: (a) he did not subscribe to the political views of TSSA; (b) money from the main union fund was used to produce a monthly newspaper biased in favour of the Labour Party and he had not received sufficient assurances that that fund was not utilised for other political purposes; (c) he disapproved of TSSA ’ s support for nationalisation of industry and its forcing of inflationary pay awards; he also objected to being obliged to participate in strikes, this being action which in the case of a key service industry he saw as collective blackmail of the country as a whole; (d) TSSA showed itself intolerant of the expression of individual freedom by seeking to enforce a closed shop and it acquired by that means an unacceptably extensive control over the hiring and firing of employees. 35. On 17 October 1975, Mr. Young submitted a written claim for exemption. On 30 April 1976, that is after the entry into force on 25 March 1976 of the Amendment Act (see paragraph 23 above), he was informed by letter that his claim would be heard on 5 May. On that day, he appeared before an appeal body composed of three persons representing, respectively, British Rail, TSSA and NUR. By letter of 27 May, British Rail advised the applicant that the claim had been disallowed and gave him notice of dismissal - of one month, in accordance with his contract - expiring on 26 June 1976. B. Mr. James 36. Mr. James, who was born in 1928, was engaged by British Rail on 27 March 1974 as a leading railwayman. He had previously been employed by British Rail for two periods of some years. 37. In 16 October 1975, he had a meeting with his immediate superior and a representative of NUR who informed him that, as a result of the closed shop agreement, he was required to join NUR and that, as a shunter, he was not eligible for membership of any other union. Mr. James was willing to join - in fact, he had previously been a member of NUR - but he was not convinced that membership was advantageous and he believed in freedom of choice. He deferred his final decision pending clarification of a question, submitted by one of his colleagues to NUR, regarding an apparent difference between his salary and that of his colleague who was working the same hours. Before applying for membership, Mr. James wished to see NUR ’ s reply in order to assess how members ’ problems were dealt with. In the event, he formed the view that the union ’ s examination of the matter and explanation of its conclusions were unsatisfactory and that it had not looked after its member ’ s interests properly; therefore he did not wish to join the union. 38. By letter of 18 December 1975, the applicant indicated that he refused to join the union since it had not replied to his own query about his hours of work. On 23 February 1976, he received a dismissal notice stating that, by reason of his non-compliance with the July 1975 agreement, his services would no longer be required as from 5 April 1976. 39. On 8 April 1976, Mr. James presented a complaint of unfair dismissal to an industrial tribunal, before which he appeared on 18, June. On 6 July, he received a copy of its decision rejecting his complaint. The grounds were, firstly, that the applicant had never sought exemption from union membership in accordance with the procedure laid down in the closed shop agreement and, secondly, that as he had at no time based his refusal to join NUR on religious grounds, the tribunal was bound under paragraph 6 (5) of Schedule 1 to TULRA (as modified by the Amendment Act) to find that the dismissal was fair. C. Mr. Webster 40. Mr. Webster, who was born in 1914, commenced employment with British Rail on 18 March 1958. 41. At the time of the conclusion of the 1970 closed shop agreement (see paragraph 29 above), the applicant had objected to joining a union on grounds which he set out in a letter to the Administrative Services Officer. However, as that agreement was not put into effect, he was not called upon to appear before the appeal body to which he had agreed to submit his claim. 42. In or around September 1975, the applicant had a meeting with his immediate supervisor and the local representative of TSSA who informed him about the closed shop agreement - the effect of which in his case was that, as a clerical officer, he was required to join either TSSA or NUR - and of the grounds of exemption applicable at that time (see paragraph 29 above). 43. Mr. Webster was opposed to joining a union for reasons - in his eyes equally valid for TSSA and NUR - which included the following: (a) he was opposed to the trade union movement as it currently operated since it was unrepresentative, had detrimental effects - particularly through unjustified collective wage demands - in the economic, industrial and social spheres, and did not act in the best interests of workers or of the country in general; he also found it utterly repugnant to be obliged to participate in any strike which caused loss to the general public or workers elsewhere; (b) he believed that the individual should enjoy freedom of choice as regards union membership and should be able to express and abide by his opinions and convictions without being threatened with the loss of his livelihood as a result of the closed shop practice, which practice would not remedy the disabilities inherent in the trade union system. 44. On 29 October 1975, Mr. Webster wrote to his supervisor explaining some doubts which he had as to the courses open to him to claim exemption and seeking guidance on certain aspects. He said that he wished to apply for exemption on conscientious grounds (other than specifically religious grounds) and he asked that, if this was still possible, his 1970 submissions be accepted as his case, though he also indicated that he would again wish to present a full and closely argued case. He added that he was an opponent of the trade union movement "as it operates today". On 2 April 1976, that is after the entry into force on 25 March 1976 of the Amendment Act (see paragraph 23 above), he was advised by letter that his application would be examined four days later by representatives of British Rail and the unions in accordance with the procedure prescribed in the 1975 agreement. The applicant requested two weeks ’ postponement to enable him to prepare written submissions. On 28 April, by which time he had received replies, through his solicitors, to only some of the questions posed in his October letter, he was instructed to attend a hearing on 6 May. On that day, he appeared before an appeal body composed of three persons representing, respectively, British Rail, TSSA and NUR. On 3 June 1976, Mr. Webster received a dismissal notice stating that his application had been disallowed and that his contract of employment would terminate on 28 August 1976. | The applicants’ complaint concerned the “closed shop” agreement between British Rail and three railway workers’ unions. A closed shop is an undertaking or workplace in which, as a result of an agreement or arrangement between one or more trade unions and one or more employers or employers’ associations, employees of a certain class are in practice required to be or become members of a specified union. |
1,009 | Military presence | I. THE CIRCUMSTANCES OF THE CASE 8. The facts of the case may be summarised as follows. A. The occupation of Iraq from 1 May 2003 to 28 June 2004 1. Background: United Nations Security Council Resolution 1441 9. 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 Security Council had “repeatedly warned Iraq that it w [ould] face serious consequences as a result of its continued violations of its obligations”. The Security Council decided to remain seised of the matter. 2. Major combat operations: 20 March to 1 May 2003 10. 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 personnel to help with the reconstruction effort. 3. Legal and political developments in May 2003 11. 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. We will act to ensure that Iraq ’ s oil is protected and used for the benefit of the Iraqi people. 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 the territorial integrity of Iraq and securing Iraq ’ s borders; securing, and removing, disabling, rendering harmless, eliminating or destroying (a) all of Iraq ’ s weapons of mass destruction, ballistic missiles, unmanned aerial vehicles and all other chemical, biological and nuclear delivery systems; and (b) all elements of Iraq ’ s programme to research, develop, design, manufacture, produce, support, assemble and employ such weapons and delivery systems and subsystems and components thereof, including but not limited to stocks of chemical and biological agents, nuclear-weapon-usable material, and other related materials, technology, equipment, facilities and intellectual property that have been used in or can materially contribute to these programmes; in consultation with relevant international organisations, facilitating the orderly and voluntary return of refugees and displaced persons; 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; supporting and coordinating de - mining and related activities; promoting accountability for crimes and atrocities committed by the previous Iraqi regime; 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 States, the United Kingdom and Coalition partners recognise the urgent need to create an environment in which the Iraqi people may freely determine their own political future. To this end, the United States, the United Kingdom and Coalition partners are facilitating the efforts of the Iraqi people to take the first steps towards forming a representative government, based on the rule of law, that affords fundamental freedoms and equal protection and justice under law to the people of Iraq without regard to ethnicity, religion or gender. The United States, the United Kingdom and Coalition partners are facilitating the establishment of representative institutions of government, and providing for the responsible administration of the Iraqi financial sector, for humanitarian relief, for economic reconstruction, for the transparent operation and repair of Iraq ’ s infrastructure and natural resources, and for the progressive transfer of administrative responsibilities to such representative institutions of government, as appropriate. Our goal is to transfer responsibility for administration to representative Iraqi authorities as early as possible. 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 Greenstock Permanent Representative of the United Kingdom (Signed) John D. Negroponte Permanent Representative of the United States” 12. 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 as follows: “ Pursuant to my authority as Administrator of the Coalition Provisional Authority (CPA), relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war, I hereby promulgate the following: Section 1 The Coalition Provisional Authority ( 1) The CPA shall exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration, to restore conditions of security and stability, to create conditions in which the Iraqi people can freely determine their own political future, including by advancing efforts to restore and establish national and local institutions for representative governance and facilitating economic recovery and sustainable reconstruction and development. ( 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. Section 2 The Applicable Law Unless suspended or replaced by the CPA or superseded by legislation issued by democratic institutions of Iraq, laws in force in Iraq as of 16 April 2003 shall continue to apply in Iraq in so far as the laws do not prevent the CPA from exercising its rights and fulfilling its obligations, or conflict with the present or any other Regulation or Order issued by the CPA. ... ” 13. 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. The United Kingdom was represented at CPA headquarters through the Office of the United Kingdom Special Representative. According to the Government, although the United Kingdom Special Representative and his Office sought to influence CPA policy and decisions, United Kingdom personnel had no formal decision-making power within the Authority. All the CPA ’ s administrative and legislative decisions were taken by Ambassador Bremer. 14. 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, Reaffirming the sovereignty and territorial integrity of Iraq, Reaffirming also the importance of the disarmament of Iraqi weapons of mass destruction and of eventual confirmation of the disarmament of Iraq, Stressing the right of the Iraqi people freely to determine their own political future and control their own natural resources, welcoming the commitment of all parties concerned to support the creation of an environment in which they may do so as soon as possible, and expressing resolve that the day when Iraqis govern themselves must come quickly, Encouraging efforts by the people of Iraq to form a representative government based on the rule of law that affords equal rights and justice to all Iraqi citizens without regard to ethnicity, religion, or gender, and, in this connection, recalls Resolution 1325 (2000) of 31 October 2000, Welcoming the first steps of the Iraqi people in this regard, and noting in this connection the 15 April 2003 Nasiriyah statement and the 28 April 2003 Baghdad statement, 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, ... 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, Concerned that many Kuwaitis and Third-State Nationals still are not accounted for since 2 August 1990, 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; 3. Appeals to member States to deny safe haven to those members of the previous Iraqi regime who are alleged to be responsible for crimes and atrocities and to support actions to bring them to justice; 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; 9. Supports the formation, by the people of Iraq with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognised, representative government is established by the people of Iraq and assumes the responsibilities of the Authority; ... 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.” 5. Developments between July 2003 and June 2004 15. 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. 16. On 16 October 2003 the United Nations Security Council passed Resolution 1511, which provided, inter alia, as follows: “ The Security Council ... Underscoring that the sovereignty of Iraq resides in the State of Iraq, reaffirming the right of the Iraqi people freely to determine their own political future and control their own natural resources, reiterating its resolve that the day when Iraqis govern themselves must come quickly, and recognising the importance of international support, particularly that of countries in the region, Iraq ’ s neighbours, and regional organisations, in taking forward this process expeditiously, 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), Welcoming the decision of the Governing Council of Iraq to form a preparatory constitutional committee to prepare for a constitutional conference that will draft a Constitution to embody the aspirations of the Iraqi people, and urging it to complete this process quickly, ... 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; ... 4. Determines that the Governing Council and its ministers are the principal bodies of the Iraqi interim administration, which, without prejudice to its further evolution, embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognised, representative government is established and assumes the responsibilities of the Authority; 5. Affirms that the administration of Iraq will be progressively undertaken by the evolving structures of the Iraqi interim administration; 6. Calls upon the Authority, in this context, to return governing responsibilities and authorities to the people of Iraq as soon as practicable and requests the Authority, in cooperation as appropriate with the Governing Council and the Secretary-General, to report to the Council on the progress being made; 7. Invites the Governing Council to provide to the Security Council, for its review, no later than 15 December 2003, in cooperation with the Authority and, as circumstances permit, the Special Representative of the Secretary-General, a timetable and a programme for the drafting of a new Constitution for Iraq and for the holding of democratic elections under that Constitution; 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; 15. Decides that the Council shall review the requirements and mission of the Multinational Force referred to in paragraph 13 above not later than one year from the date of this Resolution, and that in any case the mandate of the Force shall expire upon the completion of the political process as described in paragraphs 4 through 7 and 10 above, and expresses readiness to consider on that occasion any future need for the continuation of the Multinational Force, taking into account the views of an internationally recognised, representative government of Iraq; ... 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. ” 17. On 8 March 2004 the Governing Council of Iraq promulgated the Law of Administration for the State of Iraq for the Transitional Period (known as the “Transitional Administrative Law”). This provided a temporary legal framework for the administration of Iraq for the transitional period which was due to commence by 30 June 2004 with the establishment of an interim Iraqi government and the dissolution of the CPA. 18. Provision for the new regime was made in United Nations Security Council Resolution 1546, adopted on 8 June 2004, which provided, inter alia, that the Security Council, acting under Chapter VII of the Charter of the United Nations : “ 1. Endorses the formation of a sovereign interim government of Iraq, as presented on 1 June 2004, which will assume full responsibility and authority by 30 June 2004 for governing Iraq while refraining from taking any actions affecting Iraq ’ s destiny beyond the limited interim period until an elected transitional government of Iraq assumes office as envisaged in paragraph 4 below; 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; ... 8. Welcomes ongoing efforts by the incoming interim government of Iraq to develop Iraqi security forces including the Iraqi armed forces (hereinafter referred to as ‘ Iraqi security forces ’ ), operating under the authority of the interim government of Iraq and its successors, which will progressively play a greater role and ultimately assume full responsibility for the maintenance of security and stability in Iraq; 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; ... ” 6. The transfer of authority to the Iraqi interim government 19. 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. B. United Kingdom armed forces in Iraq from May 2003 to June 2004 20. During this period, the Coalition Forces consisted of six divisions that were under the overall command of US generals. Four were US divisions and two were multinational. Each division was given responsibility for a particular geographical area of Iraq. The United Kingdom was given command of the Multinational Division (South - East), which comprised the provinces of Basra, Maysan, Thi Qar and Al ‑ Muthanna, an area of 96,000 square kilometres with a population of 4.6 million. There were 14,500 Coalition troops, including 8,150 United Kingdom troops, stationed in the Multinational Division (South - East). The main theatre for operations by United Kingdom forces in the Multinational Division (South - East) were the Basra and Maysan provinces, with a total population of about 2.75 million people. Just over 8,000 British troops were deployed there, of whom just over 5,000 had operational responsibilities. 21. From 1 May 2003 onwards British forces in Iraq carried out two main functions. The first was to maintain security in the Multinational Division (South - East) area, in particular in the Basra and Maysan provinces. The principal security task was the effort to re-establish the Iraqi security forces, including the Iraqi police. Other tasks included patrols, arrests, anti-terrorist operations, policing of civil demonstrations, protection of essential utilities and infrastructure and protecting police stations. The second main function of the British troops was the support of the civil administration in Iraq in a variety of ways, from liaison with the CPA and Governing Council of Iraq and local government, to assisting with the rebuilding of the infrastructure. 22. In the Aitken Report (see paragraph 69 below), prepared on behalf of the Army Chief of General Staff, the post-conflict situation in Iraq was described as follows: “The context in which operations have been conducted in Iraq has been exceptionally complex. It is not for this report to comment on the jus ad bellum aspects of the operation, nor of the public ’ s opinions of the invasion. It is, however, important to note that the Alliance ’ s post-invasion plans concentrated more on the relief of a humanitarian disaster (which did not, in the event, occur on anything like the scale that had been anticipated), and less on the criminal activity and subsequent insurgency that actually took place. One consequence of that was that we had insufficient troops in theatre to deal effectively with the situation in which we found ourselves. Peace support operations require significantly larger numbers of troops to impose law and order than are required for prosecuting a war: ours were very thinly spread on the ground. In his investigation (in April 2005) of the Breadbasket incident [alleged abuse of Iraqis detained on suspicion of looting humanitarian aid stores], Brigadier Carter described conditions in Iraq thus: ‘ ... May 2003, some four weeks or so after British forces had started to begin the transition from offensive operations to stabilisation. The situation was fluid. Battlegroups had been given geographic areas of responsibility based generally around their initial tactical objectives. Combat operations had officially ended, and [the] rules of engagement had changed to reflect this, but there was a rising trend of shooting incidents. Although these were principally between Iraqis, seeking to settle old scores or involved in criminal activity, there were early indications that the threat to British soldiers was developing ... The structure of the British forces was changing. Many of the heavier capabilities that had been required for the invasion were now being sent home. Some force elements were required for operations elsewhere, and there was pressure from the UK to downsize quickly to more sustainable numbers ... Local attitudes were also changing. Initially ecstatic with happiness, the formerly downtrodden Shia population in and around Basra had become suspicious, and by the middle of May people were frustrated. Aspirations and expectations were not being met. There was no Iraqi administration or governance. Fuel and potable water were in short supply, electricity was intermittent, and the hospitals were full of wounded from the combat operations phase. Bridges and key routes had been destroyed by Coalition bombing. Law and order had completely collapsed. The Iraqi police service had melted away; the few security guards who remained were old and incapable; and the Iraqi armed forces had been captured, disbanded or deserted. Criminals had been turned out onto the streets and the prisons had been stripped. The judiciary were in hiding. Every government facility had been raided and all loose items had been removed. Insecure buildings had been occupied by squatters. Crime was endemic and in parts of Basra a state of virtual anarchy prevailed. Hijackings, child kidnappings, revenge killings, car theft and burglary were rife. In a very short space of time wealth was being comprehensively redistributed. ’ In this environment, the British army was the sole agent of law and order within its area of operations. When the Association of Chief Police Officers ’ Lead for International Affairs, Mr Paul Kernaghan, visited Iraq in May 2003, he said that he would not recommend the deployment of civilian police officers to the theatre of operations due to the poor security situation. The last time the army had exercised the powers of an army of occupation was in 1945 – and it had spent many months preparing for that role; in May 2003, the same soldiers who had just fought a high ‑ intensity, conventional war were expected to convert, almost overnight, into the only people capable of providing the agencies of government and humanitarian relief for the people of southern Iraq. Battlegroups (comprising a Lieutenant Colonel and about 500 soldiers) were allocated areas of responsibilities comprising hundreds of square miles; companies (a Major with about 100 men under command) were given whole towns to run. The British invasion plans had wisely limited damaging as much of the physical infrastructure as possible; but with only military personnel available to run that infrastructure, and very limited local staff support, the task placed huge strains on the army. One of the effects of this lack of civil infrastructure was the conundrum British soldiers faced when dealing with routine crime. Our experience in Northern Ireland, and in peace support operations around the world, has inculcated the clear principle of police primacy when dealing with criminals in operational environments. Soldiers accept that they will encounter crime, and that they will occasionally be required to arrest those criminals; but (despite some experience of this syndrome in Kosovo in 1999) our doctrine and practice had not prepared us for dealing with those criminals when there was no civil police force, no judicial system to deal with offenders, and no prisons to detain them in. Even when a nascent Iraqi police force was re-established in 2003, troops on the ground had little confidence in its ability to deal fairly or reasonably with any criminals handed over to it. In hindsight, we now know that some soldiers acted outside the law in the way they dealt with local criminals. However diligent they were, commanders were unable to be everywhere, and so were physically unable to supervise their troops to the extent that they should; as a result, when those instances did occur, they were less likely to be spotted and prevented. ” 23. United Kingdom military records show that, as at 30 June 2004, there had been approximately 178 demonstrations and 1,050 violent attacks against Coalition Forces in the Multinational Division (South - East) since 1 May 2003. The violent attacks consisted of 5 anti-aircraft attacks, 12 grenade attacks, 101 attacks using improvised explosive devices, 52 attempted attacks using improvised explosive devices, 145 mortar attacks, 147 rocket - propelled grenade attacks, 535 shootings and 53 others. The same records show that, between May 2003 and March 2004, 49 Iraqis were known to have been killed in incidents in which British troops used force. C. The rules of engagement 24. The use of force by British troops during operations is covered by the appropriate rules of engagement. The rules of engagement governing the use of lethal force by British troops in Iraq during the relevant period were the subject of guidance contained in a card issued to every soldier, known as “ Card Alpha ”. Card Alpha set out the rules of engagement in the following terms: “CARD A – GUIDANCE FOR OPENING FIRE FOR SERVICE PERSONNEL AUTHORISED TO CARRY ARMS AND AMMUNITION ON DUTY GENERAL GUIDANCE 1. This guidance does not affect your inherent right to self-defence. However, in all situations you are to use no more force than absolutely necessary. FIREARMS MUST ONLY BE USED AS A LAST RESORT 2. When guarding property, you must not use lethal force other than for the protection of human life. PROTECTION OF HUMAN LIFE 3. You may only open fire against a person if he/she is committing or about to commit an act likely to endanger life and there is no other way to prevent the danger. CHALLENGING 4. A challenge MUST be given before opening fire unless: ( a ) to do this would be to increase the risk of death or grave injury to you or any other persons other than the attacker(s); OR ( b ) you or others in the immediate vicinity are under armed attack. 5. You are to challenge by shouting: ‘ NAVY, ARMY, AIR FORCE, STOP OR I FIRE ’ or words to that effect. OPENING FIRE 6. If you have to open fire you are to: ( a ) fire only aimed shots; AND ( b ) fire no more rounds than are necessary; AND ( c ) take all reasonable precautions not to injure anyone other than your target.” D. Investigations into Iraqi civilian deaths involving British soldiers 1. The decision to refer an incident for investigation by the Royal Military Police 25. On 21 June 2003 Brigadier Moore (Commander of the 19 Mechanised Brigade in Iraq from June to November 2003) issued a formal policy on the investigation of shooting incidents. This policy provided that all shooting incidents were to be reported and the Divisional Provost Marshal was to be informed. Non-commissioned officers from the Royal Military Police were then to evaluate the incident and decide whether it fell within the rules of engagement. If it was decided that the incident did come within the rules of engagement, statements were to be recorded and a completed bulletin submitted through the chain of command. If the incident appeared to fall outside the rules of engagement and involved death or serious injury, the investigation was to be handed to the Special Investigation Branch of the Royal Military Police ( see paragraph 28 below ) by the Divisional Provost Marshal at the earliest opportunity. 26. However, Brigadier Moore decided that from 28 July 2003 this policy should be revised. The new policy required that all such incidents should be reported immediately by the soldier involved to the Multinational Division (South - East) by means of a “serious incident report ”. There would then be an investigation into the incident by the Company Commander or the soldier ’ s Commanding Officer. In his evidence to the domestic courts, Brigadier Moore explained that: “The form of an investigation into an incident would vary according to the security situation on the ground and the circumstances of the individual case. Generally, it would involve the Company Commander or Commanding Officer taking statements from the members of the patrol involved, and reviewing radio logs. It might also include taking photographs of the scene. Sometimes there would be further investigation through a meeting with the family/tribe of the person killed. Investigations at unit - level, however, would not include a full forensic examination. Within the Brigade, we had no forensic capability.” If the Commanding Officer was satisfied, on the basis of the information available to him, that the soldier had acted lawfully and within the rules of engagement, there was no requirement to initiate an investigation by the Special Investigation Branch. The Commanding Officer would record his decision in writing to Brigadier Moore. If the Commanding Officer was not so satisfied, or if he had insufficient information to arrive at a decision, he was required to initiate a Special Investigation Branch investigation. 27. Between January and April 2004 there was a further reconsideration of this policy, prompted by the fact that the environment had become less hostile and also by the considerable media and parliamentary interest in incidents involving United Kingdom forces in which Iraqis had died. On 24 April 2004 a new policy was adopted by the Commander of the Multinational Division (South - East), requiring all shooting incidents involving United Kingdom forces which resulted in a civilian being killed or injured to be investigated by the Special Investigation Branch. In exceptional cases, the Brigade Commander could decide that an investigation was not necessary. Any such decision had to be notified to the Commander of the Multinational Division (South - East) in writing. 2. Investigation by the Royal Military Police (Special Investigation Branch) 28. The Royal Military Police form part of the army and deploy with the army on operations abroad, but have a separate chain of command. Military police officers report to the Provost Marshal, who reports to the Adjutant General. Within the Royal Military Police, the Special Investigation Branch is responsible for the investigation of serious crimes committed by members of the British forces while on service, incidents involving contact between the military and civilians and any special investigations tasked to it, including incidents involving civilian deaths caused by British soldiers. To secure their practical independence on operations, the Special Investigation Branch deploy as entirely discrete units and are subject to their own chain of command, headed by provost officers who are deployed on operations for this purpose. 29. Investigations into Iraqi civilian deaths involving British soldiers were triggered either by the Special Investigation Branch being asked to investigate by the Commanding Officer of the units concerned or by the Special Investigation Branch of its own initiative, when it became aware of an incident by other means. However, the latter type of investigation could be terminated if the Special Investigation Branch was instructed to stop by the Provost Marshal or the Commanding Officer of the unit involved. 30. Special Investigation Branch investigations in Iraq were hampered by a number of difficulties, such as security problems, lack of interpreters, cultural considerations ( for example, the Islamic practice requiring a body to be buried within twenty-four hours and left undisturbed for forty days), the lack of pathologists and post-mortem facilities, the lack of records, problems with logistics, the climate and general working conditions. The Aitken Report (see paragraph 69 below ) summarised the position as follows: “It was not only the combat troops who were overstretched in these circumstances. The current military criminal justice system is relevant, independent, and fit for purpose; but even the most effective criminal justice system will struggle to investigate, advise on and prosecute cases where the civil infrastructure is effectively absent. And so, in the immediate aftermath of the ground war, the Service Police faced particular challenges in gathering evidence of a quality that would meet the very high standards required under English law. National records – usually an integral reference point for criminal investigations – were largely absent; a different understanding of the law between Iraqi people and British police added to an atmosphere of hostility and suspicion; and the army was facing an increasingly dangerous operational environment – indeed, on 24 June 2003, six members of the Royal Military Police were killed in Al Amarah. Local customs similarly hampered the execution of British standards of justice: in the case of Nadhem Abdullah, for instance, the family of the deceased refused to hand over the body for forensic examination – significantly reducing the quality of evidence surrounding his death. ” The Aitken Report also referred to the problems caused to the Special Investigation Branch, when attempting to investigate serious allegations of abuse, by the sense of loyalty to fellow soldiers which could lead to a lack of cooperation from army personnel and to what the judge in the court martial concerning the killing of the sixth applicant ’ s son had described as a “wall of silence” from some of the military witnesses called to give evidence. 31. On conclusion of a Special Investigation Branch investigation, the Special Investigation Branch officer would report in writing to the Commanding Officer of the unit involved. Such a report would include a covering letter and a summary of the evidence, together with copies of any documentary evidence relevant to the investigation in the form of statements from witnesses and investigators. The report would not contain any decision as to the facts or conclusions as to what had happened. It was then for the Commanding Officer to decide whether or not to refer the case to the Army Prosecuting Authority for possible trial by court martial. 32. The Aitken Report, dated 25 January 2008 ( see paragraph 69 below ), commented on the prosecution of armed forces personnel in connection with the death of Iraqi civilians, as follows: “Four cases involving Iraqi deaths as a result of deliberate abuse have been investigated, and subsequently referred to the Army Prosecuting Authority (APA) on the basis there was a prima facie case that the victims had been killed unlawfully by British troops. The APA preferred charges on three of these cases on the basis that it considered there was a realistic prospect of conviction, and that trial was in the public and service interest; and yet not one conviction for murder or manslaughter has been recorded. The army ’ s position is straightforward on the issue of prosecution. Legal advice is available for commanding officers and higher authorities to assist with decisions on referring appropriate cases to the APA. The Director Army Legal Services (DALS), who is responsible to the Adjutant General for the provision of legal services to the army, is additionally appointed by the Queen as the APA. In that capacity, he has responsibility for decisions on whether to direct trial for all cases referred by the military chain of command, and for the prosecution of all cases tried before courts martial, the Standing Civilian Court and the Summary Appeal Court and for appeals before the Courts-Martial Appeal Court and the House of Lords. DALS delegates these functions to ALS [(Army Legal Services)] officers appointed as prosecutors in the APA, and Brigadier Prosecutions has day - to - day responsibility for the APA. The APA is under the general superintendence of the Attorney General and is, rightly, independent of the army chain of command: the APA alone decides whether to direct court-martial trial and the appropriate charges, and neither the army chain of command, nor ministers, officials nor anyone else can make those decisions. However complex the situation in which it finds itself, the army must operate within the law at all times; once the APA has made its decision (based on the evidence and the law), the army has to accept that the consequences of prosecuting particular individuals or of particular charges may have a negative impact on its reputation. The absence of a single conviction for murder or manslaughter as a result of deliberate abuse in Iraq may appear worrying, but it is explicable. Evidence has to be gathered (and, as already mentioned, this was not an easy process); that evidence has to be presented in court; and defendants are presumed innocent unless the prosecution can prove its case beyond reasonable doubt. That is a stiff test – no different to the one that applies in our civilian courts. In the broader context, the outcome from prosecutions brought to court martial by the APA is almost exactly comparable with the equivalent civilian courts: for example, as at the end of 2006, the conviction rates after trial in the court - martial system stood at 12% as compared with 13% in the Crown Courts. It is inevitable that some prosecutions will fail; but this does not mean that they should not have been brought in the first place. It is the courts, after all, that determine guilt, not the prosecutors. Indeed, the fact that only a small number of all the 200-odd cases investigated by Service Police in Iraq resulted in prosecution could be interpreted as both a positive and a negative indicator: positive, in that the evidence and the context did not support the preferring of criminal charges; but negative, in that we know that the Service Police were hugely hampered, in some cases, in their ability to collect evidence of a high enough standard for charges to be preferred or for cases to be successfully prosecuted. It is important to note that none of this implies any fundamental flaws in the effectiveness of the key elements of the military criminal justice system. Both the Special Investigation Branch of the Royal Military Police (RMP(SIB)) and the APA were independently inspected during 2007. The police inspection reported that ‘ ... Her Majesty ’ s Inspectorate of Constabulary assess the RMP(SIB) as having the capability and capacity to run a competent level 3 (serious criminal) reactive investigation ’; and the inspection of the APA in February and March 2007 by Her Majesty ’ s Crown Prosecution Service Inspectorate concluded that: ‘ ... the APA undertakes its responsibilities in a thorough and professional manner, often in difficult circumstances ’, adding that 95.7% of decisions to proceed to trial were correct on evidential grounds, and 100% of decisions to proceed to trial were properly based on public or service interest grounds. ” E. The deaths of the applicants ’ relatives 33. The following accounts are based on the witness statements of the applicants and the British soldiers involved in each incident. These statements were also submitted to the domestic courts and, as regards all but the fifth applicant, summarised in their judgments (particularly the judgment of the Divisional Court). 1. The first applicant 34. The first applicant is the brother of Hazim Jum ’ aa Gatteh Al-Skeini (“Hazim Al-Skeini”), who was 23 years old at the time of his death. Hazim Al-Skeini was one of two Iraqis from the Beini Skein tribe who were shot dead in the Al - Majidiyah area of Basra just before midnight on 4 August 2003 by Sergeant A. , the Commander of a British patrol. 35. In his witness statement, the first applicant explained that, during the evening in question, various members of his family had been gathering at a house in Al - Majidiyah for a funeral ceremony. In Iraq it is customary for guns to be discharged at a funeral. The first applicant stated that he was engaged in receiving guests at the house, as they arrived for the ceremony, and saw his brother fired upon by British soldiers as he was walking along the street towards the house. According to the first applicant, his brother was unarmed and only about ten metres away from the soldiers when he was shot and killed. Another man with him was also killed. He had no idea why the soldiers opened fire. 36. According to the British account of the incident, the patrol, approaching on foot and on a very dark night, heard heavy gunfire from a number of different points in Al - Majidiyah. As the patrol got deeper into the village they came upon two Iraqi men in the street. One was about five metres from Sergeant A. , who was leading the patrol. Sergeant A. saw that he was armed and pointing the gun in his direction. In the dark, it was impossible to tell the position of the second man. Believing that his life and those of the other soldiers in the patrol were at immediate risk, Sergeant A. opened fire on the two men without giving any verbal warning. 37. The following day, Sergeant A. produced a written statement describing the incident. This was passed to the Commanding Officer of his battalion, Colonel G. , who took the view that the incident fell within the rules of engagement and duly wrote a report to that effect. Colonel G. sent the report to the Brigade, where it was considered by Brigadier Moore. Brigadier Moore queried whether the other man had been pointing his gun at the patrol. Colonel G. wrote a further report that dealt with this query to Brigadier Moore ’ s satisfaction. The original report was not retained in the Brigade records. Having considered Colonel G. ’ s further report, as did his Deputy Chief of Staff and his legal adviser, Brigadier Moore was satisfied that the actions of Sergeant A. fell within the rules of engagement and so he did not order any further investigation. 38. On 11, 13 and 16 August 2003 Colonel G. met with members of the dead men ’ s tribe. He explained why Sergeant A. had opened fire and gave the tribe a charitable donation of 2,500 United States dollars (USD) from the British Army Goodwill Payment Committee, together with a letter explaining the circumstances of the deaths and acknowledging that the deceased had not intended to attack anyone. 2. The second applicant 39. The second applicant is the widow of Muhammad Salim, who was shot and fatally wounded by Sergeant C. shortly after midnight on 6 November 2003. 40. The second applicant was not present when her husband was shot and her evidence was based on what she was told by those who were present. She stated that on 5 November 2003, during Ramadan, Muhammad Salim went to visit his brother-in-law at his home in Basra. At about 11. 30 p. m. British soldiers raided the house. They broke down the front door. One of the British soldiers came face - to - face with the second applicant ’ s husband in the hall of the house and fired a shot at him, hitting him in the stomach. The British soldiers took him to the Czech military hospital, where he died on 7 November 2003. 41. According to the British account of the incident, the patrol had received information from an acquaintance of one of their interpreters that a group of men armed with long - barrelled weapons, grenades and rocket - propelled grenades had been seen entering the house. The order was given for a quick search - and - arrest operation. After the patrol failed to gain entry by knocking, the door was broken down. Sergeant C. entered the house through the front door with two other soldiers and cleared the first room. As he entered the second room, he heard automatic gunfire from within the house. When Sergeant C. moved forward into the next room by the bottom of the stairs, two men armed with long - barrelled weapons rushed down the stairs towards him. There was no time to give a verbal warning. Sergeant C. believed that his life was in immediate danger. He fired one shot at the leading man, the second applicant ’ s husband, and hit him in the stomach. He then trained his weapon on the second man who dropped his gun. The applicant ’ s family subsequently informed the patrol that they were lawyers and were in dispute with another family of lawyers over the ownership of office premises, which had led to their being subjected to two armed attacks which they had reported to the police, one three days before and one only thirty minutes before the patrol ’ s forced entry. 42. On 6 November 2003 the Company Commander produced a report of the incident. He concluded that the patrol had deliberately been provided with false intelligence by the other side in the feud. Having considered the report and spoken to the Company Commander, Colonel G. came to the conclusion that the incident fell within the rules of engagement and did not require any further Special Investigation Branch investigation. He therefore produced a report to that effect the same day and forwarded it to the Brigade, where it was considered by Brigadier General Jones. Brigadier Jones discussed the matter with his Deputy Chief of Staff and his legal adviser. He also discussed the case with his political adviser. As a result, Brigadier Jones also concluded that it was a straightforward case that fell within the rules of engagement and duly issued a report to that effect. The applicant, who had three young children and an elderly mother-in-law to support, received USD 2,0 00 from the British Army Goodwill Payment Committee, together with a letter setting out the circumstances of the killing. 3. The third applicant 43. The third applicant is the widower of Hannan Mahaibas Sadde Shmailawi, who was shot and fatally wounded on 10 November 2003 at the Institute of Education in the Al - Maqaal area of Basra, where the third applicant worked as a night porter and lived with his wife and family. 44. According to the third applicant ’ s witness statement, at about 8 p. m. on the evening in question, he and his family were sitting round the dinner table when there was a sudden burst of machine - gunfire from outside the building. Bullets struck his wife in the head and ankles and one of his children on the arm. The applicant ’ s wife and child were taken to hospital, where his child recovered but his wife died. 45. According to the British account of the incident, the third applicant ’ s wife was shot during a firefight between a British patrol and a number of unknown gunmen. When the area was illuminated by parachute flares, at least three men with long - barrelled weapons were seen in open ground, two of whom were firing directly at the British soldiers. One of the gunmen was shot dead during this exchange of fire with the patrol. After about seven to ten minutes, the firing ceased and armed people were seen running away. A woman (the third applicant ’ s wife ) with a head injury and a child with an arm injury were found when the buildings were searched. Both were taken to hospital. 46. The following morning, the Company Commander produced a report concerning the incident, together with statements from the soldiers involved. After he had considered the report and statements, Colonel G. came to the conclusion that the incident fell within the rules of engagement and did not require any further Special Investigation Branch investigation. He duly produced a report to that effect, which he then forwarded to the Brigade. The report was considered by Brigadier Jones, who also discussed the matter with his Deputy Chief of Staff, his legal adviser and Colonel G. As a result, Brigadier Jones came to the conclusion that the incident fell within the rules of engagement and required no further investigation. 4. The fourth applicant 47. The fourth applicant is the brother of Waleed Fayay Muzban, aged 43, who was shot and fatally injured on the night of 24 August 2003 by Lance Corporal S. in the Al - Maqaal area of Basra. 48. The fourth applicant was not present when his brother was shot, but he claims that the incident was witnessed by his neighbours. In his witness statement he stated that his understanding was that his brother was returning home from work at about 8.30 p. m. on the evening in question. He was driving a minibus along a street called Souq Hitteen, near where he and the fourth applicant lived. For no apparent reason, according to the applicant ’ s statement, the minibus “came under a barrage of bullets”, as a result of which Waleed was mortally wounded in the chest and stomach. 49. Lance Corporal S. was a member of a patrol carrying out a check around the perimeter of a Coalition military base (Fort Apache), where three Royal Military Police officers had been killed by gunfire from a vehicle the previous day. According to the British soldier ’ s account of the incident, Lance Corporal S. became suspicious of a minibus, with curtains over its windows, that was being driven towards the patrol at a slow speed with its headlights dipped. When the vehicle was signalled to stop, it appeared to be trying to evade the soldiers so Lance Corporal S. pointed his weapon at the driver and ordered him to stop. The vehicle then stopped and Lance Corporal S. approached the driver ’ s door and greeted the driver (the fourth applicant ’ s brother ). The driver reacted in an aggressive manner and appeared to be shouting over his shoulder to people in the curtained-off area in the back of the vehicle. When Lance Corporal S. tried to look into the back of the vehicle, the driver pushed him away by punching him in the chest. The driver then shouted into the back of the vehicle and made a grab for Lance Corporal S. ’ s weapon. Lance Corporal S. had to use force to pull himself free. The driver then accelerated away, swerving in the direction of various other members of the patrol as he did so. Lance Corporal S. fired at the vehicle ’ s tyres and it came to a halt about 100 metres from the patrol. The driver turned and again shouted into the rear of the vehicle. He appeared to be reaching for a weapon. Lance Corporal S. believed that his team was about to be fired on by the driver and others in the vehicle. He therefore fired about five aimed shots. As the vehicle sped off, Lance Corporal S. fired another two shots at the rear of the vehicle. After a short interval, the vehicle screeched to a halt. The driver got out and shouted at the British soldiers. He was ordered to lie on the ground. The patrol then approached the vehicle to check for other armed men. The vehicle proved to be empty. The driver was found to have three bullet wounds in his back and hip. He was given first aid and then taken to the Czech military hospital where he died later that day or the following day. 50. The Special Investigation Branch commenced an investigation on 29 August 2003. The investigators recovered fragments of bullets, empty bullet cases and took digital photographs of the scene. The vehicle was recovered and transported to the United Kingdom. The deceased ’ s body had been returned to the family for burial and no post mortem had been carried out, so the Special Investigation Branch took statements from the two Iraqi surgeons who had operated on him. A meeting was arranged with the family to seek their consent for an exhumation and post mortem, but this was delayed. Nine military witnesses involved in the incident were interviewed and had statements taken and a further four individuals were interviewed but found to have no evidence to offer. Lance Corporal S. was not, however, questioned. Since he was suspected by the Special Investigation Branch of having acted contrary to the rules of engagement, it was Special Investigation Branch practice not to interview him until there was enough evidence to charge him. A forensic examination was carried out at the scene on 6 September 2003. 51. On 29 August 2003 Colonel G. sent his initial report concerning the incident to Brigadier Moore. In it he stated that he was satisfied that Lance Corporal S. believed that he was acting lawfully within the rules of engagement. However, Colonel G. went on to express the view that it was a complex case that would benefit from a Special Investigation Branch investigation. After Brigadier Moore had considered Colonel G. ’ s report, discussed the matter with his Deputy Chief of Staff and taken legal advice, it was decided that the matter could be resolved with a unit - level investigation, subject to a number of queries being satisfactorily answered. As a result, Colonel G. produced a further report dated 12 September 2003, in which he dealt with the various queries and concluded that a Special Investigation Branch investigation was no longer required. After discussing the matter again with his Deputy Chief of Staff and having taken further legal advice, Brigadier Moore concluded that the case fell within the rules of engagement. 52. By this stage, Brigadier Moore had been informed that the Special Investigation Branch had commenced an investigation into the incident. On 17 September 2003 Colonel G. wrote to the Special Investigation Branch asking them to terminate the investigation. The same request was made by Brigadier Moore through his Chief of Staff during a meeting with the Senior Investigating Officer from the Special Investigation Branch. The Special Investigation Branch investigation was terminated on 23 September 2003. The deceased ’ s family received USD 1,400 from the British Army Goodwill Payment Committee and a further USD 3,000 in compensation for the minibus. 53. Following the fourth applicant ’ s application for judicial review (see paragraph 73 below), the case was reviewed by senior investigation officers in the Special Investigation Branch and the decision was taken to reopen the investigation. The investigation was reopened on 7 June 2004 and completed on 3 December 2004, despite difficulties caused by the very dangerous conditions in Iraq at that time. 54. On completing the investigation, the Special Investigation Branch reported to the soldier ’ s Commanding Officer, who referred the case to the Army Prosecuting Authority in February 2005. The Army Prosecuting Authority decided that a formal preliminary examination of the witnesses should be held, in order to clarify any uncertainties and ambiguities in the evidence. Depositions were taken by the Army Prosecuting Authority from the soldiers who had witnessed the shooting, and who were the only known witnesses. Advice was obtained from an independent senior counsel, who advised that there was no realistic prospect of conviction, since there was no realistic prospect of establishing that Lance Corporal S. had not fired in self ‑ defence. The file was sent to the Attorney General, who decided not to exercise his jurisdiction to order a criminal prosecution. 5. The fifth applicant 55. The fifth applicant is the father of Ahmed Jabbar Kareem Ali, who died on 8 May 2003, aged 1 5. 56. According to the statements made by the fifth applicant for the purpose of United Kingdom court proceedings, on 8 May 2003 his son did not return home at 1.30 p.m. as expected. The fifth applicant went to look for him at Al-Saad Square, where he was told that British soldiers had arrested some Iraqi youths earlier in the day. The applicant continued to search for his son and was contacted the following morning by A. , another young Iraqi, who told the applicant that he, the applicant ’ s son and two others had been arrested by British soldiers the previous day, beaten up and forced into the waters of the Shatt Al-Arab. Later, on 9 May 2003, the applicant ’ s brother informed “ the British police ” about the incident and was requested to surrender Ahmed ’ s identity card. Having spent several days waiting and searching, the applicant found his son ’ s body in the water on 10 May 2003. 57. The applicant immediately took his son ’ s body to “ the British police station ”, where he was told to take the body to the local hospital. The Iraqi doctor on duty told the applicant that he was not qualified to carry out a post mortem and that there were no pathologists available. The applicant decided to bury his son, since in accordance with Islamic practice burial should take place within twenty-four hours of death. 58. About ten to fifteen days after his son ’ s funeral, the applicant returned to “ the British police station ” to ask for an investigation, but he was informed that it was not the business of “the British police” to deal with such matters. He returned to the “ police station ” some days later, and was informed that the Royal Military Police wished to contact him and that he should go to the presidential palace. The following day, the applicant met with Special Investigation Branch officers at the presidential palace and was informed that an investigation would be commenced. 59. The Special Investigation Branch interviewed A. and took a statement from him. They took statements from the applicant and other family members. At least a month after the incident, the investigators went to Al-Saad Square and retrieved clothing belonging to the applicant ’ s son and to the other young men who had been arrested at the same time. At the end of the forty -day mourning period, the applicant consented to his son ’ s body being exhumed for post - mortem examination, but it was not possible at that point to establish either whether Ahmed had been beaten prior to death or what had been the cause of death. The applicant contends that he was never given an explanation as to the post - mortem findings and that he was not kept fully informed of the progress of the investigation in general, since many of the documents he was given were in English or had been badly translated into Arabic. 60. The applicant claims that eighteen months elapsed after the exhumation of his son ’ s body during which time he had no contact with the investigators. In August 2005 he was informed that four soldiers had been charged with manslaughter and that a trial would take place in England. The court martial was held between September 2005 and May 2006. By that time, three of the seven soldiers who had been accused of his homicide had left the army, and a further two were absent without leave. It was the prosecution case that the soldiers had assisted Iraqi police officers to arrest the four youths on suspicion of looting and that they had driven them to the river and forced them in at gunpoint “to teach them a lesson”. The applicant and A. gave evidence to the court martial in April 2006. The applicant found the trial process confusing and intimidating and he was left with the impression that the court was biased in favour of the accused. A. gave evidence that the applicant ’ s son had appeared to be in distress in the water, but that the soldiers had driven away without helping him. However, he was not able to identify the defendants as the soldiers involved. The defendants denied any responsibility for the death and were acquitted because A. ’ s evidence was found to be inconsistent and unreliable. 61. The applicant ’ s son ’ s case was one of the six cases investigated in the Aitken Report (see paragraph 69 below). Under the heading “Learning lessons from discipline cases” the report stated: “ ... we know that two initial police reports were produced in May 2003 relating to allegations that, on two separate occasions but within the space of just over a fortnight, Iraqis had drowned in the Shat ’ al-Arab at the hands of British soldiers. That one of those cases did not subsequently proceed to trial is irrelevant: at the time, an ostensibly unusual event was alleged to have occurred twice in a short space of time. With all their other duties, the commanders on the ground cannot reasonably be blamed for failing to identify what may or may not have been a trend; but a more immediate, effective system for referring that sort of information to others with the capacity to analyse it might have identified such a trend. In fact, the evidence suggests that these were two isolated incidents; but had they been a symptom of a more fundamental failing, they might have been overlooked. By comparison, if there had been two reports of a new weapon being used by insurgents to attack British armoured vehicles within a fortnight, it is certain that the lessons learned process would have identified its significance, determined the counter-measures needed to combat it, and quickly disseminated new procedures to mitigate the risk. The fact that this process does not apply to disciplinary matters is only partly explained by the need for confidentiality and the preservation of evidence; but it is a failure in the process that could be fairly easily rectified without compromising the fundamental principle of innocence until proven guilty. ” The report continued, under the heading “Delay” : “The amount of time taken to resolve some of the cases with which this report is concerned has been unacceptable. ... The court martial in connection with the death of Ahmed Jabbar Kareem did not convene until September 2005, twenty-eight months after he died; by that time, three of the seven soldiers who had been accused of his murder had left the army, and a further two were absent without leave. In most cases, it is inappropriate for the army to take administrative action against any officer or soldier until the disciplinary process has been completed, because of the risk of prejudicing the trial. When that disciplinary process takes as long as it has taken in most of these cases, then the impact of any subsequent administrative sanctions is significantly reduced – indeed, such sanctions are likely to be counterproductive. Moreover, the longer the disciplinary process takes, the less likely it is that the chain of command will take proactive measures to rectify the matters that contributed to the commission of the crimes in the first place.” 62. The fifth applicant brought civil proceedings against the Ministry of Defence for damages in respect of his son ’ s death. The claim was settled without going to hearing, by the payment of 115,000 pounds sterling (GBP) on 15 December 2008. In addition, on 20 February 2009 Major General Cubbitt wrote to the fifth applicant and formally apologised on behalf of the British army for its role in his son ’ s death. 6. The sixth applicant 63. The sixth applicant is a Colonel in the Basra police force. His son, Baha Mousa, was aged 26 when he died while in the custody of the British army, three days after having been arrested by soldiers on 14 September 2003. 64. According to the sixth applicant, on the night of 13 to 14 September 2003 his son had been working as a receptionist at the Ibn Al - Haitham Hotel in Basra. Early in the morning of 14 September, the applicant went to the hotel to pick his son up from work. On his arrival he noticed that a British unit had surrounded the hotel. The applicant ’ s son and six other hotel employees were lying on the floor of the hotel lobby with their hands behind their heads. The applicant expressed his concern to the lieutenant in charge of the operation, who reassured him that it was a routine investigation that would be over in a couple of hours. On the third day after his son had been detained, the sixth applicant was visited by a Royal Military Police unit. He was told that his son had been killed in custody at a British military base in Basra. He was asked to identify the corpse. The applicant ’ s son ’ s body and face were covered in blood and bruises; his nose was broken and part of the skin of his face had been torn away. 65. One of the other hotel employees who was arrested on 14 September 2003 stated in a witness statement prepared for the United Kingdom domestic court proceedings that, once the prisoners had arrived at the base, the Iraqi detainees were hooded, forced to maintain stress positions, denied food and water and kicked and beaten. During the detention, Baha Mousa was taken into another room, where he could be heard screaming and moaning. 66. Late on 15 September 2003 Brigadier Moore, who had taken part in the operation in which the hotel employees had been arrested, was informed that Baha Mousa was dead and that other detainees had been ill-treated. The Special Investigation Branch was immediately called in to investigate the death. Since local hospitals were on strike, a pathologist was flown in from the United Kingdom. Baha Mousa was found to have ninety-three identifiable injuries on his body and to have died of asphyxiation. Eight other Iraqis had also been inhumanely treated, with two requiring hospital treatment. The investigation was concluded in early April 2004 and the report distributed to the unit ’ s chain of command. 67. On 14 December 2004 the Divisional Court held that the inquiry into the applicant ’ s son ’ s death had not been effective (see paragraph 77 below). On 21 December 2005 the Court of Appeal decided to remit the question to the Divisional Court since there had been further developments (see paragraph 81 below). 68. On 19 July 2005 seven British soldiers were charged with criminal offences in connection with Baha Mousa ’ s death. On 19 September 2006, at the start of the court martial, one of the soldiers pleaded guilty to the war crime of inhumane treatment but not guilty to manslaughter. On 14 February 2007 charges were dropped against four of the seven soldiers and on 13 March 2007 the other two soldiers were acquitted. On 30 April 2007 the soldier convicted of inhumane treatment was sentenced to one year ’ s imprisonment and dismissal from the army. 69. On 25 January 2008 the Ministry of Defence published a report written by Brigadier Robert Aitken concerning six cases of alleged deliberate abuse and killing of Iraqi civilians, including the deaths of the fifth and sixth applicants ’ sons (“the Aitken Report” ). 70. The applicant brought civil proceedings against the Ministry of Defence, which concluded in July 2008 by the formal and public acknowledgement of liability and the payment of GBP 575,000 in compensation. 71. In a written statement given in Parliament on 14 May 2008, the Secretary of State for Defence announced that there would be a public inquiry into the death of Baha Mousa. The inquiry is chaired by a retired Court of Appeal judge, with the following terms of reference: “To investigate and report on the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him, taking account of the investigations which have already taken place, in particular where responsibility lay for approving the practice of conditioning detainees by any members of the 1st Battalion, The Queen ’ s Lancashire Regiment in Iraq in 2003, and to make recommendations.” At the time of adoption of the present judgment, the inquiry had concluded the oral hearings but had not yet delivered its report. F. The domestic proceedings under the Human Rights Act 1. The Divisional Court 72. On 26 March 2004 the Secretary of State for Defence decided, in connection with the deaths of thirteen Iraqi civilians including the relatives of the six applicants, (1) not to conduct independent inquiries into the deaths; (2) not to accept liability for the deaths; and (3) not to pay just satisfaction. 73. The thirteen claimants applied for judicial review of these decisions, seeking declarations that both the procedural and the substantive obligations of Article 2 (and, in the case of the sixth applicant, Article 3 ) of the Convention had been violated as a result of the deaths and the Secretary of State ’ s refusal to order any investigation. On 11 May 2004 a judge of the Divisional Court directed that six test cases would proceed to hearing (including the cases of the first, second, third, fourth and sixth applicants) and that the other seven cases (including that of the fifth applicant) would be stayed pending the resolution of the preliminary issues. 74. On 14 December 2004 the Divisional Court rejected the claims of the first four applicants but accepted the claim of the sixth applicant ([2004] EWHC 2911 (Admin)). Having reviewed this Court ’ s case-law, in particular Banković and Others v. Belgium and Others ( (dec.) [GC], no. 52207/99, ECHR 2001-XII ), it held that, essentially, jurisdiction under Article 1 of the Convention was territorial, although there were exceptions. One exception applied where a State Party had effective control of an area outside its own territory. This basis of jurisdiction applied only where the territory of one Contracting State was controlled by another Contracting State, since the Convention operated essentially within its own regional sphere and permitted no vacuum within that space. This basis of jurisdiction could not, therefore, apply in Iraq. 75. There was an additional exception, which arose from the exercise of authority by a Contracting State ’ s agents anywhere in the world, but this was limited to specific cases recognised by international law and identified piecemeal in the Court ’ s case-law. No general rationale in respect of this group of exceptions was discernable from the Court ’ s case-law. However, the instances recognised so far arose out of the exercise of State authority in or from a location which had a discrete quasi-territorial quality, or where the State agent ’ s presence in the foreign State was consented to by that State and protected by international law, such as embassies, consulates, vessels and aircraft registered in the respondent State. A British military prison, operating in Iraq with the consent of the Iraqi sovereign authorities and containing arrested suspects, could be covered by this narrow exception. It was arguable that Öcalan v. Turkey ( no. 46221/99, 12 March 2003 ), also fell into this category, since the applicant was arrested in a Turkish aircraft and taken immediately to Turkey. However, the Divisional Court did not consider that the Chamber judgment in Öcalan should be treated as “illuminating”, since Turkey had not raised any objection based on lack of jurisdiction at the admissibility stage. 76. It followed that the deaths as a result of military operations in the field, such as those complained of by the first four applicants, did not fall within the United Kingdom ’ s jurisdiction under Article 1 of the Convention, but that the death of the sixth applicant ’ s son, in a British military prison, did. The Divisional Court further held that the scope of the Human Rights Act 1998 was identical to that of the Convention for these purposes. 77. The Divisional Court found that there had been a breach of the investigative duty under Articles 2 and 3 of the Convention in respect of the sixth applicant ’ s son since, by July 2004, some ten months after the killing, the results of the investigation were unknown and inconclusive. The judge commented that: “ 329. ... Although there has been evidence of a rather general nature about the difficulties of conducting investigations in Iraq at that time – about basic security problems involved in going to Iraqi homes to interview people, about lack of interpreters, cultural differences, logistic problems, lack of records, and so forth – without any further understanding of the outcome of the [Special Investigation Branch ’ s ] report, it is impossible to understand what, if any, relevance any of this has to a death which occurred not in the highways or byways of Iraq, but in a military prison under the control of British forces. ... 330. Although Captain Logan says that identity parades were logistically very difficult, detainees were moved to a different location, and some military witnesses had returned to the UK, she also says that these problems only delayed the process but did not prevent it taking place ‘ satisfactorily ’ ... There is nothing else before us to explain the dilatoriness of the investigative process: which might possibly be compared with the progress, and open public scrutiny, which we have noted seems to have been achieved with other investigations arising out of possible offences in prisons under the control of US forces. As for the [Special Investigation Branch ’ s] report itself, on the evidence before us ... that would not contain any decision as to the facts or any conclusions as to what has or might have happened. 331. In these circumstances we cannot accept [counsel for the Government ’ s] submission that the investigation has been adequate in terms of the procedural obligation arising out of Article 2 of the Convention. Even if an investigation solely in the hands of the [Special Investigation Branch] might be said to be independent, on the grounds that the [Special Investigation Branch] are hierarchically and practically independent of the military units under investigation, as to which we have doubts in part because the report of the [Special Investigation Branch] is to the unit chain of command itself, it is difficult to say that the investigation which has occurred has been timely, open or effective. ” In respect of the other five deaths, the judge considered that, if he were wrong on the jurisdiction issue and the claims did fall within the scope of the Convention, the investigative duty under Article 2 had not been met, for the following reasons: “ 337. ... in all these cases, as in the case of Mr Mousa, the United Kingdom authorities were proceeding on the basis that the Convention did not apply. Thus the immediate investigations were in each case conducted, as a matter of policy, by the unit involved: only in case 4, that concerning Mr Waleed Muzban, was there any involvement of the [Special Investigation Branch], and that was stood down, at any rate before being reopened (at some uncertain time) upon a review of the file back in the UK. The investigations were therefore not independent. Nor were they effective, for they essentially consisted only in a comparatively superficial exercise, based on the evidence of the soldiers involved themselves, and even then on a paucity of interviews or witness statements, an exercise which was one-sided and omitted the assistance of forensic evidence such as might have become available from ballistic or medical expertise. ... 339. In connection with these cases, [counsel for the Government ’ s] main submission was that, in extremely difficult situations, both in operational terms in the field and in terms of post - event investigations, the army and the authorities had done their best. He particularly emphasised the following aspects of the evidence. There was no rule of law in Iraq; at the start of the occupation there was no police force at all, and at best the force was totally inadequate, as well as being under constant attack; although the Iraqi courts were functioning, they were subject to intimidation; there was no local civil inquest system or capability; the local communications systems were not functioning; there were no mortuaries, no post - mortem system, no reliable pathologists; the security situation was the worst ever experienced by seasoned soldiers; there was daily fighting between tribal and criminal gangs; the number of troops available were small; and cultural differences exacerbated all these difficulties. 340. We would not discount these difficulties, which cumulatively must have amounted to grave impediments for anyone concerned to conduct investigations as they might have liked to have carried them out. However, irrespective of [counsel for the applicants ’ ] submission, in reliance on the Turkish cases, that security problems provide no excuse for a failure in the Article 2 investigative duty, we would conclude that, on the hypothesis stated, the investigations would still not pass muster. They were not independent; they were one-sided; and the commanders concerned were not trying to do their best according to the dictates of Article 2. 341. That is not to say, however, that, in other circumstances, we would ignore the strategic difficulties of the situation. The Turkish cases are all concerned with deaths within the State Party ’ s own territory. In that context, the Court was entitled to be highly sceptical about the State ’ s own professions of difficulties in an investigative path which it in any event may hardly have chosen to follow. It seems to us that this scepticism cannot be so easily transplanted in the extraterritorial setting. ... ” 2. The Court of Appeal 78. The first four applicants appealed against the Divisional Court ’ s finding that their relatives did not fall within the United Kingdom ’ s jurisdiction. The Secretary of State also cross ‑ appealed against the finding in relation to the sixth applicant ’ s son; although he accepted before the Court of Appeal that an Iraqi in the actual custody of British soldiers in a military detention centre in Iraq was within the United Kingdom ’ s jurisdiction under Article 1 of the Convention, he contended that the Human Rights Act had no extraterritorial effect and that the sixth applicant ’ s claim was not, therefore, enforceable in the national courts. 79. On 21 December 2005 the Court of Appeal dismissed the appeals and the cross-appeal ([2005] EWCA Civ 1609). Having reviewed the Court ’ s case-law on jurisdiction under Article 1 of the Convention, Brooke LJ, who gave the leading judgment, held that a State could exercise extraterritorial jurisdiction when it applied control and authority over a complainant (which he termed “State agent authority”, abbreviated to “SAA”) and when it held effective control of an area outside its borders (“effective control of an area” or “ECA”), observing as follows: “80. I would therefore be more cautious than the Divisional Court in my approach to the Banković [ and Others ] judgment. It seems to me that it left open both the ECA and SAA approaches to extraterritorial jurisdiction, while at the same time emphasising (in paragraph 60) that because an SAA approach might constitute a violation of another State ’ s sovereignty (for example, when someone is kidnapped by the agents of a State on the territory of another State without that State ’ s invitation or consent), this route to any recognition that extraterritorial jurisdiction has been exercised within the meaning of an international treaty should be approached with caution.” He considered, inter alia, the cases of Öcalan v. Turkey ( [GC], no. 46221/99, ECHR 2005-IV ); Freda v. Italy ( (dec.), no. 8916/80, Commission decision of 7 October 1980, Decisions and Reports (DR) 21, p. 250 ); and Sánchez Ramirez v. France ( (dec.), no. 28780/95, Commission decision of 24 June 1996, DR 86-A, p. 155 ); and observed that these cases had nothing to do with the principle of public international law relating to activities within aircraft registered with a State flying over the territory of another State. Instead, the findings of jurisdiction in these cases were examples of the “ State agent authority” doctrine applying when someone was within the control and authority of agents of a Contracting State, even outside the espace juridique of the Council of Europe, and whether or not the host State consented to the exercise of control and authority on its soil. Applying the relevant principles to the facts of the case, he concluded that the sixth applicant ’ s son came within the control and authority of the United Kingdom, and therefore its jurisdiction, from the time he was arrested at the hotel. The relatives of the other claimants had not been under the control and authority of British troops at the time when they were killed, and were not therefore within the United Kingdom ’ s jurisdiction. He concluded in this connection that: “110. ... It is essential, in my judgment, to set rules which are readily intelligible. If troops deliberately and effectively restrict someone ’ s liberty he is under their control. This did not happen in any of these five cases. ” 80. He then examined whether, on the facts, it could be said that British troops were in effective control of Basra City during the period in question, such as to fix the United Kingdom with jurisdiction under the “effective control of an area” doctrine. On this point, Brooke LJ concluded as follows: “119. Basra City was in the [Coalition Provisional Authority] regional area called ‘ CPA South ’. During the period of military occupation there was a significant degree of British responsibility and authority in CPA South, although its staff were drawn from five different countries and until the end of July 2003 the regional coordinator was a Dane. Indeed, only one of the four governorate teams in CPA South was headed by a British coordinator. However, although the chain of command for the British military presence in Iraq led ultimately to a US general, the Al - Basra and Maysan provinces were an area of direct British military responsibility. As I have already said ..., the Secretary of State accepts that the UK was an Occupying Power within the meaning of Article 42 of the Hague Regulations ..., at least in those areas of southern Iraq, and particularly Basra City, where British troops exercised sufficient authority for this purpose. 120. But whatever may have been the position under the Hague Regulations, the question this court has to address is whether British troops were in effective control of Basra City for ECA purposes. The situation in August to November 2003 contrasts starkly with the situations in northern Cyprus and in the Russian-occupied part of Moldova which feature in Strasbourg case-law. In each of those cases part of the territory of a Contracting State was occupied by another Contracting State which had every intention of exercising its control on a long - term basis. The civilian administration of those territories was under the control of the Occupying State, and it deployed sufficient troops to ensure that its control of the area was effective. 121. [The statement of Brigadier Moore, whose command included the British forces in the Basra area between May and November 2003] tells a very different story. He was not provided with nearly enough troops and other resources to enable his brigade to exercise effective control of Basra City. ... [H] e described how the local police would not uphold the law. If British troops arrested somebody and gave them to the Iraqi police, the police would hand them over to the judiciary, who were themselves intimidated by the local tribes, and the suspected criminals were back on the streets within a day or two. This state of affairs gave the British no confidence in the local criminal justice system. It also diluted their credibility with local people. Although British troops arranged local protection for the judges, this made little difference. The prisons, for their part, were barely functioning. 122. After describing other aspects of the highly volatile situation in which a relatively small number of British military personnel were trying to police a large city as best they could, Brig [adier] Moore said ... : ‘ The combination of terrorist activity, the volatile situation and the ineffectiveness of Iraqi security forces meant that the security situation remained on a knife-edge for much of our tour. Despite our high work rate and best efforts, I felt that at the end of August 2003 we were standing on the edge of an abyss. It was only when subsequent reinforcements arrived ... and we started to receive intelligence from some of the Islamic parties that I started to regain the initiative. ’ 123. Unlike the Turkish army in northern Cyprus, the British military forces had no control over the civil administration of Iraq. ... 124. In my judgment it is quite impossible to hold that the UK, although an Occupying Power for the purposes of the Hague Regulations and [the] Geneva IV [Convention], was in effective control of Basra City for the purposes of [ the European Court ’ s ] jurisprudence at the material time. If it had been, it would have been obliged, pursuant to the Banković [ and Others ] judgment, to secure to everyone in Basra City the rights and freedoms guaranteed by the [ Convention ]. One only has to state that proposition to see how utterly unreal it is. The UK possessed no executive, legislative or judicial authority in Basra City, other than the limited authority given to its military forces, and as an Occupying Power it was bound to respect the laws in force in Iraq unless absolutely prevented (see Article 43 of the Hague Regulations ... ). It could not be equated with a civil power: it was simply there to maintain security, and to support the civil administration in Iraq in a number of different ways ... ” Sedley LJ observed, in connection with this issue : “194. On the one hand, it sits ill in the mouth of a State which has helped to displace and dismantle by force another nation ’ s civil authority to plead that, as an Occupying Power, it has so little control that it cannot be responsible for securing the population ’ s basic rights. ... [However, ] the fact is that it cannot: the invasion brought in its wake a vacuum of civil authority which British forces were and still are unable to fill. On the evidence before the Court they were, at least between mid-2003 and mid-2004, holding a fragile line against anarchy.” 81. The Court of Appeal unanimously concluded that, save for the death of the sixth applicant ’ s son, which fell within the “ State agent authority” exception, the United Kingdom did not have jurisdiction under Article 1 of the Convention. It decided that the sixth applicant ’ s claim also fell within the scope of the Human Rights Act 1998. Since the Divisional Court ’ s examination of the case, additional information had emerged about the investigation into the death of the sixth applicant ’ s son, including that court ‑ martial proceedings were pending against a number of soldiers. The Court of Appeal therefore remitted the question whether there had been an adequate investigation to the Divisional Court for reconsideration following the completion of the court - martial proceedings. 82. Despite his conclusion on jurisdiction, Brooke LJ, at the express invitation of the Government, commented on the adequacy of the investigations carried out into the deaths, as follows: “139. After all, the first two Articles of the [Convention] merely articulate the contemporary concern of the entire European community about the importance that must always be attached to every human life. ... Needless to say, the obligation to comply with these well-established international human rights standards would require, among other things, a far greater investment in the resources available to the Royal Military Police than was available to them in Iraq, and a complete severance of their investigations from the military chain of command. 140. In other words, if international standards are to be observed, the task of investigating incidents in which a human life is taken by British forces must be completely taken away from the military chain of command and vested in the [Royal Military Police]. It contains the requisite independence so long as it is free to decide for itself when to start and when to cease an investigation, and so long as it reports in the first instance to the [ Army Prosecuting Authority] and not to the military chain of command. It must then conduct an effective investigation, and it will be helped in this regard by the passages from [the European Court ’ s] case-law I have quoted. Many of the deficiencies highlighted by the evidence in this case will be remedied if the [Royal Military Police] perform this role, and if they are also properly trained and properly resourced to conduct their investigations with the requisite degree of thoroughness. ” 3. The House of Lords 83. The first four applicants appealed and the Secretary of State cross ‑ appealed to the House of Lords, which gave judgment on 13 June 2007 ([2007] UKHL 26). The majority of the House of Lords (Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood ) held that the general purpose of the Human Rights Act 1998 was to provide a remedial structure in domestic law for the rights guaranteed by the Convention, and that the 1998 Act should therefore be interpreted as applying wherever the United Kingdom had jurisdiction under Article 1 of the Convention. Lord Bingham of Cornhill, dissenting, held that the Human Rights Act had no extraterritorial application. 84. In relation to the first four applicants ’ complaints, the majority of the House of Lords found that the United Kingdom did not have jurisdiction over the deaths. Because of his opinion that the Human Rights Act had no extraterritorial application, Lord Bingham did not consider it useful to express a view as to whether the United Kingdom exercised jurisdiction within the meaning of Article 1 of the Convention. 85. Lord Brown, with whom the majority agreed, began by observing that ultimately the decision about how Article 1 of the Convention should be interpreted and applied was for the European Court of Human Rights, since the duty of the national court was only to keep pace with the Court ’ s case-law; there was a danger in a national court construing the Convention too generously in favour of an applicant, since the respondent State had no means of referring such a case to the Court. Lord Brown took as his starting - point the decision of the Grand Chamber in Banković and Others (cited above), which he described as “ a watershed authority in the light of which the Strasbourg jurisprudence as a whole has to be re-evaluated ”. He considered that the following propositions could be derived from the decision in Banković and Others ( paragraph 1 09 of the House of Lords judgment) : “ 1. Article 1 reflects an ‘ essentially territorial notion of jurisdiction ’ (a phrase repeated several times in the Court ’ s judgment), ‘ other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case ’ ( § 61). The Convention operates, subject to Article 56, ‘ in an essentially regional context and notably in the legal space ( espace juridique ) of the Contracting States ’ ( § 80) (i. e. within the area of the Council of Europe countries). 2. The Court recognises Article 1 jurisdiction to avoid a ‘ vacuum in human rights ’ protection ’ when the territory ‘ would normally be covered by the Convention ’ ( § 80) (i. e. in a Council of Europe country) where otherwise (as in northern Cyprus) the inhabitants ‘ would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed ’ ( § 80). 3. The rights and freedoms defined in the Convention cannot be ‘ divided and tailored ’ ( § 75). 4. The circumstances in which the Court has exceptionally recognised the extraterritorial exercise of jurisdiction by a State include: (i) Where the State ‘ through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by [the government of that territory] ’ ( § 71) (i. e. when otherwise there would be a vacuum within a Council of Europe country, the government of that country itself being unable ‘ to fulfil the obligations it had undertaken under the Convention ’ ( § 80) (as in northern Cyprus) ). (ii) ’ [ C ] ases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that State [where] customary international law and treaty provisions have recognised the extraterritorial exercise of jurisdiction ’ ( § 73). (iii) Certain other cases where a State ’ s responsibility ‘ could, in principle, be engaged because of acts ... which produced effects or were performed outside their own territory ’ ( § 69). Drozd [ and Janousek ] v. France [ and Spain ] ( [26 June] 1992 [, Series A no. 240] ) 14 EHRR 745 (at § 91) is the only authority specifically referred to in Banković [ and Others ] as exemplifying this class of exception to the general rule. Drozd [ and Janousek ], however, contemplated no more than that, if a French judge exercised jurisdiction extraterritorially in Andorra in his capacity as a French judge, then anyone complaining of a violation of his Convention rights by that judge would be regarded as being within France ’ s jurisdiction. (iv) The Soering v. [ the ] United Kingdom ( [7 July] 1989 [, Series A no. 161] ) 11 EHRR 439 line of cases, the Court pointed out, involves action by the State whilst the person concerned is ‘ on its territory, clearly within its jurisdiction ’ ( [ Banković and Others ,] § 68) and not, therefore, the exercise of the State ’ s jurisdiction abroad. ” Lord Brown referred to the Öcalan, Freda and Sánchez Ramirez line of cases (cited above), in each of which the applicant was forcibly removed from a country outside the Council of Europe, with the full cooperation of the foreign authorities, to stand trial in the respondent State. He observed that this line of cases concerning “irregular extraditions” constituted one category of “exceptional” cases expressly contemplated by Banković and Others (cited above), as having “ special justification ” for extraterritorial jurisdiction under Article 1 of the Convention. He did not consider that the first four applicants ’ cases fell into any of the exceptions to the territorial principle so far recognised by the Court. 86. Lord Brown next considered the Court ’ s judgment in Issa and Others v. Turkey ( no. 31821/96, § 71, 16 November 2004 ), on which the applicants relied, and held as follows: “ 127. If and in so far as Issa [ and Others ] is said to support the altogether wider notions of Article 1 jurisdiction contended for by the appellants on this appeal, I cannot accept it. In the first place, the statements relied upon must be regarded as obiter dicta. Secondly, as just explained, such wider assertions of jurisdiction are not supported by the authorities cited (at any rate, those authorities accepted as relevant by the Grand Chamber in Banković [ and Others ] ). Thirdly, such wider view of jurisdiction would clearly be inconsistent both with the reasoning in Banković [ and Others ] and, indeed, with its result. Either it would extend the ‘ effective control ’ principle beyond the Council of Europe area (where alone it had previously been applied, as has been seen, to northern Cyprus, to the Ajarian Autonomous Republic in Georgia and to Transdniestria) to Iraq, an area (like the FRY [Federal Republic of Yugoslavia] considered in Banković [ and Others ] ) outside the Council of Europe – and, indeed, would do so contrary to the inescapable logic of the Court ’ s case - law on Article 56. Alternatively it would stretch to breaking point the concept of jurisdiction extending extraterritorially to those subject to a State ’ s ‘ authority and control ’. It is one thing to recognise as exceptional the specific narrow categories of cases I have sought to summarise above; it would be quite another to accept that whenever a Contracting State acts (militarily or otherwise) through its agents abroad, those affected by such activities fall within its Article 1 jurisdiction. Such a contention would prove altogether too much. It would make a nonsense of much that was said in Banković [ and Others ], not least as to the Convention being ‘ a constitutional instrument of European public order ’, operating ‘ in an essentially regional context ’, ‘ not designed to be applied throughout the world, even in respect of the conduct of Contracting States ’ ( § 80). It would, indeed, make redundant the principle of ‘ effective control ’ of an area: what need for that if jurisdiction arises in any event under a general principle of ‘ authority and control ’ irrespective of whether the area is (a) effectively controlled or (b) within the Council of Europe? 128. There is one other central objection to the creation of the wide basis of jurisdiction here contended for by the appellants under the rubric ‘ control and authority ’, going beyond that arising in any of the narrowly recognised categories already discussed and yet short of that arising from the effective control of territory within the Council of Europe area. Banković [ and Others ] (and later Assanidze [ v. Georgia [GC], no. 71503/01, ECHR 2004 ‑ II ] ) stands, as stated, for the indivisible nature of Article 1 jurisdiction: it cannot be ‘ divided and tailored ’. As Banković [ and Others ] had earlier pointed out (at § 40) ‘ the applicant ’ s interpretation of jurisdiction would invert and divide the positive obligation on Contracting States to secure the substantive rights in a manner never contemplated by Article 1 of the Convention ’. When, moreover, the Convention applies, it operates as ‘ a living instrument ’. Öcalan provides an example of this, a recognition that the interpretation of Article 2 has been modified consequent on ‘ the territories encompassed by the member States of the Council of Europe [having] become a zone free of capital punishment ’ ( § 163). (Paragraphs 64 and 65 of Banković [ and Others ], I may note, contrast on the one hand ‘ the Convention ’ s substantive provisions ’ and ‘ the competence of the Convention organs ’, to both of which the ‘ living instrument ’ approach applies and, on the other hand, the scope of Article 1 – ‘ the scope and reach of the entire Convention ’ – to which it does not.) Bear in mind too the rigour with which the Court applies the Convention, well exemplified by the series of cases from the conflict zone of south - eastern Turkey in which, the State ’ s difficulties notwithstanding, no dilution has been permitted of the investigative obligations arising under Articles 2 and 3. 129. The point is this: except where a State really does have effective control of territory, it cannot hope to secure Convention rights within that territory and, unless it is within the area of the Council of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population. Indeed it goes further than that. During the period in question here it is common ground that the UK was an Occupying Power in southern Iraq and bound as such by [the] Geneva IV [Convention] and by the Hague Regulations. Article 43 of the Hague Regulations provides that the occupant ‘ shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country ’. The appellants argue that occupation within the meaning of the Hague Regulations necessarily involves the occupant having effective control of the area and so being responsible for securing there all Convention rights and freedoms. So far as this being the case, however, the occupants ’ obligation is to respect ‘ the laws in force ’, not to introduce laws and the means to enforce them (for example, courts and a justice system) such as to satisfy the requirements of the Convention. Often (for example where Sharia law is in force) Convention rights would clearly be incompatible with the laws of the territory occupied. ” 87. Lord Rodger (at paragraph 83), with whom Baroness Hale agreed, and Lord Carswell ( paragraph 97) expressly held that the United Kingdom was not in effective control of Basra City and the surrounding area for purposes of jurisdiction under Article 1 of the Convention at the relevant time. 88. The Secretary of State accepted that the facts of the sixth applicant ’ s case fell within the United Kingdom ’ s jurisdiction under Article 1 of the Convention. The parties therefore agreed that if (as the majority held) the jurisdictional scope of the Human Rights Act was the same as that of the Convention, the sixth applicant ’ s case should be remitted to the Divisional Court, as the Court of Appeal had ordered. In consequence, it was unnecessary for the House of Lords to examine the jurisdictional issue in relation to the death of the sixth applicant ’ s son. However, Lord Brown, with whom the majority agreed, concluded: “132. ... As for the sixth case, I for my part would recognise the UK ’ s jurisdiction over Mr Mousa only on the narrow basis found established by the Divisional Court, essentially by analogy with the extraterritorial exception made for embassies (an analogy recognised too in Hess v. [ the ] United Kingdom ( [no. 6231/73, Commission decision of 28 May] 1975 [, Decisions and Reports 2, p. ] 72, a Commission decision in the context of a foreign prison which had itself referred to the embassy case of X. v. [ Germany, no. 1611/62, Commission decision of 25 September 1965, Yearbook 8, p. 158 ] ). ... ” | This case concerned the deaths of six close relatives of the applicants in Al-Basrah, Southern Iraq, in 2003 while the United Kingdom was an occupying power: three of the victims were shot dead or shot and fatally wounded by British soldiers; one was shot and fatally wounded during an exchange of fire between a British patrol and unknown gunmen; one was beaten by British soldiers and then forced into a river, where he drowned; and one died at a British military base, with 93 injuries identified on his body. |
578 | Expulsion or extradition cases | THE CIRCUMSTANCES OF THE CASE A. Background and proceedings before the national authorities 10. The applicant was born in 1982 and lives in Sweden. 11. On 29 July 2010 he applied for asylum in Sweden, stating that he had entered the country three days earlier. 12. On 6 August 2010 the Migration Board ( Migrationsverket ) held a first interview with the applicant. An in -depth interview was held on 20 August 2010, at which the applicant ’ s officially appointed counsel and an interpreter were present. The applicant stated essentially the following. 13. He had left Libya for Tunisia in April 2010, where he had remained until he had travelled to Sweden in July 2010, with the assistance of smugglers and a fake French passport. In Libya he had been a soldier, working as a guard at a military base in Tripoli where some persons had paid him to transport illegal weapons for powerful clans with connections to the authorities. He had been working for them for more than a year when in November 2009 he had been stopped at a road check and then taken to an unknown location, where he had been subjected to interrogation and torture. He had been charged with possession of illegal weapons and car theft and had then been moved to a military prison. During the torture his arm had been seriously injured and, about two months after his transfer to the military prison, he had been taken to a civil hospital for treatment. After the doctor had treated him, he had managed to escape. If he were returned to Libya, he would risk at least ten years ’ imprisonment for the criminal offences. He would further risk being killed by the clans since he had revealed their names under torture. 14. The Migration Board officer asked whether the applicant had other grounds for requesting asylum, to which he replied no. He had lived well in Libya until he was arrested and had even planned to marry a woman in May 2010. 15. On 21 February 2011 the applicant added to his grounds for asylum that he was homosexual and had a relationship with a man, N. , who held a permanent residence permit in Sweden. He had moved in with N. in December 2010. 16. At a supplementary interview on 1 November 2011 the applicant stated that he had previously been heterosexual but had become interested in N. No one in Libya knew about his sexual orientation and he had never had a homosexual relationship in Libya. He and N. had married in Sweden in September 2011. If he had to return to Libya to apply for family reunion from there, it would become known that he was married to a man and he would risk persecution and ill-treatment. 17. On 16 December 2011 the Migration Board rejected the application. It found, inter alia, that the applicant had given diverging information about his passport at the interviews, and also given contradictory statements about when he had met N. and about their relationship. It concluded that the applicant ’ s story, in relation both to events in Libya and to his relationship with N., lacked credibility and was not sufficient to justify granting him a residence permit in Sweden. Furthermore, the Board noted that substantial changes had occurred in Libya after the applicant had left the country. It considered that he had failed to substantiate his claim that, on the basis of the criminal accusations against him, he would risk persecution by the authorities on his return or that the authorities would not be able to protect him against harassment by the clans. As to the applicant ’ s relationship with N., the Board referred to the main rule laid down in the Aliens Act, according to which an alien seeking a residence permit in Sweden on account of family ties or a serious relationship must have applied for and been granted such a permit before entering the country. The Board considered that it would not be unreasonable to require the applicant to file such an application from Libya in accordance with the main rule. 18. On 13 September 2012 the Migration Court ( Migrationsdomstolen ) rejected an appeal lodged by the applicant. It found first of all that the general situation in Libya was not serious enough to justify granting the applicant asylum in the absence of individual reasons. Turning to the applicant ’ s individual reasons, the court found that the applicant ’ s account was not credible, stressing that he had submitted his passport only at the oral hearing before the court, and that it appeared from it that he had been granted a Schengen visa by the Maltese Embassy in Tripoli in May 2010 and that he had entered Sweden on 15 June 2010. Thus, he had deliberately given false statements before the Migration Board concerning his passport, the manner in which he had travelled to Sweden and the date of his arrival. He had also given contradictory statements concerning his knowledge of the possibilities of applying for asylum in Sweden and the alleged threats against him in Libya. Thus, the court did not believe the applicant ’ s asylum story. 19. The court did not question the applicant ’ s homosexuality. However, it considered that he had failed to substantiate his claim that there was a threat against him in Libya on that account. It noted that, according to the applicant ’ s own statements, it was not known in Libya that he was homosexual. The court found it unlikely that, as claimed by the applicant, Libyans in Sweden who knew about his sexual orientation would be more willing to spread this information simply because the applicant was to return to Libya. In sum, it concluded that the applicant had failed to show that he would risk persecution or ill-treatment if he returned to Libya. As far as his relationship with N. was concerned, the court observed that all embassy personnel had an obligation to respect confidentiality and that there were no impediments to the applicant ’ s applying for a residence permit from abroad. 20. One lay judge gave a dissenting opinion and considered that it could not be ruled out that information about the applicant ’ s sexual orientation might leak from an embassy. 21. The applicant made a further appeal to the Migration Court of Appeal ( Migrationsöverdomstolen ), which on 10 October 2012 refused him leave to appeal. The expulsion order against the applicant thereby became enforceable. 22. On 10 December 2012 the Migration Board rejected a request by the applicant for reconsideration of his case. The applicant had submitted, inter alia, that a Libyan in Sweden had travelled to Libya and had told the applicant ’ s brother that he was married to another man. The applicant ’ s uncle had later called him and threatened to kill him if he returned to Libya, since he had shamed the family. The Board found no reason to depart from the main rule that an application for family reunion had to be lodged from abroad. The applicant ’ s claim that his relatives had threatened him was not considered sufficient to constitute a permanent impediment to the enforcement of the expulsion order, and thus there were no grounds to reconsider the applicant ’ s case. B. Developments subsequent to the Chamber judgment 23. After the Chamber had delivered its judgment on 26 June 2014, the panel of the Grand Chamber granted the applicant ’ s referral request on 17 November 2014 (see paragraphs 7-8 above). 24. In the meantime, on 4 November 2014, the Migration Board ’ s Director General for Legal Affairs issued a Legal Comment concerning the situation in Libya (“ Rättslig kommentar angående situationen i Libyen ”). It noted, inter alia, that in May 2014 the Libyan Parliament had elected Ahmed Matiq as Prime Minister, resulting in strong protests and violent fighting between rival groups. In June the Supreme Court had annulled Matiq ’ s election and a few days later he had resigned. Parliamentary elections had followed and in mid-July a coalition had been formed made up of different militia forces with connections to the Muslim Brotherhood and other Islamist groups within the Parliament. This had led to a further escalation of the situation, with militias clashing over control of the airport in Tripoli and intensified fighting in Benghazi. The violence had also spread to residential areas around Tripoli, resulting in many civilian casualties. Tens of thousands of people had been forced to flee from their homes and, according to the United Nations, there were roughly 227,000 internally displaced persons, of whom more than 160,000 had been displaced since the fighting erupted in May 2014. Another 100,000 persons were reported to have fled the fighting to neighbouring countries. The civilian population was also having difficulties moving freely within the country owing to the sporadic roadblocks which had been set up by various militia groups. Moreover, the country ’ s two international airports, Tripoli and Benghazi, had been seriously damaged in the fighting and were partially closed, without any likelihood that they would open for normal business within the foreseeable future. 25. Against this background, the Director General made the following assessment of the security situation in Libya and the possibility of returning to the country: “ Fighting is ongoing between different actors in several of Libya ’ s coastal cities. The fighting is considered to amount to an armed conflict within the meaning of the Aliens Act. Owing to the political instability, there is currently nothing to indicate that the fighting will stop within the near future. The fighting is serious but not so all-encompassing that every person who returns is at risk of being subjected to violence. An individual assessment must therefore be carried out in each case in accordance with the principles of the Elgafaji judgment [ Elgafaji v. Staatssecretaris van Justitie, C-465/07, Court of Justice of the European Union, 17 February 2009 ]. In the other parts of Libya the security situation, owing to the political instability, is considered to amount to serious disturbances of the kind specified in Chapter 4, section 2 ( a ) of the Aliens Act. The situation for persons returning to Libya is currently difficult. However, the difficulties have arisen only recently and it is still far too early to establish that they amount to a practical impediment to enforcement such as to justify issuing a residence permit. The Migration Board is continuing to monitor the situation in Libya and the question of impediments to enforcement, and intends to conduct a new assessment within a few months.” 26. In the light of the information in the Legal Comment concerning the situation in Libya, and noting that the Court had referred the applicant ’ s case to the Grand Chamber, the Migration Board decided to examine the applicant ’ s case again of its own motion and to determine whether there were impediments to the enforcement of the expulsion order against him. 27. On 17 December 2014 the Migration Board granted the applicant a permanent residence permit in Sweden. It noted first of all that it could not reconsider a decision pronounced by a higher -ranking authority or examine the correctness of the assessments made by such authorities. Since the expulsion order had acquired legal force, the Board could only consider whether the new circumstances in the case amounted to an impediment to the enforcement of the expulsion order. After having referred to the relevant provisions of the Aliens Act and its preparatory works, it made the following assessment of the applicant ’ s case: “You are homosexual and come from Libya. You are married to a man with whom you have been living in Sweden since 7 December [ 201 0]. Your sexual orientation and connection to your husband were the subject of examination by the Migration Board and the Migration Court. They can therefore not be considered to be new circumstances within the meaning of the Aliens Act. On 4 November 2014 the Migration Board ’ s Director General for Legal Affairs issued a new Legal Comment concerning the situation in Libya. From this it appears that fighting is ongoing between different actors in several of Libya ’ s coastal cities, including your hometown, Tripoli. The fighting is considered to amount to an armed conflict within the meaning of the Aliens Act. Owing to the political instability, there is currently nothing to indicate that the fighting will stop within the near future. The fighting is serious but not so all-encompassing that every person returning is at risk of being subjected to violence. An individual assessment must therefore be carried out in each case in accordance with the principles of the Elgafaji judgment. According to the Migration Board ’ s assessment, the deterioration in the security situation in Libya since the Migration Board and the Migration Court examined your grounds for protection, seen against the background of your sexual orientation, is to be regarded as a new circumstance. Your sexual orientation was not questioned by the Migration Board or the Migration Court and you have, during your years in Sweden, manifested your orientation by, among other things, entering into marriage with a man here. It can therefore be presumed that your intention is to continue to live openly as a homosexual also if you return to Libya and that you would thereby risk attracting the interest of the Libyan authorities or of individual persons. In the light of the deterioration in the security situation in Libya it is probable, in the Migration Board ’ s assessment, that were you to return you would risk being subjected to persecution on account of your sexual orientation. Against this background, the Migration Board finds that new circumstances have emerged which amount to an impediment to enforcement for the purposes of Chapter 12, section 18 of the Aliens Act. The Migration Board therefore decides to grant you a permanent residence permit.” | This case concerned an asylum seeker’s threatened expulsion from Sweden to Libya, where he alleged he would be at risk of persecution and ill-treatment because he is a homosexual. |
1,054 | Work during detention | I. THE CIRCUMSTANCES OF THE CASE 6. At about 3 p.m. on 30 December 2003 the applicant and his father went to the District Prosecutor ’ s Office in Tsarevo to obtain a copy of a document. The clerk refused to give it to them. A quarrel ensued. A prosecutor came in and ordered the applicant to leave the premises. A brawl ensued. The police, who had been called in, drew up a procès-verbal saying that, by insulting the prosecutor and trying to hit him, the applicant had committed an offence under the 1963 Decree on Combating Minor Hooliganism ( “the 1963 Decree” – see paragraphs 10 ‑ 11 below). The applicant refused to sign the procès-verbal, saying that he would present his objections before a court. 7. About half an hour later the police made an order for the applicant ’ s detention under section 70(1)(8) of the Ministry of Internal Affairs Act 1997, then in force. The order said that the applicant was being detained for committing an offence under the 1963 Decree. 8. At 10 a.m. on 31 December 2003 the applicant was brought before the Tsarevo District Court. He was assisted by two counsel. The court heard the applicant, two witnesses, and the applicant ’ s counsel. In a decision of the same day it found the applicant guilty of an offence under Article 1 § 2 of the Decree for insulting and trying to hit the prosecutor, and sentenced him to fifteen days ’ detention in the premises of the Ministry of Internal Affairs. The court went on to order, by reference to Article 8 § 2 of the Decree (see paragraph 12 below), that during his detention the applicant was to carry out socially useful work adapted to his health, age and professional skills; he was to take part in public works on the territory of the Tsarevo Municipality. The decision was final and immediately enforceable. 9. The applicant was released at 11 a.m. on 14 January 2004. It is unclear what work exactly was carried out by him during his detention. | The applicant was found guilty of minor hooliganism for having insulted a prosecutor. He was sentenced to two weeks in detention during which he had to work for an infrastructure development municipality project. He complained in particular that he had been subjected to forced labour given that he had had to work without remuneration. |
169 | Unborn child and right to life | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1967 and lives in Bourg-en-Bresse. 10. On 27 November 1991 the applicant, Mrs Thi-Nho Vo, who is of Vietnamese origin, attended Lyons General Hospital for a medical examination scheduled during the sixth month of pregnancy. 11. On the same day another woman, Mrs Thi Thanh Van Vo, was due to have a contraceptive coil removed at the same hospital. When Dr G., who was to remove the coil, called out the name “Mrs Vo” in the waiting- room, it was the applicant who answered. After a brief interview, the doctor noted that the applicant had difficulty in understanding French. Having consulted the medical file, he sought to remove the coil without examining her beforehand. In so doing, he pierced the amniotic sac causing the loss of a substantial amount of amniotic fluid. After finding on clinical examination that the uterus was enlarged, the doctor ordered a scan. He then discovered that one had just been performed and realised that there had been a case of mistaken identity. The applicant was immediately admitted to hospital. Dr G. then attempted to remove the coil from Mrs Thi Thanh Van Vo, but was unsuccessful and so prescribed an operation under general anaesthetic for the following morning. A further error was then made when the applicant was taken to the operating theatre instead of Mrs Thi Thanh Van Vo, and only escaped the surgery intended for her namesake after she protested and was recognised by an anaesthetist. 12. The applicant left the hospital on 29 November 1991. She returned on 4 December 1991 for further tests. The doctors found that the amniotic fluid had not been replaced and that the pregnancy could not continue further. The pregnancy was terminated on health grounds on 5 December 1991. 13. On 11 December 1991 the applicant and her partner lodged a criminal complaint, together with an application to join the proceedings as civil parties, alleging unintentional injury to the applicant entailing total unfitness for work for a period not exceeding three months and unintentional homicide of her child. Three expert reports were subsequently filed. 14. The first, which was filed on 16 January 1992, concluded that the foetus, a baby girl, was between 20 and 21 weeks old, weighed 375 grams, was 28 centimetres long, had a cranial perimeter of 17 centimetres and had not breathed after delivery. The expert also concluded that there was no indication that the foetus had been subjected to violence or was malformed and no evidence that the death was attributable to a morphological cause or to damage to an organ. Further, the autopsy performed after the abortion and an anatomico-pathological examination of the body indicated that the foetal lung was 20 to 24 weeks old. 15. On 3 August 1992 a second report was filed concerning the applicant ’ s injuries: “( a) There is a period of temporary total unfitness for work from 27 November 1991 to 13 December 1991, when the patient was admitted to the Tonkin Clinic with an entirely unconnected pathology (appendectomy ) ( b) the date of stabilisation can be put at 13 December 1991 ( c) there is no loss of amenity ( d) there is no aesthetic damage ( e) there is no occupational damage ( f) there is no partial permanent unfitness for work Damage in terms of pain and suffering resulting from this incident still has to be assessed. The assessment should be carried out with a doctor of Vietnamese extraction specialising in psychiatry or psychology .” 16. The third report, which was issued on 29 September 1992, referred to the malfunctioning of the hospital department concerned and to negligence on the part of the doctor: “ 1. The manner in which appointments in the departments run by Professors [ T. ] and [ R. ] at Lyons General Hospital are organised is not beyond reproach, in particular in that namesakes are common among patients of foreign origin and create a risk of confusion, a risk that is undoubtedly increased by the patients ’ unfamiliarity with or limited understanding of our language. 2. The fact that patients were not given precise directions and the consulting rooms and names of the doctors holding surgeries in them were not marked sufficiently clearly increased the likelihood of confusion between patients with similar surnames and explains why, after Dr [ G. ] had acquainted himself with Mrs Thi Thanh Van Vo ’ s medical file, it was [the applicant] who came forward in response to his call. 3. The doctor acted negligently, by omission, and relied solely on the paraclinical examinations. He did not examine his patient and by an unfortunate error ruptured the amniotic sac, causing the pregnancy to terminate at five months. He is accountable for that error, although there are mitigating circumstances. ” 17. On 25 January 1993, and also following supplemental submissions by the prosecution on 26 April 1994, Dr G. was charged with causing unintentional injury at Lyons on 27 November 1991 by: (i) through his inadvertence, negligent act or inattention, perforating the amniotic sac in which the applicant ’ s live and viable foetus was developing, thereby unintentionally causing the child ’ s death ( a criminal offence under Article 319 of the former Criminal Code – which was applicable at the material time – now Article 221-6 of the Criminal Code ); (ii) through his inadvertence, negligent act, inattention, negligent omission or breach of a statutory or regulatory duty of protection or care, causing the applicant bodily injury that resulted in her total unfitness for work for a period not exceeding three months ( a criminal offence under Article R. 40, sub - paragraph 4, of the former Criminal Code – which was applicable at the material time – now Articles R. 625-2 and R. 625-4 of the Criminal Code ). 18. By an order of 31 August 1995, Dr G. was committed to stand trial in the Lyons Criminal Court on counts of unintentional homicide and unintentionally causing injuries. 19. By a judgment of 3 June 1996, the Criminal Court found that the accused was entitled as of right to an amnesty under the Amnesty Law of 3 August 1995 in respect of the offence of unintentionally causing injuries entailing temporary unfitness for work of less than three months. As to the offence of unintentional homicide of the foetus, it held: “ The issue before the Court is whether the offence of unintentional homicide or the unintentional taking of the foetus ’ s life is made out when the life concerned is that of a foetus – if a 20 to 21 week - old foetus is a human person ( ‘ another ’ within the meaning of Article 221-6 of the Criminal Code). ... The expert evidence must be accepted. The foetus was between 20 and 21 weeks old. At what stage of maturity can an embryo be considered a human person? The Voluntary Termination of Pregnancy Act of 17 January 1975 provides: ‘ The law guarantees respect of every human being from the beginning of life. ’ The Law of 29 July 1994 (Article 16 of the Civil Code) provides: ‘ The law secures the primacy of the person, prohibits any assault on human dignity and guarantees the respect of every human being from the beginning of its life ’. The laws of 29 July 1994 expressly employed the terms ‘ embryo ’ and ‘ human embryo ’ for the first time. However, the term ‘ human embryo ’ is not defined in any of them. When doing the preparatory work for the legislation on bioethics, a number of parliamentarians (both members of the National Assembly and senators) sought to define ‘ embryo ’. Charles de Courson proposed the following definition: ‘ Every human being shall be respected from the start of life; the human embryo is a human being. ’ Jean-François Mattéi stated: ‘ The embryo is in any event merely the morphological expression of one and the same life that begins with impregnation and continues till death after passing through various stages. It is not yet known with precision when the zygote becomes an embryo and the embryo a foetus, the only indisputable fact being that the life process starts with impregnation. ’ It thus appears that there is no legal rule to determine the position of the foetus in law either when it is formed or during its development. In view of this lack of a legal definition it is necessary to return to the known scientific facts. It has been established that a foetus is viable at 6 months and on no account, on present knowledge, at 20 or 21 weeks. The Court must have regard to that fact (viability at 6 months) and cannot create law on an issue which the legislators have not yet succeeded in defining. The Court thus notes that a foetus becomes viable at the age of 6 months; a 20 to 21 week-old foetus is not viable and is not a ‘ human person ’ or ‘ another ’ within the meaning of former Article 319 and Article 221-6 of the Criminal Code. The offence of unintentional homicide or of unintentionally taking the life of a 20 to 21 week-old foetus has not been made out, since the foetus was not a ‘ human person ’ or ‘ another ’ ... Acquits Dr G. on the charge without penalty or costs ... ” 20. On 10 June 1996 the applicant appealed against that judgment. She argued that Dr G. had been guilty of personal negligence severable from the functioning of the public service and sought 1,000,000 French francs (FRF) in damages, comprising FRF 900, 000 for the death of the child and FRF 100, 000 for the injury she had sustained. The public prosecutor ’ s office, as second appellant, submitted that the acquittal should be overturned. It observed: “By failing to carry out a clinical examination, the accused was guilty of negligence that caused the death of the foetus, which at the time of the offence was between 20 and 24 weeks old and following, normally and inexorably, the path of life on which it had embarked, there being no medical doubt over its future. ” 21. In a judgment of 13 March 1997, the Lyons Court of Appeal upheld the judgment in so far as it had declared the prosecution of the offence of unintentionally causing injuries time -barred but overturned the remainder of the judgment and found the doctor guilty of unintentional homicide. It imposed a six-month suspended prison sentence and a fine of FRF 10,000, holding : “ ... In the instant case Dr [ G. ] ’ s negligence is characterised in particular by the fact that the patient ’ s knowledge of French was insufficient to enable her to explain her condition to him, to answer his questions or to give him the date of her last period, circumstances that should have further impressed upon him the need for a thorough clinical examination. The assertion that he was entitled to rely on the medical records alone shows that, though an able scientist, this young doctor was nonetheless unaware of one of the essential skills of the practice of medicine: listening to, getting to know and examining the patient. Indeed, before this Court Dr [ G. ] said that the accident had impressed upon him how vital it was to take precautions before operating. There is a clear causal link between this negligent act and omission and the death of the child Mrs Vo was carrying. The accused has himself acknowledged, with commendable honesty, that a clinical examination would have alerted him to the fact that the patient was pregnant and had been mistaken for another patient. As regards the classification of the offence as unintentional homicide, it is first necessary to reiterate the legal principles governing this sphere. Various provisions of international treaties, such as Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 of the International Covenant on Civil and Political Rights and Article 6 of the Convention on the Rights of the Child signed in New York on 26 January 1990, recognise a right to life protected by law for everyone, and notably children. Under domestic law, section 1 of the Voluntary Termination of Pregnancy Act ( Law no. 75-17 of 17 January 1975 ) specifies: ‘ The law guarantees respect of every human being from the beginning of life ... this principle may only be derogated from in the event of necessity and in accordance with the conditions set out in this statute. ’ Further, Law no. 94-653 of 29 July 1994 on the respect of the human body lays down in Article 16 of the Civil Code: ‘ The law secures the primacy of the person, prohibits any assault on human dignity and guarantees the respect of every human being from the beginning of its life. ’ These statutory provisions cannot be regarded as mere statements of intent, devoid of any legal effect, since Article 16-9 of the Civil Code indicates that the provisions of Article 16 are mandatory. For its part the Criminal Division of the Court of Cassation applied these rules of international and domestic law in two judgments it delivered on 27 November 1996, specifying that the Act of 17 January 1975 only permits derogation from the rule stated in section 1 thereof that every human being is entitled to respect from the beginning of life in cases of necessity and subject to the conditions and limitations set out in it. The Court of Cassation added that, having regard to the conditions laid down by the legislature, the provisions of that statute and of the law of 31 December 1979 on the voluntary termination of pregnancy, taken as a whole, were not incompatible with the aforementioned treaty provisions. In a different case, moreover, the Court of Cassation pointed out that on signing the Convention on the Rights of the Child in New York on 26 January 1990, France made a declaration concerning interpretation in which it stated that the convention could not be interpreted as constituting any obstacle to the implementation of the provisions of French legislation on the voluntary termination of pregnancy. That reservation shows, by converse implication, that that convention could concern a foetus aged less than 10 weeks, the statutory maximum foetal age in France for a voluntary termination of pregnancy. It follows that, subject to the provisions on the voluntary termination of pregnancies and therapeutic abortions, the right to respect for every human being from the beginning of life is guaranteed by law, without any requirement that the child be born as a viable human being, provided it was alive when the injury occurred. Indeed, viability is a scientifically indefinite and uncertain concept, as the accused, who is currently studying in the United States, himself acknowledged, informing the Court that foetuses born between 23 and 24 weeks after conception could now be kept alive, a situation that was inconceivable a few years ago. In the opinion prepared by Professor [ T .] and adduced in evidence by Dr [ G. ], reference is made to a report by Professor Mattéi in which it is indicated that the embryo is merely the morphological expression of one and the same life that begins with impregnation and continues till death after passing through various stages. It is not yet known with precision when the zygote becomes an embryo and the embryo a foetus, the only indisputable fact being that the life process starts with impregnation. ... Thus the issue of viability at birth, a notion that is uncertain scientifically, is in addition devoid of all legal effect, as the law makes no distinction on that basis. In the instant case it has been established that when the scan was performed on 27 November 1991 – before the amniotic fluid was lost later that day – the [applicant ’ s] pregnancy had been proceeding normally and the child she was carrying was alive. When the therapeutic abortion was performed on 5 December 1991, it was noted that a comparison of the child ’ s measurements with published tables suggested that the foetus was between 20 and 21 weeks old and possibly older, as it is not certain that the tables take into account the specific morphology of children of Vietnamese origin. Dr [ G. ], when questioned on this point at the hearing, was unable to provide any further information. The conclusion from the anatomo-pathological examination was that the foetal lung indicated an age of between 20 and 24 weeks, its measurements suggesting that an age at the lower end of that range was the most likely. In any event, as Dr [ G. ] said in evidence, the age of the foetus was very close to that of certain foetuses that have managed to survive in the United States. The photographs at page D 32 of the trial bundle show a perfectly formed child whose life was cut short by the accused ’ s negligence. As the Douai Court of Appeal observed in its judgment of 2 June 1987, had the assault on the child concerned inflicted a non-fatal wound, it would have been classified without any hesitation as an offence of unintentionally causing injuries. A fortiori, an assault leading to the child ’ s death must be classified as unintentional homicide. Thus, the strict application of the legal principles, established scientific fact and elementary common sense all dictate that a negligent act or omission causing the death of a 20 to 24 week-old foetus in perfect health should be classified as unintentional homicide. Consequently, the impugned judgment must be overturned ... While [ the applicant ’ s ] civil action is admissible, if only to corroborate the prosecution case, this Court has no jurisdiction to hear the claim for reparation. This is because despite the serious nature of the negligent act and omission of Dr [ G. ], a doctor in a public hospital, they do not constitute personal misconduct of such exceptional gravity entailing a total disregard for the most elementary principles and duties inherent in his function as to make them severable from public service. Nonetheless, it is appropriate to order Dr [ G. ] to pay to this civil party compensation in the sum of 5, 000 francs under Article 475-1 of the Code of Criminal Procedure on account of costs which she has incurred, but which have not been paid by the State. ... ” 22. On 30 June 1999, on an appeal on points of law by the doctor, the Court of Cassation reversed the judgment of the Lyons Court of Appeal and ruled that there was no reason to remit the case for retrial: “Having regard to Article 111-4 of the Criminal Code : Criminal-law provisions must be strictly construed. ... In convicting [ the doctor ] of unintentional homicide, the appellate court noted that Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 6 of the International Covenant on Civil and Political Rights recognise the existence for all persons of a right to life protected by law. The appellate court stated that the Voluntary Termination of Pregnancy Act of 17 January 1975 establishes the rule that the life of every human being must be respected from the beginning of life. That rule is now restated in Article 16 of the Civil Code as worded following the amendment made by the Law of 29 July 1994. The appellate court went on to state that, by operating without performing a prior clinical examination, the doctor was guilty of a negligent act or omission that had a definite causal link with the death of the child the patient was carrying. However, by so holding, when the matters of which the defendant was accused did not come within the definition of the offences set out in former Article 319 and Article 221-6 of the Criminal Code, the Court of Appeal misinterpreted the aforementioned provisions. ... ” | Owing to a mix-up with another patient with the same surname, the applicant’s amniotic sack was punctured, making a therapeutic abortion necessary. She maintained that the unintentional killing of her child should have been classified as manslaughter. |
262 | (Suspected) terrorists | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1949 and is currently in Clairvaux Prison. A. The applicant ’ s solitary confinement 10. The applicant, who claims to be a revolutionary by profession, was taken into custody on 15 August 1994. He was placed under judicial investigation in connection with a series of terrorist attacks in France and was given a life sentence on 25 December 1997 for the murder of two police officers and an acquaintance on 27 June 1975. 11. He was held in solitary confinement from the moment he was first taken into custody in mid-August 1994 until 17 October 2002, notably in La Santé Prison (Paris). 12. According to his lawyer, this entailed his being held in a 6.84 square metre cell that was run-down and poorly insulated, with an open toilet area. The applicant was prohibited all contact with other prisoners and even prison warders and was only allowed to leave his cell once his fellow inmates had returned to theirs. His sole permitted activity outside his cell was a two-hour daily walk in a triangular area that was 15 metres long and 7.5 metres wide at the base, receding to 1 metre at the vertex. This area was walled in and covered with wire mesh. His only recreational activity was reading the newspapers or watching television on a rented set. The only visits he received were from his lawyers and, once a month, a priest. The prison authorities ignored his requests to be allowed visits from anyone else. Mail intended for the applicant had gone missing, although it had not been officially confiscated, and he had not received a winter jacket that had been brought to the prison for him in October 1999 until 16 February 2000. 13. The Government did not dispute these facts. They said that the cell was lit by natural light, a ceiling light and a reading lamp. None of the members of the applicant ’ s family had ever applied for permission to visit. Only two requests to visit had been turned down, both from journalists. 14. The documents in the case file show that the applicant has received visits from 58 different lawyers during his time in prison. His current representative, who is also his wife under Islamic law, visited him more than 640 times between 27 June 1997 and 29 April 2002. 15. The parties have produced a series of decisions requiring the applicant to be held in solitary confinement for successive three-month periods. 16. The first was taken when the applicant was first detained ( 15 August 1994 ). It consists of a form on which the following boxes were ticked: “Need to prevent communication with one or more other prisoners” and “Undermining of order and discipline in the prison ”. There were no observations by the applicant. The same day, a doctor issued a medical certificate stating: “ [The applicant ’ s] health is compatible with solitary confinement. However, he must, if possible, have complete rest for eight days. ” 17. A decision dated 3 November 1994 to prolong the applicant ’ s solitary confinement from 15 November 1994 to 15 February 1995 was approved by the Regional Director ’ s Office of the Prison Service. The reasons stated were the same, but the applicant made the following observations: “ I consider that these solitary-confinement measures, especially the disturbances at night, indicate a desire to harass a political prisoner. ” In a medical certificate issued the same day, a doctor “ certif[ied] that [the applicant ’ s] health [was] compatible with his continued solitary confinement ”. 18. A decision of 20 January 1995, which was applicable from 15 February to 15 May 1995, cited the same reasons and was approved by the Regional Director ’ s Office. The applicant refused to sign the notice informing him of the decision. In a medical certificate issued the same day, a doctor “ certif[ied] that [the applicant ’ s] health [was] compatible with his continued solitary confinement for administrative reasons ”. 19. A decision dated 25 April 1995, which was approved by the Regional Director ’ s Office and was applicable from 15 May to 15 August 1995, spoke of the “ need to prevent communication with one or more other prisoners ” and a “ security measure ”. The applicant was transferred that day to Fresnes Prison. 20. A proposal to prolong the measure dated 26 July 1995 cited the “ need to prevent communication with one or more other prisoners ”. On 27 July 1995 a doctor from Fresnes Prison issued a certificate stating: “Health currently compatible with continued solitary confinement. ” 21. On 11 August 1995 the measure was prolonged for a period of three months starting on 15 August 1995. 22. On 10 November 1995 a doctor from Fresnes Prison issued a medical certificate stating that the applicant ’ s health was satisfactory and compatible with solitary confinement. A further proposal to prolong the measure dated the same day referred to “ the undermining of order or discipline in the prison ”. 23. On 20 November 1995 the measure was prolonged for a period of three months starting on 15 November 1995. 24. A proposal of 24 January 1996 for a further extension referred to “ the need to prevent communication with one or more other prisoners ”. On 25 January 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant ’ s health was satisfactory. 25. On 4 March 1996 the measure was prolonged for a period of three months starting on 15 February 1996. 26. On 19 April 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant ’ s health was compatible with his detention in the segregation unit. On 7 May 1996 the measure was extended for a period of three months commencing on 15 May 1996. A proposal dated 17 April 1996 mentioned a “ precautionary or security measure required for one or more of the following reasons: need to prevent communication with one or more other prisoners ”. 27. It was not until 31 October 1996 that the applicant was notified of the measure applicable for the period from 15 May to 15 August 1996. He made the following observation: “ I do not think it right that I should be asked to sign more than five months late. ” 28. On 15 July 1996 the applicant was notified of a measure which referred to the “ need to prevent communication with one or more other prisoners ” and to “ international terrorism ”. 29. On 22 October 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant ’ s health was compatible with his detention in solitary confinement. 30. A decision dated 31 October 1996, which was applicable from 15 November 1996 to 15 February 1997, referred only to the “ need to prevent communication with one or more other prisoners ”. The applicant made the following observations on the notification slip: “ I note that Mr ..., the director, has already replied to these observations, even before I have made them, it is stated below: 07.11.1996 before the Sentence Enforcement Board in the prison. Consequently, the remarks I am required to make have become superfluous. Even so, my solitary confinement is a form of torture. ” This measure was authorised by the head of the Prison Service at the Ministry of Justice on 14 November 1996, as were those that followed. 31. On 17 January 1997 a doctor from the Paris Regional Health Authority certified that he had examined the applicant and found his health to be compatible with solitary confinement. 32. A proposal made on 20 January 1997 referred to the “ need to protect [the applicant] from the rest of the prison population ” and the “ need to prevent communication with one or more other prisoners ”. The applicant made the following remarks: “ I note that I am increasingly subject to this base harassment and am being singled out as a political prisoner. I reject the reasons given for keeping me in solitary confinement. ” 33. On 23 April 1997 a doctor from the Paris Regional Health Authority certified that solitary confinement was not contraindicated for the applicant. 34. The following reasons were given for a proposal for a further extension dated 25 April 1997 : “Precautionary or security measure for one or more of the following reasons: (i) need to protect you from the rest of the prison population; (ii) need to prevent communication with one or more other prisoners. ” The applicant made the following comments : “ I have not had a check-up, been weighed or had my blood pressure taken, etc. ... I note that the lower section of the questionnaire has already been filled in, thus making a mockery of the observations which I have been asked to make. Please give me a further complete medical check-up. ” 35. A decision of 21 July 1997 referred in addition to “ the undermining of order and discipline in the prison ” and “ potential dangerousness linked to acts of terrorism”. The applicant made the following comments: “ I have not had a medical certificate following a medical examination and you are using forged documents which you do not even dare to show me. I request an immediate interview with the governor. ” 36. A decision of 13 August 1997 again cited the “ need to prevent communication with one or more other prisoners ”. 37. On 14 October 1997 a doctor at Fresnes Prison issued a certificate certifying that the applicant ’ s health was satisfactory. Proposals of 21 October 1997 and 23 January 1998 were in the same terms as the decision of 13 August 1997. On signing the proposal of 21 October, the applicant stated: “ I sign under protest against an unjust repressive measure (decision) against a political prisoner held hostage by the French State. ” 38. On 23 January 1998 a Fresnes Prison doctor issued a certificate certifying that the applicant ’ s health was satisfactory. 39. It was followed by a further certificate on 22 April 1998 stating that the applicant was fit enough to remain in solitary confinement and a certificate of 23 July 1998 stating that solitary confinement was not contraindicated. A further certificate drawn up on 21 October 1998 stated that the applicant was in satisfactory health and fit enough to remain in solitary confinement. 40. Proposals made on 22 April, 23 July and 19 October 1998 cited the need for “ precautionary and security measures in view of the prisoner ’ s character and record ”. The applicant commented as follows on the proposal of 22 April 1998 : “ I acknowledge receipt of notice but protest against the renewal of this unjustified measure of vile political repression that has been imposed on me. Please provide me with a copy. ” On the proposal of 19 October 1998, he noted: “ The signature on this notice by the disloyal deputy director Mr V. further attests to the unfairness of repressive measures imposed by a prison service that acts unlawfully against political inmates such as me. ” 41. The measure dated 19 October 1998 referred to “ precautionary and security measures in view of the prisoner ’ s character and record ”. 42. On 15 January 1999 a doctor from La Santé Prison issued a medical certificate in which he stated: “ The applicant ’ s health is currently compatible with his continued detention in solitary confinement subject to his receiving psychiatric treatment. ” Proposals made on 14 January and 8 April 1999 stated: “ The prisoner must remain in administrative solitary confinement on order and security grounds, in view of his character and record and the nature of his court cases. ” 43. The Ministry of Justice stated in decisions of 20 January and 20 April 1999 : “ The character of this prisoner, who is an HSP [ high-security prisoner ] and objectively dangerous, in particular because of the nature and length of the sentence he faces, justifies his continued solitary confinement on order and security grounds. ” 44. On 9 April 1999 the senior doctor at La Santé Prison issued a certificate which read: “ The circular of December 1998 on solitary confinement states that the opinion of a doctor will only be sought after a year ’ s confinement. Last certificate issued on ( illegible ). I do not, therefore, need to append a certificate regarding prolongation to this note. ” 45. On 23 April 1999 another prison doctor certified that the applicant ’ s health was compatible with his detention or continued detention in solitary confinement. 46. A further certificate dated 20 July 1999 confirmed that the applicant ’ s health was compatible with his continued detention in solitary confinement. 47. A decision of 22 July 1999 cited the following reasons: “ You must remain in solitary confinement for a further period of three months on order and security grounds, in view of your character, your classification as an HSP, and the nature of your convictions and of the cases currently pending. ” 48. A decision of 25 October 1999, which took effect on 15 November 1999, read as follows: “ It is necessary to prolong your solitary confinement for a further period of three months in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given the substantial aid potentially at your disposal. ” The applicant made the following observations: “ I note that the infamous masquerade by the Zionist militant Elisabeth Guigou, who runs the French Ministry of Justice on behalf of the imperialist forces that are seeking to reduce France to the level of a suzerain of the United States, continues. To heck with Human Rights and with Law itself. ALLOUHA AKBAR. ” 49. On 1 February 2000 the authorities relied on “ order and security grounds, in view of your character, your classification as an HSP and the offences for which you have been imprisoned ”. 50. The decisions of 27 April, 20 July and 20 October 2000 were couched in identical terms to the decision of 25 October 1999, save that the end of the sentence read “ given your access to outside help ”. 51. On 13 July 2000 the senior doctor at La Santé Prison issued a medical certificate which read: “ I, the undersigned, ... declare that [the applicant] is in quite astounding physical and mental condition after six years in solitary confinement. However, it is not proper for a patient ’ s doctor to be required to issue a certificate that ought to be a matter for expert opinion. It is very difficult for a doctor to sanction solitary confinement on administrative, rather than medical, grounds. ” 52. On 3 October 2000 another doctor issued a certificate in the following terms: “ I, the undersigned, ... certify that I have today examined [the applicant]. No clinical examination was carried out. However, in view of his current mental condition, I am unable to give a medical opinion on whether he is fit to remain in solitary confinement. ” 53. On 5 January and 23 January 2001 the Ministry of Justice ratified decisions by the governors of Fleury-Mérogis and La Santé Prisons, dated 30 December 2000 and 22 January 2001 respectively, to place the applicant in solitary confinement after previous orders had automatically lapsed following his transfer. 54. The following reasons were stated in the decision of 22 January 2001 : “ Regard has been had to your personality, your classification as an HSP, the length of your sentence ( LI [life imprisonment] ), the nature of the offences and your involvement in an international terrorist network. All these objective indicators of dangerousness make your continued solitary confinement necessary on security grounds. ” 55. On 20 March 2001 a doctor from La Santé Prison certified that she had seen the applicant but had not been able to carry out a physical examination. She added: “ However, in view of his current mental state, I am unable to give a medical opinion on whether he is fit to remain in solitary confinement. ” On 28 March 2001 the applicant commented as follows: “ I have once again filled in this form, having already done so on 19 March ... I denounce ‘ the white torture ’ of perpetual solitary confinement which, following the ‘ serious provocation of 28 December 2000 ’, has been aggravated by the obstruction of the fanlight, which now only opens to an angle of 30 o (7.5 cm), preventing fresh air getting in. This is on top of the ban on my receiving visits or French lessons, in breach of the undertakings. You are committing a crime of ‘ lese-humanity ’. ” 56. On 28 March 2001 a doctor from the Cochin Hospital practising in La Santé Prison issued the following certificate: “ I, the undersigned, ... state that the doctors from the medical service at Paris La Santé Prison are not qualified to judge whether the physical and mental condition of the prisoner Ilich Ramirez Sanchez, who is currently being held in La Santé, is compatible with his continued solitary confinement. ” 57. On 22 April 2001 it was decided to prolong the solitary confinement “ in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given your access to outside help ”. The same reasons were cited in a further extension of 18 June 2001, while a decision of September 2001 was worded in almost identical terms. 58. On 23 May 2001 the doctor in charge of the Outpatient Consultation and Treatment Unit (“the OCTU”) wrote to the governor of La Santé Prison in these terms: “ I have met Mr Ilich Ramirez Sanchez ... as I was asked for an opinion on whether there is any contraindication to this patient ’ s remaining in solitary confinement. Even though Mr Ramirez Sanchez is in reasonable physical and mental condition, strict solitary confinement for more than six years and nine months is ultimately bound to cause psychological harm. It is my duty as a doctor to alert you to these potential consequences so that you may take an informed decision. ... ” 59. On 20 June 2001 the doctor who issued the certificate of 20 March 2001 issued a second certificate in similar terms. 60. The following reasons were stated in a decision that was applicable from 22 July 2001 : “ ... in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given your access to outside help. ” 61. On 20 September 2001 the doctor in charge of the OCTU issued a medical certificate after examining the applicant “ for the purposes of the medical opinion required for continued solitary confinement ”. He stated that the applicant presented “ a physical and mental condition that was entirely reasonable after seven years in solitary confinement ”, adding, however, that this opinion does not constitute an expert opinion, which I am not qualified to give ”. 62. The following reasons were given for prolonging the solitary confinement in a decision of 4 October 2001 : “ It is necessary to prolong your solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape. ” In his observations, the applicant noted in particular: “ More than seven years of strict solitary confinement, a ban on receiving visits or French lessons and a steady reduction in the amount of fresh air in the isolation cell from which even the old wooden school desk has been removed all serve to demonstrate the unfairness of the repressive measures that have been taken against a revolutionary political leader who will not be broken. ” 63. On 20 December 2001 the measure was renewed for a further three months on the following grounds: “ Regard has been had to your character, your classification as an HSP, the length of your sentence ( LI), the nature of the offences and your involvement in an international terrorist network. All these objective indicators of dangerousness make your continued solitary confinement necessary on security grounds. ” 64. Decisions of 10 January, 25 March and 8 July 2002 read as follows: “ It is necessary for you to remain in solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape. The fact that you have received a life sentence, your classification as a high- security prisoner and the nature of the offences for which you have been prosecuted militate in favour of your remaining in solitary confinement. ” 65. On 13 June 2002 an assistant doctor from the OCTU at La Santé Prison issued a medical certificate in the following terms: “ I, the undersigned, Doctor ..., an assistant doctor from the OCTU at La Santé Prison in Paris, certify that I have examined Mr Ramirez Sanchez Ilich, who was born on 12/10/49, in connection with a request for him to remain in solitary confinement. From the medical standpoint, the problem posed by prolonged solitary confinement over a number of years is that it may affect the prisoner ’ s physical and mental health. ” 66. On 29 July 2002 the doctor in charge of the OCTU at La Santé Prison provided the Ministry of Health with the following summary of the medical care the applicant was receiving: “ This patient, who, as you are aware, is in the segregation unit, receives two mandatory medical visits from a member of the OCTU medical team every week, as required by the French Criminal Code. He is currently in excellent somatic health. I am not qualified to express an opinion on his mental health. In addition, Mr Ramirez Sanchez may on request consult members of the OCTU team independently of the mandatory medical visits to the segregation unit. He has thus been able to consult an ophthalmologist ... and has been prescribed corrective glasses. He has consulted a general practitioner several times independently of mandatory visits to the segregation unit on ... Biological tests are performed regularly. ... The treatment Mr Ramirez Sanchez has been receiving can be equated to comfort treatment: ... It should be noted that Mr Ramirez Sanchez has refused any psychological help from the RMPS [Regional Medical and Psychological Service]. ... ” 67. In September 2002 a further decision to prolong the solitary confinement was taken “ in order to preserve security and order, which are under serious threat owing to the applicant ’ s implication in terrorist networks, his dangerousness and the risk of his escaping ”. 68. On 17 October 2002 the applicant was transferred to Saint-Maur Prison ( département of Indre), where his solitary confinement ended. On 13 May 2003 he lodged a fresh application with the Court, in which he complained of the new conditions in which he was being held and, in particular, of the distance from Paris. 69. In June 2003 a book that had been written by the applicant with the help of a journalist was published under the title L ’ islam révolutionnaire ( “ Revolutionary Islam ” ). 70. On 27 August 2003 the Indre Health Inspector wrote the following letter to the Ministry of Health: “ Mr Ramirez Sanchez received a somatic and psychiatric medical examination on his arrival at the prison on 17 October 2002. He has at no stage been placed in solitary confinement in Saint-Maur Prison. As regards his somatic health, Mr Ramirez Sanchez receives the statutory care and may consult the OCTU on request. As to his mental health, he was seen by an RMPS psychiatrist as part of the standard induction procedure. No follow-up was prescribed at the time and the patient has not asked to see a psychiatrist since. He was offered an examination and this took place on 26 August 2003. The RMPS have not recommended any follow- up to that appointment. ” 71. On 18 March 2004 the applicant was transferred to Fresnes Prison in the Paris area where he was again placed in solitary confinement. This followed a television programme in which, in the course of a telephone interview with a journalist, the applicant refused among other things to express any remorse for his crimes to the victims on the grounds that there were “ no innocent victims ”. 72. On 6 August 2004 a doctor at Fresnes Prison issued a medical certificate in the following terms: “ I, the undersigned, ... certify that the prolonged period of solitary confinement to which Mr Ilich Ramirez Sanchez, who was born on 12 October 1949, is subject is detrimental to his mental health. Bringing the solitary confinement to an end would go a long way to facilitating the monitoring of a chronic somatic pathology from which the patient has recently started to suffer which requires medical supervision and regular biological tests. ” 73. On 20 December 2005 another doctor issued a medical certificate which read: “ I, the undersigned, ... regularly see Mr Ilich Ramirez Sanchez, a prisoner in the segregation unit. His continued solitary confinement is damaging his health; it has now lasted for several years and it would appear desirable from the medical standpoint for it to cease. ” 74. On 24 January 2005 the applicant was transferred to Fleury-Mérogis Prison and on 24 November 2005 to La Santé Prison. In both institutions he was kept in solitary confinement with the measure being periodically renewed, including on 17 February 2005 (see below). 75. On 30 June and 5 October 2005 the senior doctor at the OCTU at Fleury-Mérogis Prison issued two medical certificates in exactly the same terms: “ I, the undersigned, ... certify that Mr Ramirez Sanchez Ilich, who was born on 12 October 1949, has been in my care since his arrival at the prison. The problems which Mr Ramirez Sanchez has had with his physical health are now stable. Mr Ramirez Sanchez continues to make the same complaints about the difficulties of being held in full solitary confinement. Since he does not wish to be treated by the Regional Medical and Psychological Service at Fleury- Mérogis Prison and I am not qualified to determine the impact of the conditions in which he is detained on his mental state, a medical and psychological assessment would be desirable. Certificate issued at the request of the prison authorities and delivered by hand for whatever purpose it may serve in law. ” 76. On 5 January 2006 the applicant was transferred to Clairvaux Prison, where he is held under the ordinary prison regime. B. The applicant ’ s requests for judicial review 77. On 14 September 1996 the applicant lodged an application for judicial review with the Paris Administrative Court, arguing that the decision of 11 July 1996 to place him in solitary confinement should be set aside. 78. In a judgment of 25 November 1998, which was served on the applicant on 26 January 1999, the Paris Administrative Court rejected the application, holding that the impugned decision was an internal administrative measure which the administrative courts had no power to set aside. 79. The applicant lodged an application for an order setting aside, on the grounds of formal invalidity, the decision of 17 February 2005 to keep him in solitary confinement. In a judgment of 15 December 2005, the Paris Administrative Court held as follows. “ Although the authorities argue in their defence that the judge responsible for the execution of sentences gave an oral decision on 4 February 2005 in favour of prolonging Mr Ramirez Sanchez ’ s solitary confinement, there is no evidence in the file to show that the regional director obtained the opinion of the Sentence Enforcement Board before delivering his reasoned report to the Minister of Justice, even though, by virtue of the aforementioned provisions of Article D. 283-1 of the Code of Criminal Procedure, the Board is the only body empowered to decide whether solitary confinement should continue beyond a year. It follows that Mr Ramirez Sanchez ’ s argument that the decision of 17 February 2005 to prolong his solitary confinement was defective and must be set aside is well-founded. As regards the submissions on the issue of compensation. Although the formal invalidity of a solitary- confinement measure constitutes a fault capable of engaging the State ’ s responsibility, such a fault cannot entitle the person subjected to the measure to compensation for his or her loss if the circumstances of the case were such as to justify in law the decision to place the prisoner in solitary confinement as the alleged loss cannot be considered to have been a consequence of the defect in the decision. The investigation shows that Mr Ramirez Sanchez has been sentenced to life imprisonment for the murder of police officers. He has been placed under investigation in connection with various terrorist cases, inter alia, for voluntary homicide and using an explosive device to destroy movable property. The applicant might use communications in Fleury-Mérogis Prison or on the outside to re-establish contact with the members of his terrorist cell or seek to proselytize other prisoners and possibly prepare an escape. That being so, the circumstances of the instant case were such as to justify in law the decision taken to prolong the solitary confinement for a period of three months. The damage alleged by Mr Ramirez Sanchez, which included the loss of contact with other prisoners, cannot, therefore, be considered to have been a consequence of the procedural defect in the decision of 17 February 2005, so that his request for an order requiring the State to compensate him for the damage he claims to have sustained is unfounded. ... ” II. PROCEDURE IN SOLITARY CONFINEMENT CASES ... 1.4. Content of the decision The decision shall be in the form set out on the printed sheet annexed hereto and shall be notified after the hearing. The sheet contains two sections, one for the reasons and the other for the prisoner ’ s observations. Additional observations on an ordinary sheet of paper and any documents that may assist in explaining the reasons may be attached to the decision. ... 2.2. Copies of documents for the authorities Article D. 283-1, sub - paragraph 2, of the Code of Criminal Procedure requires the prison governor to inform the regional director and the judge responsible for the execution of sentences of his decision without delay. A copy of a decision to place a remand prisoner in solitary confinement must also be sent to the judge in charge of the investigation. 3. Lifting of the measure Solitary confinement is not intended to continue indefinitely, as it must be justified by factual and legal considerations, which may change or cease to apply. In view of the harmful effects of prolonged solitary confinement, the prison governor and regional director must closely monitor the length of the measure. The measure will automatically lapse in the circumstances set out in Chapter 3. Consideration should also be given on the ordinary renewal dates to lifting the measure. The prisoner must be notified of a decision to lift the measure. If the prisoner has asked to be placed in solitary confinement, his or her observations (if any) must be obtained. 4. Prolongation of the measure Unless a decision to prolong the measure is made at the end of three months, it will automatically lapse. ... 4.1. Proposals to prolong the measure The prolongation procedure must be set in motion three weeks before the three-month period expires. Prisoners in solitary confinement must be informed if it is intended to propose prolongation of the measure and, if they so wish, be given an hour in which to prepare their observations, which they may submit at a hearing held for that purpose. They are then notified of the proposal. No prolongation may be proposed without a prior assessment of the prisoner ’ s situation made with the aid, inter alia, of the record of observation of the prisoner in solitary confinement. If the prison governor considers it necessary to prolong the measure, he or she must compile a file containing: (i) The printed proposal form containing a statement of reasons, which must be up to date when the request is made. The form will contain confirmation that the prisoner has been notified of the proposal, the date of the verbal report to the Sentence Enforcement Board and the date of transmission to the regional director. (ii) The liaison form. (iii) The report on the prisoner ’ s behaviour in solitary confinement based, in particular, on the record of observation. Any report by the medical team or opinion by the doctor will be appended to the proposal file. 4.2. The regional director ’ s investigation The file should be sent to the Regional Director ’ s Office at least fifteen days before the three-month period expires. The Regional Director ’ s Office will examine the file and, if necessary, request additional documents or information. It should make sure it has a fully up-to-date statement of reasons for the proposal to prolong the measure. The regional director must decide whether or not to prolong the solitary confinement and send the decision to the prison for notification to the prisoner before the expiry of the three-month period in all cases. The decision shall be reasoned. If it is decided not to prolong the measure, it will immediately lapse and the prisoner will be returned to the ordinary regime. The prisoner will be given a copy of the decision to prolong the measure on being notified of it. The same rules shall apply to the preservation of evidence and the forwarding of copies to the authorities as for the initial decision. The same procedure shall be followed if prolongation appears necessary at the end of a further three-month period. Regional directors shall consider the reasons for a further extension with particular care. In particular, they must examine whether other types of measure have been considered and satisfy themselves that no such measure would be feasible. When a decision to prolong solitary confinement has already been taken by a regional director, the measure may be lifted during the statutory periods only by a decision of the same authority, unless it automatically lapses under Chapter 3. In such cases, the prison governor will forward to the regional director a reasoned proposal to lift the measure accompanied, if applicable, by a supporting report. The prison governor will also send the regional director without delay any medical certificates the doctor may have issued together with his opinion on whether any action is called for. 5. Prolongation after a year Solitary confinement should be prolonged after a year only in exceptional cases. The Minister of Justice has sole decision-making power, in accordance with Article D. 283-1, sub - paragraph 6. 5.1. Proposals to prolong solitary confinement The prison governor must send the proposal to prolong solitary confinement to the regional director before the end of the tenth month to allow the Regional Director ’ s Office and the central authority time to examine it thoroughly. A doctor ’ s opinion must be sought if it is proposed to prolong solitary confinement beyond a year. If the doctor gives an opinion, it must be set out in writing and forwarded with the proposal. If the doctor does not give an opinion, he or she should initial at least the form containing the proposal. The prison governor will submit the proposal to the Sentence Enforcement Board for an opinion, which the latter will indicate on the proposal form. The prison governor should advise the prisoner of his or her intention to propose prolonging the solitary confinement beyond a year. If the prisoner so wishes, he or she may be given at least an hour in which to prepare observations to be made at a hearing at the end of the allotted time. The prisoner is then notified of the proposal. The prison governor must append to the proposal a summary report on the prisoner ’ s behaviour since the initial decision was made. Lastly, the liaison record (III.3) shall be forwarded with the proposal so that the authority that will take the decision has full details of the chronology of the measure. 5.2. The regional director ’ s report The regional director should draw up a report on the basis of the prison governor ’ s proposal and give a reasoned opinion on whether the measure should be prolonged beyond a year. Before doing so, the regional director may lift the measure if he or she considers that it is no longer warranted or substitute another measure within his or her powers. He or she may also recommend other measures, such as a transfer. The file containing the proposal to prolong solitary confinement must be sent to the head office of the Prison Service at least one month before the preceding measure expires. The central authority must be given time to examine the file and to seek alternatives. 5.3. The decision of the Minister of Justice The central authority will send the Minister of Justice ’ s decision (which will normally be taken by the director of the Prison Service under delegated authority) to the Regional Director ’ s Office at least one week before the preceding period of solitary confinement expires so that the prison can be informed in time. The prisoner should be provided with a copy of the decision and an original should be placed in the file. A verbal report on the final decision should be made to the Sentence Enforcement Board. The head office of the Prison Service will retain the power to decide on further quarterly extensions beyond a year. The matter will be referred back to the central authority in accordance with the procedure described in this paragraph at least one month before the new period of solitary confinement is due to end. Apart from the cases of automatic lapse set out in Chapter 3, power to lift the measure after a year is also vested in the central authority. ... IV. THE SOLITARY CONFINEMENT REGIME 1. European and national recommendations Following its visit to France of 6 to 18 October 1996, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment recommended that ‘ a balance [be struck] between the requirements of the case and the application of a solitary confinement type regime ’, in view of the harmful consequences that that regime could have on the prisoner. It proposed organising the segregation unit in a way that would give prisoners continued access to better exercise areas and to activities, including outdoor activities. These recommendations tie in with the findings of the working groups that have been set up by or at the request of the Prison Service. 2. Implementation of the ordinary prison regime In accordance with Article D. 283-2 of the Code of Criminal Procedure, prisoners in solitary confinement are subject to the ordinary prison regime. 1 o Prisoners must be permitted to make full use of their rights of defence, which are protected by instruments of constitutional or international rank, in accordance with the procedure set out in the Code of Criminal Procedure and the distinction it makes between convicted and remand prisoners. The prohibition on communication referred to in Article 145- 4 cannot apply to communication with lawyers. 2 o The right to relations with members of one ’ s family and others are exercised through prison visits. Subject to the arrangements for individual access to the visiting room, there shall be no restrictions on prison visits unless a court has ordered solitary confinement. There must be no restrictions on the right of prisoners in solitary confinement to send or receive correspondence. However, stricter monitoring of correspondence may be justified by court-imposed imperatives, the prisoner ’ s classification as a high-security risk in accordance with Article D. 276-1 of the Code of Criminal Procedure, or a recommendation for the prisoner to be placed on suicide watch. Similarly, prisoners ’ rights to make telephone calls in penal establishments in accordance with Article D. 417 of the Code of Criminal Procedure are not suspended by solitary confinement. 3 o There is no general restriction on the right of prisoners in solitary confinement to access to news, subject to the normal supervision prisoners receive throughout their term in prison. Prisoners in solitary confinement retain the right to buy newspapers of their choice, or to use a radio or television subject to the usual conditions. If the library operates a direct-access system, it must arrange special opening hours for prisoners in solitary confinement or keep a separate stock for the segregation unit. 4 o Religious observance. Religious observance in the segregation unit shall take place in accordance with the rules set out in Articles D. 437 to D. 439 of the Code of Criminal Procedure. Since prisoners in solitary confinement are unable to attend the services habitually open to all prisoners, they may be authorised to attend special services arranged in agreement with the chaplain. 5 o Health. The health of prisoners in solitary confinement is dependent on their being detained in conditions that allow them a healthy lifestyle: (i) Cells must receive natural light through a window which also affords adequate ventilation, as required by Article D. 350 of the Code of Criminal Procedure. (ii) The exercise yard must provide access to the open air. Consideration must be given to allocating specific times for prisoners in solitary confinement to exercise in an open yard. Exercise periods should be for the same length as for ordinary- regime prisoners. (iii) Sporting activities should be made available in the segregation unit, for example by the provision of an exercise bike, gym mat or table-tennis table. 2.6. Activities in the segregation unit Although access to communal activities provided for ordinary-regime prisoners is suspended during solitary confinement, prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue, allowing prisoners to assemble in small groups at times. Thus, whenever possible, the prison governor must permit prisoners in solitary confinement to assemble in groups of two or three for exercise or activities. A room, which may be multipurpose (sport, reading) should be set aside for this purpose. It is for the prison governor to assess how and when such groups may be organised and to tailor the measure to individuals in the light of the reason for the prisoner ’ s placement in solitary confinement, the aim pursued and the character and conduct of the prisoner or prisoners concerned. Individual educational programmes or distance teaching offered by teachers or instructors should not be discouraged, as they ensure that activities are also directed towards training. ... 4. Monitoring of and dialogue with prisoners in solitary confinement 4.1. Monitoring A record of observation must be compiled for all prisoners in solitary confinement; it will be supplemented by any relevant comments by duty staff or the persons in charge of the unit on the prisoner ’ s behaviour in solitary confinement. The record of observation acts as an early warning system if it appears that solitary confinement is having harmful effects on the prisoner. Staff should consult it regularly and in any event if it is intended to propose prolonging the measure. A summary of the record of observation will be sent to the regional director and the central authority with the proposal to prolong the measure or in the event of an internal appeal by the prisoner against the original decision or a decision to prolong the measure. All prisons shall be responsible for creating a record of observation meeting the stated objective or, if one already exists, improving it. 4.2. Dialogue In order to avoid excessive social isolation, it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement. Not only does this reduce the degree of isolation, especially for prisoners who do not receive visits, it also assists in monitoring the prisoner ’ s character. For the same reasons, senior prison officers and socio-educational staff should seek to meet prisoners in solitary confinement at least as regularly as they do ordinary prisoners. ” 82. 3. Case-law of the Conseil d ’ Etat In a judgment of 30 July 2003, the Conseil d ’ Etat departed from its previous case-law when it held: “ The aforementioned provisions and the evidence before the tribunal of fact show that it is in the very nature of solitary confinement to deprive persons subjected to it of access to the sporting, cultural, teaching and training activities and paid work that are available to other prisoners collectively. Such a measure may be imposed for a period of up to three months and may be prolonged. In these circumstances, even though Article D. 283-2 of the Code of Criminal Procedure states that solitary confinement is not a disciplinary measure, as the prisoners concerned are subject to the ordinary prison regime, a decision to place a prisoner in solitary confinement against his or her wishes will, in view of the effects it has on the conditions of detention, be amenable to judicial review. Accordingly, the Minister of Justice ’ s submission that the Administrative Court of Appeal erred in law in declaring admissible an application by Mr X for judicial review of a decision by the governor of Bois d ’ Arcy Prison to place him in solitary confinement is unfounded. The Administrative Court of Appeal did not err in law when it held that a decision to place a prisoner in solitary confinement was one of the decisions for which the first section of the Act of 11 July 1979 requires reasons to be stated. In finding that insufficient reasons had been stated in the impugned decision, the Paris Administrative Court of Appeal reached a decision in its unfettered discretion which, in the absence of any distortion of the facts, cannot be challenged in this Court. It follows from the foregoing that the Minister of Justice is not entitled to make an order setting aside the impugned judgment. It is appropriate in the circumstances of this case to make an order requiring the State to pay Mr X the sum of 2,300 euros he claimed under Article L. 761-1 of the Administrative Courts Code. ” III. INTERNATIONAL MATERIALS 83. Extracts from the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the responses of the government of the French Republic (unofficial translation) Report on the visit of 6 to 18 October 1996 “ 158. The CPT pays particular attention to prisoners held under conditions akin to solitary confinement. It reiterates that the principle of proportionality requires a balance be struck between the requirements of the case and the application of a solitary-confinement regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment. In any event, it should be as short as possible. 159. The delegation visited the segregation units in ... and in the remand prisons of Paris-La Santé ... It met a number of prisoners who had been held in solitary confinement for long, and in some instances very long, periods. ... Furthermore, the solitary-confinement cells in Paris-La Santé Prison could be described as reasonable (cf. paragraphs 100 and 101). As regards the prison regime, which according to the Code of Criminal Procedure is an ordinary regime, the delegation found that the activities remained limited (reading, television, and in some instances in-cell educational or training activities). ... There continued to be little human contact and this took the form of any visits from close relatives or other authorised persons (such as religious representatives) and some daily contact with warders. As regards outdoor exercise, the prison authorities said that a one to three hour walk was authorised every day, although conditions were less than satisfactory. 160. The CPT pointed out in its report on its first visit that particular attention had to be paid to the mental and physical condition of prisoners in solitary confinement. In paragraph 380 of their interim report, the French authorities indicated that prisoners in solitary confinement were examined twice a week by doctors and that a doctor was called out whenever the condition of a prisoner in solitary confinement demanded. Doctors were required to inform the prison governor in writing if they considered the prisoner ’ s physical or mental health to be at risk. In that connection, the French authorities informed the delegation that a draft decree (which is due to come into force on 1 December 1996 ) would establish new rules for gaining access to a doctor and assessing a prisoner ’ s condition. 161. As to the other safeguards, it seemed to the delegation from an examination of the relevant files that the procedure for prolonging solitary confinement was rather summary. The manner of its implementation also appears to vary from one region to another. ... At Paris-La Santé Prison, the delegation heard allegations by prisoners in solitary confinement that this was no longer the case. These were credible allegations, since, unlike in Marseille, the delegation found no trace of annotations or headings indicating that prisoners had been informed of the proposal to prolong their solitary confinement. The delegation found virtually no evidence in the files it examined of reports being sent to the commission responsible for the execution of sentences or of the commission issuing opinions as required by the relevant provisions of the Code of Criminal Procedure. Furthermore, the only medical certificates relating to the renewal procedure seen by the delegation were stereotyped and extremely brief. 162. In the light of the foregoing, the CPT recommends that the French authorities: (i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact; (ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report; (iii) ensure that all prisoners whose solitary confinement is prolonged are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds). The CPT would also like to know whether the decree announced by the French authorities has come into force and to receive a copy if it has. ” Responses of the government of the French Republic to the 1996 report Observations (interim report) “ (i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact (paragraph 162) The rules governing solitary confinement are being revised. Articles D. 283-1 and D. 283-2 of the Code of Criminal Procedure and the circular of 12 July 1981, which are currently in force, need supplementing in order to improve the procedure and to limit the duration of the measure. Draft Article D. 283-1 accordingly places particular emphasis on the need for the medical supervision of prisoners in the segregation unit. It also makes the director of the Prison Service responsible for deciding whether to prolong solitary confinement that has exceeded a year. The entry into force of this Article, which will be included in a vast decree amending more than 300 Articles of the Code of Criminal Procedure, has been delayed, as the decree is part of a governmental programme of State reform. It is intended that a draft circular will be issued when the decree comes into force. It will emphasise that prisoners in solitary confinement are subject to the ordinary prison regime and will give instructions for continued dialogue between staff and prisoners in solitary confinement, in particular through the organisation of regular meetings. The provision of individual teaching or training programmes will also be recommended. (ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report (paragraph 162) A draft circular is being prepared. (iii) ensure that all prisoners whose solitary confinement is renewed are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds) (paragraph 162) A draft circular is being prepared. ” Follow-up report “ (i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact (paragraph 162) The draft decree referred to in the interim report, which brings the regulatory section of the Code of Criminal Procedure into line with a number of statutes that are already in force, is in the process of promulgation. It will amend, inter alia, Article D. 283-1 of the Code of Criminal Procedure by making the director of the Prison Service responsible for deciding whether to prolong solitary confinement that has exceeded a year. It will redirect the focus of medical supervision to its exclusive role of providing prisoner health care. Pursuant to this provision, a draft circular has been drawn up confirming that prisoners in solitary confinement are subject to the ordinary prison regime, which entails, inter alia : (a) full compliance with prisoners ’ ordinary rights to relations with their family, representatives and others; (b) continued dialogue between staff and the prisoner in solitary confinement through regular meetings; (c) the organisation, to the extent possible, of special activities in the segregation unit and of individual teaching and training programmes. This draft was prepared after wide consultation of decentralised services. An information and exchange procedure on the issue has thus already been set in motion and will continue with the distribution of the circular, which could be available immediately after publication of the aforementioned decree. (ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report (paragraph 162) The draft circular establishes a mechanism for controlling the length of solitary-confinement measures: before a decision to prolong the measure beyond three months can be taken, the regional director must examine an observation report from the prison governor based, in particular, on his knowledge of the prisoner concerned and the information provided by the various prison departments on the basis of the personal record of observation. Any event with suspensive effect that either entails release or is for a period exceeding fifteen days will result in the lapse of the solitary-confinement measure and the prisoner ’ s return to ordinary detention. (iii) ensure that all prisoners whose solitary confinement is renewed are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds) (paragraph 162) The draft circular introduces an improved system for the provision of reasons and written notification of decisions to place a prisoner in solitary confinement. The prison governor will not, however, be required to disclose information to a prisoner that may put people or the prison at risk; this has been accepted by the CPT. ” report on the visit from 14 to 26 may 2000 “ 111. In its reports of both 1991 and 1996 the CPT stressed that the principle of proportionality required that a balance be struck between the requirements of the case and the application of a solitary confinement type regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment. In any event, it should be as short as possible. Following its visits, the CPT advised of its concerns regarding various aspects of solitary confinement in France (cf. paragraphs 140 et seq., and 158- 63 of the reports). Subsequently, in a circular dated 14 December 1998, the Minister of Justice issued instructions concerning, inter alia, the grounds on which prisoners could be placed in solitary confinement, the procedure to be followed and the regime for prisoners in solitary confinement. These instructions address some of the concerns expressed by the CPT in its reports on previous visits. Nevertheless, during its visits the CPT delegation found serious shortcomings in the manner in which the earlier recommendations of the CPT and the ministerial instructions had been implemented in practice. The CPT has serious reservations about the situation of a number of prisoners in solitary confinement for administrative reasons that the delegation met during its visit. Its reservations concern both the length of the confinement (which in some instances had been for years on end) and the highly restrictive regime to which such prisoners are subject (total lack of structured or communal activities). 112. The physical conditions of detention of prisoners placed in solitary confinement for administrative reasons were globally acceptable. However, the cells accommodating such prisoners at the Paris-La Santé Prison had only limited access to natural light. In addition, in the four institutions visited, the exercise yards – which were often also used by prisoners in solitary confinement for disciplinary reasons – were uninviting. 113. The ministerial instructions state: ‘ The essential features of the ordinary prison regime must, so far as possible and subject to practical constraints, be retained in the segregation unit ’ (point 4.1). They further state, inter alia : ‘ there shall be no restrictions on prison visits ’ (point 4.2.2) and ‘ prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue, allowing prisoners to assemble in small groups at times ’, that ‘ it is for the prison governor to assess how and when such groups may be organised ’ and ‘ individual educational programmes or distance teaching offered by teachers or instructors should not be discouraged ’ (point 4.2.6). The instructions further require increased surveillance of prisoners and specify: ‘ in order to avoid excessive social isolation, it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement ’ (point 4.4.2). From the information obtained by the delegation, it would seem that, with the odd exception (for instance as regards contact with the outside world), the vast majority of the aforementioned requirements have not been complied with. For example, the only establishment which allowed prisoners in solitary confinement for administrative reasons to associate was Lyon-Saint Paul Prison and even there association was restricted (to exercise outdoors and in the fitness room). The CPT recommends that the authorities take measures without delay to give full effect to the Minister of Justice ’ s instructions of 14 December 1998 concerning solitary confinement for administrative reasons – under paragraphs 4.2.6, 4.2.7 and 4.4.2 in particular. 114. The CPT also has reservations about the effectiveness of the procedural safeguards on solitary confinement for administrative reasons. The files that have been examined show that it is sometimes used as an alternative to solitary confinement as a disciplinary measure (for instance, in one case, the measure was imposed for: ‘ serious damage to property belonging to the prison that put prison security at risk ’ ) or to prolong such a measure and that the reasons stated for putting a prisoner in solitary confinement were often stereotyped ( ‘ to maintain order in the prison ’ or ‘ risk of escape ’ ). In one case the prisoner had been held in solitary confinement since 1997 ‘ because of the nature of the offences of which he had been convicted ’. In summary, it would appear that the ministerial instructions, namely ‘ Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm ’, are not always fully complied with (cf. point 1.4.2). The CPT recommends that the French authorities carry out a case-by-case review of compliance with the instructions issued in 1998 with regard to solitary confinement for administrative reasons. 115. Lastly, the CPT understands that the issue of the nature and extent of available remedies has not yet been resolved (cf. paragraph 146 of the report on the 1991 visit). In practice this means that prisoners in solitary confinement currently have no real means of challenging decisions to place them in solitary confinement or to renew such a measure before an independent authority. The CPT recommends the reinforcement of the safeguards provided for prisoners in solitary confinement in order to ensure they have an effective remedy before an independent authority, preferably a judge. Indeed, that is the spirit of the various proposals that are currently pending before the French authorities (for instance, the Canivet report and the report of the Senate investigation). ” Response of the government of the French Republic “ (i) take measures without delay to give full effect to the Minister of Justice ’ s instructions of 14 December 1998 concerning solitary confinement for administrative reasons – under paragraphs 4.2.6, 4.2.7 and 4.4.2 in particular (paragraph 113) (ii) carry out a case-by-case review of compliance with the instructions issued in 1998 with regard to solitary confinement for administrative reasons (paragraph 114) Power to take decisions on solitary confinement is vested in the Minister of Justice if the confinement has exceeded one year. There are currently 77 prisoners who have been in solitary confinement for more than a year. Of these, 23 are in prisons for convicted prisoners and 54 in prisons for remand prisoners. The majority of these prisoners were placed in solitary confinement at their own request, either on account of the offence for which they were imprisoned, or of their occupation before they were imprisoned. Improvements are being made to the segregation units to make them compliant with the circular of 14 December 1998. The prisons to be built as part of the ‘ 4 000 programme ’ will be equipped with segregation units that allow prisoners to enjoy all the advantages set out in the aforementioned circular. Furthermore, in accordance with the circular of 14 December 1998 on solitary confinement, it is the regional director of the Prison Service or the central authority who is responsible for reviewing the reasons given by the prison governor for placing a prisoner in solitary confinement. In addition, the prison inspectorate verifies compliance with these obligations when carrying out prison visits. (iii) reinforce the safeguards provided for prisoners in solitary confinement to ensure they have an effective remedy before an independent authority, preferably a judge (paragraph 115) Solitary confinement is one of the issues being considered in connection with the proposed legislation on prisons. ” 84. Extracts from the Guidelines on human rights and the fight against terrorism, adopted by the Committee of Ministers of the Council of Europe on 11 July 2002 “ III. Lawfulness of anti-terrorist measures 1. All measures taken by States to combat terrorism must be lawful. 2. When a measure restricts human rights, restrictions must be defined as precisely as possible and be necessary and proportionate to the aim pursued. IV. Absolute prohibition of torture The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited, in all circumstances, and in particular during the arrest, questioning and detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted. ... XI. Detention 1. A person deprived of his/her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity. 2. The imperatives of the fight against terrorism may nevertheless require that a person deprived of his/her liberty for terrorist activities be submitted to more severe restrictions than those applied to other prisoners, in particular with regard to: (i) the regulations concerning communications and surveillance of correspondence, including that between counsel and his/her client; (ii) placing persons deprived of their liberty for terrorist activities in specially secured quarters; (iii) the separation of such persons within a prison or among different prisons, on condition that the measure taken is proportionate to the aim to be achieved. ” 85. 1. Extracts from Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules adopted on 11 January 2006 “ The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Having regard to the European Convention on Human Rights and the case- law of the European Court of Human Rights; Having regard also to the work carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and in particular the standards it has developed in its general reports; Reiterating that no one shall be deprived of liberty save as a measure of last resort and in accordance with a procedure prescribed by law; Stressing that the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety, security and discipline while also ensuring prison conditions which do not infringe human dignity and which offer meaningful occupational activities and treatment programmes to inmates, thus preparing them for their reintegration into society; ... Recommends that governments of member States: – be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation, which replaces Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules: ... Appendix to Recommendation Rec(2006)2 ... Basic principles 1. All persons deprived of their liberty shall be treated with respect for their human rights. 2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. ... 18.2 In all buildings where prisoners are required to live, work or congregate: a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system; b. artificial light shall satisfy recognised technical standards; ... ... 23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense. ... 23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential. ... 24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons. 24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact. ... 24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible. ... 24.10 Prisoners shall be allowed to keep themselves informed regularly of public affairs by subscribing to and reading newspapers, periodicals and other publications and by listening to radio or television transmissions unless there is a specific prohibition for a specified period by a judicial authority in an individual case. ... 25.1 The regime provided for all prisoners shall offer a balanced programme of activities. 25.2 This regime shall allow all prisoners to spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction. 25.3 This regime shall also provide for the welfare needs of prisoners. ... 27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits. 27.2 When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise. 27.3 Properly organised activities to promote physical fitness and provide for adequate exercise and recreational opportunities shall form an integral part of prison regimes. 27.4 Prison authorities shall facilitate such activities by providing appropriate installations and equipment. 27.5 Prison authorities shall make arrangements to organise special activities for those prisoners who need them. 27.6 Recreational opportunities, which include sport, games, cultural activities, hobbies and other leisure pursuits, shall be provided and, as far as possible, prisoners shall be allowed to organise them. 27.7 Prisoners shall be allowed to associate with each other during exercise and in order to take part in recreational activities. ... 29.2 The prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs, to attend services or meetings led by approved representatives of such religion or beliefs, to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs. ... 37.1 Prisoners who are foreign nationals shall be informed, without delay, of their right to request contact and be allowed reasonable facilities to communicate with the diplomatic or consular representative of their State. ... 39. Prison authorities shall safeguard the health of all prisoners in their care. ... 40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation. ... 40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer. 40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose. ... 43.2 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to the health of prisoners held under conditions of solitary confinement, shall visit such prisoners daily, and shall provide them with prompt medical assistance and treatment at the request of such prisoners or the prison staff. 43.3 The medical practitioner shall report to the director whenever it is considered that a prisoner ’ s physical or mental health is being put seriously at risk by continued imprisonment or by any condition of imprisonment, including conditions of solitary confinement. ... 51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody. 51.2 The security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control. 51.3 As soon as possible after admission, prisoners shall be assessed to determine: a. the risk that they would present to the community if they were to escape; b. the risk that they will try to escape either on their own or with external assistance. 51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk. 51.5 The level of security necessary shall be reviewed at regular intervals throughout a person ’ s imprisonment. Safety 52.1 As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves. 52.2 Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety. ... 53.1 Special high security or safety measures shall only be applied in exceptional circumstances. 53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner. 53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law. 53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time. 53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority. 53.6 Such measures shall be applied to individuals and not to groups of prisoners. 53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70. ... 70.1 Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority. ... 70.3 If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority. ... ” 2. Extracts from the report by Mr Alvaro Gil- Robles, Commissioner for Human Rights of the Council of Europe, on the effective respect for human rights in France following his visit from 5 to 21 September 2005 (published on 15 February 2006) “ 123. ... At the same time, another administrative procedure, which comes fully under the responsibility of the prison administration, is totally lacking in transparency and calls for rapid action on the part of the legislature. This is the procedure for placing prisoners in solitary confinement. 124. When one visits prisons, and more specifically the disciplinary blocks, one can usually see the solitary confinement blocks close by. Every prison has them. Under the law, any prisoner may be placed in solitary confinement either at his/her own request or as a precautionary or security measure [1]. In some cases, this regime is used to remove prisoners who are troublesome, under suspicion or ringleaders from the other inmates without their having committed a disciplinary offence. 125. According to the legislation currently in force, solitary confinement is not a disciplinary measure [2]. Prisoners in solitary confinement must be subject to the ordinary prison regime. However, they must not have contact with other prisoners, except by express decision of the prison director, to take part in one-off activities with other solitary confinement prisoners. The movements of solitary confinement prisoners within the prison are organised in such a way that they do not meet anyone on their way. In a few establishments, solitary confinement prisoners may engage in a gainful occupation by doing work in their cells. Usually, however, they do not have access to any gainful activity and are entirely dependent on any funds which may be sent to them from outside. All solitary confinement prisoners may, however, receive visits and exchange correspondence in the normal way. 126. There is also a stricter solitary confinement regime for prisoners regarded as particularly dangerous ‘ because of [their] involvement in organised crime or in a terrorist movement or [their] legal and criminal background ’. It is for the prison director to determine which solitary confinement prisoners fall within this category. They are subject to particular security measures. Some are regularly transferred from one prison to another, roughly every six months. They remain constantly in solitary confinement and never mix with other prisoners. 127. Solitary confinement is usually ordered by the prison director. It may also be ordered by an investigating judge in the course of an investigation. Here I should like to dwell on the administrative procedure for which the prison director is responsible, because I feel that it raises a number of issues likely to undermine respect for the fundamental rights of persons placed in solitary confinement. 128. It emerged from most of my discussions with prisoners, lawyers, representatives of the prison administration and voluntary organisations that the procedure for placing prisoners in solitary confinement depends entirely on an administrative decision by the prison director. There are no legislative provisions or regulations governing this procedure which guarantee the rights of those subject to it, particularly by ensuring that they are given a hearing and the assistance of a lawyer. 129. In principle, there is general legislation which should govern this situation. This is Article 24 of the Law of 12 April 2000 on the rights of citizens in their dealings with the public administration. Under this provision, representatives of government bodies who intend to take an administrative decision against an individual citizen must in principle notify the person concerned in writing with sufficient advance notice, specifying the reasons for the procedure. The person in question must have the opportunity to submit written observations or, if he/she so wishes, oral observations and has the right to be assisted by a lawyer or a representative (approved or not). He/she may also have access to his/her file. 130. Clearly, the decision to place a prisoner in solitary confinement would normally be covered by this. However, we were told that this legislation has remained inoperative where solitary confinement is concerned. At present, therefore, the prison director retains sole discretion where solitary confinement is concerned. 131. According to what we heard in the course of our discussions, at present the prisoners concerned are usually informed immediately before the hearing of the intention to place them in solitary confinement. They usually only have an hour in which to prepare their observations before being given a hearing, without any legal assistance, by the prison director. I believe that, as things stand, this procedure must be described as being contrary to the recommendations of the Committee for the Prevention of Torture (CPT). Furthermore, the purely administrative and non-adversarial nature of this procedure greatly increase the risk of abuses of prisoners ’ rights. I therefore feel that there is currently a real need to introduce legislation or regulations bringing this procedure into line with European standards. 132. Furthermore, it is particularly disturbing to see that solitary confinement may be ordered for an indefinite period, despite its frequently harmful effects on the mental state of the persons subjected to it. The initial period of solitary confinement ordered by the prison director may not exceed three months. It may be extended beyond that period only after a report to the Sentence Enforcement Board and following a decision by the regional director of prisons. In exceptional cases, solitary confinement may be extended beyond one year following an initial decision by the Minister for Justice. In such cases, the prison director compiles a file including, among other things, the opinion of the prison doctor and of the Sentence Enforcement Board. The minister is responsible for subsequent extensions, for three months at a time, in accordance with the same procedure. 133. As may be seen, this procedure is entirely administrative. At present, there is no judicial involvement whatsoever. Yet it is a particularly serious measure, because, although it is not recognised as punishment, the solitary confinement regime imposes significant material restrictions on prisoners ’ rights, not to mention its psychological impact. During the visit, I had the opportunity to talk with persons placed in solitary confinement. Some complained about the harshness of their living conditions. According to them, being unable to communicate with anyone for long periods, sometimes well in excess of a year, is hard to bear. Prisoners placed in solitary confinement have no effective administrative remedy at their disposal, and most of those I spoke to regard solitary confinement as a disguised disciplinary punishment. In the course of the visit I met people who had been in total solitary confinement for several years. 134. It is difficult not to agree with them when you see some of the restrictions placed on solitary confinement prisoners. In view of the fact that one of the requirements of the solitary confinement regime is that the prisoners concerned should have no contact with other prisoners, it is very difficult to allow them to exercise the rights vested in all prisoners not subject to a disciplinary punishment, which should clearly be the case for those in solitary confinement. For example, to allow them to use the library or a sports hall, care must be taken to ensure that no one else enters these premises at the same time. As we know, owing to prison overcrowding, it is already quite difficult to ensure access for ordinary prisoners to these services. Most of those I spoke to therefore complained that it was impossible for them to exercise the rights to which they should normally be entitled. The same applies to the possibility of engaging in a gainful occupation. In theory, prisoners in solitary confinement are entitled to that, but in practice they may only do so inside their own cell, which is highly problematical in view of the scarcity of work opportunities in general. 135. Lastly, the exercise areas available to this category of prisoners are usually the same as those used by the prisoners in the disciplinary block. We visited one such area at Fleury-Mérogis short-stay prison. It is located on the roof of one of the prison buildings, closed in by concrete walls on all sides and covered by wire netting. It is so small that it is more a room in the open air than anything else. 136. I should like to stress that we are talking here about people who are not subject to a disciplinary measure. Furthermore, the fact that a person is left deprived of the rights secured to every prisoner is purely the result of an administrative decision against which it is difficult to appeal. I therefore call on the French authorities to take rapid action to bring solitary confinement into line with European standards, in particular those upheld by the CPT. I think there is a need for legislative provisions or regulations to govern the solitary- confinement procedure. The adversarial system already introduced for disciplinary punishments should apply to the solitary- confinement procedure. Lastly, I think it would be in keeping with the spirit of the principle of legal certainty if a judicial body were henceforth able to participate in the procedure, for example the judge responsible for sentence enforcement. 137. Furthermore, without waiting for legislative reform, the authorities should act to ensure that prisoners in solitary confinement are able to participate in organised activities, particularly as regards work, culture and sports. Their walks and outdoor sports activities should be organised as soon as possible in appropriate places intended for the prison population as a whole, and not for prisoners being held in disciplinary cells. Excluding prisoners from these activities amounts to a disguised punishment. Such changes are bound to lighten the already quite heavy atmosphere which I found in the places of detention visited. ... ” | Better known as “Carlos the Jackal” and viewed during the 1970s as the most dangerous terrorist in the world, the applicant complained about his solitary confinement for eight years following his conviction for terrorist-related offences. |
806 | Access to public buildings and buildings open to the public | 2. The applicant was born in 1976 and lives in Reykjanesbær. He was represented by Mr Daníel Isebarn Ágústsson, a lawyer practising in Reykjavik. 3. The Government were represented by their Agent, Mr Einar Karl Hallvarðsson, State Attorney General. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Domestic proceedings 5. The applicant was left permanently paralysed from the chest down following an accident in 2002 and uses a wheelchair for mobility. In 2015 he, together with an association of people with spinal injuries, brought civil proceedings challenging a lack of wheelchair access in two buildings housing arts and cultural centres run by the applicant’s municipality. They sought a declaratory judgment that would require the defendants, Reykjanesbær, the municipality in which the applicant resides, and Reykjanesbær’s holding company, F., which owned one of the buildings in question, to improve accessibility in the two buildings in several specific ways. 6. The first building, Duushús, comprises two adjoining houses built in 1877 and 1954-70 respectively. The three-storey tall building was extensively renovated between 2006 and 2014. It houses Reykjanesbær’s main arts and cultural centre. The plaintiffs demanded the installation of a wheelchair lift to enable access between the floors of the building; the installation of ramps between different galleries on the ground floor no steeper than 1:20, as required by building regulations; and changes to the threshold of the main entrance to enable wheelchair access. 7. The second building, 88 Húsið, is a two-storey building originally built as an engine house in 1963, but has housed a youth centre run by the municipality since 2004. The plaintiffs demanded the installation of a wheelchair lift to enable access between the different floors of the building, the installation of ramps no steeper than 1:20 to enable access from the car park to the building and between the different rooms, and the creation of a disabled parking space within 25 metres of the entrance. 8. In addition, the applicant demanded that the defendants be obliged to pay him 1,000,000 Icelandic krónur (ISK – approximately 7,300 euros (EUR) at the material time) for non-pecuniary damage suffered as a result of the lack of access. 9. The plaintiffs argued that the buildings in question were not in compliance with the applicable building regulations and that this lack of access hindered the applicant, and other wheelchair users, from enjoying their private life on an equal basis with others, in violation of the Constitution, the European Convention on Human Rights (“the Convention”) and the United Nations Convention on the Rights of Persons with Disabilities (“the CRPD”). 10. In the domestic proceedings the applicant requested that a court-appointed assessor draw up a report concerning specific elements of the accessibility of the buildings. As regards Duushús, the assessor established the following: (1) that there was no lift between the floors of the building, (2) that there was a ramp between the two halls on the ground floor of the building with an incline of approximately 1:7 and a width of 96-161 cm, and (3) that there was a 51 mm high threshold at the main entrance to the building. As regards 88 Húsið, the assessor established the following: (1) that there was no lift between the floors of the building, (2) that there was no lift or ramp between the different halls of the building, (3) that there was a ramp with an incline of approximately 1:9 between the car park and the entrance to the building, and (4) that there was no designated disabled parking space by the building’s entrance. 11. The Reykjanes District Court delivered a judgment in favour of the defendants on 24 November 2016. It found that access to the two buildings was in need of improvements, but that this did not violate the applicable building regulations as both buildings had been built prior to those regulations taking effect. Nevertheless, the municipality was under a legal obligation to work towards improving wheelchair access to public buildings and institutions providing public services, and the court noted that the municipality had rolled out an initiative to improve access. In this regard, the court found that municipalities had a margin of appreciation in the prioritisation of such projects, and that the separation of powers hindered the courts from deciding that the authorities were under an obligation to take certain action in areas where the authorities had such discretion. 12. The plaintiffs appealed against that judgment to the Supreme Court. In their written submissions to that court, they did not rely explicitly on the Convention, but they did refer to the submissions and legal arguments made in their civil claim (see paragraph 9 above) and relied explicitly on the principle of equality and non-discrimination. By a judgment of 25 October 2018, the Supreme Court upheld the District Court’s conclusion. 13. The Supreme Court noted that the CRPD had been ratified but not incorporated into domestic law, and that therefore the plaintiffs could not rely directly on its provisions, although domestic law had to be interpreted harmoniously with the State’s international legal obligations in so far as possible. 14. The Supreme Court made reference to the District Court’s description of the measures taken by Reykjanesbær with respect to improving accessibility (see paragraph 11 above) and held that the municipality had complied with its legal obligation to devise a strategy for improving access to public buildings and public service institutions in accordance with the applicable legislation, which had been enacted taking into account the State’s international human rights obligations, including under the CRPD. Furthermore, that strategy had been put into action by Reykjanesbær, which had taken steps to improve access to certain public buildings. 15. The Supreme Court noted that responsibility for matters relating to people with disabilities had been transferred from the State to the municipalities in 2010. Under the Constitution, municipalities had autonomy in the matters entrusted to them by law, as well as in the use of their funds. Municipalities were therefore the only entities competent to decide on the kinds of improvements which the plaintiffs had demanded, and had a wide margin of appreciation in how to prioritise the allocation of funds available to them in pursuit of their goal of improving access. The Supreme Court’s reasoning did not address the Convention or the plaintiffs’ arguments that the lack of access violated the principle of equality and non-discrimination. | This case concerned the applicant’s access to municipal buildings which housed cultural and social institutions in Reykjanesbær as a wheelchair user. He submitted in particular that the lack of accessibility to the two buildings in question had hindered his personal development and right to establish and develop relationships with his community. |
976 | Copyright of books and musical work | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant organisation, SIA AKKA/LAA ( SIA “ Autortiesību un komunicēšanās konsultāciju aģentūra/Latvijas Autoru apvienība ” – Copyright and Communication Consulting Agency ltd. /Latvian Authors Association ) is a non- profit organisation founded in Riga by a separate non ‑ profit organisation, the Latvian Authors Association, whose members are various Latvian artists. 6. At the end of the 19 90s the applicant organisation, acting as a representative of approximately 2000 domestic and two million international authors who had entrusted the applicant organisation to manage the copyright of their musical works, was concluding licence agreements with several broadcasters in Latvia. From 1998 to 1999, after the expiry of the previous licence agreements, the applicant organisation and certain broadcasting organisations in Latvia could not reach an agreement on the terms of the future licence agreements, especially with regard to the remuneration to be paid for the broadcasting of music. As a result some broadcasting organisations continued to use the protected musical works without a written agreement, either without paying any remuneration or paying the amount the broadcasting organisations unilaterally considered equitable. In 2002 the applicant organisation instituted civil proceedings against several broadcasters operating in Latvia. A. First set of proceedings – [ the applicant organisation] v. Radio SWH 7. In July 2002 the applicant organisation lodged a claim against a private radio station, Radio SWH, and requested that the Riga Regional Court, acting as a first-instance court, recognise that by broadcasting protected musical works without a valid licence agreement between 1 January 1999 and 31 December 2001, the defendant had violated economic interests of the authors represented by the applicant organisation. The applicant organisation further asked that the court award compensation for unauthorised use of musical works. By relying on the authors ’ exclusive rights to control the use of their musical works, the applicant organisation asked the court to apply an injunction precluding the defendant from using the authors ’ works before a valid licence agreement between the parties had come into effect. 8. The defendant lodged a counterclaim arguing that the applicant organisation had abused its dominant position and had fixed an unreasonably high royalty rate, which was six times the rate which had been applicable for the period from 1995 to 1998. They asked the court to order the applicant organisation to conclude a licence agreement with the defendant organisation and to lay down an equitable royalty rate. 9. During the first-instance court ’ s hearing, the applicant organisation admitted that the parties had a dispute over the royalty rate in the draft licence agreement negotiated by the parties, but that the court was precluded under section 41 of the Copyright Law from setting the rate as long as there was no licence agreement concluded between the parties (see paragraph 26 below). 10. On 16 January 2003 the first-instance court partly upheld the claim and fully upheld the counterclaim. It established that between 1 January 1999 and 31 December 2001 the defendant had infringed the authors ’ rights by broadcasting the protected works without authorisation, contrary to the provisions of the Copyright Law. The first-instance court ordered the defendant to pay to the applicant organisation compensation for the above period in the amount of 78,000 Latvian lats ( LVL, equivalent to 111,500 euros (EUR) ), which was 1. 5% of the defendant ’ s net turnover over this period. 11. Furthermore, the first-instance court ordered the applicant organisation to conclude a licence agreement with the defendant for the next three-year period with a royalty rate set at 2% of the defendant ’ s monthly net turnover ( ikmēneša neto apgrozījums ). 12. Lastly, by relying on the preamble of the WIPO Copyright Treaty and Articles 11 and 11 bis of the Berne Convention (see paragraph 37 below), the first-instance court dismissed the applicant organisation ’ s application to have an injunction granted to prohibit the defendant from broadcasting works of the rightsholders represented by the applicant organisation. By referring to the testimonies of two authors represented by the applicant organisation, the first-instance court concluded that the authors themselves were interested in their musical works being publicly broadcasted. An interdiction on broadcasting of the musical works would infringe the authors ’ exclusive rights to have their work reproduced, as well as it would negatively affect the interests of the society to listen to music. 13. On 23 October 2003 the Civil Cases Chamber of the Supreme Court, acting as an appellate court, upheld the part of the first-instance judgment concerning the compensation for copyright infringement and the injunction. 14. On the issue of ordering the conclusion of a licence agreement, the appellate court observed that both parties had expressed their intention to enter into a such an agreement, as attested by a draft licence agreement of 7 October 2003 in which the parties had agreed on certain terms and conditions such as the duration of the licence and the income from which royalties should be calculated. The appellate court noted that it was partly due to the applicant organisation ’ s inconsistent negotiating that a licence agreement could not be concluded. The appellate court accordingly recognised that the licence agreement was to be considered concluded in the wording as agreed by the parties on 7 October 2003. On the question of remuneration, the appellate court established that in the negotiation process the applicant organisation had changed the royalty rate from 6% to 4% and then to 3.5 %, whereas the defendant had insisted on 1.6 % of the income from which royalties should be calculated. The appellate court took note of the characteristics of the defendant ’ s activities and concluded that an equitable remuneration would be 2% of the income from which, as agreed by the parties, the royalties should be calculated. 15. On 11 February 2004, following an appeal on points of law, the Senate of the Supreme Court upheld the appellate court ’ s findings that after the expiry of the earlier licence agreement on 31 December 1998 the de facto contractual relationship between the parties had continued mainly owing to the fact that the applicant organisation had failed to reach an agreement with the defendant on the terms of the licence agreement. The Senate of the Supreme Court further observed that the parties did not contest that the authors had a right to receive equitable remuneration, but that to that day the parties had not reached an agreement on the rate of the royalty payments. Given that there was no other authority responsible to decide on this matter, the Senate of the Supreme Court concluded that pursuant to Article 11 bis of the Berne Convention and section 5 of the Civil Law, it was within the court ’ s competence to set the royalty rate. The Senate of the Supreme Court also dismissed the allegations that the appellate court ’ s judgment had infringed the intellectual property rights protected under the Constitution of the Republic of Latvia. B. Second set of proceedings – [ the applicant organisation] v. Latvijas Radio 16. In their claim against Latvijas Radio, a state-owned limited liability company, the applicant organisation asked the Riga Regional Court, acting as a first-instance court, to find that by broadcasting the rightsholders ’ musical works without a valid licence agreement between 1 January 2000 and 31 December 2001, the defendant had violated economic interests of the authors represented by the applicant organisation. The applicant organisation further asked that the court award compensation for unauthorised use of musical works. By relying on the authors ’ exclusive rights to control the use of their musical works, the applicant organisation asked the court to apply an injunction precluding the defendant from using the authors ’ works before a valid licence agreement between the parties had come into effect. 17. By lodging a counterclaim the defendant in essence asked the court to recognise that in the disputed period the parties had a de facto contractual relationship. 18. On 2 April 2003 the Riga Regional Court dismissed the applicant organisation ’ s claim and upheld the counterclaim. The court established that even though the licence agreement concluded between the parties with the royalty rate set at 3. 2% of the defendant ’ s annual income had expired in 1999, the applicant organisation had continued receiving royalty payments from the defendant, which continued to pay at a lower rate. Given that the applicant organisation had not referred to objections to the broadcasting of the musical works, the existence of a de facto contractual relationship between the parties had been proven. Relying on section 41 of the Copyright Law the court set the royalty rate from 2000 to 2001 at 1.57 % of the defendant ’ s annual income. 19. On 26 November 2003 the Civil Cases Chamber of the Supreme Court, acting as an appellate court, diverted from the first-instance court ’ s findings and recognised that the defendant had infringed copyright by broadcasting the musical works over a prolonged period of time without a valid written licence agreement. It awarded the applicant organisation compensation in the amount of LVL 100,000 (EUR 143,000), which exceeded the amount the defendant had paid under the expired licence agreement. It considered that it would be fruitless to issue an injunction prohibiting the defendant from broadcasting the works. The appellate court observed that in principle the parties had expressed their interest in concluding a licence agreement but that before and during the court proceedings the parties had not agreed on the equitable royalty rate. It also pointed to the applicant organisation ’ s responsibility in failing to reach an agreement in the negotiation of a new licence. As a result, over a prolonged period of time the authors ’ rights had been unprotected. As the parties had not asked the court to decide on the exact terms and conditions of a licence agreement, the appellate court decided to impose on the parties a general obligation to conclude a licence agreement by 1 March 2004. Given that the parties had been unable to agree on a royalty rate, the appellate court set the rate at 3% of the defendant ’ s net turnover. In reaching this conclusion the appellate court took into consideration such elements as, inter alia, the royalty rate set in other court proceedings and the existing practice in certain other EU member States. 20. The applicant organisation appealed on points of law arguing that by, inter alia, ordering the parties to conclude a licence agreement and setting its terms, the court had overstepped its powers and acted in breach of section 11 bis of the Berne Convention and section 15 of the Copyright Law. 21. On 17 March 2004 the Senate partly upheld the lower court ’ s judgment with similar reasoning as in the first set of proceedings. | This case concerned a complaint about the restriction on the copyright of authors’ musical work. The applicant, an organisation responsible for managing the copyright of the musical works of a large number of Latvian and international authors, complained about decisions by the national courts ordering the applicant organisation and two radio companies to enter into a licence agreement and to set an equitable royalty rate. The applicant organisation notably alleged that those decisions had restricted the exclusive rights of the authors they represented to freely conclude licence agreements for the use of their musical works. |
446 | Medical assistance for prisoners with a physical illness | I. THE CIRCUMSTANCES OF THE CASE 6. The first and second applicants, Mr Oleg Volodymyrovych Kats and Mrs Tetiana Yakivna Kats, born in 1946, are the father and mother of the late Ms Olga Olegivna Biliak (hereinafter Olga Biliak), who was born in 1971 and died in 2004. The third applicant, Mr Stanislav Ihorovych Beliak, born in 1993, is the son of Olga Biliak. All three applicants live in Kyiv. 7. Olga Biliak had a history of mental illness and drug addiction. At the time of her arrest, she was a registered schizophrenic and infected with HIV (Human Immunodeficiency Virus). A. Criminal proceedings against Olga Biliak 8. On 18 November 2002 the Solomyanskyy District Police Department of Kyiv ( Солом'янське РУ ГУ МВС України в м. Києві – “the District Police Department”) instituted criminal proceedings against Olga Biliak and S. for assaulting and robbing a certain A. On 15 January 2003 the cases against Olga Biliak and S. were disjoined. S. was subsequently sentenced to seven years'imprisonment for assault and robbery committed jointly with “another person”. 9. On 16 April 2003 Olga Biliak was charged with robbery. 10. On the next day the Solomyanskyy District Court of Kyiv ( Солом'янський районний суд м. Києва – “the Solomyanskyy Court ”) ordered Olga Biliak's pre-trial detention. 11. On 27 August 2003 the Solomyanskyy Court convicted Olga Biliak of robbery and sentenced her to eight and a half years'imprisonment. 12. On 25 November 2003 the Kyiv City Court of Appeal ( Апеляційний суд м. Києва – “the Court of Appeal”), following an appeal by Olga Biliak, quashed this judgment, remitted the case for further investigation and decided – without stating any grounds – that she should remain in detention. From that point on, according to the applicants, no investigative action was taken and Olga Biliak was on no occasion visited by the investigator. 13. On 1 February 2004 Olga Biliak died in pre-trial detention. 14. On 23 August 2004 the District Police Department discontinued the proceedings against Olga Biliak, in view of her death. 15. On 30 December 2004 the Solomyanskyy Court quashed the District Police Department's ruling and ordered the rehearing of the case. On 29 March 2005 the Court of Appeal dismissed a prosecution appeal against this decision. 16. On 31 January 2006 the Solomyanskyy Court found Olga Biliak guilty of robbery and discontinued the proceedings against her because of her death. 17. On 7 November 2006 the Court of Appeal upheld Olga Biliak's conviction. On the same date that court issued a separate ruling to the effect that, in breach of Article 165-1 of the Code of Criminal Procedure and section 20 of the Pre-trial Detention Act, the authorities had failed to implement immediately the investigator's decision to release Olga Biliak (see paragraph 45 below). The Court of Appeal decided to bring this violation of the domestic law to the attention of the Kyiv City Prosecutor ( прокурор міста Києва ). 18. On 14 June 2007 the Supreme Court of Ukraine quashed the decisions of 31 January and 7 November 2006, including separate rulings, and remitted the case for fresh consideration to the first-instance court. The proceedings are apparently still pending. 19. The applicants complained on many occasions that the real reason behind Olga Biliak's prosecution was revenge for her refusal to cooperate with officers T. and N. from the Anti-Narcotics Police Department ( Відділ по боротьбі з незаконним обігом наркотиків ), who had allegedly proposed that she sell drugs seized by the police from street dealers. 20. The applicants have requested on numerous occasions that criminal proceedings be instituted against the above-mentioned police officers; however, all their requests have been rejected. B. Olga Biliak's pre-trial detention and medical treatment 21. On 14 April 2003 Olga Biliak was arrested and brought to the District Police Department, where she was held until 22 April 2003. 22. On 18 April 2003 (according to some documents not until 18 December 2003), she was examined and X-rayed at the Institute of Physiotherapy and Pulmonology ( Інститут фізіатрії і пульмонології ). She was found to be healthy. 23. On 22 April 2003 Olga Biliak was transferred to Kyiv City Pre- Trial Detention Centre no. 13 ( Київський слідчий ізолятор № 13 – “the SIZO”). 24. Upon her arrival at the SIZO, Olga Biliak was examined by prison doctors, whom she informed that she had been using drugs since 1996. No other complaints were made during this examination. According to the Government, she refused to take an HIV test. She was found to be generally healthy and fit for detention in the SIZO. 25. On 7 May 2003 Olga Biliak wrote in her diary that she had pneumonia. 26. On 18 May 2003 a panel of psychiatrists examined Olga Biliak in the SIZO. It established that she was suffering from schizophrenia, but considered that a more detailed assessment was necessary. 27. On 26 May 2003 the Solomyanskyy Court ordered an in-patient psychiatric examination of Olga Biliak. On the same day she was transferred to a psychiatric hospital. 28. On 18 June 2003, following completion of the psychiatric assessment, Olga Biliak was transferred back to the SIZO and again placed in the shared cell, where she remained until her death on 1 February 2004. 29. The psychiatric panel drew up a report on 1 July 2003. They concluded that Olga Biliak was suffering from a mental disorder but at the time of the offence would have been in control of her actions. 30. On 18 July, 11 August and 20 November 2003 Olga Biliak complained to a SIZO physician that her legs were swollen. She was examined and, since no abnormalities were revealed, no treatment was prescribed for her complaints. However, on the last of these dates Olga Biliak was diagnosed with pyelonephritis. 31. In early September 2003 Olga Biliak wrote in her diary that she had again developed pneumonia. 32. On 25 September 2003 her gastric ulcer worsened. She vomited undigested food and then blood. A paramedic ( фельдшер ) prescribed “medical activated charcoal” ( активоване вугілля ). 33. On 26 September 2003 the first applicant lodged a request with the SIZO seeking to have his daughter hospitalised. He attached to that request a letter of 25 September 2003 in which Kyiv City Hospital no. 5 confirmed that Olga Biliak had been HIV-positive since 1999 and had undergone related treatment. 34. On 1 and 21 October 2003 Olga Biliak was examined by a neuropathologist and a psychiatrist, who identified some problems with her mental health. 35. On 3 October 2003 the Governor of the SIZO and the head of its medical unit informed the first applicant that Olga Biliak had been examined by a cardiologist and a neuropsychiatrist and had been diagnosed with vasomotor neurosis ( вегето-судинна дистонія ) ( a dysfunction in the nervous system affecting the blood vessels) and a stomach ulcer. According to them, she did not require inpatient treatment in hospital. 36. On 5 October 2003 Olga Biliak was prescribed a diet. 37. On 1 December 2003 Olga Biliak complained to a prison doctor of general weakness and pain in her lungs. She was diagnosed with chronic bronchitis and multi-drug dependence. 38. According to the entries of December 2003 in Olga Biliak's diary, her state of health started to deteriorate seriously. On 4 December 2003 she had shaking chills and a rising temperature. On 9 December 2003 Olga Biliak wrote that she was losing weight rapidly. On 10 December 2003 she complained of nervous exhaustion, stating that she could hardly eat, being only able to keep down tiny pieces of food. She continued to lose weight very quickly. On 11 December 2003 Olga Biliak recorded that a high temperature had caused her fifth sleepless night. Constant weakness, drowsiness and a high temperature prevented her from going outside for walks. On 12 December 2003 Olga Biliak started to lose herself in time. On 13 December 2003, with her temperature constantly around 40 oC, Olga Biliak was given a couple of fever-reducing pills. Her only friend in the cell prepared her tea in the morning, coffee and biscuits during the day and milk with sugar and butter in the evening. On 15 December 2003 Olga Biliak was given another pill and informed that she was to have her lungs X-rayed. Her body temperature that day was 39 oC, subsequently receding to 35 oC. On 17 December 2003 Olga Biliak was scheduled for an X-ray and given another fever-reducing pill. 39. From mid-December 2003 the applicants and Olga Biliak's lawyer repeatedly requested the authorities to release her on account, inter alia, of her rapidly deteriorating state of health. On 13 January 2004 the Deputy Prosecutor of the Solomyanskyy District of Kyiv ( заступник прокурора Солом'янського району м. Києва ) and, on 19 January 2004, the investigator dealing with her case, rejected those complaints without addressing the health issues. 40. On 6 January 2004 Olga Biliak complained of stomach pain and was diagnosed with chronic gastritis. 41. On 12 January 2004 Olga Biliak again complained to a physician that she had stomach pains and had vomited undigested food. 42. On 21 January 2004 Olga Biliak was examined by a cardiologist, a psychiatrist and the Head of the Medical Board of the Prison Department ( начальник медичного відділу управління Державного департаменту виконання покарань ), and underwent an X-ray and a blood test. The X-ray revealed no abnormalities. According to the blood test, there was serious inflammation in Olga Biliak's body. She was diagnosed with acute bronchitis, chronic gastritis, anaemia, cachexia and mental disorders. Her state of health was assessed as being of “medium seriousness”. She was prescribed some anti-inflammatory and light tranquilising drugs, as well as some antibiotics. Olga Biliak was asked if she was HIV-positive. She replied that she was not and refused to take a HIV test. However, that was the date when, according to the Government, the prison doctors started to suspect that she was HIV-positive. 43. On 22 January 2004 the Governor of the SIZO applied to the Head of the District Police Department, stating that Olga Biliak's poor state of health prevented her from participating in any investigative actions and that she needed to be admitted to hospital urgently. He asked that the investigative authorities consider the possibility of her release on an undertaking not to abscond. 44. On 28 and 30 January 2004 Olga Biliak was examined by a SIZO physician. Her state of health was again assessed as being of “medium seriousness” and a recommendation was made to “continue treatment”. 45. On 29 January 2004 the investigator of the District Police Department ordered Olga Biliak's release on health grounds. From the documents submitted by the parties, it is unclear when exactly this decision was received by the SIZO. One available copy of the decision has a stamp of the SIZO on the reverse side and a handwritten date – “30.01.2004”. However, another copy of the decision bears a SIZO stamp for incoming correspondence with the number 2954 and an incoming date of 2 February 2004. 46. On 1 February 2004 at 9.15 p.m. Olga Biliak was visited by a prison doctor who gave her a painkiller and an anti-spasmodic drug. At 9.55 p.m. Olga Biliak died. The death certificate issued on the same day indicated bilateral pleurisy as the cause of death. According to the Government, Olga Biliak's death was caused by acute heart failure. 47. The applicants provided two colour photographs of Olga Biliak's body, which show that she had been in an advanced state of exhaustion when she died. C. The investigation into the death of Olga Biliak 48. Immediately after Olga Biliak's death, the applicants lodged a criminal complaint against the SIZO staff for negligence. 49. During the investigation into the applicants'complaint, the investigator questioned a SIZO physician, S., who had treated her, and the head of the SIZO medical unit. S. submitted that the deceased had been examined on a number of occasions; the last examination took place on 30 January 2004. According to him, at that time there were no grounds for placing Olga Biliak on the medical ward. She was found to be suffering from bronchitis, drug addiction, anaemia and cachexia. Taking into account her state of health, he had recommended her release. 50. The head of the medical unit testified that on her arrival at the SIZO Olga Biliak had been examined and found to be suffering from drug addiction and certain psychiatric problems (such as hysteria), but in general her state of health had been considered satisfactory. The instructions of the SIZO physician were fully complied with and there had been no reason to transfer her to the SIZO medical wing. 51. The head of the medical unit further stated that on 2 1 January 2004 he had examined Olga Biliak himself and found her state of health to be satisfactory. On the same day she was examined by the Head of the Medical Board of the Prison Department who diagnosed her with “possible AIDS, acute bronchitis, drug addiction and anaemia ” and considered that she should be released on medical grounds. 52. The eight inmates who had shared the cell with Olga Biliak before her death claimed that during her detention she was frequently attended to by doctors and paramedics, and that her health had been satisfactory. Their written testimonies given to the Head of the SIZO are all very brief and drafted using the same style and expressions. 53. According to the autopsy report of 25 March 2004 Olga Biliak died from HIV-related advanced purulent pneumonia. The autopsy also revealed a number of bruises on her hands, legs, left cheekbone and chin. 54. In a decision of 30 April 2004 the investigator found that Olga Biliak's death was not caused by any violence or negligence, and decided not to institute criminal proceedings. 55. On 8 June 2004 the Kyiv Deputy Prosecutor instituted disciplinary proceedings against the employees of the SIZO administrative office for mishandling correspondence, since they had registered the decision of 29 January 2004 and handed it to the Head of the SIZO only on 2 February 2004, although it had been received on 30 January 2004. 56. On 14 June 2004 the Kyiv City Prosecutor's Office ( Прокуратура м. Києва ) rejected the applicants'request to set aside the decision of 30 April 2004, stating that the investigation had been thorough and complete. During her detention the deceased had had appropriate medical treatment, and had received food and medication from her relatives. Until 2 1 January 2004 the authorities had had no information about her HIV status. 57. On 18 June 2004, the Governor of the SIZO reprimanded the head of its registry for “ antedating the letter from the investigator which contained Olga Biliak's release order ”. 58. The applicants challenged the decision of 30 April 2004 before the Shevchenkivskyy District Court of Kyiv ( Шевченківський районний суд м. Києва – “the Shevchenkivskyy Court ” ). On 16 December 2004 the court quashed that decision and ordered further inquiries, finding that the initial investigation had been inadequate and incomplete. It ordered an official post ‑ mortem examination of the body and sought to clarify the following issues: - whether Olga Biliak, given her state of health, had been fit for detention in the SIZO; - whether she had received proper medical treatment when in custody; - whether she would have survived if she had been taken quickly to hospital; - exactly when prison doctors had started to treat her health problems; - the time and cause of death. 59. Following this decision, the Shevchenkivskyy District Prosecutor's Office of Kyiv ( Прокуратура Шевченківського району м. Києва – “ the Shevchenkivskyy Prosecutor's Office ” ) requested that the authorities of the SIZO carry out additional inquiries into the circumstances of the death of Olga Biliak. Having received no reply, on 21 February 2005 the Shevchenkivskyy Prosecutor's Office decided against instituting criminal proceedings on the ground that there was no indication that her death had been caused by violence or that any other parties had been involved in her death. According to the applicants, they were not informed of this decision. 60. On 21 March 2005 the applicants inquired about the progress of proceedings in the case. In a letter of 11 April 2005 the Kyiv City Prosecutor's Office informed them that the investigations were still ongoing. 61. In August 2005 the applicants, in the course of proceedings concerning their civil action for damages against the SIZO ( see paragraphs 68-74 below), learned of the Shevchenkivskyy Prosecutor's Office's decision of 21 February 2005. On 28 September 2005 the Shevchenkivskyy Court, following an application by the applicants, quashed that decision and ordered further investigations. The court found, in particular, that none of the actions indicated in the decision of 16 December 2004 had been taken. 62. It appears that the prosecution authorities were not informed of this decision and, on 17 January 2006, the Kyiv City Prosecutor's Office quashed the February 2005 decision of the Shevchenkivskyy Prosecutor's Office of its own motion and ordered reinvestigation. 63. In the course of the additional investigations the Shevchenkivskyy Prosecutor's Office ordered that further medical evidence be obtained. 64. On 17 November 2006 the Kyiv City Forensic Medical Bureau ( Київське міське бюро судово-медичної експертизи – “the Bureau”) issued a report in which it stated that Olga Biliak's death was caused by the hematogenously disseminated tuberculosis affecting the lungs, liver, spleen and other parts of the body, which led to purulent necrotising pneumonia. All these diseases had developed against the background of the concurrent HIV-infection. The lack of correct diagnosis had resulted in a failure to provide appropriate medical treatment; therefore, the death of Olga Biliak had been indirectly caused by the actions of the SIZO officials. 65. On 22 December 2006 the Deputy Prosecutor of the Shevchenkivskyy District of Kyiv requested that the Bureau carry out further examinations with a view to establishing whether Olga Biliak had required urgent hospitalisation in October 2003 and in January 2004 and whether she had received adequate medical assistance during her detention in the SIZO. 66. However, on 25 December 2006 the investigator from the Shevchenkivskyy Prosecutor's Office, taking into account the fact that the reply from the Bureau could not be received before the expiry of the statutory time-limit for reaching a decision on a criminal complaint, decided not to institute criminal proceedings into the death of Olga Biliak as the evidence in the case file did not show that her death had been caused by violence or by the negligence of the SIZO staff. 67. On 12 July 2007 the Shevchenkivskyy Court, acting on an appeal lodged by the applicant, quashed this decision on the ground that the investigating authorities had failed to follow the instructions set out in that court's decisions of 16 December 2004 and 28 September 2005. The court ordered that further investigations into the death of Olga Biliak be carried out. The proceedings are apparently still ongoing. D. Civil action against the SIZO 68. On 21 July 2004 the applicants sued the SIZO for non-pecuniary damage incurred on account of the inadequate medical treatment of Olga Bilaik and the failure to hospitalise or release her on medical grounds. They also claimed compensation for burial expenses. 69. On 27 October 2006 the Shevchenkivskyy Court partially allowed these claims. It found, inter alia, that the prison authorities had learned of Olga Bilaik's HIV status on 26 September 2003 from her father's letter. The court further indicated that although the relevant regulations provided that each newly admitted detainee should be examined and interviewed in relation to AIDS or HIV infection, this had never been done in respect of Olga Bilaik. The Shevchenkivskyy Court also established that, contrary to the domestic law, she had not been X-rayed within three days of her arrival at the SIZO. She did not undergo that examination until 18 December 2003. 70. The court further indicated that on 30 January 2004 the Head of the Disrict Police Department had requested the SIZO to bring Olga Biliak to the District Police Department on 2 February 2004. According to the SIZO incoming mail register this request has been received on 30 January 2004. The decision of 29 January 2004 to release Olga Biliak was registered only on 2 February 2004 with the incoming mail number 2954. 71. The Shevchenkivskyy Court concluded that the applicants had suffered distress on account of the inadequate medical assistance offered to their daughter and mother in the SIZO. The court further stated that : “It should be noted that [the finding of Olga Bilaik's lack of medical treatment in the SIZO] does not mean that there is a causal link with Olga Bilaik's death, the circumstances of which have not been established during the hearings and are currently being considered by the Shevchenkovsky District Prosecutor's Office of Kyiv in the context of the criminal investigation into the death of Olga Bilaik.” 72. The applicants were awarded 20,000 [2] Ukrainian hryvnas (UAH) in total for non-pecuniary damage. The claim for burial expenses was rejected as unsubstantiated. 73. The SIZO and the applicants appealed against this judgment. 74. On 24 May 2007 the Kyiv City Court of Appeal quashed the judgment of 27 October 2006 and remitted the case for fresh consideration on the ground that the first-instance court had failed to identify the medical staff who had examined Olga Biliak, diagnosed her, prescribed her treatment, etc. , and to decide whether they should have participated in the proceedings | The applicants alleged in particular that the Ukrainian authorities were responsible for the death of their respective daughter and mother, who was schizophrenic and infected with HIV, as they had failed to provide her with adequate medical care during her pre-trial detention. |
493 | Ineligibility for a stay of execution of one’s prison sentence and right to respect for private and family life | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1973 and lives in Bucharest. He is a lawyer. 7. In a judgment of 25 May 2011, the Bucharest Court of First Instance sentenced him to seven years ’ imprisonment for embezzlement and forgery. On 1 December 2011 he was imprisoned in the police station ’ s detention facility in Bucharest ( Centrul de reţinere şi arestare preventivă nr. 2 – secţia 4 Poliţie ), where he started serving his sentence. The judgment of the Court of First Instance was upheld by a final judgment of the Bucharest Court of Appeal of 25 November 2011, which was finalised on 25 May 2012. A. Requests for a stay of execution of sentence 8. The applicant lodged two applications for a stay of execution of sentence under Article 453 § 1 b) and c) of the former Code of Criminal Procedure (“the CCP” ) ( see paragraph 22 below ). He submitted that he was married and had a child who was only a few months old, born on 19 May 2011, whom he wanted to look after, and that his family were experiencing financial and social difficulties on account of his detention. 9. In a judgment of 27 March 2012, the Bucharest Court of First Instance dismissed his first application on the grounds that a stay of execution of sentence provided for by Article 453 § 1 b) of the CCP for convicted mothers up to their child ’ s first birthday had to be interpreted strictly and that the applicant could not seek application of that provision by analogy. It also found that the financial and family difficulties referred to by the applicant did not fall within the category of special circumstances required by Article 453 § 1 c) of the CCP to allow a deferral of sentence, especially as they had existed prior to his placement in detention. 10. On appeal by the applicant, the Bucharest County Court upheld the judgment of the Court of First Instance in a judgment of 7 May 2012. 11. In a judgment of 13 June 2012, the Bucharest Court of First Instance dismissed the second application lodged by the applicant under Article 453 § 1 c) of the CCP on the grounds that the statutory conditions were not satisfied. In particular, the court found that enforcement of the sentence did not endanger the applicant ’ s personal or family situation. In a judgment of 17 July 2012, the Bucharest County Court dismissed an appeal by the applicant against that judgment. B. Conditions of detention 12. The applicant was detained in a number of different prisons, including the Bucharest police detention facility ( from 1 to 13 December 2011), Bucharest ‑ Rahova Prison ( from 13 to 19 December 2011, 21 December 2011 to 9 January 2012 and 17 January 2012 to 30 January 2013), Mărgineni Prison ( from 9 to 17 January 2012) and Giurgiu Prison ( from 30 January to 25 February 2013 and from 11 March to 26 September 2013). 1. The applicant ’ s version 13. With regard to the Bucharest police detention facility, the applicant stated that he had been detained there with three other detainees, in cell no. 1, which he said measured 1. 80 x 2 sq. m. He said that the cell had only one window, measuring 30 x 40 sq. cm, which had two rows of bars across it and therefore did not let natural light in. He added that the toilets were dirty and separated from the rest of the cell only by a curtain. Lastly, he stated that running water was available only two hours per day. 14. With regard to Bucharest ‑ Rahova Prison, the applicant said that he had been detained in cell no. 209 with eight other detainees. He said that the cell measured 3. 20 x 5. 80 sq. m and had only one window, measuring 1 x 1. 20 sq. m, with bars and a grille and thus no natural light. He added that the cell had been damp and had an unpleasant smell. 15. With regard to Mărgineni Prison, he stated that he had been detained there with twenty-four other detainees in a 2 x 6. sq. m. cell and that there had been no running water. 16. Regarding Giurgiu Prison, he said that he had been detained in an overcrowded cell. He alleged, among other things, that hot water had only rarely been available and that the mattress and bed linen had been dirty. He also complained of the presence of cockroaches, rats and bed bugs. 2. The Government ’ s version 17. The Government stated that in the Bucharest police detention facility the applicant had been held in a 10. 68 sq. m cell containing four bunk beds, a television, natural light and toilets measuring 2. 5 sq. m. 18. At Bucharest- Rahova Prison the applicant had been successively detained in seven cells, varying from 19. 30 sq. m to 19. 58 sq. m in size and containing ten bunk beds. They added that the cells were equipped with toilets, a kitchenette and ventilation and had natural light. 19. At Mărgineni Prison the applicant ’ s cell had measured 28. 35 sq. m and contained twenty-one beds. They specified that it was equipped with toilets, a kitchenette, ventilation and natural light. 20. At Giurgiu Prison the applicant had been detained successively in four cells, varying from 20. 35 sq. m to 20. 96 sq. m in size and containing space for six detainees. They contained individual beds, a table allowing the inmates to eat their meals together, three bedside tables, a small bench, a television socket and a shoe cupboard. They added that the cells all had toilets measuring 4. 03 sq. m, but did not specify whether these were included in the cell area. They stated, lastly, that the cells and the laundry provided to inmates were in good condition. ... | This case concerned in particular a prisoner’s complaint about discrimination on grounds of sex stemming from the fact that, under Romanian legislation, only convicted mothers of children under the age of one can obtain a stay of execution of their prison sentences until their child’s first birthday. The application for a stay of execution of prison sentence lodged by the applicant, the father of a child under the age of one, had been dismissed by the Romanian courts on the grounds that the provision in question had to be interpreted restrictively. |
78 | Parental authority, child custody and access rights | I. THE CIRCUMSTANCES OF THE CASE 8. The first applicant, while resident in San Marino, had a relationship and was cohabiting with Mr X. in San Marino. 9. On 9 December 2004 the second applicant was born of this relationship, in Rimini, Italy. She was granted dual nationality, Italian and San Marinese. The family lived in X. ’ s villa in San Marino. 10. Mr X. left the villa in July 2006 and allegedly stopped sending the applicants any financial allowances. A. The custody proceedings 11. On 8 November 2006 Mr X. lodged a request with the San Marino Tribunal for sole custody and restitution of the villa. 12. Following a deferral request by Mr X., the first hearing was held on 4 December 2006, the date when the first applicant intervened in the proceedings, and demanded custody of the child, the right to remain living in the family home and maintenance. 1. The first custody decree 13. By a decree of 4 December 2006, the relevant court, namely the Commissario della Legge of San Marino, granted custody to the first applicant. Mr X. was entitled to visiting rights as follows: Mondays and Wednesdays from 2 p.m. to 9 p.m. and one day (Saturday or Sunday) on alternate weekends from 10.30 a.m. to 6 p.m. It refused to decide on maintenance, inviting the parents to reach an agreement. It further ordered the intervention of the “ servizio minori ” (children ’ s services) to verify each parent ’ s aptitude and the quality of the relationship with the child. 2. The decisions on the respect of contact rights, maintenance, schooling and the second custody decree 14. On 14 December 2006 the first applicant requested children ’ s services to decide on the transfer of the second applicant to a kindergarten in Rimini, Italy. The aim of this request was to allow the applicants to live with the second applicant ’ s grandmother for economic reasons, since Mr X. had allegedly failed to pay them any allowances. 15. On 18 December 2006 Mr X. requested an urgent hearing, complaining that for the last two weekends the first applicant had denied him contact rights and had changed the arrangements. Consequently, the Commissario della Legge, considering that the father had a right to see his daughter every weekend, requested children ’ s services to intervene in order to ensure that contact rights were respected. 16. On 21 December 2006 the first applicant reiterated that on 4 December 2006 the court had ordered visits on the Saturday or Sunday of alternate weekends, and not every weekend as interpreted on 18 December 2006. 17. On 22 December 2006 the first applicant requested to take the child on a five-day holiday. The Commissario della Legge ordered the relevant notification. 18. On 1 March 2007 the Commissario della Legge ordered children ’ s services to consider whether transfer to the Rimini institution would be in the interest of the minor. 19. On 15 March 2007 children ’ s services filed their first report, stating that it was important to consider the needs of the child who “will probably reside in San Marino ”. The report noted that the institution in Rimini hosted older children, and that Mr X. showed his availability to pick up the child from school if it were in San Marino. It advised that attending a nursery in San Marino would allow better monitoring on the part of the children ’ s services. 20. On 10 April 2007, in view of the announced holiday, children ’ s services temporarily amended the visiting schedule, in agreement with the parties. 21. On 12 April 2007 the first applicant informed the Commissario della Legge that she had found a job in Rimini, where she planned to move, and therefore she was ready to leave the villa. 22. On 17 April 2007 the Commissario della Legge, having regard to the children ’ s services ’ report (above) and after soliciting further reports, held that, until children services gave different advice, the child should remain in San Marino. It referred the case back to children ’ s services. 23. Following further submissions, on 5 May 2007 the first applicant requested an urgent hearing as she was having difficulty taking care of the child since Mr X. was not paying the maintenance due. 24. On 18 May 2007 the Commissario della Legge, having regard to the economic situation of the parents and to the fact that the first applicant remained living in the villa, decided that Mr X. had to pay the applicants maintenance amounting to 500 euros (EUR), as from November 2006. 25. On 31 May 2007 children ’ s services drew up another report, finding that although conflict between the parents persisted, the father had an excellent relationship with the daughter. It advised that there be joint custody of the child, who should be placed prevalently with the mother in view of her tender age; it proposed two possible contact schedules, both eventually including two overnight stays per week. It further suggested maintaining the current schooling situation. 26. On 14 June 2007 the first applicant, having signed a lease agreement for an apartment in Rimini the previous month, informed the Commissario della Legge that she intended to move there with her daughter, while maintaining their official residence in San Marino. 27. On 21 June 2007 the first applicant made further submissions. It appears that the applicants moved to Rimini on the same day. 28. By a decree of 25 June 2007 the Commissario della Legge granted joint custody, holding that the child should remain living in Rimini, where she was settled with the mother, and should continue to attend the Rimini kindergarten for the following school year, as this appeared to be in the best interests of the child. It further ordered children ’ s services to monitor the situation. This decision was based on the children ’ s services report of 31 May 2007 (see above). 3. The residence order 29. On 9 August 2007 children ’ s services submitted a new report, which found that the first father-child visits were held in an untroubled atmosphere and that Mr X. was spending all the appropriate time with the child. It noted that between 13 and 16 July the first applicant went on holiday with the child without informing Mr X. of the destination and that thereafter she had frequently informed children ’ s services that visits could not take place because of her or her daughter ’ s alleged illnesses or because she refused to give up the daughter. 30. In August 2007 Mr X. lodged various submissions, including a complaint that the first applicant was denying his rights to visit their daughter and requesting that the relevant orders be executable in the Italian State. 31. By an order of 20 August 2007 the Commissario della Legge specified that the order of 25 June 2007 must be considered “provisionally executable”. 32. On 22 August 2007 children ’ s services drafted a report, which found that the first applicant was obstructing visiting arrangements which had not been previously arranged and was refusing to cooperate with children ’ s services. 33. Both parties continued to make regular submissions. 34. By an order of 21 September 2007, the Commissario della Legge held that unilateral changes to scheduled visits had no effect, since the arrangements had been established by prior orders, which were subject to alteration by future court orders. It held that Mr X. had the right to have his child by his side, unsupervised, and that the child should maintain residence in San Marino. It further explained that residence meant “a situation of permanent stay in a territory”. 35. A children ’ s services report of 17 October 2007 related that the first applicant was failing to take the second applicant to children ’ s services and that monitoring had become difficult since 9 August 2007. 4. The order regarding the court ’ s competence and the third custody decree 36. On 24 October 2007 the first applicant challenged the competence of the San Marino Tribunal, namely the Commissario della Legge, in so far as proceedings were pending before the Tribunal of Bologna, Italy (see below). The parties informed the tribunal that the relevant ex parte counsellors had been appointed and meetings had started. 37. On 12 November 2007 the Commissario della Legge rejected the objection. It held that the first applicant had accepted the San Marino jurisdiction throughout all the proceedings and various decrees; in effect this request had been made out of time. 38. On the merits of the pending case, the Commissario della Legge found no reason to alter the current custody order. Joint custody had been opted for to protect the child from the unhappy situation in which the mother excluded the father from any decision - making. Joint custody and support from children ’ s services allowed the creation of an educational programme for the parents to allow for the growth and well - being of the child. This was what the parents had to aim for during the current joint custody regime. Welcoming the appointment of ex parte experts/counsellors, it reiterated the need for supervision by children ’ s services. Only upon further reports by children ’ s services and experts would the tribunal be able to establish whether any modifications to the regime were necessary or whether schooling in San Marino would be more appropriate. 5. The fourth custody decree 39. On 15 November 2007 Mr X. requested that the child be returned to San Marino, offering the mother lodgings with the daughter. On 9 January 2008 Mr X. enrolled the child in a nursery in San Marino, notwithstanding that she was still living in Rimini. 40. On 24 January 2008 Mr X. made a request for sole custody and for the child to be moved to a school in San Marino. 41. On 28 January 2008 the Commissario della Legge requested children ’ s services to draw up a report on the merits of schooling in San Marino. 42. The ensuing report of 8 February 2008 considered that Mr X. was having difficulty seeing the child, as for a while the mother had unilaterally interrupted the father ’ s visits ( for example, nine out of fourteen overnight stays with the father had not occurred and six consecutive Sunday visits had been missed), and that the mother was not cooperating with children ’ s services. Consequently, the establishment of an educational programme had not been successful. It found on the one hand that the first applicant ’ s anger towards the father was persistent and involved the child. On the other hand the father had shown consideration and put the needs of the child first. He sincerely loved his daughter and was cooperating with children ’ s services. The father and the child had a warm and caring relationship, and the child felt comfortable and happy in his presence. It appeared however that the child might have fears of losing her loved ones, probably due to the various moves, which had also detached her from members of her extended family. The report therefore advised the grant of temporary sole custody to the father, with regular supervised visits by the mother, until this could be reversed. It concluded that schooling should be in accordance with the custody decision, as this would be favourable to the child ’ s emotional stability, notwithstanding the unfortunate moves of house. It also advised psychotherapeutic and parental education support for the parents, together with further monitoring by children ’ s services. 43. On 12 February 2008 the Commissario della Legge ordered that an extraordinary hearing of the parties ( comparizione delle parti ) be held on 19 February 2008. The order was notified on 14 February 2008. The next day the first applicant ’ s main lawyer communicated his inability to attend and requested an adjournment. The opposing party opposed this request, but no notification reached the first applicant ’ s legal counsel. (a) A period of absence 44. On 13 February 2008 Mr X. collected the child and did not return her. On the same day Mr. X ’ s lawyer sent the first applicant a fax informing her that the child would not return home to the mother as the father was availing himself of the time accumulated from the missed visits. The child could, however, be contacted by telephone at specific times. 45. On 15 February 2008 the first applicant ’ s representatives requested X. ’ s lawyers to inform them where the child had been taken, the date of return, and arrangements as to the handing over of the child. X. ’ s lawyers ’ reply was immediate but inconclusive, in that, no details had been given. Thus, the first applicant ’ s representatives informed children ’ s services about what had happened and complained about the father ’ s lawyers. In reply, Mr X. ’ s lawyers explained that the child was on holiday with her father and that they did not know where they had gone. On the same day, the first applicant ’ s lawyers requested that the hearing set for 19 February be deferred due to the inability of her regular lawyer, who had dealt with the relevant experts, to attend the hearing for professional reasons. Mr X. ’ s lawyers opposed this, however, it appears that no notification of this opposition took place. 46. The following day, the first applicant lodged written submissions, reiterating that in accordance with the decree of 25 June 2007 the child had been placed with the mother for the school year. Complaining about Mr X. ’ s actions and those of children ’ s services, she requested the tribunal to restore the status quo ante. 47. On 18 February 2008, while the child was still missing, Mr X. ’ s representatives requested that the minor be placed in San Marino. They emphasised that the second applicant ’ s presence outside San Marino limited the San Marino courts ’ power over the second applicant ’ s rights abroad. The first applicant objected, maintaining that the child should return to Rimini. She further insisted that any missed paternal visits in the summer of 2007 had not been malicious but had been the result of physical circumstances. (b) The custody decree of 19 February 2008 48. On 19 February 2008 a substitute judge sat as the Commissario della Legge. The first applicant, through her co- lawyer, referred to their request for a brief postponement in view of the absence of the habitual judge and her habitual co- lawyer, who was more aware of the case details. Moreover, there had been a lack of collaboration on the part of children ’ s services and counsellors, her counsellors had not been summoned, and the child had been kidnapped by the father. Her request was refused without detailed reasons. The substitute judge considered it opportune to take a decision urgently. Consequently, the first applicant ’ s co- lawyer withdrew from the case. A further request by the first applicant for a short suspension in order for another lawyer to be appointed was refused. 49. The case was therefore heard without representation for the first applicant. Mr X. was represented by his lawyers and enjoyed the assistance of a counsellor. After the cross-examination was over, the substitute judge delivered his decision on the same date. 50. He found that, in view of the report by children ’ s services of 17 October 2007 and 8 February 2008, the child risked being denied the benefit of her father ’ s presence, as the first applicant had prevented the father ’ s visits and obstructed children ’ s services ’ meetings. Any argumentation by the first applicant presented in her written pleadings had not been persuasive. Consequently, while upholding joint custody, it was ordered that the child live with her father in San Marino and that she be transferred to the San Marino nursery from 20 February 2008. The mother was entitled to supervised visits from Monday to Friday from 13.15 to 15.00, or as children ’ s services deemed opportune. 6. The continuation of proceedings 51. On 22 February 2008 the Commissario della Legge, acknowledging that there were no obstacles to acceding to the first applicant ’ s request to spend a weekend with her daughter at the father ’ s house, requested the children ’ s services to draw up a new calendar of visits. On the same date, following Mr X. ’ s request for an authorisation (“ nullaosta ”) for the child ’ s passport, the tribunal solicited the first applicant ’ s agreement, noting that expatriation of the minor would in any case require the tribunal ’ s authorisation. 52. On 25 February 2008 children ’ s services submitted a report stating that the child frequently reiterated her wish to stay with the mother and was showing a certain reluctance to be with the father. The report concluded that persistent pressure by the mother may lead to Parental Alienation Syndrome. 53. On 26 February 2008 the first applicant submitted that the unavailability of the child for certain paternal visits while she was in the mother ’ s care was for medical reasons. 54. On 27 February 2008 Mr X. requested the suspension of the time-limits for appeal, pending friendly settlement negotiations. On the same day children ’ s services reported that mother-child visits should take place at the father ’ s house. It proposed a new schedule of visits, which would eventually include an overnight stay. It also included visits with the maternal extended family. 55. The following day, Mr X. pointed out that the first applicant had not been favourable to the return of the second applicant to San Marino. He alleged that she was in bad faith and reiterated that, according to The Hague Convention on the Civil Aspects of International Child Abduction (“The Hague Convention”), visits with a parent who had removed a child required special precautionary measures. On the same day children ’ s services prepared a calendar of supervised visits up to August 2008, the date of the entry into force of The Hague Convention. 7. The appeal proceedings 56. On 6 March 2008 an appeal was lodged against the interim order of 19 February 2008 before the “ Giudice delle Appellazioni Civili ”. Lamenting that in the absence of treaties safeguarding repatriation the child remained susceptible to removal by the mother, Mr X. ’ s representatives proposed a favourable calendar for visits, namely Mondays, Wednesdays and Fridays from 6 .30 p.m. to 9. .30 p.m., alternate Saturdays from 4 .30 to 7 .30 p.m. and alternate Sundays from 9 a.m. to 12 noon, plus other visits by the extended family and in due course overnight stays by the mother. On the same day the first applicant accepted the proposed schedules, complaining that children ’ s services were in practice reducing her visit times by half an hour and at times by one hour due to other engagements, but objected to the suspension of the proceedings. She further submitted one of the second applicant ’ s passports to the court. 57. On 17 March 2008 the first applicant appealed, complaining of procedural irregularities pertaining to the interim decree of 19 February 2008. In particular she alleged a breach of her right to defence, since she had not been represented. Unlike her, Mr X. had had the benefit of counsel. Moreover, there had not been adequate notification, and therefore the hearing had not been in accordance with the law. Furthermore, the substitute judge should have abstained, as he had decided another case between the same parties. 58. On 19 March 2008 Mr X. cross-appealed. 59. On 27 March 2008 Mr X ., in his cross - appeal, lodged a request for sole custody and contended that the first applicant had breached her judicial obligations, having allegedly taken the child away, and had attempted to evade San Marino jurisdiction. He emphasised that in view of Italy ’ s delay in accepting San Marino ’ s accession to The Hague Convention dated 14 December 2006, the latter had not yet entered into force between the two states. In accordance with the treaty, transfer of the minor to Italy would be unlawful. 60. On the same date the first applicant submitted that she was having difficulty visiting her daughter due to her working hours. On 22 April 2008 the first applicant ’ s psychological counsellor wrote to children ’ s services offering the first applicant as available for discussion and collaboration. She further requested children ’ s services to provide her with a copy of the educational project to be undertaken and relevant information and video clips taken in respect of the child ’ s supervision. On 23 April 2008 the mother again made a request for information and to see the relevant video recordings of her visits to her daughter. 61. On 24 April 2008 it was established that cross-examination was necessary for the purposes of the case. 62. On 30 April 2008 children ’ s services informed the first applicant that her request had been sent to the relevant judicial authorities, since information about minors was covered by professional secrecy. 63. In the meantime various email exchanges took place between April and June in an attempt to negotiate an agreement so that the first applicant would agree to withdraw the pending criminal charges (see below) against Mr X. Meetings with counsellors and a psychologist were held. 64. Following a request from the first applicant, on 6 May 2008 the Commissario della Legge ordered the urgent transmission of the file to the appeal judge. 65. On 12 May 2008 the Giudice delle Appellazioni Civili remitted Mr X. ’ s appeal of 27 March 2008 to the Commissario della Legge, who was competent to revise the matter and give any other determination in respect of the placement of the child. 66. On 16 May 2008 the primo termine probatorio was opened in relation to the original appeal. Hearings and/or submissions were made on 23 October 2008, 12 and 19 March, 23 April, 18 and 13 June, 3 July and 26 October 2009 and 18 January 2010. Following the requests and the consequent submission of rogatory letters, it was established that the first applicant ’ s lawyer had judicial engagements in Rimini, explaining his absence from the hearing in question. 67. The appeal proceedings against the decision of 19 February 2008 were eventually decided on 7 March 201 1 (see paragraph 137 below). 8. Judicial and non-judicial isolation in San Marino 68. On 15 April 2008 the first applicant ’ s representatives complained to children ’ s services that the child was isolated, in that she was constantly supervised. 69. In a report dated 22 April 2008 children ’ s services requested the judge to prohibit the legal representatives of the parties from attending the child ’ s visits. 70. On 5 June 2008 the first applicant ’ s lawyers made submissions in reply, highlighting the importance of re-establishing mother-child relations. On the same day Mr X. reiterated his request for temporary sole custody (see above 27 March 2008). Although not intending to travel with the child, he requested a San Marino passport for the second applicant. 71. On 6 June 2008 the Commissario della Legge noted that revision of the decree could only take place if new events took place subsequent to the decree, in order to avoid any overlap with the appeal judgment. He further requested the parties to agree on the mother ’ s visiting schedule, on further cooperation for the benefit of the child, and lastly asked whether the mother agreed to the issue of a San Marino passport, which would be retained by the court together with the Italian passport, any travel having to be agreed by the parents or authorised by the court. 72. On 19 June 2008 Mr X. reiterated that the prohibition on the child ’ s leaving the country needed to be maintained until the entry into force of the Hague Convention. He further requested a definitive judgment in favour of sole custody to be executable immediately on Italian territory. 73. In the meantime, further submissions were made, together with the reports of the parents ’ psychologists. 74. On 11 July 2008, in an apparently informal way, the Commissario della Legge confirmed that the child could not leave San Marino. 75. On 15 July 2008 the Commissario della Legge nominated an expert and ordered an expert opinion (“ consulenza tecnica d ’ ufficio ” – “CTU”) in respect of: the child ’ s relationship with the parents, the personal characters of the parents, their ability to take on parental functions, in particular vis - a - vis granting the other parent contact with the minor, and any proposals in respect of the situation. (a) order related to video recordings 76. On 16 July 2008 the first applicant made an urgent request to be allowed to take her child to Italy before The Hague Convention entered into force, namely from 21 to 28 July 2008. She further requested the release of the information and related videotapes of mother-child meetings before the child services, and that children ’ s services and the San Marino hospital issue a report on the psycho-physical health of the child. 77. Following a request by Mr X., by a decree of 17 July 2008, the Commissario della Legge noted that the second applicant ’ s San Marino passport had been submitted to the authorities, and requested the first applicant to submit the latter ’ s Italian passport. It further held that the decree of 19 February 2008 fell within the competence of the Giudice delle Appellazioni Civili. It then held that the CTU ’ s opinion was required to define an educational project and the advice of children ’ s services was necessary to determine the suitability of any permanent visiting schedule between the mother and child. It refused the pending request for the video recordings of their visits, on the basis that they had no right to such materials, children ’ s services acting as an assistant to the judge in this connection and not as a court expert. (b) Continued isolation 78. On 22 July 2008 the first applicant contacted children ’ s services to inform them as regards her availability to discuss the forthcoming holiday calendar. The following day a new calendar of visits, together with a short report, was submitted to the judge by children ’ s services. 79. On 23 July 2008 children ’ s services presented another report in respect of the request relating to the period of 19 to 28 July 2008, during which the first applicant would have been on leave. They suggested daily visits from Tuesday 22 to Monday 28 July 2008, ranging from two to six hours per day, including hour-long visits with the extended family. 80. Following a request by the mother, on 24 July 2008 the CTU requested children ’ s services to issue instructions for the period after 28 July 2008. 81. On 29 July 2008 children ’ s services drafted a new calendar of visits, ranging from three to six hours per day (no visit on Saturday), until Sunday 3 August. The latter was acknowledged by the judge. 82. On 1 August 2008 the first applicant ’ s submissions included a request for a continuous period of mother-child care to allow her to take the child on holiday, after she had been confined to San Marino for nearly six months. On the same day the Commissario della Legge, noting that children ’ s services had not had enough time to deal with all the requests in view of their dates of submission and that the first applicant had for the third time altered the dates of her leave, ordered an immediate reply to the pending, urgent request for the extended period of the child ’ s placement with the mother from 9 to 17 August 2008. 9. Release and period of agreement 83. By emails dated 1 July 2008 the first applicant requested children ’ s service to allow a more flexible calendar of visits. On 8 August 2008 children ’ s services issued a new calendar for the relevant period, only allowing one overnight visit and permitting most of the remaining visits to take place outside San Marino, but they had to be in the presence of the father. It suggested that changes should be made gradually. The latter was acknowledged by the judge. 84. Following the mother ’ s objection, on 12 August 2008 the previous arrangement was reiterated by the judge. 85. On 18 August 2008 Mr X. gave his consent for an extended visit between mother and child. On the same date the Commissario della Legge asked for a report from children ’ s services on the development of the visits in the preceding week, and for a new calendar to be issued. 86. On 19 August 2008 children ’ s services reported that the visits had been regular, organised and fruitful. The child was happy to spend time with the mother and it was clear that she needed to be by the side of both parents. They issued a new calendar of visits, suggesting entire alternate weekends with each parent, with weekend intervals when each parent had the child for one day, together with overnight stays during the week at her mother ’ s home. 87. By a decree of the same date the Commissario della Legge confirmed that, the disputes having been resolved, the visits should remain in accordance with the children ’ s services report of the same day. Moreover, since Mr X. was able to visit the child in Italy, prohibition on the parents ’ taking the child outside the country remained valid only in respect of States other than Italy and San Marino. 10. Insight into medical conditions during the continuation of proceedings 88. By an order of 12 September 2008, a substitute judge for the Commissario della Legge held that the frequency of visits with the minor would be in accordance with the agreed specific indications submitted. 89. On 16 September 2008 the CTU met the parents ’ technical counsellors (“CTPs”). 90. On 23 October 2008 Mr X. submitted that he was the subject of ongoing criminal proceedings in Italy (see below) and reiterated that the first applicant had not submitted the second applicant ’ s Italian passport. 91. On 30 November 2008 psychological reports on both parents were drawn up. The report about the mother which, inter alia, mentioned depressive and impulsive attitudes, appeared less favourable than that of the father, although it appeared from the reports that Mr X. was immature. 92. Following further submissions, by a decree of 19 December 2008, the Commissario della Legge acknowledged that the second applicant would spend the week of 24 December to the morning of 31 December 2008 with the father and from the afternoon of 31 December 2008 to 7 January 2009 with the mother. Travel details had to be exchanged between the parents and the child had to be visited by a doctor to confirm that she was in good health and to determine whether there were any contraindications to her travelling. He further authorised the father to travel with the child during the relevant period and allowed the release of the passport. 93. According to a children ’ s services report of 20 December 2008, the second applicant was having difficulty adjusting to (her parents ’ ) two different environments. 94. Negotiations between the parents continued : however, the first applicant refused to drop the pending criminal charges against Mr X. 95. On 22 December 2008, Mr X. requested to stop paying maintenance, stating that each parent should be financially responsible for the child for the period in which she was with them. 96. On 2 and 12 February 2009 the Commissario della Legge, confirmed the qualifications of the first applicant ’ s CTP. On 24 February 2009 a meeting with the parties ’ CTPs took place. 97. A children ’ s services report dated 25 February 2009 found that the second applicant ’ s character had deteriorated compared to the previous year. She was less tranquil, naughtier and at times mischievous. She appeared to be more loyal to the mother and had difficulty in facing up to the conflict between her parents. Although the child had a good relationship with the father, she also showed hostility towards him which appeared to have been induced by the mother. If such psychological pressure persisted there existed the risk of Parental Alienation Syndrome. 98. Upon request, on 6 March 2009 the Commissario della Legge granted an extension to the relevant expert. 99. On 17 March 2009 the Commissario della Legge postponed a decision in respect of maintenance and ordered both parties to submit the second applicant ’ s passport, reiterating the prohibition on the child ’ s expatriation. 100. On 20 March 2009 the parties ’ experts submitted their report. 101. On 30 March 2009 the CTU finalised the report which had been commissioned on 15 July 2008 (see above). The report was a result of various meetings with the parties which had been recorded. The report concluded that there were no particular problems with the parent ’ s diverse personalities or with their relationship with their child. However, it established that Mr X. was more aware of the second applicant ’ s need to have adequate time with both parents, and was thus more likely to allow regular contact with the child by the mother, always under strict supervision by children ’ s services. Moreover, the mother ’ s intention of persisting with criminal proceedings against the father did not strike a note in her favour. It suggested psychological therapy to resolve the existing conflict and to allow them to fully assume their roles as parents. 102. On 16 April 2009 the first applicant made a request before the Commissario della legge for copies of the recordings of the meetings attached to the CTU ’ s report. 103. On 23 April 2009 the same request was made by Mr X., who further requested copies of all relevant communications mentioned in the report, between the parties, their experts, the lawyers and children ’ s services. 104. On the same day the court ordered those recordings and communications to be provided to the parties, subject to the payment of costs by those parties. 105. Following Mr X. ’ s request of 30 April 2009 to order a new report by children ’ s services, in view of the psychological pressure to which the second applicant was being subjected by her mother, the Commissario della legge ordered the said report on 4 May 2009. 106. On 14 May 2009 further submissions were made by the mother, together with a report regarding the second applicant drawn up by the first applicant ’ s CTP. It was reported that the second applicant ’ s situation was stress - related; because of her young age she needed and wanted the presence of her mother. She was therefore suffering as a result of the mother ’ s absence, and constant requests for the child to be removed from her mother could only worsen the child ’ s situation. It was in favour of requesting specialised medical advice for the child. 107. On 18 May 2009 children ’ s services submitted a report indicating that the child ’ s psychological condition was deteriorating, that she was refusing to take part in games representing the family, and that she had become more isolated at school. Moreover, the child had developed a tic and frequent belching, probably due to anxiety. 108. On the same day and on 25 May 2009 respectively, the first applicant requested the court to allow a specialised doctor to diagnose the child and to prescribe treatment, as well as a neuropsychiatric examination. 109. On 27 May 2009 and 1 June 2009 Mr X. ’ s expert submitted his report. 110. On 5 June 2009 Mr X. objected to the first applicant ’ s requests. On the same day the Commissario della legge held, noting that Mr X. had suggested that another doctor (Mr C.) should conduct therapy with his daughter, that she was being carefully monitored by reliable experts from children ’ s services, and that any psychological diagnosis should be included in the treatment already in place, which should be continued. 111. On 22 July 2009 the Commissario della legge held that the psychotherapy was to be conducted by Mr C. , who should also verify whether the child was experiencing any discomfort. 112. On 5 August 2009 the court acknowledged two experts on behalf of Mr X. and authorised them to assist in the drawing up of the reports. 113. On 14 September 2009 Mr C. accepted his appointment. 114. Following further submissions, and the first applicant ’ s complaints about Mr X. ’ s absences, on 24 November 2009 the Commissario della legge held that, when one of the parents could not take care of the child, it was for the other parent to so do and not the grandparents, and that the parents should collaborate when taking decisions regarding the minor. 115. On 2 February 2010 further reports were requested from the CTU. 116. Proceedings were still under way on the date of communication of the present application to the respondent Government. B. Parallel proceedings 1. Proceedings instituted by the first applicant before the Bologna Juvenile Tribunal 117. By an application of 1 August 2007, the first applicant requested the Juvenile Tribunal of Bologna to intervene in the custody proceedings in favour of sole custody of the mother. 118. On 10 August 2007 the Public Prosecutor ’ s Office advised against this action for lack of Italian jurisdiction. On 23 October 2007 the first applicant made a request for urgent measures. 119. By a decree of 29 October 2007, the Juvenile Tribunal suspended proceedings in view of the fact that proceedings were pending in San Marino. 2. Proceedings instituted by the father before the Bologna Juvenile Tribunal 120. It appears that in 2008 Mr X. requested the Juvenile Tribunal of Bologna to return the child to San Marino. The first applicant was not informed of these proceedings. On 14 March 2008 the Public Prosecutor ’ s Office advised the court to refuse the request. 121. By a decree of 6 June 2008, the Juvenile Tribunal refused the request to return the child to San Marino. It noted that, as Italy had not yet accepted San Marino ’ s adhesion to the Hague Convention that Convention could not apply to the present case. 3. Criminal Proceedings against the first applicant in San Marino 122. Mr X. pressed charges against the first applicant on 4 September 2007, for failure to make the child available for one of his visits. On 4 December 2007 it was considered that these proceedings should be archived since relevant certificates proving the child ’ s illness at the time were submitted. The following day the case was archived by the Procuratore del Fisco (Attorney General). On 6 December 2007 the case was archived by the Commissario della Legge. 4. Criminal proceedings against Mr X. in San Marino 123. On 19 February 2008 the first applicant pressed charges against Mr X., with the Gendarmeria di San Marino, for international kidnapping. 124. Following the first applicant ’ s testimony, on 29 May 2009 the Commissario della Legge held that there had not been the prerequisites for the accusation. Mr X. had not had the intention to kidnap the child. He could not be held responsible since he had only planned to take the child on a short holiday, which in some way or other could be said to have been agreed to by children ’ s services, in order to allow the father to recover the unilaterally impeded and therefore lost visits. The case was therefore sent for an opinion to the Procuratore del Fisco. With the latter ’ s agreement, on 10 June 2009 the Commissario della Legge ordered that the case be archived. 5. Criminal proceedings against Mr X. in Italy 125. On 10 May 2008 the first applicant pressed charges against Mr X. with the Rimini police headquarters for international kidnapping. 126. On 23 February 2009 the Commissario della Legge ordered the judicial police of San Marino to carry out the identification of Mr X. 127. By a summons of 19 July 2010 Mr X was informed that he was being indicted and that the trial would start on 24 October 2011. 6. Consular requests 128. Consular visits with the parties concerned were only successful in respect of the first applicant. Meanwhile diplomatic attempts by the Italian Government, seeking an adequate solution from the San Marino authorities, remained unfruitful. C. The continuation of proceedings following communication of the application to the respondent Government. 129. Following notification of the pending application before the Court by the Government Agent, on 26 July 2010, by reason of the inferences as to the impartiality of the relevant judge in the application pending before the Court, the Commissario della Legge hearing the ordinary custody and contact proceedings withdrew. 130. Proceedings continued under a new judge appointed by the former judge. According to the applicants, this choice had been arbitrary, as the new judge, who did not usually practise in the civil sphere, was a professor at the same university as the former judge and X ’ s legal counsel. This choice highlighted the former judge ’ s partiality. 131. Submissions were made regarding several issues, inter alia the child ’ s presence at Mr X. ’ s wedding, schooling, exclusive custody, and urgent measures related to the child ’ s medical needs. Where necessary, decrees were delivered upon the information submitted by the parties, the experts and children ’ s services. 132. Subsequently, on 13 September 2010 an updated CTU was submitted. The CTU acknowledged that his initial conclusions (of July 2008) had to be altered, having regard to the application lodged before the Court by the first applicant; as such the action reflected her contradictory behaviour. After hearing the parties he concluded that the second applicant should be placed with the father for the coming school year, that schooling should be in San Marino and that the mother should maintain her previously established visiting rights. The same was confirmed by a children ’ s services report. 133. On 20 September 20 10, following an adjournment because Mr X. was still on honeymoon, the first applicant made further submissions, focusing on the protection of her rights under Article 8 of the Convention. She submitted a favourable report by her CTP and requested that i) the child be placed with her, ii) the child be put into the Rimini elementary school, iii) a neuropsychiatric report be drawn up by the Rimini hospital iv) monitoring of visits be withdrawn, or in the alternative that San Marino children ’ s services be replaced by neuropsychiatric services or that the psychologist be replaced. 134. Having heard all the relevant parties and submissions the Commissario della Legge delivered its decision on 21 September 2010. Noting the high level of conflict persisting between the parties and their representatives, it considered that the decision must be temporary and subject to further change. It ordered joint custody, that the child be schooled in San Marino, that she be placed with the father during the week and with the mother at weekends, that Christmas and Easter festivities would be spent with the mother with the exception of Christmas Eve, Epiphany and the weekend after, which would be spent with the father, and that the parents continue to follow psychotherapy for another twelve months. It further ordered children ’ s services to continue monitoring the child ’ s progress, the expert to submit information about the child-parent relationship, particularly in view of the father ’ s remarriage, and any relevant medical needs. 135. Feeling aggrieved by the comments in the above - mentioned decision in relation to the parties ’ representatives, legal counsel for the first applicant gave up their mandate. Proceedings are still pending and the first applicant has no longer been represented during these proceedings. 136. Meanwhile, the appeal proceedings against the decision of 19 February 2008 continued and were decided on 7 March 201 1. 137. The Giudice per le Appellazioni Civili rejected the first applicant ’ s appeal. The court considered that Article 6 of the Convention had detailed provisions regarding criminal proceedings, but nothing in relation to civil proceedings. Thus, it was a matter subject solely to ordinary law. That being stated, he considered that in the instant case there had not been a breach of the right to defence or to the right to cross- examination ( contraddittorio ). Indeed, the first applicant had originally been represented at the opening of the hearing, thus, the prerequisites existed to hear the case and to cross- examine. It was only following the rejection of the request for an adjournment that the first applicant ’ s co- lawyer forfeited her mandate. Moreover, when the latter forfeited her mandate she was not forfeiting her colleague ’ s mandate, who therefore remained counsel to the applicant. The court further noted that there existed no law recognising a right to defer a case. The decision in relation to the existence of a legitimate impairment was subject to the judge ’ s discretion after hearing the relevant arguments. In the present case, the results of the investigation and rogatory enquiry with the Rimini Tribunal could not lead to the existence either of a legitimate impediment or of an ex post one. The Commissario della Legge had according to his prerogatives considered it opportune to decide the case speedily in view of the urgency and gravity of the matter. Indeed, it shared the view that, there not being any legal and binding procedural requirements in this respect, in the urgent circumstances of the case the decision could have been taken even in the absence of one of the parties ( audi alteram partem ). Moreover, the appeal judge considered perplexing the fact that the first applicant was contesting a situation she had created herself. Lastly, as to the impartiality complaint, the first applicant had not challenged or requested the withdrawal of the Commissario della Legge at the relevant time. | This case concerned the procedure for awarding parental authority and custody in respect of a child whose mother was Italian and whose father was a San Marino national. The applicants, the mother and the child, complained in particular about a decision ordering the child to be returned to San Marino to live with her father and to attend school there. |
117 | Domestic violence / abuse | I. THE CIRCUMSTANCES OF THE CASE A. Background to the case 5. The second applicant was born in 1976 and the first applicant in 2001 and they live in Zadar. 6. On 23 June 2001 the second applicant married I.M. 7. On 4 September 2001 the second applicant gave birth to the first applicant. 8. Relations between the spouses deteriorated, and in 2006 the second applicant brought a civil action against her husband seeking divorce, custody of, and maintenance for the first applicant. Her husband, I.M., filed a counterclaim, seeking custody of the first applicant. 9. In the period between 5 July 2006 and 7 March 2008 a total of eight criminal complaints were filed against the second applicant and I.M. Most of these complaints were filed against each other directly, but some were filed at the initiative of the police. Three of those eight complaints resulted in criminal proceedings being instituted (two against I.M. and one against both I.M. and the second applicant), the outcome of which is unknown. The remaining five criminal complaints were dismissed, including three in which it was alleged that criminal offences of child abuse and domestic violence had been committed against the first applicant. 10. By a judgment of 24 August 2007, the Zadar Municipal Court ( Općinski sud u Zadru ) (a) granted the second applicant and I.M. a divorce; (b) awarded I.M. custody of the first applicant; (c) granted the second applicant access (contact) rights; and (d) ordered the second applicant to make regular maintenance payments for the first applicant. In so deciding the court relied on the opinion of forensic experts in psychiatry and psychology obtained during the proceedings and on the recommendation of the Zadar Social Welfare Centre ( Centar za socijalnu skrb Zadar, “the local social welfare centre”) which participated in those proceedings as an intervener sui generis with a view to protecting the first applicant ’ s interests. The judgment became final on 2 January 2008. 11. Previously, by a decision of 7 November 2006 the local social welfare centre had ordered a child protection measure of supervision of the exercise of parental authority in respect of the first applicant. The measure was imposed with a view to improving communication between the second applicant and I.M. regarding the first applicant, and also with a view to preventing her from being drawn into their conflict. The measure lasted until 31 August 2008, when it was discontinued. In its decision of 2 September 2008 the local social welfare centre stated, inter alia, the following: “The measure only partly achieved its goal, in that contact with the mother has stabilised. The parents still do not communicate with each other and it is evident that the mother intends to continue with such behaviour. Furthermore, the mother ’ s cooperation with the supervising officer is not adequate and it is evident that the measure has become futile.” B. The alleged abuse 12. The applicants submit that on 1 February 2011 the first applicant ’ s father I.M. hit her in the face and squeezed her throat while verbally abusing her. 13. The next day the second applicant took the first applicant to the police to report the incident. The police instructed them to see a doctor and accompanied them to the local hospital, where the first applicant was examined by an ophthalmologist, who diagnosed her with bruising of the eyeball and eye socket tissue. In particular, the ophthalmologist noted: “Clinically discrete haematoma of the left lower eyelid, in resorption. The motility of the eyes is normal, no diplopia [double vision], no clinical signs of orbit fracture. Pupils are normal, lenses [are] in place, transparent, fundus [is] normal on both sides. Dg.: Contusio oc.sin. Haematoma palp.inf.oc.sin. Treatment: cold wraps [compresses] ... Into the eye: Effludimex sol ... Dg: S05.1. Bruising of the eyeball and the eye socket tissue” 14. After examining the first applicant the ophthalmologist filled in a standard form to be submitted to the police, in which he indicated that the injury had been inflicted by a hard blow to the left eye, gave bruising of the left eyelid ( haematoma palp.inf.oc.sin. ) as his diagnosis, and described the injury as light. 15. The applicants then returned to the police, where they both gave statements. In her statement the first applicant mentioned other instances of physical and psychological violence by her father in the past three years. The relevant part of the police record of the interview conducted with the first applicant reads as follows: “This interview was conducted regarding the violent behaviour of the [child ’ s] father I.M. [The child] stated that yesterday around 4 p.m., when she was getting ready to visit her mother D.M., she wanted to take a picture frame containing a lock of her hair which her mum had had framed when she had had her first haircut. She put the picture frame underneath her jacket because she knew that her dad would not allow her to take that picture frame to her mum. Then his girlfriend I.P. saw that she had something under her jacket and asked what it was. She replied that it was nothing. Then her father came and took the picture frame from under her jacket and told her that they would talk about it when she came home in the evening. ... In the evening, around 8 p.m., mum took her back to her dad, who brought her into the room and called her a thief, hit her with his hand on the left eye, and started squeezing her neck and pushing her. During this she fell, but did not hurt herself because she fell on a bag which was on the floor. Then she vomited saliva because she felt nauseous from her father ’ s squeezing her neck. Then [her father ’ s partner] I.P. came and told her father to calm down, otherwise she [the first applicant] would vomit ... He then left and sat in the living room. She was very afraid and was crying, but nevertheless went to her room and did her homework for the next day. When she woke up in the morning she greeted her father with ‘ good morning ’ but he did not even look at her and just turned his head away. In the morning she felt slight pain under the left eye where her father had hit her. When she arrived at school she mentioned it to her teacher and her friends P. and A., because she felt the need to confide in someone. Today she went to her mum and told her everything that happened that evening. She was also very hurt when her dad rudely [swore at] her. He often does that, and did so [also] yesterday evening. He also called her a ‘ cow ’ and told her she was stupid. Because of his rude language she cried a lot thereafter. Dad tells her from time to time [to go to hell] and she does not like swearing, especially when he mentions her mum while doing so. A few months ago the father told her that through his friends he would ensure that she never heard from or saw her mum. She is therefore very afraid of her dad because he can be dangerous. She had seen her dad beating her mum and was therefore afraid that he might beat her the same way too. She states that her father is often rude to her, yelling at her, forcing her to eat food she does not like, and when she does not, grabs her chin and shoves the food into her mouth, which makes her feel sick. He often takes away her mobile phone so she cannot call her mum, and she would like to be in contact with her mum. Once he hit her on the leg with a hairbrush when she would not allow him to brush her hair. He also grabs her arm and squeezes it so hard that she has bruises afterwards. She states that she is very afraid of her dad and would like to live with her mum. Tonight she definitely does not want to go with her father but wants to stay with her mum. She is afraid that her father will beat her and yell at her. He often threatens her by waving his hand at her and saying ‘ look at it, look at it ’, with the intention of hitting her if she does not listen to him. The father also threatens to cut off her hair, knowing that she likes [her] long hair. He threatens her with that when she is crying for her mum, bites her fingernails or asks for a mobile phone. Dad often tells her that she must not love her [maternal] grandmother, [her mother ’ s partner] N. or his mum, whereas she loves them all. She further states that each time her mum or [her mother ’ s new partner] N. buys her something and she brings it to her father ’ s home he throws all those things into the rubbish. Therefore, she wears the things her mum bought her only when she goes to her mum ’ s place, as she is not allowed to wear them when she is at her dad ’ s home. Lastly, she states that she is very afraid of her dad and [particularly] ... that he might do something bad to her mum, because he constantly threatens to do so. The interview was conducted in the presence of a social worker from the Zadar Social Welfare Centre V.C.” 16. The same day the police interviewed I.M. and his partner I.P. The relevant part of the police record of the interview conducted with I.M. reads as follows: “The interview was conducted in the presence of his advocate B.Z., regarding the complaint that he had hit his minor daughter ... In that connection he stated the following: ... [He says that his former wife] does not regularly pay maintenance for [their] daughter ... amounting to 800 Croatian kunas (HRK) per month and up to the present day owes [him] HRK 15,000. [He submits that], sadly, [his former wife] manipulates their daughter ... and uses her so that she rejects everything that bears [his] surname. She even created a Facebook page for her under ... the surname of her current partner ... As regards his relationship with his daughter ..., [he] states that he, as a parent who wants to teach his child to respect work and discipline, has his duties, and that the child has to have certain discipline, [for example] she must not lie to her parents, and may not do whatever she pleases. When [his daughter] comes back from school ... he requires her to do her homework and study. As regards food, [he] states that he wishes [his daughter] to eat healthy and varied food, with fruit and vegetables, rice and meat, and that she does not only eat pizzas, sandwiches and sweets. He also does not like to throw away food and prefers that it is eaten. On 1 February 2011 around 3.50 p.m. [his daughter] was preparing to go to her mother and came into the kitchen to say goodbye. On that occasion [his partner] I.P. noticed that she had something under her jacket ... and asked what it was. [The daughter] replied that it was nothing, even though there was visibly something underneath it. He asked her to open her jacket. [Then they realised] that she had taken a glass picture frame containing the locks of her hair cut off when she was still a baby. [He] then asked her why she had not asked to take it instead of doing it the way she did, stealing from her own house. [The daughter] said that it was for her mum and that if she had asked him if she could take it he would not have allowed it. Then he told her to go to her mum and that they would talk about it later, when she came home. [The daughter] came home at 8 p.m. and they continued their conversation because he wanted to tell her that what she had done was bad and that she should have asked instead of stealing things from the house and taking them to her mother. [His daughter] replied that she wanted [the picture frame] to be at her mother ’ s place. [He] then reprimanded her for lying to him, saying that what she had done was sad or bad and that she always had to tell the truth because he did not tolerate lies and that all problems would be solved the way they had been solved so far. He admits that he is sometimes a strict parent but that he always behaves in a measured way and with [good] reason, and it is only ever exclusively done with a view to making her behave [better]. Today, on 2 February 2011 [his daughter] was at school in the morning and in the afternoon was having fun with [him] and his [partner] ... Nothing suggested that [she] was in any way distressed by the previous evening ’ s events. [He] emphasises that all this was fabricated by her mother ... who has a negative influence on [their daughter].” 17. The relevant part of the police record of the interview conducted with I.M. ’ s partner I.P. reads as follows: “The interview was conducted regarding a complaint that I.M. had hit his minor daughter ... In that connection she stated the following: On 1 February 2011 around 3.50 p.m. [her stepdaughter] was preparing to go to her mother and came into the kitchen to say goodbye to them. On that occasion [I.P.] noticed that she had something under her jacket ... and asked her what it was. [Her stepdaughter] replied that it was nothing, even though there was visibly something underneath her jacket. I.M. asked her to open her jacket. [Then they realised] that she had taken a glass picture frame containing locks of her hair cut off when she was a baby. [He] then asked [his daughter] why she had not asked to take it instead of doing it the way she did, stealing from her own house. [The stepdaughter] said that it was for her mum, and that if she had asked him for it he would not have allowed it. Then he told her to go to her mum and that they would talk about it later, when she came home. [The stepdaughter] came home at 8 p.m. and she and her father continued their conversation, because he wanted to tell her that what she had done was bad and that she should have asked instead of stealing things from the house and taking them to her mother. [The stepdaughter] replied that she wanted [the picture frame] to be at her mother ’ s place. I.M. then reprimanded her for lying to him, by saying that what she had done was sad or bad and that she always had to tell the truth because he did not tolerate lies and that all problems would be solved the way they had been solved so far. I.P. firmly states that on that occasion I.M. did not hit [his daughter], nor has she ever seen him hitting [her]. She says that I.M. has a temper and sometimes shouts when he considers that something is wrong, but that he is really not prone to physical violence or hitting the children. I.P. notes that [her stepdaughter] is generally very sensitive about her mother and immediately starts crying as regards anything related to her.” 18. After the interviews, the first applicant was returned to her father I.M., following the intervention of an employee of the local social welfare centre. 19. On 19 February 2011 the first applicant was, at the initiative of the second applicant, examined by a psychiatrist at the Psychiatric Hospital for Children and Young People in Zagreb. The relevant part of the psychiatrist ’ s observations reads as follows: “The child was with the mother at the police station and reported the incident [of 1 February 2011] because the mother, and also the child, claim that this was not the first time that the father has mistreated [the child], although not so much physically as psychologically ... During the interview with the girl it is evident that the child gets very upset at the mention of the father, she is afraid of him, ‘ constantly thinks that he will hit her again and would like to stay with mum ’. Dad is allegedly constantly threatening that he will ‘ cut off her hair if she keeps crying and mentioning mum ... ’ he often swears and utters vulgar expressions against the mother;all this was allegedly reported to the police ... (the interview was conducted first with the mother alone and then with the girl, also alone; [the child] talks about it all through tears and while biting her fingernails) .... The girl says that she remembers that ‘ she was asked when she was little with whom she wished to live and that she said with dad because she was told that she had to say that, now she regrets it ’ (she is crying all the time). The girl otherwise appears to have good intellectual capacity; she functions well outside the family, and is an A-grade pupil. There are no signs of psychotic disorder, and the girl is emphatic in contact except when she gets upset and talks rapidly when the topic of the father and his relationship with her is raised (thus there is an impression of strong fear of the father). Given the complexity of the family situation (the father has remarried and [the child] lives with him, his new wife, her daughter from her first marriage and two small half-sisters, while the mother also has a new partner with whom she has a small son) and the evident traumatisation of the child which has probably already lasted a long time, a psychiatric assessment of the child is recommended. Until then ... I recommend taking the girl to a psychologist ... Dg. Abused child, T 74.8” 20. On 5 March 2011 the second applicant took the first applicant to a psychologist in Zagreb, who, inter alia, made the following observations: “The interviews, which were conducted with the mother alone and separately with the girl, indicate that the child is afraid of her father because he psychologically and sometimes physically abuses her ... The girl ... says that she would gladly live with mum if she could, and that dad speaks badly of mum ... The results show that [the child] is emotionally attached to her mum and thinks that her dad does not love her, is afraid of him, does not trust him, and thinks that it is not fair that dad constantly yells at her even when she is not at fault. Her biggest wish is to live with her mum and her family, and she finds it difficult to return to her dad ’ s home. She identifies with her mother and thinks that they are very much alike. Findings : [The girl] is a traumatised child with well above-average mental abilities, strong self-control, neuroticism, depressive affect, hypersensitive, anxious with strong inferiority complex. Discrete tremor is diagnosed. I recommend psychological and, if need be, psychiatric counselling.” 21. On 30 March 2011 the Zadar Municipal State Attorney ’ s Office ( Općinsko državno odvjetništvo u Zadru, hereafter “the State Attorney”) informed the second applicant that on the same day it had, concerning the incident of 1 February 2011, indicted I.M. before the Zadar Municipal Court for the criminal offence of bodily injury defined in Article 98 of the Criminal Code (for a more detailed description of the course of those proceedings see paragraphs 35-51 below). 22. On the same day, 30 March 2011, the second applicant instituted civil proceedings before the Zadar Municipal Court seeking reversal of the custody arrangements set forth in that court ’ s judgment of 24 August 2007 (see paragraph 10 above; for a more detailed description of the course of those proceedings see paragraphs 60-81 below). 23. On 22 April 2011 the second applicant took the first applicant back to the same psychologist (see paragraph 20 above). The psychiatrist made the following observations: “... The interview with [the child] was conducted without her mother ’ s presence. In contact silent, with depressive affect, cooperative, bites her fingernails, occasionally cries. We again had a conversation about the events of 1 February 2011 during which the child was psychologically and physically abused by her father, and which she in her mother ’ s presence reported to the police. [The child] says that that was not an isolated incident and that she is afraid of her father because she has continuously, from the moment she started living with him, been exposed to psychological and, from time to time, also physical abuse. She says that on multiple occasions he has threatened that he would hit her if she kept biting her fingernails and that he would take her mobile phone away. Previously she was more afraid of her father ’ s physical violence than now, but her mother encourages her by telling her not to be afraid and to ‘ endure difficult moments ’. The child states that she does not like living with her father because he threatens her and tells her that he will beat her. She says that mum loves her more, does not threaten her and is good to her. She uses suppression and ‘ forgetting ’ as defence mechanisms ... The child states that the father yells at her almost every day, swears, tells her that she is a ‘ stupid cow, pig, goat, thief, that she constantly defies him ’. She says that this offensive behaviour by her father is rarer since she reported him to the police. [The child] says that the father has threatened her that he will, through ‘ his people ’, take care that she does not hear from or see her mother. He threatens her that he will cut off her hair if she cries for her mother. The child alleges that her father forces her to eat so that she has to eat everything he puts on her plate and that she sometimes vomits because of that. If she refuses to eat everything the father holds her chin and ‘ shoves ’ the food in her mouth. If she resists, he smears the food over her face. After she reported him to the police, the father controlled himself for a couple of days, and then again started yelling but then to a lesser degree. He no longer shoves food in her mouth, but she has to eat everything he puts on her plate. Sometimes she has to eat something that she does not like, which the mother never does to her. [The child] is lonely at her father ’ s home, because she spends time only with her half-sisters; her friends are not allowed to visit in case [the younger half-sister] gets sick. After school the father allows her to meet with friends for half an hour only. She visited one of her friends only once and she did not dare to ask the father for more visits. She thinks that her father is stricter with her than with her older half-sister. I found out that the father speaks badly of the mother and her new partner in front of the child, that she has different clothes at her mother ’ s and her father ’ s places, and that the father threw the sneakers she got as a birthday present from her mother and her partner into the rubbish. Asked about her father ’ s wife, she says that she is better to her than her father: does not force her to eat, has never hit her, helps her with homework, and brushes her hair. The child shows a strong desire to live with her mother because she is emotionally closer to her, and because the mother supports her in difficult moments. She has many friends in her mother ’ s neighbourhood and is encouraged to spend time with them; she has fun and feels safe with her mother. Asked about [the behaviour of] her mother ’ s partner towards her, the child says he is good to her and tries to cheer her up, buys her presents, and is fun and pleasant to talk to. To the question whether, if she were to live with her mother, she would be allowed to see her father outside the visiting schedule ordered by the court, she says that it is certain that her mum would allow her to see her father whenever she wished to and states that ‘ she would like to move to her mum ’ s [place] right away and forever ’. Findings and recommendations : In order to prevent the development of irreversible psychopathological consequences due to continuous abuse, it is recommended that the child be immediately removed from the family where she currently lives and that custody be awarded to the mother. Psychological and if need be, psychiatric follow-up is also recommended.” 24. On 4 May 2011 the second applicant again took the first applicant to the police to report another instance of abuse by her father, who had allegedly pressured her to change her earlier statements made before the police and the experts. The relevant part of the police record of the interview conducted with the first applicant on that occasion reads as follows: “This interview was conducted regarding inappropriate behaviour of the [child ’ s] father I.M. [The child] stated that a couple of days ago her dad ’ s girlfriend I. asked her whether she had visited a certain lady in Zagreb with her mum. She had replied that she had, whereupon I. had asked her what she had talked about with that lady in Zagreb and why she had not said anything about [it] to her dad. She replied that she had forgotten to mention it. After that her father had called her on her mobile phone and asked her to come to his café ... immediately. When she had arrived there he had started yelling at her and asking why she had been saying bad things about him and why she had not told him that she had been in Zagreb ... After that he had told her that she was lying like a dog and told her to get out of his sight. ... Afterwards her dad had kept asking her whether she really wanted to live with her mum and she always replied that she did. A couple of days ago he had told her that she would not live with her mum until she was eighteen years old. [The child] also states that he said that he would report her mum for taking her to a doctor in Zagreb, and that she [the mother] would receive a criminal complaint for [having done] that. He [also] told her that he would now take her to a psychologist and to some other people where she would have to say that he had not hit her and that he was good to her. Today he had again asked her whether she really wanted to live with her mum and she had again replied to him that she did want to live with her mum. This interview was conducted in the presence of the [child ’ s] mother ...” 25. On 7 May 2011 the first applicant ’ s father took her to a psychiatrist at the Polyclinic for the Protection of Children in Zagreb, who, after studying the opinions of 19 February, 5 March and 22 April 2011 (see paragraphs 19, 20 and 23 and above) and interviewing the first applicant, in his observations noted, inter alia, the following: “It is evident that [the child] is very burdened by her parents ’ conflict and the inadequacy of their mutual communication, which frequently goes through her. The girl shows affection towards, rather than fear of, her father. However, when asked what happened [on 1 February 2011] she did not want to talk about it; she was visibly emotionally burdened so I did not insist on it. She freely expresses her dissatisfaction by saying that she does not like it when her father raises his voice. Asked when that happens, she replies: ‘ when I do something bad ’. She is functioning well at school, says that she has many friends ... that at her mother ’ s place she also has friends and likes to go there, but that she feels comfortable at home with her father because she gets on well with ... the daughter of her father ’ s new partner ... Her mental state is dominated by the emotional burden of her parents ’ conflict, high emotional tensions, the need to be close to her mother (whom she wishes to please by being with her) and, in her relationship with her father, by the conflict of loyalties she has been placed in. I am of the opinion that the girl has been drawn into a conflict of loyalties and is very burdened by her parents ’ disagreements and conflict, which has resulted in high emotional pressure, anxiety and hypersensitivity. I recommend that the parents undergo family counselling and possibly afterwards also family therapy together with [their daughter].” 26. On 6 June 2011 the father took the first applicant back to the same psychiatrist who, in so far as relevant, noted: “The interview with the girl was conducted alone. [The child] states that she feels good, that she cannot wait for school to end but that she has no difficulties in school. She gets on well with both her father ’ s wife and her mother ’ s partner, and regards her half-brother and half-sisters as real siblings. She is still sad about her parents ’ differences and their inability to adequately communicate [with each other] and their different parenting styles.” 27. In the course of the above-mentioned custody proceedings (see paragraph 22 above) the court ordered a combined expert opinion from experts in psychiatry and psychology. Accordingly, the applicants and the first applicant ’ s father were examined by forensic experts of this type at the Neuropsychiatric Hospital in Popovača. As part of the preparation of their opinion each expert conducted interviews, inter alia, with the first applicant. In particular, on 1 July and 28 September 2011 the first applicant was interviewed by each expert; on 2 September 2011 she was interviewed only by the expert in psychiatry. The interviews of 1 July 2011 were conducted without the first applicant ’ s parents being present, that of 2 September 2011 in the presence of her mother (the second applicant), and those of 28 September 2011 in the presence of her father. 28. The relevant part of the record of the interview of 1 July 2011 with the expert in psychiatry reads as follows: “[The child] states that she always tells the truth, literally always, and that she feels her worst when she is told that she is a liar like her mum. ... She very clearly articulates her emotional bond and closeness with her mother and her wish to live with her. ... [The child] states that she once attempted to talk with her father about living with her mother, but that the conversation ended quickly with him telling her that there would be no discussion about that and that she would stay with him until she was eighteen ... She says that her father is very strict and that he often shouts at and insults her, which makes her embarrassed and scared. The last time he attacked her, because of the picture [frame], I. [her father ’ s partner] stopped him, and she felt nauseous ... She says that she complained to her mother about her father, which was why she went to the police with her. She was particularly struck when the social worker came to the police [station] and talked to her mother; she heard the social worker say that unless they agreed on where [their daughter] was going to live she would be placed in a children ’ s home. (The girl cries for a long time afterwards). When asked how it is to live with her father, she states that she would prefer to live with her mother as she is closer to her ...” 29. The relevant part of the record of the interview of 1 July 2011 with the expert in psychology reads as follows: “Dad is so- so. When he is in a good mood, he is good. When he is not [in a good mood] he is not [good]. Once when he forced me to eat I vomited. ’ ... ‘ Mum is great. Good, fair and does not hit me. She does not threaten me. I do not fight with her that much. I am calmer when I am with my mum, there are not that many fights, I am more relaxed. ’ ... She said that she came to the expert assessment ‘ because of what dad did to me and because I want to live with my mum. I wanted ... He threatened me ... ’ She cried and indistinctly through tears says that her dad smeared food over her face as a joke so she felt ugly and embarrassed. ‘ He hit me once ... He said that he did not but that he only made a [threatening] gesture with his finger ... ’ After she calmed down we cameng back to the traumatic incident. You started crying? ‘ ... He did this to me (she demonstrates with her hand round her neck). Dad hit me and I always cry so I almost vomited. [He squeezed me] this hard (she is touching her throat and chin) so that I almost vomited ... ’ ‘ [He called me a thief] and I said I was not and then he hit me near the eye (she shows the left temple) ... He asked me if I would do that again (she needs to be interrupted because she is speaking indistinctly while sobbing) ... [The next day] ... I told my mum what he had done to me. She told me that we could go to the police and there I told [them what happened] ... The first lady [the policewoman] there was good. The other [the social worker] pulled my hand while saying that I have to go to my dad. I did not want [to go]. She then told me that if mum gets into a fight with dad she will go to jail and I will go into a children ’ s home (she is sobbing). I had to go with my father. Dad said that we would not talk about that ... ’ ‘ Yesterday he told me that he had never hit me and that he had not done anything to me and that I should tell the truth. But he did hit me. He also told me that when he smeared the food over my face it was a joke, but I felt embarrassed. He also told me that if I mentioned it he would call [the stepmother and stepsister] to say that it was a joke, which would make me look like a liar. I felt embarrassed and ugly then ... ‘ He threatened to cut off my hair if did not stop biting my nails, and to take my mobile phone away. ’ ‘ Once we were in the car together ... he saw mum with [her new partner] in the next lane. He said that he would put both of them to jail and kill them. He swore at them a lot. He told them many bad things ... The next day or shortly afterwards he said that through his people he would ensure that my mum and me did not see or hear from each other. ’ ‘ I was at a doctor ’ s in Zagreb some time ago. He asked me something about school but he seemed bad to me and I did not want to talk to him and I did not tell the truth. After a month we went to him again. I said I wanted to live with my mum but I did not mention that my dad had hit me. Then I was afraid of my dad, and still am because I knew he would say that he had not hit me ... ’ ‘ Once he hit me when I was little, I do not remember, once ... ’ ‘ He gets upset when I cannot eat something. When I say something [to justify myself] he asks why I defy him. He used to insult me. He called me a cow, stupid goat. He swore at me. He told me to go to hell ... he said that to me many times. He also told me to fuck off many times ... He told me that my mum was a whore (she is crying) ... ‘ Mum tells me that I cannot do certain things. She does not threaten me. Sometimes she raises her voice, but she does it rarely and then I do not do it any more.” 30. The relevant part of the record of the interview conducted on 2 September 2011 with the expert in psychiatry reads as follows: “This interview was conducted with the girl and the mother together in order to observe their mutual interaction. During the interview it is noticeable that the girl is somewhat more withdrawn and serious than during the previous interview ... At some point the girl has a strong emotional reaction. The girl states (while crying) that she would like to celebrate her forthcoming birthday at her mum ’ s place ... given that she celebrated her last birthday with her father. The mother did not manage to calm the girl completely or ease her frustration. Instead, she herself looked anxious and frustrated, almost lost.” 31. The relevant part of the record of the interview of 28 September 2011 with the expert in psychiatry reads as follows: “This interview was conducted with the girl and the father together in order to observe their mutual interaction. During the interview it is noticeable that the girl is somewhat more withdrawn and deep in her thoughts, and seems restrained ... Asked if she would like to change something, she says that she would like to live with her mum and that she wishes to be able to extend the time she spends with one parent when she wants to stay with that parent longer. While saying that the girl reacts emotionally (she is crying). In the course of it there is no mutual contact between the girl and her father; there is no eye contact, nor is the father trying to calm her. Each [keeps] to themselves, with their eyes fixed forward.” 32. The relevant part of the record of the interview of 28 September 2011 with the expert in psychology reads as follows: “She states in her father ’ s presence: ‘ I would like to live with my mum and decide when visits should take place, to go with my mum or my dad (she is crying). Dad adds: ‘ That would be the best ... ’ To the direct question whether she asked her dad about it, she replies that she did not. She adds that once she asked her dad [about it] and that he said that she could not go to her mum ...” 33. On 27 October 2014 the first applicant wrote the following in her school essay: “...they all think that they know me but they don ’ t know even a third of me. They judge me by my success in school, but that isn ’ t me. They don ’ t know what is happening, they see me as a happy girl, but I am the opposite of that. I have lived with my dad since I was six years old, and from day one I wanted to go to [live with] my mum ... Dad tells me he won ’ t let me go until I am 18 ... For some time already I have found comfort in cutting myself ... the scars are no longer visible, only when I play volleyball or some other ball game and when my arm turns red, then they are visible.” 34. Alarmed by the first applicant ’ s admission of self-harm in the school essay, on 22 November 2014 the second applicant took her to the same psychologist who had examined her on 5 March and 22 April 2011. In her observations the psychologist noted the following: “[The girl] came accompanied by her mother because the mother had learned of [her daughter ’ s] self-harm, which [the girl] had written about in a school essay ... of 27 October 2014. Interview : Depressive, anxious at the beginning ... verbally fluent. We are talking in the absence of the mother. After the her parents ’ divorce, [the girl] lived with her mother. She says that was the happiest period in her life. She had lived with her father since she was six [years old] ... Relations in the family she described as conflictual, she is afraid of her father. She describes emotional blackmail by her [paternal] grandmother and threats and emotional blackmail by her father, as well as occasional abuse by the father, on which there are medical and police reports. She states that when she was six, she [because of being] manipulated and intimidated by her father, stated during the [forensic] expert examination [in the course of divorce proceedings] that she wanted to live ‘ fifty-fifty ’ [when asked which parent she would like to live with]. She says that her dad told her to say that but that she did not know what it meant. Since the divorce became final she has lived with her father, and has suffered because she has a close and trusting relationship with her mother and her mother ’ s partner. From that time on she has been expressing the wish to live with her mother, but despite all her statements [to that effect] ... the [relevant] authorities pay no heed ... Thanks to her mother ’ s support and understanding she is still functional [that is she manages to live normally] but is unhappy because she cannot live with her mother. She says that she is unhappy, that she does not understand why the [relevant] authorities are ignoring her, and that they do not understand how much they are abusing her by not taking appropriate measures. In her school essay (which was presented) she mentions that she cut herself on the arms. Her friend helped her to deal with the scars. When asked why she did that, she replies that it was because she felt helpless in enduring the constant pressure in her father ’ s family, constant conflicts, inability to manage her own time, and refusal to let her live with her mother, which would make her happy. Other behaviour mentioned in the essay points to the development of an obsessive-compulsive disorder, fear of the dark, anxious-depressive symptomatology, and emotional control disorder. These are not related to puberty but indicate post-traumatic stress symptomatology, emotional disorders caused by constant frustrations, and child abuse ... The girl has for years been burdened by expert examinations, judicial proceedings, interviews at the social welfare centre, and the hope that someone will finally listen to her plea to live with her mother, because since the age of six she has been unhappy because she has to live with her father. She enjoys her mother ’ s and her mother ’ s partner ’ s company, and they are supportive, but she is afraid that she will not be able to live with them for a long time yet. She is unhappy because her father constantly fights with her and does not want her to be happy (as she would be if she lived with her mother). She ‘ hates the situation she is in, where she is forced to live with her dad. She wants to become an advocate and she would never allow her child to suffer as she does because she is not allowed to choose with whom ... to live. ’ She is introverted, anxious ... Emotional suffering, distrust, depression, fear, guilt, reduced impulse control and problems with facing stress are diagnosed. These symptoms are related to inability to control her desires and to plan and organise. Despite previously established above-average cognitive capacities, a reduced level of openness and a need for new experiences is detected. This is probably because of continuing obstruction of her freedom of action. Despite constant obstructions she is still willing to fight for herself. She is empathic. She has very developed defence mechanisms. However, symptoms of post-traumatic stress are also detected. Conclusion: Elements of strong psychological trauma are diagnosed (post-traumatic stress), which are, according to her statements, the result of frustration caused by the abuse by her father and the authorities who are ignoring her wish to live with her mother, and [which serve] to protect her from suffering and the feeling of helplessness, which she reduces by obsessive-compulsive disorder and by harming herself.” C. Criminal proceedings 1. Criminal proceedings for bodily injury 35. As already mentioned above (see paragraph 21), on 30 March 2011 the State Attorney indicted the first applicant ’ s father before the Zadar Municipal Court for having committed the criminal offence of bodily injury defined in Article 98 of the Criminal Code (see paragraph 86 below) during the incident of 1 February 2011. 36. On 19 April 2011 the court issued a penal order ( kazneni nalog ), finding him guilty as charged and imposing a fine of HRK 1,820. 37. On 4 May 2011 the first applicant ’ s father challenged the penal order, arguing that the basis on which it had been issued was false. The court accordingly set aside the penal order, and the proceedings resumed under the rules of summary criminal procedure. 38. The hearing scheduled for 7 May 2013 was adjourned because neither the accused nor the summoned witnesses attended it. 39. At the hearing held on 6 June 2013 the first applicant ’ s father pleaded not guilty and made a statement. He also proposed that several witnesses be heard. The applicants proposed that they themselves be heard. 40. At the hearing held on 23 July 2013 the court heard the second applicant, one of the police officers who had interviewed the applicants following the incident of 1 February 2011, the first applicant ’ s schoolteacher, and Z.M., a psychologist who had acted as supervising officer during the implementation of the first child protection measure in respect of the supervision of the exercise of parental authority (see paragraph 11 above). 41. The police officer stated that she had not noticed any visible injuries on the first applicant during the interview with her the day after the incident of 1 February 2011. The first applicant ’ s schoolteacher had not seen any injuries either. He also testified that he had noticed that the first applicant had seemed sad the day after the incident and that he had talked to her about this; the first applicant had told him on that occasion that her father had not hit her. Z.M., who said that he had spoken with the first applicant some time after the incident in the capacity of a private individual and at her father ’ s request, testified that the first applicant had told him that her father had yelled at her and that she had been afraid that he would hit her but that he had not. He also stated that as a school psychologist he knew very well how to recognise signs of abuse in children and that the first applicant had not shown such signs. 42. On 25 July 2013 the court decided to obtain an expert opinion from a medical expert on the first applicant ’ s injuries. 43. The hearing scheduled for 18 September 2013 was adjourned because the summoned witnesses failed to attend it. 44. On 23 September 2013 the expert submitted his opinion, which stated that it was possible, but could not be determined with certainty, that the first applicant ’ s injury had been sustained during the incident of l February 2011. The relevant part of his opinion states as follows: “The following injury was established [at the time] by medical examination: small haematoma of the left lower eyelid. This injury constitutes a bodily injury. The injury was inflicted by some hard and blunt object. It was inflicted by a single blow of low intensity. The mechanism of the injury could correspond to the course of events as they were described to the doctor by the injured party during the examination (a blow with the hand to the eye). However, it is to be noted that the injury was described by the doctor who performed the examination as a haematoma in resorption, thus in [the process of] disappearing, fading. That normally happens after a certain period of time, for example, several days, after an injury. It would not be common for resorption to already be visible the day after the injury. It follows from the above that the injury could have been inflicted during the incident in question, but that a causal link cannot be established with certainty.” 45. At the hearing held on 24 October 2013 the court heard the other police officer who had interviewed the first applicant on 2 February 2011, the social worker who had been present during the interview with the police, and the doctor who had examined her on that day. 46. The police officer testified that the first applicant did indeed not want to return to her father and that the social worker from the local social welfare centre had indeed told her that they would have to temporarily place her in a children ’ s home if she refused. She also testified that she had not seen any signs of injury on the first applicant. The social worker testified that she had not noticed any signs of injury on the first applicant either. She also stated that while it was true that the first applicant had not wanted to return to her father, she had changed her mind after they spoke, in the course of which she had not mentioned the alternative of sending the first applicant to a children ’ s home. The doctor who examined the first applicant stated that resorption of a haematoma occurred more quickly in children and young people. While he excluded the possibility that the injury could have been caused by crying and rubbing the eyes he did not rule out the possibility that it had been caused by, for example, the first applicant being hit by the ball during her volleyball practice. The applicants ’ representative reiterated their proposal that the first applicant be heard. 47. In order to decide on that proposal, the court decided to consult the case file concerning the above-mentioned custody proceedings (see paragraph 22 above and 60-81 below). Eventually, the court decided to hear the first applicant via video link on 1 July 2014. 48. However, that hearing was adjourned because on 30 June 2014 the first applicant ’ s father sought withdrawal of the trial judge; that application was dismissed by the court ’ s president on 3 July 2014. 49. Since none of the courts in Zadar was equipped with a video link device, the court asked the police authorities to provide it. The police informed the court that it would make available a video-link device on 16 October 2014. Accordingly, the examination of the first applicant was scheduled for that date. 50. However, on 14 October 2014 the police authorities informed the court that they would not be able to provide the device on 16 October 2014. 51. According to the Government, the proceedings are still pending, depending on the availability of the video link device. 2. The applicants ’ attempts to institute criminal proceedings against the first applicant ’ s father for child abuse 52. Meanwhile, on 27 April 2011 the second applicant lodged a criminal complaint with the State Attorney against the first applicant ’ s father accusing him of the criminal offence of child abuse as defined in Article 213 paragraph 2 of the Criminal Code (see paragraph 86 below). In particular, the second applicant argued that he had physically and psychologically abused the first applicant by: (a) in the period between February 2008 and April 2011, inter alia, swearing at her and calling her names, frequently forcing her to eat food she did not like, and force-feeding her when she refused, threatening to hit her, cut off her long hair and ensure that she never saw or heard from her mother, hitting her with a hairbrush on one occasion, among others, and (b) on 1 February 2011 hitting the first applicant several times in the face and squeezing her throat while verbally abusing her, as a result of which she was later diagnosed by an ophthalmologist with bruising of the eyeballs and eye-socket tissue. 53. On 20 June 2011 the State Attorney asked the of the Zadar County Court ( Županijski sud u Zadru ) investigating judge to: (a) question the suspect, (b) take statements from his partner and from the second applicant and her partner, and (c) order a combined expert opinion from experts in psychiatry and psychology. 54. On 29 September 2011 the State Attorney ’ s Office itself ordered a combined expert opinion from certain court experts in psychiatry and psychology. On 4 October 2011 it set that order aside after finding that such a combined expert opinion had already been obtained in the context of the above-mentioned custody proceedings (see paragraph 22 above and paragraphs 60-81 below). 55. On 16 January 2012 the State Attorney dismissed the second applicant ’ s criminal complaint, finding that there were not sufficient grounds to suspect that the first applicant ’ s father had committed the criminal offence the second applicant had accused him of. In so doing the State Attorney ’ s Office addressed only the part of her complaint concerning the alleged abuse of the first applicant in the period between February 2008 and April 2011, and not the part concerning the incident of 1 February 2011. After examining the statements made to the police by the suspect and his partner, the second applicant and her partner, psychiatrists ’ opinions of 19 February and 7 May 2011, the psychologist ’ s opinion of 5 March 2011, and the combined expert opinion of 29 December 2011 (see paragraphs 16-17, 19-20 and 25 above and paragraphs 69-70 below), the State Attorney gave the following reasons for his decision: “Analysing the above facts, it follows that the suspect I.M. ’ s conduct or the conduct of [the second applicant] cannot be regarded as conscious and deliberate emotional or physical child abuse, but rather as inadequate child-rearing practice [ parenting style] and reaction caused by parental conflict over child custody, persistence of long-lasting mutual unresolved conflicts, and limited parenting capacity ... In view of the foregoing ... there is no reasonable suspicion that the suspect I.M. committed the criminal offence he is accused of ...” 56. The first and second applicants then decided to take over the prosecution from the State Attorney as injured parties in the role of (subsidiary) prosecutors. As the Criminal Procedure Act requires that an accused be questioned before being indicted, on 25 January 2012 the applicants asked an investigating judge ( sudac istrage ) of the Zadar County Court to question the first applicant ’ s father. 57. By a decision of 9 February 2012 the investigating judge dismissed the applicants ’ request, holding that the facts adduced by the applicants did not constitute the criminal offence of child abuse. In so doing he relied on the combined expert opinion of the forensic experts in psychiatry and psychology of 29 December 2011 obtained in the custody proceedings (see paragraphs 69-70 below). The relevant part of that decision reads as follows: “... the conduct cannot be regarded as abuse [because the combined expert opinion] did not confirm the diagnosis of child abuse. This is very strongly indicated by the recommendation that changing the child ’ s residence is not advisable. Had that diagnosis been established, the recommendation concerning the child ’ s residence would have certainly been very different.” 58. On 21 February 2012 a three-member panel of the Zadar County Court dismissed an appeal by the applicants against the decision of the investigating judge. The relevant part of that decision reads as follows: “[The child is under supervision] by the [local] social welfare centre. It is therefore evident that if the suspect had behaved in an unseemly or inappropriate manner towards her as a parent that the centre would have reacted. There must have been reasons why the father was awarded care of the child. If there is any change in circumstances that decision could also be changed. According to the expert opinion no elements of abuse were found ...” 59. On 24 May 2012 the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared inadmissible a subsequent constitutional complaint by the applicants. It held that the contested decisions of the Zadar County Court were not susceptible to constitutional review. The Constitutional Court served its decision on the applicants ’ representative on 3 July 2012. D. Custody proceedings 60. Meanwhile, on 30 March 2011 the second applicant brought a civil action in the Zadar Municipal Court against the first applicant ’ s father with a view to altering the custody and contact arrangements ordered in the judgment of the same court of 24 August 2007 (see paragraph 10 above). In particular, she sought custody of the first applicant. At the same time the second applicant asked the court to issue a provisional measure whereby it would temporarily grant her custody of the first applicant pending the final outcome of the principal proceedings. 61. The court regarded the second applicant ’ s civil action as an application for non-contentious proceedings, as it considered that the rules on non-contentious procedure rather than those on regular civil procedure should apply in such matters. It held hearings on 29 April and 16 May 2011. 62. The local social welfare centre participated in those proceedings as an intervener sui generis with a view to protecting the first applicant ’ s interests. 63. At the hearing held on 29 April 2011, the second applicant ’ s representative insisted on the provisional measure being issued. The representative of the local social welfare centre stated that the situation in the first applicant ’ s family was very complex, that her parents had made numerous criminal complaints against each other, and that both parents should be assessed by forensic experts. He also stated that the centre could not at that time make a recommendation as regards the provisional measure requested, because such a recommendation could only be made after completion of the family-assessment procedure by a team of professionals employed at the centre. The second applicant ’ s representative replied that the centre had been aware of the incident of 1 February 2011 but had taken no action to address the situation in the first applicant ’ s family. She therefore insisted on pursuing the application for a provisional measure. 64. On 12 May 2011 the local social welfare centre submitted its report and recommendation to the court. In the course of their preparation of this report the centre interviewed the second applicant and the first applicant ’ s father on 3 and 4 May 2011, visited their homes and requested an opinion from the first applicant ’ s school. The relevant part of the centre ’ s report reads as follows. “The allegations of the [child ’ s parents] who accuse each other of child abuse are impossible to verify, nor can a straightforward conclusion be made only on the basis of interviews with them or on the basis of visits to their families. There is an impression that the parents, burdened by their permanently strained relationship and their own need to live with the child, consciously or subconsciously place themselves and their needs first while disregarding the welfare and the needs of the child. The child protection measure of supervision of the exercise of parental authority was previously ordered in respect of the parents during the divorce proceedings, from 7 November 2006 to 31 August 2008. Given that the already poor communication between the parents has worsened again, which brings about negative tensions which could be harmful for the child ’ s emotional development, and having regard to the fact that they are again facing court proceedings, the centre is in the process of imposing the same measure with a view to protecting the rights and welfare of [the child] through which [the centre] shall monitor the mother ’ s and the father ’ s relationship with the child and [in the implementation of which] they will be advised how to improve communication between them and strengthen their parenting competencies.” 65. The local social welfare centre recommended a combined expert assessment (psychiatric and psychological) of the first applicant and her parents with a view to establishing their parenting abilities and the possible consequences of their behaviour for her physical and mental development. They added that the first applicant ’ s family situation was complex but that at that moment there was nothing to suggest that it was life-threatening. The relevant part of the local social welfare centre ’ s recommendation reads as follows. “After conducting the family-assessment procedure ... it was established that the parents express opposing views as regards abuse and neglect of [their child]. [The mother] accuses the father of child abuse [in that] he is abusing the child physically and emotionally, obstructing her contact with the mother, and using inappropriate child-rearing methods. [The father] accuses [the mother] of neglecting the child ’ s interests by her behaviour [in that] she does not pay child maintenance, does not come to school to consult with teachers or to parents ’ meetings and that the child is being manipulated by the mother ... Having regard to the medical documentation at the disposal of the centre, the parties ’ submissions, visits made to [the father ’ s and the mother ’ s] homes and interviews with them, we recommend that the parents and the child undergo a combined [psychiatric and psychological] expert assessment in order to assess their fitness for further care of [their daughter] and the possible consequences of their behaviour for her psycho-physical development. It is true that the family situation is complex. However, there is no impression that at present [the child ’ s] life is at risk in her father ’ s family.” 66. By decisions of 16 May and 6 and 16 June 2011, the court ordered a combined expert opinion from forensic experts in psychiatry and psychology who were to assess (a) the parenting capacities of the second applicant and the first applicant ’ s father, (b) the first applicant ’ s condition, and (c) whether the first applicant had been exposed to abuse and, if so, by whom. 67. By a decision of 7 June 2011, the court refused to issue a provisional measure sought by the second applicant (see paragraph 60 above). In so deciding the court examined the ophthalmologist ’ s report of 2 February 2011, psychiatrists ’ opinions of 19 February and 7 May 2011, and psychologist ’ s opinions of 5 March and 22 April 2011 (see paragraphs 13 ‑ 14, 19-20, 23 and 25 above). It also consulted the case file of the criminal proceedings in respect of the bodily injury, and examined the report and recommendation of the local social welfare centre of 12 May 2011 (see paragraphs 64-65 above). It found, in view of the conflicting opinions of the psychiatrists, the penal order against the first applicant ’ s father which never became final, and the recommendation of the local social welfare centre, that at that point the allegations that the first applicant had been abused by her father were not plausible enough to justify her immediate temporary removal from his custody. In particular, the court held as follows: “... the case was not sufficiently plausibly made that such a measure was necessary to prevent violence or the risk of irreparable harm from materialising, given that at present it remains uncertain and disputed whether [the child] was subjected to abuse by her father or was being manipulated by her mother ...” 68. On 2 March 2012 the Zadar County Court ( Županijski sud u Zadru ) dismissed an appeal by the second applicant and upheld the first-instance decision. 69. On 29 December 2011 the forensic experts submitted their opinion (see paragraph 66 above) to the Zadar Municipal Court. In their opinion the experts found that both the second applicant and the first applicant ’ s father had limited parenting abilities and suffered from personality disorders (both of them were emotionally unstable and the first applicant ’ s father was also narcissistic). As regards the first applicant, the experts found that she was emotionally traumatised by her parents ’ separation and their mutual conflict and lack of communication. Instead of shielding her from that conflict, her parents had placed her at the centre of it and manipulated her, sometimes up to the level of emotional abuse. The experts therefore recommended that the first applicant and her parents receive appropriate therapy. They further found that the first applicant was ambivalent towards her father and idealised her mother, whom she viewed as a “friend”, and expressed the wish to live with her. The experts were of the opinion that this desire to be close to her mother could be achieved through (more) extensive contact between the first and the second applicant. If after one year of recommended therapy the first applicant still wished to live with her mother, they recommended that another combined expert opinion be obtained. 70. The experts did not reply to the court ’ s question whether the first applicant had been exposed to abuse and, if so, by whom (see paragraph 66 above). Their conclusions were (a) that the first applicant should nevertheless continue living with her father for the time being while maintaining extensive contact with her mother; (b) that she and both her parents should undergo treatment and counselling; (c) that the supervision of the exercise of parental authority (the child protection measure imposed by the local social welfare centre, see paragraph 82 below), should be continued; and (d) the first applicant and her parents should be reassessed after a year. In particular, the experts concluded as follows. “We do not find [any] contraindications to [the child ’ s living with her father. [Our] recommendation is that, for the time being it is not necessary or desirable to change the child ’ s place of residence, that is to say [the child] should continue living with her father.” 71. Following a request by the second applicant, by a decision of 27 July 2012, the Zadar Municipal Court appointed G.Š., a lawyer practising in Zadar, to act as a special representative for the first applicant and represent her interests in the proceedings, as required by Article 9, paragraph 1, of the European Convention on the Exercise of Children ’ s Rights (see paragraph 98 below). 72. Following an appeal by the first applicant ’ s father, on 26 October 2012 the Zadar County Court quashed that decision and remitted the case. It held that the first-instance court had failed to establish whether the interests of the first applicant were indeed in conflict with the interests of (one of) her parents, which was a necessary precondition for the appointment of a special representative. 73. By a decision of 13 November 2012, the local social welfare centre also appointed G.Š. to act as the first applicant ’ s guardian ad litem pursuant to section 167 of the Family Act (see paragraph 84 below). 74. The Zadar Municipal Court held further hearings in the case on 6 September and 11 December 2012 and 8 March 2013. 75. At the last-mentioned hearing the court heard the experts who had prepared the combined expert opinion of 29 December 2011. Those experts stated, inter alia, (a) that their expert opinion had in the meantime become obsolete, because a year and two months had passed since they had prepared it; (b) that they had not replied to the court ’ s question whether the first applicant had been exposed to abuse because it was the task of the judicial authorities and not theirs to make that assessment; and (c) that it would be irrelevant which parent the first applicant should live with if her parents both behaved better. 76. By a decision of 30 April 2013, the Zadar Municipal Court dismissed the second applicant ’ s application for the custody and contact arrangements stipulated in the judgment of 24 August 2007 to be reversed. The second applicant and the first applicant ’ s guardian ad litem appealed. 77. On 15 November 2013 the Zadar County Court quashed the first-instance decision for incomplete facts and remitted the case to the lower court. It instructed the first-instance court to (a) inquire whether the first applicant ’ s father ’ s conviction for the criminal offence of bodily injury against her had become final; (b) assess whether the first applicant was able to understand the importance of the proceedings and, if so, allow her to express her opinion and take her testimony; (c) assess the need to appoint a special representative to the first applicant; and (d) obtain an opinion and recommendation from the local social welfare centre. 78. In the resumed proceedings, on 18 November 2013 the Zadar Municipal Court discontinued the non-contentious proceedings and decided that the proceedings would be continued under the rules of (regular) civil procedure. The court explained that the second applicant ’ s application for reversal of the custody and contact arrangements set forth in its judgment of 24 August 2007 (see paragraph 10 above) would, if agreed, necessarily entail a new decision on the payment of maintenance by the non-custodial parent, which was an issue that could not be decided in non-contentious but only in regular civil proceedings. That did not mean that procedural acts undertaken thus far had lost their validity or become irrelevant. 79. On 27 February 2014 the second applicant lodged a request for the protection of the right to a hearing within a reasonable time, complaining of the length of the proceedings. 80. On 9 July 2014 the President of the Zadar Municipal Court dismissed the first applicant ’ s request. 81. It would appear that the proceedings are currently again pending before the Zadar Municipal Court as the court of first instance. E. Proceedings before the local social welfare centre 82. Following the incident of 1 February 2011, on 22 September 2011 the local social welfare centre again (see paragraph 11 above) issued a decision ordering the child protection measure of supervision of the exercise of parental authority in respect of the first applicant. The measure was imposed for a period of one year and was, by the centre ’ s decision of 1 October 2012, further extended for another six months, until 31 March 2014, when it was discontinued. 83. In her final report of 30 March 2014 the supervising officer (a psychologist) summarised the results of the measure in the following terms: “The aim of the measure was to encourage appropriate parental behaviour with a view to preventing and minimising the negative effects of [their] conflictual relationship on the child ’ s psycho-physical development ... in that sense it was only a question of creating preconditions for adequate communication between the parents, so that currently there is no open conflict (but only because the parents avoid it). In particular, the parents are observing the visiting schedule. They have made concessions to each other from time to time. However, the parents are still in conflict, they still do not communicate, and the majority of their communication goes through the child or through text messages. It is precisely in this way that they are disregarding [her] needs and forcing [her] to deal with something with which she should not be dealing at her age (or at any other age for that matter). Both parents think they are doing what is best for their child, while forgetting that their conflict is the major obstacle to the normal psycho-physical development and functioning of their child ... [The mother] thinks that the child should be with her and that the wish of the child, who also expresses the wish to be with her, should be respected. [The father] thinks that that his role is to protect the child from the mother ’ s negative influence and ensure stability for her. Those views are O.K., but the only question is how much each of them negatively affects the child by fighting for their own position? For a compromise people need to be ready to partially abandon their position, but they are not ready to do so. In my view, both parents have a good relationship with the child; they [both] try to spend quality time with her. They differ to some extent in their methods and parenting styles ([the mother ’ s] is permissive and directed at [developing] a friendly relationship with her daughter, which may also be a strategy for ‘ winning ’ the child, whereas [the father] is more impulsive, with a tendency to give in, and is oriented towards the traditional role of the father, which would not be a problem if the two parents would cooperate ... Neither of them disputes that the role of the other parent is also important for the child, but they both find it important that the child lives with them, believing that in that way they would diminish the harmful influence ‘ the other parent has on the child ’. This means that the main problem is unresolved parental conflict, and the parents should probably work on that outside the [social welfare] centre. When they are able to talk to each other, and when they realise why and which of their actions are harmful for [the child] (and stem from their personal conflict) then they will be able to function better. In that regard I think that the supervision measure cannot provide a better solution to the problems they have.” II. RIGHTS AND DUTIES BETWEEN PARENTS AND CHILDREN 1. Rights and duties of the child Section 88 “Parents and other family members must not subject the child to degrading treatment, psychological or physical violence or abuse.” Section 89 “(1) The child is entitled to seek protection of his or her rights before the relevant authorities, which must inform the social welfare centre thereof. (2) The child is entitled to a special guardian in cases specified by this Act. (3) The special guardian shall be appointed by the social welfare centre in cases where another authority is deciding on the infringement of the child ’ s right, and by the court when the social welfare centre is competent to decide on a right of the child. (4) The special guardian shall submit a report on the representation of the child at the request of, and within the time-limit set forth by, the authority that appointed him or her. (5) In proceedings involving decisions on the child ’ s right or interest the child is entitled to be informed in an appropriate way of the relevant circumstances of the case, obtain advice and express his or her views, and to be informed of the possible consequences of [those] views. The [child ’ s] views shall be given due weight in accordance with his or her age and maturity.” 2. Parental responsibility Section 102 “The court shall, upon application by the parent, the child or the social welfare centre, issue a new decision on custody and access rights, and if need be on other elements of parental responsibility, if substantially changed circumstances so require.” 3. Measures for the protection of the rights and welfare of the child Section 109 “(1) The social welfare centre shall order supervision of the exercise of parental authority when the errors and omissions are various and frequent or when the parents need special assistance in bringing up their child. (2) ... (3) The programme of supervision may entail referring the child to a children ’ s home for a half day or for a full day, or referring the parents and the child to medical and other institutions for treatment and other professional assistance. (4) The supervision shall be ordered for a minimum period of six months ...” Fifth part GUARDIANSHIP III. GUARDIANSHIP IN SPECIAL CASES Section 167 “In order to protect certain personal and pecuniary rights and interests the social welfare centre shall appoint a special guardian ... ... 6. ... in other cases where the interests of the child conflict with those of the parents.” Eighth part JUDICIAL PROCEEDINGS I. COMMON PROVISIONS Section 263 “(1) The provisions of this part of the Act determine the rules by which the courts shall proceed in special civil [contentious] and non-contentious proceedings and special enforcement and security proceedings when deciding in matrimonial, family and other matters regulated by this Act. (2) The proceedings referred to in paragraph 1 of this section shall be urgent.” Section 269(2) “In order to pursue his or her rights or interests, the court shall in [personal] status matters, in accordance with his or her age and maturity and [having regard to the child ’ s] welfare, allow the child to express his or her views before the social welfare centre or before the court.” II. SPECIAL CIVIL PROCEEDINGS 3. Proceedings concerning custody, parental responsibility or child protection measures Section 295 “(1) Before reaching a decision on custody or parental responsibility, the court shall obtain a report and recommendation of a social welfare centre. (2) The social welfare centre must within thirty days submit to the court the report and recommendation referred to in paragraph 1 of this section. (3) ...” 2. Relevant case-law 85. In its judgment no. Gž-994/11-3 of 17 March 2011 the Bjelovar County Court held as follows: “When the child has gone to live of his or her own free will with the other parent (the father), who was equally as fit to take care of the child as the parent (the mother) with whom the child had lived thus far, and the child is, having regard to his or her age and maturity, capable of forming his or her own opinion and expressing views on issues that concern him or her, then these circumstances may justify a reversal of an earlier custody decision.” B. The Criminal Code 1. Relevant provisions 86. The relevant provision of the Criminal Code ( Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments), which was in force from 1 January 1998 to 31 December 2012, reads as follows: Article 8 “(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney ’ s Office in the interest of the Republic of Croatia and its citizens. (2) It may be exceptionally provided by law that criminal proceedings in respect of certain criminal offences should be instituted upon a private bill of indictment or that the State Attorney ’ s Office should institute criminal proceedings at the initiative of [a victim].” CHAPTER TEN (X) CRIMINAL OFFENCES AGAINST LIFE AND LIMB Bodily injury Article 98 “Whoever inflicts bodily injury on another person or impairs another person ’ s health shall be fined or punished by imprisonment not exceeding one year.” Instituting criminal proceedings for criminal offences of bodily injury Article 102 “Criminal proceedings for the offence of bodily injury (Article 98), unless committed against a child or a minor, shall be instituted upon a private bill of indictment.” CHAPTER SIXTEEN (XVI) CRIMINAL OFFENCES AGAINST MARRIAGE, THE FAMILY AND JUVENILES Neglect or abuse of a child or a minor Article 213 “(1) A parent, adoptive parent, guardian or other individual who grossly neglects their duties to care for or raise a child or minor shall be punished by imprisonment of six months to five years. (2) The penalty referred to in paragraph 1 of this Article shall be imposed on a parent, adoptive parent, guardian or other individual who abuses a child or minor, forces [the child] to perform work unsuitable for his or her age, or to work excessively, or to beg, or out of greed induces [the child] to behave in a manner harmful to his or her development, or by [engaging in] dangerous activities or in some other way puts [the child] in danger.” Domestic violence Article 215a “A family member who by violence, abuse or particularly offensive behaviour places another member of the family in a humiliating position shall be punished by imprisonment of six months to five years.” 2. Legal commentary 87. According to Croatian legal scholars, abuse, as a constitutive element of a number of criminal offences, including the offence of child abuse, is defined as “deliberate infliction of physical or mental discomfort or pain of significant intensity” (see Željko Horvatić (ed.), Rječnik kaznenog prava [The Dictionary of Criminal Law], Masmedia, Zagreb, 2002, p. 664) or “... deliberate infliction of mental or physical discomfort of significant degree. What constitutes a ‘ significant degree ’ of physical or mental discomfort is to be determined on a case-by-case basis. In making that assessment the court will often require an opinion from an expert in psychiatry” (see Ana Garačić, Kazneni zakon u sudskoj praksi – Posebni dio [Criminal Code in Judicial Practice – Special Part], Organizator, Zagreb, 2009, pp. 375-376). 88. As regards the criminal offence of domestic violence Croatian legal scholars have expressed the following view (see op. cit., pp. 285-286): “[The perpetrator ’ s conduct] is defined alternatively as violence, abuse or particularly offensive behaviour. Violence is to be understood in a wider sense [that is] as an application of physical force against the physical integrity of another family member, psychological coercion, or serious psychological maltreatment, but also as coercion directed at objects if the family member perceives this as physical coercion. Violence is normally not an isolated and single incident, but entails a number of instances and is characterised by continuous activity. Abuse is very deliberate infliction of physical or mental pain of great intensity, short of bodily injury. Abuse within a family may be physical, psychological or emotional, or sexual ... Particularly offensive behaviour entails the perpetrator ’ s manifest contempt for, and ruthlessness and arrogance against, another family member ... For the offence to be committed it is necessary for the family member to be put into a humiliating position as a result of the perpetrator ’ s conduct. This is a position which offends honour and reputation, human dignity, and self-esteem. Putting a family member in a humiliating position is regarded as the objective element of the crime ... which does not have to be accompanied by the perpetrator ’ s mens rea. However, the intent of the perpetrator must correspond to his or her conduct ...” C. Protection against Domestic Violence Act 89. The Protection against Domestic Violence Act ( Zakon o zaštiti od nasilja u obitelji, Official Gazette no. 137/09 with subsequent amendments), inter alia, defines the minor offence of domestic violence and provides sanctions which may be imposed to those convicted of that offence. 90. Section 20 provides that where the minor offence of domestic violence has been committed against a child, the court may impose either a fine of at least HRK 7,000 or a prison sentence of at least forty-five days. In cases of recidivism the court may impose a fine of at least HRK 15,000 or a prison sentence of at least sixty days. The maximum fine of HRK 50,000 and the maximum prison sentence of ninety days are prescribed by the Minor Offences Act ( Prekršajni zakon, Official Gazette no. 107/07 with subsequent amendments). 91. Sections 11-19 of the Protection against Domestic Violence Act provide for various protective measures the court may impose in addition to, or independently of, the penalties listed in section 20, even before the institution of minor offences proceedings. Section 12 provides for the protective measure of compulsory psycho-social treatment. D. The Courts Act 2013 92. Under the Courts Act 2013 ( Zakon o sudovima, Official Gazette no. 28/13), which entered into force on 14 March 2013, a party to pending judicial proceedings who considers that those proceedings have been unduly protracted has the right to lodge an acceleratory remedy, namely a “request for the protection of the right to a hearing within a reasonable time” and to request that the president of the same court before which those proceedings are pending expedite them by setting a time-limit of a maximum of six months within which the judge sitting in the case must render a decision. A party whose request is not decided upon within sixty days or whose request is dismissed may lodge an appeal with the president of the immediately higher court. 93. In addition, a further, combined compensatory-acceleratory remedy, namely a “request for payment of appropriate compensation”, is also available, but only in cases where the judge sitting in the case did not comply with the time-limit for deciding the case specified by the court president when granting the request for the acceleratory remedy. IV. Child-friendly justice before, during and after judicial proceedings ... 3. Right to be heard and to express views 44. Judges should respect the right of children to be heard in all matters that affect them or at least to be heard when they are deemed to have a sufficient understanding of the matters in question. Means used for this purpose should be adapted to the child ’ s level of understanding and ability to communicate and take into account the circumstances of the case. Children should be consulted on the manner in which they wish to be heard. 45. Due weight should be given to the child ’ s views and opinion in accordance with his or her age and maturity. 46. The right to be heard is a right of the child, not a duty on the child. 47. A child should not be precluded from being heard solely on the basis of age. Whenever a child takes the initiative to be heard in a case that affects him or her, the judge should not, unless it is in the child ’ s best interests, refuse to hear the child and should listen to his or her views and opinion on matters concerning him or her in the case. 48. Children should be provided with all necessary information on how effectively to use the right to be heard. However, it should be explained to them that their right to be heard and to have their views taken into consideration may not necessarily determine the final decision. 49. Judgments and court rulings affecting children should be duly reasoned and explained to them in language that children can understand, particularly those decisions in which the child ’ s views and opinions have not been followed.” E. Council of Europe Recommendation on integrated national strategies for the protection of children from violence 103. The Recommendation CM/Rec(2009)10 of the Committee of Ministers to member States on integrated national strategies for the protection of children from violence, adopted by the Committee of Ministers of the Council of Europe on 18 November 2009, emphasises that “children ’ s fragility and vulnerability and their dependence on adults for the growth and development call for greater investment in the prevention of violence and protection of children on the part of families, society and the State” | This case concerned a custody dispute, including allegations of child abuse by the father. The applicants, the child and her mother, complained in particular that the Croatian authorities had failed to remove the child from the father’s care and to thus prevent further domestic abuse. |
648 | Lawyers | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant, who was born in 1960 and lives in Paris, is a lawyer ( avocat ) and member of the Paris Bar. A. Death of Judge Borrel and subsequent proceedings 10. On 19 October 1995 Mr Bernard Borrel, a judge who had been seconded by France for the year before as a technical adviser to the Djiboutian Minister of Justice, in the context of cooperation agreements between the two States, was found dead 80 kilometres from the city of Djibouti. His half-naked and partially burnt body was lying some 20 metres below a remote road. The investigation by the Djibouti gendarmerie in the days that followed concluded that he had committed suicide by self-immolation. 11. On 7 December 1995 a judicial investigation was opened at the Toulouse tribunal de grande instance to determine the cause of death. Bernard Borrel’s body, which was repatriated and interred in Toulouse, underwent an autopsy on 15 February 1996. The report concluded that the death was not suspicious, although the body’s state of decomposition did not permit a precise cause to be established. 12. On 3 March 1997 Mrs Elisabeth Borrel, the widow of Bernard Borrel and also a judge, disputing the finding of suicide, filed a complaint as a civil party, in her own name and on behalf of her two minor children, against a person or persons unknown for premeditated murder. She appointed the applicant, Mr Morice, to represent her in the proceedings. 13. On 8 and 23 April 1997 two judicial investigations were opened in respect of premeditated murder committed by a person or persons unknown. 14. In a decision of 30 April 1997, the judicial investigation into the cause of death and the two investigations in respect of premeditated murder were joined. 15. On 29 October 1997 the Court of Cassation accepted a request by the applicant to withdraw the case from the Toulouse court and it was transferred to the tribunal de grande instance of Paris, where it was assigned on 12 October 1997 to Ms M., assisted from 7 January 1998 by Mr L.L., both investigating judges, who were to conduct the judicial investigation jointly. 16. On 19 November 1999 a lawyer at the Brussels Bar informed the police that A., a former senior officer and member of the Djiboutian Presidential Guard, who had found asylum in Belgium, had certain revelations to make concerning Judge Borrel. The information thus disclosed was transmitted to the French authorities via Interpol. A judgment of the Versailles Court of Appeal of 28 May 2009 (see paragraph 18 below) records the following sequence of events: Judges M. and L.L. did not reply, owing to the fact that the witness wished to remain anonymous, and the information was not followed up; the witness’s Belgian lawyer thus contacted the applicant, who arranged for the witness to be interviewed by journalists from the daily newspaper Le Figaro and the French TV channel TF1, at the end of December 1999; lastly, it was as a result of the publication and broadcasting of that interview in early January 2000 that Judges M. and L.L. decided to go to Belgium to assist the Belgian investigator in taking evidence from the witness. 17. On 31 January 2000 Judges M. and L.L. interviewed the witness in Brussels. It was subsequently alleged by A. that he had been pressurised and intimidated by Judge M. to withdraw his testimony, those complaints being expressly made in a letter of 2 February 2000 from his lawyer to the Crown Prosecutor. In addition, the witness accused the public prosecutor of Djibouti of having threatened him to make him recant his statement, and alleged that the head of the Djibouti secret services had ordered the head of the Presidential Guard, Captain I., to draft a statement discrediting him. Captain I. confirmed A’s accusations concerning him. 18. Proceedings were brought in France against the public prosecutor of Djibouti and the head of the country’s secret services for the procuring of false evidence, and Judge Borrel’s widow and son, the witness A., Captain I., and a French lawyer, A.M., who was implicated, intervened as civil parties. Evidence was taken from Judge M. in her capacity as witness. The public prosecutor and the head of the secret services of Djibouti were sentenced, respectively, to eighteen and twelve months’ imprisonment, and ordered to pay damages to the civil parties, in a judgment of the Versailles Criminal Court of 27 March 2008, before being acquitted by the Versailles Court of Appeal on 28 May 2009. 19. On 2 February 2000, in the context of the judicial investigation in respect of premeditated murder, three professional unions of judges and prosecutors, namely the Syndicat de la magistrature, the Association professionnelle des magistrats and the Union syndicale des magistrats, applied to be joined to the proceedings as civil parties. 20. On 16 March 2000 the applicant, acting on behalf of Mrs Borrel, requested, firstly, that evidence be taken from the witness, A., in Belgium, and, secondly, that a visit to the scene of the crime in Djibouti, in the presence of the civil parties, be organised. 21. In a decision of 17 March 2000, the investigating judges M. and L.L. accepted the request concerning A., finding that a new interview was absolutely necessary. They refused, however, to agree to a site visit, as such a visit had already been made twice, once in 1999 and again one week before the decision in question, as they did not see “how a visit to the site in the presence of the civil party would, at th[at] stage of the proceedings, be helpful for the discovery of the truth”. They added that during their visit to Djibouti a few days before, they had been accompanied by two experts, including the director of the Paris Institute of Forensic Medicine, adding that the scene had been filmed and photographed on that occasion. 22. The applicant and another lawyer appealed against that decision. They filed their pleadings with the Indictments Division, as did the lawyer acting for the Syndicat de la magistrature, arguing that the last site visit in the presence of an expert could be regarded as a reconstruction from which the civil parties had been excluded, and that the sole aim of the investigation was to demonstrate that the victim had committed suicide. They also requested that the Indictments Division take over the case from the investigating judges and continue the investigation itself. 23. In a judgment of 21 June 2000, the Indictments Division of the Paris Court of Appeal found that after two site visits in the absence of the civil parties, one of which closely resembled a reconstruction, the need to organise an on-site reconstruction in the presence of the civil parties so that they could exercise their rights was indispensable for the discovery of the truth. Accordingly, it set aside the decision of Judges M. and L.L. on that point. In addition, it withdrew the case from them and appointed a new investigating judge, Judge P., to continue the investigation. 24. On 19 June 2007 the Paris public prosecutor, further to the request of the investigating judge then handling the case, on the basis of Article 11, paragraph 3, of the Code of Criminal Procedure, issued a statement to clarify publicly that “whilst suicide had once been the preferred theory, the evidence gathered, especially since 2002, now point[ed] to a criminal act”, adding that the experts’ reports had determined that “Bernard Borrel was lying on the ground when liquids were poured over him in a random manner”. 25. The proceedings are currently still pending. B. Facts related to the “Scientology” case 26. The Minister of Justice, by acts of 29 June and 16 October 2000, referred to the National Legal Service Commission ( Conseil supérieur de la magistrature – “the CSM”), in its capacity as a disciplinary board for judges, certain shortcomings attributable to Judge M. in the judicial investigation into the “Scientology” case for which she was responsible and in which the applicant also represented the civil parties. Judge M. was criticised for not devoting the necessary care and attention to the case file, leaving it practically untouched for five years; for having recourse to a friendly-settlement procedure which went beyond the jurisdiction of an investigating judge; and for not making copies of all the documents in the case file, thus making it impossible to reconstruct the file after its partial disappearance from her chambers. Judge M. requested that the referral to the CSM be declared null and void, particularly on account of the fact that it had been made public by the director of the Minister’s private office at a press conference, even before she had been personally notified of the decision. In parallel, on 18 October 2000, the Indictments Division of the Paris Court of Appeal upheld a request by the applicant for the withdrawal of the “Scientology” case from Judge M. 27. On 4 July 2000, at a general meeting of judges of the Paris tribunal de grande instance, the issue of the disciplinary proceedings against Judge M. was raised, in particular because they had been announced in the press whereas the judge concerned had not been officially informed and the president of that court had not yet been notified. During that meeting a judge, J.M., stated as follows: “We are not prohibited, as grassroots judges, from saying that we stand by Judge [M.]. It is not forbidden to say that Judge [M.] has our support and trust.” 28. The general meeting drafted the following motion, which was adopted unanimously: “The general meeting of judges of the Paris tribunal de grande instance held on 4 July 2000, without disputing the authority conferred on the Minister of Justice to take disciplinary proceedings in the conditions prescribed by law, is surprised to learn from the press that such proceedings have been initiated against Judge [M.], investigating judge in Paris, whereas to date neither the judge herself nor her judicial hierarchy have been officially informed thereof.” 29. In the context of a magazine interview published in July-August 2000, the chair of the Syndicat de la magistrature, a civil party in the Borrel case, criticised the “lack of impartiality on the part of Judge M. in the Borrel and [L.] cases”, adding that the judges who had signed the motion “could not have been unaware that in two sensitive cases, the Borrel case and the [L.] case, her impartiality was seriously called into question”. 30. In a judgment of 5 January 2000, the Paris tribunal de grande instance, in a case brought by the applicant as counsel acting for two civil parties, found the State liable for gross negligence on the part of the courts service on account of the disappearance of the so-called “Scientology” file from the office of Judge M. It awarded damages to the complainants. 31. On 13 December 2001 the CSM dismissed a plea of nullity from Judge M. and, on the merits, while reproaching her for a certain lack of rigour or a failure to keep track of the case sufficiently, did not impose any disciplinary penalty on her. C. Criminal proceedings against the applicant 32. On 1 August 2000 Judge P., who had been appointed to replace Judges M. and L.L., drafted a report in which he noted the following chain of events. In response to the applicant’s request concerning the video ‑ recording made in Djibouti in March 2000 and cited by Judges M. and L.L. in their decision of 17 March 2000, Judge P. replied that it was not in the judicial investigation file and was not registered as an exhibit; on the same day, Judge P. asked Judge M. whether she still had the video-cassette; Judge M. promptly gave him a closed and undated envelope with her name on, showing no sign of having been placed under seal, bearing the address of Judge M. as addressee and that of the public prosecutor of Djibouti as sender; the envelope contained a video-cassette and a handwritten card with the letter head of the public prosecutor of Djibouti, these items then being taken by Judge P. and placed under seal. The public prosecutor’s card addressed to Judge M. read as follows (translated from French). “Hi Marie-Paule, As agreed, I am sending you the video-cassette of the Goubet site visit. I hope the picture will be clear enough. I watched the show Sans aucun doute [Without any doubt] on TF1. I noticed once again how Mrs Borrel and her lawyers were determined to carry on orchestrating their manipulation. I’ll call you soon. Say hello to Roger if he’s back, and also to J.C. [D.]. Speak to you soon. Best wishes, DJAMA.” 33. On 6 September 2000 the applicant and another lawyer, Mr L. de Caunes, wrote a letter to the Minister of Justice to complain of the facts recorded in the report of the investigating judge P. dated 1 August 2000, on account of the “conduct of Judges [M.] and [L.L.], [which was] completely at odds with the principles of impartiality and fairness”. They asked for an “investigation to be carried out by the General Inspectorate of Judicial Services into the numerous shortcomings which [had] been brought to light in the course of the judicial investigation”. They stated that the form and substance of the card addressed by the public prosecutor of Djibouti to Judge M. revealed a complicit intimacy that was surprising and regrettable, as the public prosecutor was directly subordinate to the executive, of which the head was “suspected very openly and very seriously of being the instigator of Bernard Borrel’s murder”. 34. Furthermore, extracts from that letter were included, together with statements made by the applicant to the journalist, in an article in the newspaper Le Monde published on 7 September and dated Friday 8 September 2000. The article read as follows. “THE LAWYERS acting for the widow of Judge Bernard Borrel, who was found dead in Djibouti in 1995 in mysterious circumstances, vigorously criticised Judge [M.], from whom the case was withdrawn last spring, in a letter to the Minister of Justice on Wednesday 6 September. The judge is accused by Olivier Morice and Laurent de Caunes of ‘conduct which is completely at odds with the principles of impartiality and fairness’, apparently having failed to register an item for the case file and to transmit it to her successor. The two lawyers, who had not been authorised to go to Djibouti in March for a second site visit, asked on 1 August to consult the video-recording made on that occasion. Judge [P.], who has been handling the case since its withdrawal from [Judges M. and L.L.] on 21 June, told them that the cassette was not in the case file and was not ‘registered in the file as an exhibit’. The judge immediately called his colleague, who gave him the cassette later that day. ‘Judges [M.] and [L.L.] had been sitting on the cassette’, protests Olivier Morice, ‘and had forgotten to place it under seal, for over a month after the case was withdrawn from them’. To make matters worse, in the envelope Judge [P.] found a handwritten and rather friendly note from Djama [S.], the public prosecutor of Djibouti. ‘Hi Marie-Paule, as agreed I am sending you the video-cassette of the Goubet site visit’ the note reads. ‘I hope the picture will be clear enough. I watched the show Sans aucun doute (Without any doubt) on TF1. I noticed once again how Mrs Borrel and her lawyers were determined to carry on orchestrating their manipulation. I’ll call you soon. Say hello to Roger [L.L.] if he’s back, and also to J.-C. [D.] [deputy public prosecutor in Paris]. Speak to you soon. Best wishes, Djama.’ Mrs Borrel’s lawyers are obviously furious. ‘This letter shows the extent of the connivance between the Djibouti public prosecutor and the French judges’, exclaims Mr Morice, ‘and one cannot but find it outrageous’. They have asked Elisabeth Guigou for an investigation by the General Inspectorate of Judicial Services. The Minister of Justice had not received their letter on Thursday 7 September. Judge [M.] already has disciplinary proceedings pending against her before the National Legal Service Commission (CSM), in particular for the disappearance of documents from the investigation file in the Scientology case (see Le Monde of 3 July).” 35. Judges M. and L.L. filed a criminal complaint as civil parties against a person or persons unknown for false accusations. On 26 September 2000 the Paris public prosecutor’s office opened a judicial investigation for false accusations. On 5 November 2000 the Court of Cassation appointed an investigating judge in Lille, who, on 15 May 2006, made a discontinuance order, which was upheld by the Investigation Division of the Douai Court of Appeal on 19 June 2007. 36. In addition, on 12 and 15 October 2000 Judges M. and L.L. filed a criminal complaint as civil parties against the publication director of Le Monde, the journalist who had written the article and the applicant, accusing them of public defamation of a civil servant. 37. In an order of 2 October 2001, an investigating judge at the Nanterre tribunal de grande instance committed the applicant and the two other defendants to stand trial before the Criminal Court on account of the following passages from the impugned article. “The judge [M.] is accused by Olivier Morice and Laurent de Caunes of ‘conduct which is completely at odds with the principles of impartiality and fairness’, apparently having failed to register an item for the case file and to transmit it to her successor.” “‘Judges [M.] and [L.L.] had been sitting on the cassette’, protests Olivier Morice, ‘and had forgotten to place it under seal, for over a month after the case was withdrawn from them’.” “To make matters worse, in the envelope Judge [P.] found a handwritten and rather friendly note.” “Mrs Borrel’s lawyers are obviously furious. ‘This letter shows the extent of the connivance between the Djibouti public prosecutor and the French judges’, exclaims Mr Morice, ‘and one cannot but find it outrageous’.” 38. In a judgment of 4 June 2002, the Nanterre Criminal Court dismissed the pleas of nullity which had been raised by the defendants, in particular on the basis of the immunity provided for by section 41 of the Freedom of the Press Act of 29 July 1881 on judicial proceedings and pleadings filed in court, on account of the fact that the article had merely reiterated the content of the letter to the Minister of Justice. The court took the view, on that point, that the letter in question was not an act of referral to the CSM and that its content had to be regarded as purely informative, with the result that it was not covered by immunity. 39. The court then observed that the defamatory nature of the comments had not been “meaningfully disputed” and that the applicant stood by the content of his allegations, which he considered to be well founded. Turning then to each of the impugned comments, to ascertain whether the charge of defamation was made out, and to assess the significance and seriousness thereof, the court first noted that “the accusation of impartiality [ sic ] and unfairness proffered against a judge clearly constitute[d] a particularly defamatory allegation, because it [was] tantamount to calling into question her qualities, her moral and professional rigour, and ultimately her capacity to discharge her duties as a judge”. It further took the view that the comments on the failure to forward the video-cassette were also defamatory as they suggested that there had at least been some negligence or a form of obstruction. As to the term “connivance”, the court found that the use of that word clearly and directly suggested that the judges had been collaborating with an official of a foreign country to act in a biased and unfair manner, this being exacerbated by the implication in the article that there was serious evidence of such conduct, because the Minister of Justice had been requested to initiate an investigation. 40. As to the applicant’s guilt, the court found that it was, in any event, established that the journalist had become privy to the letter sent to the Minister of Justice through his own sources and that he had sought confirmation and comments from the applicant, with whom he had had a telephone conversation. As the applicant had been aware that his statements to the journalist would be made public, the court took the view that he was therefore guilty of complicity in public defamation, unless the court were to accept his offer to prove the veracity of the allegations or his defence of good faith. However, the court dismissed the applicant’s various offers to bring evidence, pointing out that in order to be accepted “the evidence to be adduced must be flawless and complete and relate directly to all the allegations found to be defamatory”. As to the applicant’s good faith, it found that “the highly virulent attacks on the professional and moral integrity of the investigating judges ... clearly overstepped the right of legitimately permissible free criticism” and that the profound disagreements between Mrs Borrel’s lawyers and the investigating judges could not justify a total lack of prudence in their remarks. 41. As regards the sanction, the court expressly took into account the applicant’s status as a lawyer and the fact that he could therefore not have been “unaware of the significance and seriousness of totally imprudent comments”, finding it appropriate that “the sanction for such criminal misconduct had to be a fine of a sufficiently high amount”. It sentenced him to a fine of 4,000 euros (EUR), and ordered him to pay, jointly with the other defendants, EUR 7,500 in damages to each of the two judges in question, together with EUR 3,000 in costs. It also ordered the insertion of a notice in the newspaper Le Monde, of which the cost was to be shared between the defendants. An appeal was lodged against the judgment by the applicant, his co-defendants, the two judges with civil-party status and the public prosecutor. 42. In a judgment of 28 May 2003, the Versailles Court of Appeal found that the summonses issued on the basis of L.L.’s complaint were null and void and that his action was time-barred, and it acquitted the three defendants under that head. It further upheld the convictions of the three defendants in respect of Judge M.’s complaint, together with the amount of the fine imposed on the applicant and the damages awarded to the judge, to whom it also awarded EUR 5,000 in court costs, in addition to the order to publish a notice in the daily newspaper Le Monde. Both the applicant and Judge L.L. appealed on points of law. 43. On 12 October 2004 the Court of Cassation quashed the judgment in its entirety and remitted the case to the Rouen Court of Appeal. 44. On 25 April 2005 the Rouen Court of Appeal took note of the fact that the three defendants waived any claim of nullity in respect of the summonses issued on the basis of Judge L.L.’s complaint and it adjourned the proceedings on the merits. 45. On 8 June 2005 the President of the Criminal Division of the Court of Cassation dismissed applications from the three defendants and the civil parties for the immediate examination of their appeals on points of law. 46. In a judgment of 16 July 2008, after a number of adjournments and the holding of a hearing on 30 April 2008, the Rouen Court of Appeal upheld the dismissal by the Nanterre tribunal de grande instance of the immunity objection, and also upheld the defendants’ convictions for complicity in the public defamation of civil servants in the applicant’s case. It ordered the applicant to pay a fine of EUR 4,000 and upheld the award of EUR 7,500 in damages to each of the judges, to be paid by the defendants jointly, together with the order to publish a notice in the daily newspaper Le Monde. As regards costs, it ordered the three defendants to pay EUR 4,000 to Judge L.L. and the applicant alone to pay EUR 1,000 to Judge M. 47. In its reasoning, the Court of Appeal firstly took the view that to say that in handling a case an investigating judge had shown “conduct which [was] completely at odds with the principles of impartiality and fairness”, or in other words conduct incompatible with professional ethics and her judicial oath, was a particularly defamatory accusation as it was tantamount to accusing her of lacking integrity and of deliberately failing in her duties as a judge, thus questioning her capacity to discharge those duties. It further found that the applicant’s comments concerning the delay in forwarding the video-cassette amounted to accusing the judges of negligence in the handling of the case, thereby discrediting the professional competence of the judges and implying that the latter had deliberately kept hold of the cassette after the case was withdrawn from them, with the intention, at least, of causing obstruction. Allegedly, it was only because the lawyers had raised the matter with Judge P., followed by that judge’s request to Judge M., that the item of evidence had finally been obtained on 1 August 2000. The Court of Appeal added that such assertions, attributing to those judges a deliberate failure to perform the duties inherent in their office and a lack of integrity in the fulfilment of their obligations, constituted factual accusations which impugned their honour and reputation. It found this to be all the more true as the applicant, referring to the handwritten card from the public prosecutor of Djibouti to Judge M., had emphasised this atmosphere of suspicion and the negligent conduct of the judges by stating that this document proved the extent of the “connivance” between them. The court noted, on that point, that the word “connivance” represented in itself a serious attack on the honour and reputation of Judge M. and the public prosecutor of Djibouti. It merely served to confirm the defamatory nature of the previous comments, especially as the article added that the applicant had asked the Minister of Justice for an inspection by the General Inspectorate of Judicial Services. 48. The Court of Appeal thus concluded that the comments were defamatory and that the veracity of the defamatory allegations had not been established. It took the view, on that point, that there was no evidence that Judge L.L. had been in possession of the video-cassette or that he had even been informed of its arrival, so he was not concerned by the delay in forwarding it; that the judgment of the Indictments Division of 21 June 2000, withdrawing the case from the two judges, merely expressed disapproval of the judges’ refusal to hold a reconstruction in the presence of the civil parties; that it had not been established that the video-cassette had reached Judge M. before the case was withdrawn from her or that it had been in her possession when the investigation was transferred to Judge P.; that there was nothing to suggest that Judge M. had acted with obstructive intent or that she had been unfair in her handling of the cassette; that the handwritten card addressed to Judge M. from the public prosecutor of Djibouti did not prove that there was any connivance between them, as friendly greetings and the use of the familiar form “ tu ” in contacts between legal officials did not necessarily reflect a complicit intimacy, and the possibility that they shared the same opinion did not prove any complicity or connivance on the part of the French judges such as to undermine the judicial investigation procedure, regardless of the conduct of the Djibouti public prosecutor in this case; that the letter from the lawyer representing witness A. addressed to the Crown Prosecutor in Belgium, complaining that Judge M. had put pressure on his client, was not sufficiently conclusive in itself to show that Judge M. had accepted the theory of suicide or that she was hindering the establishment of the truth, even though Judge M. had acknowledged that she had told the Belgian police that A. was an unreliable witness; and, lastly, that the numerous press articles carried no evidential weight as regards the conduct and attitude of the judges in their handling of the case. 49. As regards the applicant’s defence of good faith, the Court of Appeal to which the case had been remitted noted that he had referred to the duties that were inherent in his profession and the results obtained in the case since the withdrawal of the case from Judges M. and L.L., as shown by the public prosecutor’s press statement of 19 June 2007; he had further relied on the judgment of the Douai Court of Appeal, also of 19 June 2007, upholding the decision to discontinue the proceedings started by the judges’ complaint alleging false accusation and on the conviction of the Djibouti public prosecutor by the Criminal Court of Versailles on 27 March 2008 for procuring a person to give false evidence. 50. It observed that at the time the offence in question was committed, on 7 September 2000, the applicant had secured the withdrawal of the case from Judges M. and L.L. and that Judge P. had been in possession of the video-cassette since 1 August 2000. It took the view that the applicant had engaged in highly virulent attacks on the professional and moral integrity of the two judges, in comments that seriously questioned their impartiality and intellectual honesty, clearly overstepping the right to free criticism and no longer being of any procedural relevance. The Court of Appeal further found: that the decision in the applicant’s favour to discontinue the proceedings for false accusation initiated against him as a result of the judges’ complaint was not incompatible with his bad faith; that the excessive nature of the comments made by the applicant revealed the intensity of the conflict between him and the two judges, in particular Judge M., and were tantamount to an ex post facto settling of scores, as shown by the publication of the article on 7 September 2000, after the Indictments Division of the Paris Court of Appeal had received, on 5 September, the file in the “Scientology” case, in which Judge M. was suspected of being responsible for the disappearance of evidence; and that this showed, on the part of the applicant, personal animosity and an intention to discredit those judges, in particular Judge M., with whom he had been in conflict in various cases, thus ruling out any good faith on his part. 51. The applicant, his two co-defendants and Judge M. all lodged an appeal on points of law against that judgment. In his pleadings, the applicant relied, as his first ground of appeal, on Article 10 of the Convention and the immunity provided for in section 41 of the Freedom of the Press Act, arguing that this provision sought to safeguard defence rights and protected lawyers in respect of any oral or written comments made in the context of any type of judicial proceedings, in particular of a disciplinary nature. As his second ground of appeal, he relied on Article 10 of the Convention, asserting that: the impugned comments concerned a case that had been receiving media coverage for some time, involving the suspicious circumstances in which a French judge seconded to Djibouti had been found dead “from suicide” and the questionable manner in which the judicial investigation had been conducted, with a clear bias against the civil party’s theory of premeditated murder; having regard to the importance of the subject of general interest in the context of which the comments had been made, the Court of Appeal was not entitled to find that he had overstepped the bounds of his freedom of expression; the Court of Appeal had not examined his good faith in the light of the comments that had been published in Le Monde, but in relation to the content of the letter to the Minister of Justice and it was not entitled to make any assessment concerning the judges’ conduct criticised therein; unless all lawyers were to be banned from speaking about pending cases, no personal animosity could be inferred from the mere fact that he had had a disagreement with one of the judges in the context of another set of proceedings; good faith was not subject to the current situation or to the fact that the issue had been “made good” by the withdrawal of the case from the judges, the lack of necessity of the comments not being incompatible with good faith; lastly, opinions expressed regarding the functioning of a fundamental institution of the State, as was the case regarding the handling of a criminal investigation, were not subject to a duty of prudence or limited to theoretical and abstract criticism, but could be personal where they had a sufficient factual basis. 52. The appeals were initially supposed to be heard by a reduced bench of Section I of the Criminal Division of the Court of Cassation, as shown by the reporting judge’s report of 21 July 2009, the Court of Cassation’s online workflow for the case, and the three notices to parties issued on 15 September, and 14 and 27 October 2009, respectively, the last two of those documents having been sent after the date of the hearing. Consequently, Mr J.M. (see paragraph 27 above), who had become a judge at the Court of Cassation, assigned to the Criminal Division, and who was neither the Division President, nor the senior judge ( doyen ), nor the reporting judge, was not supposed to sit in that case. 53. In a judgment of 10 November 2009, the Court of Cassation, in a formation eventually consisting of ten judges, including Mr J.M., dismissed the appeals on points of law. As regards the grounds raised by the applicant, it found that the objection of jurisdictional immunity had been validly rejected, as the fact of making public the letter to the Minister of Justice did not constitute an act of referral to the CSM and was not part of any proceedings involving the exercise of defence rights before a court of law. As to the various arguments expounded under the applicant’s second ground of appeal, it took the view that the Court of Appeal had justified its decision, finding as follows: “[W]hile everyone has the right to freedom of expression and while the public has a legitimate interest in receiving information on criminal proceedings and on the functioning of the courts, the exercise of those freedoms carries with it duties and responsibilities and may be subject, as in the present case where the admissible limits of freedom of expression in criticising the action of judges have been overstepped, to such restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation and rights of others.” | This case concerned the conviction of a lawyer, on account of remarks reported in the press, for complicity in defamation of the investigating judges who had been removed from the judicial investigation into the death of Judge Bernard Borrel. The applicant alleged in particular that his conviction for complicity in defamation had breached his right to freedom of expression under Article 10 of the Convention. |
639 | Journalists and publishing companies | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant is a public limited company whose registered office is in Hamburg. It publishes the Bild, a daily newspaper with a large circulation. The present case concerns the publication by the newspaper of two articles about X, a well-known television actor. Between May 1998 and November 2003 X had played the part of Police Superintendent Y, the hero of a television series broadcast on a private television channel in the evenings, until 2005. By October 2004, 103 episodes had been broadcast, the last 54 of which had starred X in the role of Police Superintendent Y. The average audience rating was 18% (between 3 and 4,700,000 viewers per episode). 10. On 14 June 2003 the applicant company revealed that X had been convicted of unlawful possession of drugs. After receiving a warning from X, it undertook, on pain of an agreed penalty, to refrain from publishing information according to which four grams of cocaine had been found at X’s home that he had had sent to him by post from Brazil and for which he had been given a prison sentence, suspended for five months, and fined 5,000 euros (EUR). A. X’s arrest 11. At approximately 11 p.m. on 23 September 2004 X was arrested at the Munich beer festival ( Oktoberfest ) for possession of cocaine. In a sworn statement ( eidesstattliche Versicherung ) a journalist from the applicant company declared that she had asked the police present at the scene whether X had been arrested and, if so, on what grounds. The police had confirmed that X had been arrested in the Käfer tent in possession of cocaine, without giving any further details. 12. According to that statement, the journalist had then contacted the public prosecutor, W., from the public prosecutor’s office of Munich Regional Court I, in charge of relations with the press, and had asked him for information. W. had confirmed that X had been arrested in the Käfer tent in possession of cocaine. According to W., plain-clothes police officers had arrested X because they had seen him making a suspicious movement with his hand when coming out of the toilets. The officers had searched him, and, having found him to be in possession of an envelope containing 0.23 grams of cocaine, had arrested him. According to W., the arrest had taken place at approximately 11 p.m. on 23 September and a criminal complaint was currently being investigated. B. The articles in issue 1. The first article 13. In its 29 September 2004 edition, the applicant company’s daily newspaper, the Bild, published the following headline in large type on its front page: “Cocaine! Superintendent Y caught at the Munich beer festival.” The article, which was printed in small type, read as follows: “He came out of the gents tapping his nose suspiciously and was arrested! At the beer festival the police caught X (... years old, Superintendent Y on television), in possession of a small envelope of cocaine. See page 12 for the details.” The following headline appeared on page twelve of the daily: “TV star X caught in possession of cocaine. A bretzel ( Brezn ), a beer mug [containing a litre of beer – Maß ] and a line of coke ( Koks ).” The article, printed in small type, read as follows: “Thursday night, 11 p.m. At the beer festival there was drinking, partying, swaying arm in arm. And sniffing.... In the celebrities’ tent the TV star X (... years old, whose real name is ...) came out of the gents tapping his nose and attracting the attention of police officers. They searched the star actor from the TV series Y (of which, by June, there had been more than 60 episodes in five years). COCAINE! X had a packet on him containing 0.23 grams of coke, and was arrested. Public prosecutor W. from Munich told the Bild : “He was making suspicious movements with his hand, tapping his nose with his fingers. This of course attracted the attention of our officers. An investigation is under way. Only a small quantity of cocaine is involved though. W. : “Right in the middle of the festival grounds ( Wiesn ) – it might have been snuff tobacco, but our men have a flair for this sort of thing...”. X had already had a run-in with the law for possession of drugs. In July 2000 the Superintendent from the TV series had been given a five-month suspended prison sentence and two years’ probation and fined EUR 5,000. He was accused of illegally importing drugs. On a trip to Brazil X had arranged for four grams of cocaine to be sent to his address in Munich. His probation period ended two years ago. The quantity of the drug found in the tent ... is negligible. What can the actor expect? According to a legal expert questioned by Bild : “Even if the probation period is over the previous conviction is recent. X may get an unsuspended prison sentence – up to six months”. Why prison? “X has apparently not been sufficiently daunted by the suspended prison sentence”. The actor has probably had to submit to a forensic head hair examination. Each centimetre of hair will enable the expert to determine whether and how much cocaine was taken. Yesterday X refused to comment. P.S: “In every toilet cubicle in the tent ... there are signs saying: “The use of drugs is liable to prosecution!” The article was accompanied by three photos of X, one on the first page and the other two on page twelve. 14. On the same day, during the morning, press agencies and other newspapers and magazines reported on X’s arrest, referring in part to the article published in the Bild. That day the prosecutor W. confirmed the facts reported in the Bild to other written media and television channels, two of which (“RTL” and “pro7”) broadcast the same reports that evening. During one of the broadcasts the prosecutor W. made the following statement: “The police officers saw X making a suspicious movement with his hand while coming out of the men’s toilets and concluded that he had taken something. They searched him and found an envelope containing 0.213 grams of cocaine. He had already been convicted of importing drugs and given a suspended prison sentence. He is not a first offender ( Ersttäter ). He should have known that he should not touch drugs. He can now expect a further prison sentence, even if the quantity found on him is insignificant.” 2. The second article 15. In its 7 July 2005 edition the Bild printed the following headline on its inside pages: “TV series Superintendent X confesses in court to having taken cocaine. He is fined 18,000 euros!” The article read as follows: “Munich – On TV he plays a superintendent who puts criminals behind bars. Yesterday, it was the turn of the actor X (... years old, ...) to be hauled up in front of the court and confess! X, who had to explain himself to the Munich District Court [ Amtsgericht ] on charges of “unlawful possession of drugs”, has confessed to taking drugs! X’s counsel ... stated: “We fully acknowledge the offence with which we have been charged in the indictment”. X confessed to the court: “I have occasionally smoked cannabis and taken cocaine from time to time. This has not made me happy. It had not turned into a habit but is just something that I have done from time to time”. Question from the court ...: “Are you currently taking drugs?” Reply from X: “No, I smoke cigarettes.” The sentence: a fine of EUR 18,000. The court: “The accused’s full confession has counted in his favour.” On TV X continues investigating on the side of law and order. In Vienna he is in front of the cameras for the television series ... which should be starting on the second channel in the autumn.” The article was accompanied by a photo of X. C. The proceedings in the German courts 16. Immediately after the articles appeared, X. instituted proceedings against the applicant company in the Hamburg Regional Court. The applicant company attached to its initial reply the statement by its journalist (see paragraphs 11 and 12 above) and numerous press articles about X, including a number of interviews given by him, to Bunte magazine among others, together with photos of him. 1. The first set of proceedings (a) The injunction proceedings 17. On 30 September 2004 the Hamburg Regional Court imposed an injunction on publication of the article, following a request lodged by X on 29 September 2004. In a judgment of 12 November 2004 it confirmed the injunction. That judgment was upheld by the Court of Appeal on 28 June 2005. On 6 October 2004 the Regional Court also imposed an injunction on publication of the photos illustrating the article. It confirmed that decision in a judgment of 12 November 2004. The applicant company did not challenge that judgment, which became final. (b) The main proceedings (i) Judgment of the Regional Court 18. On 11 November 2005 the Hamburg Regional Court prohibited any further publication of almost the entire first article, on pain of an agreed penalty, under Articles 823 § 1 and 1004 § 1 (by analogy) of the Civil Code (see paragraph 47 below), read in the light of the right to protection of personality rights ( Allgemeines Persönlichkeitsrecht ). It ordered the applicant company to pay EUR 5,000 as a penalty under the agreement and to reimburse the procedural expenses (EUR 811.88, plus statutory interest accrued from 4 November 2004). 19. According to the Regional Court, the article in question, which mentioned X’s name and was accompanied by photos of him, amounted to a serious interference with his right to the protection of his personality rights; the disclosure of his criminal conduct had, so to speak, resulted in his being pilloried and discredited in the eyes of the public. The court found that, despite those negative effects, reporting of that kind would nonetheless have been lawful in the event of serious crimes that were part of contemporary society and on which the press was entitled to report. Any interference with a criminal’s private sphere was limited, however, by the proportionality principle, which involved a balancing exercise between the competing interests. The court held that in the present case the right to protection of X’s personality rights prevailed over the public’s interest in being informed, even if the truth of the facts related by the daily had not been disputed. Neither the nature of the crime committed, nor the person of X, nor any other circumstances justified publication of the article at issue. 20. The court observed that whilst a drugs-related offence was not a petty crime, particularly as in the present case it had been cocaine, which was a hard drug, X had been in possession of only a small quantity of that drug and had not been accused of drug trafficking. The type of offence involved was of medium, or even minor, seriousness, was a very common one and there was no particular public interest in knowing about it. The court added that, unlike serious crimes (such as spectacular robberies, or murders), there were no particular circumstances distinguishing the offence in question from ordinary crimes, even if there was an assumption that drug abuse was more widespread amongst key figures from the arts world and the media than in other circles. Furthermore, the way in which the report had been made by the applicant company confirmed that the offence itself was not an important one. The report had focussed more on X’s person than on the offence, which would probably never have been reported in the press if it had been committed by a person unknown to the public. Similarly, the court pointed out, whilst X’s previous conviction for a similar offence was such as to increase the public’s interest, it was his only previous conviction and, moreover, dated back several years. 21. The court also found that publication of the articles in question was not justified by the person of X. The public did admittedly show an interest in Police Superintendent Y, a character in a relatively popular television series, but not in the actual person of the actor playing the part. There was nothing to suggest that X attracted the attention of the public on account of his performance as an actor or other activities bringing him within a circle of persons about whom the public had a need for regular information. The interest in X did not, in any event, go beyond the interest habitually manifested by the public in leading actors in German television series. 22. The court observed that the applicant company had published many articles about X over a period of six years and particularly over the last three years. The vast majority of these publications had, however, merely mentioned X’s name – often without a photo – among the names of celebrities invited to various events. Whilst it was undisputed that X had taken part in over 200 national and international cinematographic and televised productions, that did not convey much of an idea of his public importance. Indeed, actors could have starred in hundreds of television series and still remain little known to the public. There was no evidence that X had made a name for himself on account of any particular performance or that he had occupied a prominent position in society which had brought him into the public eye. 23. X had, to an extent, sought to attract the public’s attention by giving interviews to certain magazines between 2000 and 2003. He therefore had to be more tolerant towards reports published about him than other well ‑ known figures who avoided the limelight. According to the court, X had not, however, courted the public to a degree that he could be considered to have implicitly waived his right to the protection of his personality rights. 24. The Regional Court conceded that the fact that the actor had broken the law whereas on television he played the role of a superintendent entrusted with crime prevention was more entertaining for the public than if the actor had played any other kind of role. However, that contrast between the television role and the personal lifestyle of the actor did not mean that the public confused the latter with the fictional character. The actor merely donned the persona of a superintendent, just as he could don that of any other character, without thereby adopting the conduct of the character in question in his daily life. The fact that an actor did not adopt the lifestyle of the character he played could not in any way be regarded as an extraordinary event worthy of being reported. In the court’s view, viewers could distinguish between the actor and his role, even where the actor was well known essentially for playing one particular character. 25. The Regional Court found, further, that X had not sought to portray himself as an emblem of moral virtue; neither had he adopted a stand on matters relating to drug abuse. The interviews reported by the applicant company contained no comment by X on the subject. In issue no. 48/2003 of the magazine Bunte, X had stated, in passing, that he did not have any alcohol in the house and that he had become a big tea connaisseur. In the court’s view, the fact that X had briefly remarked on his previous conviction in two interviews with magazines in 2000 and 2001 did not mean that he had portrayed himself as an advocate or critic of the fight against drugs or as an expert in the field. That subject had been only marginally covered in the interview, which had mainly concerned the actor’s professional prospects and his difficulties in his relationships. 26. Observing that when balancing the competing interests, the decisive criteria were how well known X was and the seriousness of the offence with which he was charged, the Regional Court found that the case concerned an actor who was not exceptionally well known and was accused of an offence which, while not insignificant, was not particularly spectacular and could be regarded as fairly common in the entertainment world. The public did not therefore have a great interest in being informed of an event that was actually fairly anodyne, whereas the information published amounted to a serious ( gravierend ) interference with X’s right to the protection of his personality rights. 27. The Regional Court found, lastly, that the applicant company was not justified in arguing that the publication of the article was lawful because it pursued legitimate interests. Admittedly, the press officer from the public prosecutor’s office at the Munich Regional Court I had informed a large number of media reporters of the offence with which X had been charged and had disclosed his identity to them; nor was there any doubt that the public prosecutor’s office could be regarded as a “privileged source” ( privilegierte Quelle ) of information that did not, as a general rule, require verification as to the truth of its content. Moreover, three press agencies had disclosed similar details. However, even assuming that it had received all the information before publishing the article in question, the applicant company could only conclude that the published information was true and was not thereby absolved from the requirement to check whether its publication was justified in terms of X’s right to protection of his personality rights. In the court’s opinion, the question of the veracity of information issued by a public authority had to be distinguished from that of the lawfulness of the subsequent publication of that information by the press. 28. The court found that it could be presumed that institutions providing a public service, and in particular the public prosecutor’s office and the police, made every effort, in accordance with the principle of neutrality, not to issue information unless the public interest in doing so had been carefully weighed against that of the persons concerned. However, such institutions were not necessarily in a better position than a publisher to weigh the conflicting interests at stake regarding the dissemination of the information through the media. 29. In the instant case the applicant company was actually better placed than a member of the Munich public prosecutor’s office to judge the degree to which X was known and the question regarding whether the public had an interest in learning of his arrest. On that point the court considered that account also had to be taken of the context in which the information was published: the public services were not in a position to anticipate every possible form of dissemination of factual information in any foreseeable context or to foresee whether a report mentioning the person’s name was justified or not. Accordingly, publishers could not generally consider that the disclosure of a person’s identity by a privileged source would make any kind of report on the person concerned legal, without having first balanced the interests at stake. 30. The Regional Court pointed out that there were situations in which there may be doubts regarding the assessment by the public authorities. Accordingly, in the case of X, the question arose as to whether it was appropriate for the public prosecutor’s office to have expressed an opinion on the sentence that X could expect to receive when the criminal investigation had only just started. The court concluded that the applicant company could not argue that it had relied on the disclosure of X’s name by the public prosecutor’s office. (ii) Judgment of the Court of Appeal 31. On 21 March 2006 the Court of Appeal dismissed an appeal by the applicant company, but reduced the amount of the agreed penalty to EUR 1,000. It upheld the conclusions of the Regional Court, pointing out that the disclosure of a suspect’s name when reporting on an offence constituted, as a general rule, a serious infringement of the right to the protection of personality rights, even if it was a drug offence of medium or minor seriousness. In X’s case the fact of informing the public that he had taken cocaine could adversely affect his future prospects of securing acting roles and, in particular, of obtaining a role in an advertisement or in television series aimed at a young audience. 32. The Court of Appeal reiterated the relevant criteria when balancing the rights of the press against the right to protection of personality rights, as established by the Federal Court of Justice (see paragraph 48 below). It confirmed that the nature of the offence and the exact circumstances in which it had been committed made it an everyday offence and would not have aroused any interest if the perpetrator had been little known. In the court’s opinion, the possession and consumption of low quantities of drugs did not have adverse effects on third parties or on the general public. As X had not taken cocaine in the tent in front of everyone, his conduct did not imperil a young audience that might be likely to imitate him on account of his being a well-known television star. 33. The Court of Appeal acknowledged that the public had a particular interest in being informed and entertained because X was a well-known figure and had played the part of a police superintendent over a long period of time ( längerer Zeitraum ). However, even if X played that role, this did not mean that he had himself necessarily become an idol or role model as a law-enforcement officer, which could have increased the public’s interest in the question whether in his private life he actually behaved like his character. It was clear that the actor X could not be identified with the fictitious character of Superintendent Y that he played. The fact that X had his fan clubs and had made public appearances as the actor who played the part of Superintendent Y did not alter that finding. It could well be that X’s appearance, his manner of presenting himself, and the relaxed attitude portrayed in his films appealed to others, particularly a young audience. That did not mean, though, that others saw in him a moral role model whose image should be corrected by the newspaper report in question. 34. The publications submitted by the applicant company were indeed evidence that X was hugely popular, but did not support the contention that he had used confessions about his private life to attract the public’s attention. Nor was the newspaper report justifiable on the ground that X had been arrested in public, in a tent, because the drug had actually been consumed in the men’s toilets, that is, in a place that fell within the protected private sphere, and out of public view. Lastly, even if it were to be established that X’s arrest was a matter of substantial public interest, the same could not be said of the description and characterisation of the offence committed out of public view. 35. Lastly, while upholding the conclusions of the Regional Court regarding the role of the Munich public prosecutor’s office, the Court of Appeal stated that the applicant company’s liability did not extend beyond minor negligence given that the information disclosed by the public prosecutor’s office had led it to believe that the report was lawful. The illegal disclosure by the public prosecutor’s office did not, however, make publication by the applicant company legal. The Court of Appeal accordingly reduced the agreed penalty to EUR 1,000. It refused leave to appeal on points of law because its judgment did not conflict with the case-law of the Federal Court of Justice. (iii) The decisions of the Federal Court of Justice 36. On 7 November 2006 the Federal Court of Justice refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law. 37. On 11 December 2006 the Federal Court of Justice dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions ( Anhörungsrüge ). It stated that when balancing the public’s interest in being informed about public criminal proceedings against an interference with the defendant’s private sphere, the Court of Appeal had taken into account the circumstances of the case and had reached its decision in accordance with the criteria established in its case-law. There was no evidence that the relevant criteria for the balancing exercise had been disregarded. The Federal Court of Justice stated that the fact that the civil courts had found against the applicant company did not permit the latter to lodge an appeal on points of law and did not amount to a violation of the right to be heard. 2. The second set of proceedings (a) The injunction proceedings 38. On 15 August 2005 the Hamburg Regional Court granted an application by X for an injunction against any further publication of the second article. (b) The main proceedings (i) Judgment of the Regional Court 39. By a judgment of 5 May 2006, the Regional Court granted X’s application in the main proceedings, ordered the applicant company to refrain from any further publication of the second article on pain of penalty and ordered it to pay EUR 449.96 in costs, plus statutory interest accrued from 22 September 2005. It based its decision on essentially the same grounds as those set out in its judgment of 11 November 2005 (see paragraphs 18-30 above). It stated that the case in question had to be distinguished from the one that had been the subject of the judgment of the Federal Court of Justice of 15 November 2005 (see paragraph 48 below) in that the person concerned in that case, Prince Ernst August von Hannover, was much more widely known than X, so the press had been entitled to report on the substantial penalty imposed in that case. (ii) Judgment of the Court of Appeal 40. On 12 September 2006 the Hamburg Court of Appeal dismissed an appeal by the applicant company on essentially the same grounds as those given in its judgment of 21 March 2006 (see paragraphs 31-35 above). On the subject of the relevant criteria for weighing the conflicting interests, it stated that, according to the judgment of the Federal Constitutional Court of 13 June 2006 (see paragraph 49 below), the fact that a person was a prominent figure or one known to the public was not a sufficient factor in itself to justify the existence of an interest on the part of the public in being informed of his or her conduct. In the present case, the public’s interest in being informed and entertained, which derived from the fact that X was a well-known figure and starred as a superintendent in a television series, was insufficient to justify the interference with his right to decide for himself which information he was willing to disclose ( informationelle Selbstbestimmung ). 41. The applicant company’s reliance on the high audience rating of the television series Y. did not, in the Court of Appeal’s opinion, prove that X. had served as a role model or a counter model. If a role model existed for millions of viewers, the role model in question was the character of the superintendent. The Court of Appeal reiterated that the fact that X. had been arrested in a public place did not make the newspaper article lawful because the offence itself had been committed out of public view, in the men’s toilets. The suspicious movement that X had made with his hand had admittedly attracted the attention of the police at the scene, but it had not been established that other persons present in the tent had noticed that X had taken cocaine. 42. The Court of Appeal added that whilst the fact that the “quality press” had reported the case might indicate that there was a not insignificant ( nicht geringes ) interest in reporting it, that was not a basis on which to conclude that the interference with X’s right to the protection of his personality rights had been lawful. 43. The Court of Appeal refused the applicant company leave to appeal on points of law on the ground that its judgment did not conflict with the case-law of the Federal Court of Justice, in particular the latter’s judgment of 15 November 2005 (see paragraph 48 below). (iii) Decisions of the Federal Court of Justice 44. On 17 April 2007 the Federal Court of Justice refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law. On 12 June 2007 it dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions. 3. Decision of the Federal Constitutional Court 45. On 5 March 2008 a three-judge panel of the Federal Constitutional Court declined to entertain constitutional appeals lodged by the applicant company against the court decisions delivered in the first and second sets of proceedings. It stated that it was not giving reasons for its decision. 4. Other judicial decisions concerning the applicant company 46. On 12 September 2006 and 29 January 2008 the Hamburg Regional Court ordered the applicant company to pay X two penalty payments of EUR 5,000, each one for having breached the order of 15 August 2005 (see paragraph 38 above). The court criticised the applicant company for, inter alia, publishing in the 7 July 2006 edition of the daily newspaper Die Welt and on the newspaper’s internet page (welt.de) on 22 March 2007 the following statement by one of its editors: “Accordingly, we had no right whatsoever to report on the trial of the popular actor X for possession of cocaine, even though he was a very well-known recidivist and the offence was committed at the beer festival in Munich.” | The applicant company is the publisher of a national daily newspaper with a large-circulation which in September 2004 published a front-page article about the star of a popular television series who had been arrested at the Munich beer festival for possession of cocaine. The article was supplemented by a more detailed article on another page. Immediately after that article appeared, the actor obtained an injunction restraining any further publication of the article. The applicant company complained about the injunction imposed on it against reporting on the arrest and conviction of the actor in question. |
467 | Preliminary ruling | I. THE CIRCUMSTANCES OF THE CASE 4. Mr Fernand Ullens de Schooten and Mr Ivan Rezabek live in Bonlez and Brussels respectively. They were directors of an accredited clinical biology laboratory called Biorim, whose services were eligible for reimbursement through the National Institute for Sickness and Invalidity Insurance (Institut national d’assurance maladie invalidité – the “INAMI”). A. Application no. 3989/07 5. The Biorim laboratory was searched on 21 November 1989 following a complaint from the Special Tax Inspectorate. The applicants were arrested and remanded in custody. Proceedings were brought against them and eleven other individuals for offences related to the management of the laboratory, including forgery and failure to comply with Article 3 of Royal Decree no. 143 of 30 December 1982. The Article in question laid down, in respect of clinical biology services, the conditions to be met by medical laboratories so that the cost of their services could be reimbursed to users through the sickness insurance scheme. In the version of the text that was in force until 24 May 2005, it stipulated in particular that only laboratories that were run by doctors, pharmacists or persons qualified in chemical sciences were entitled to carry out clinical tests that were eligible for reimbursement. 1. Proceedings before the Brussels Court of First Instance 6. On 29 June 1993 the investigating judge concluded the preparation of the case. On 3 April 1995 the Crown Prosecutor finalised his written submissions and, on 29 May 1996, the Committals Division made an order committing the applicants (and eleven other defendants) to stand trial before the Brussels Court of First Instance, sitting as a criminal court. The fraudulent intent referred to in the committal submissions for offences classified as acts of “forgery” consisted in the fact of deceiving the authorities “responsible for monitoring implementation of the legislation on the operation of medical laboratories, in particular the provisions of Royal Decree no. 143”. 7. The oral proceedings began on 20 June 1997 and were spread over forty hearings. 8. A number of mutual insurance companies applied to join the proceedings as civil parties. They sought compensation for damage stemming from two causes. They claimed that the applicants had, firstly, engaged in a practice of fee sharing and, secondly, had run a clinical biology laboratory in breach of the provisions of Article 3 of Royal Decree no. 143. Under the second head they claimed 19,908,531 euros, corresponding to the total amount paid to the Biorim laboratory between 1 January 1990 (date on which Royal Decree no. 143 entered into force) and 16 April 1992 (last day of the period in which the offences were committed). 9. On 30 October 1998 the criminal court convicted the applicants, imposing prison sentences and fines, for various offences that had been committed in connection with the management of Biorim. It found in particular that between 1 January 1990 and 10 June 1997 the laboratory had been run by the first applicant at a time when he did not fulfil the conditions of Article 3 of Royal Decree no. 143, and that he had devised various means of circumventing the legislation. The court declared the civil parties’ claims admissible, but awarded them only a token amount of one euro on the ground that the damage had not been sufficiently substantiated. 2. Proceedings before the Brussels Court of Appeal 10. Before the Brussels Court of Appeal, the applicants argued in particular that Article 3 of Royal Decree no. 143 was incompatible with Article 86 of the Treaty establishing the European Community, taken together with Articles 82 (prohibition of the abuse of a dominant position) and 43 (freedom of establishment) of the Treaty and that it should be declared inapplicable on account of the direct effect and primacy of Community law. They requested in this connection that the question be referred to the Court of Justice of the European Communities for a preliminary ruling. 11. In a judgment of 7 September 2000 the Brussels Court of Appeal, after examining the above-mentioned argument on the merits, found that Article 3 of Royal Decree no. 143 was compatible with Community law. It emphasised, in particular, that “national measures capable of hindering or rendering less attractive the exercise of the fundamental freedoms guaranteed by the Treaty” had to fulfil four conditions and that the measure in question did so, being non-discriminatory, justified by compelling reasons in the general interest, appropriate to ensure the fulfilment of the aim pursued, and not going beyond what was necessary to that end. The Court of Appeal then decided “that there [was] no need to refer questions for a preliminary ruling”. 12. ... The Court of Appeal thus handed down convictions – mainly for tax fraud – sentencing the first applicant to five years’ imprisonment, with a five-year suspension for the part of the main prison sentence in excess of four years, and to a fine of 500,000 Belgian francs (about EUR 12,395), and the second applicant to three years’ imprisonment, with a five-year suspension for the part of the main prison sentence in excess of two years, and to a fine of 300,000 Belgian francs (about EUR 7,437). As to the requests of the civil parties, the Court of Appeal declared them inadmissible. 3. First set of cassation proceedings 13. Ruling on appeals by the applicants and the civil parties, the Court of Cassation, in a judgment of 14 February 2001, dismissed the appeals in so far as they were directed against the criminal provisions of the judgment of 7 September 2000, finding in particular that there was no need to refer questions to the Court of Justice of the European Communities. It quashed the judgment, however, in respect of its findings on the civil actions and, within that limit, referred the case back to the Mons Court of Appeal. 4. The reasoned opinion of the European Commission and the subsequent reform of Royal Decree no. 143 14. On 7 December 1999 the first applicant had lodged a complaint against Belgium with the European Commission, arguing that Article 3 of Royal Decree no. 143 was incompatible with the Treaty establishing the European Community. In May 2001 the European Commission initiated the infringement procedure provided for in Article 226 of the Treaty establishing the European Community and requested the Belgian authorities to submit their observations on the compatibility of Article 3 of Royal Decree no. 143 with Article 43 of that Treaty, concerning freedom of establishment. 15. On 17 July 2002 the European Commission adopted a reasoned opinion finding that Article 3 of the Royal Decree was incompatible with Article 43 of the Treaty. It requested Belgium to amend that provision, which had the effect of placing non-Belgian operators wishing to run clinical biology laboratories in Belgium and establish themselves there at a disadvantage in relation to certain Belgian professionals (in particular doctors, pharmacists or persons qualified in chemical sciences). In the Commission’s opinion, the fact that only those laboratories which fulfilled the prescribed conditions could provide services eligible for reimbursement through the health insurance system discouraged beneficiaries of that insurance from going to other laboratories and thus restricted the effectiveness of the freedom of establishment, in breach of Article 43 of the Treaty establishing the European Community. 16. On 24 May 2005 Belgium enacted a law amending Article 3 of Royal Decree no. 143, abolishing the requirement to have particular qualifications to operate a laboratory carrying out clinical tests eligible for reimbursement under the sickness and invalidity insurance scheme. 5. Proceedings in the Mons Court of Appeal, after remittal of the case 17. On 22 September 2003 the parties wrote to the office of the public prosecutor at the Mons Court of Appeal seeking the organisation of a preparatory hearing. It took place between 13 February 2004 and 4 April 2005. 18. The debate concerning the reimbursement of clinical tests focussed on the question of the compatibility with Community law of Article 3 of Royal Decree no. 143. In the applicants’ submission, that provision was in breach of certain rules of the Treaty establishing the European Community, in particular those concerning freedom of establishment (Article 43 of the Treaty), the free movement of capital (Article 56), the free provision of services (Article 49) and the rules on free competition (Articles 82 and 86). Referring in particular to the European Commission’s opinion of 17 July 2002 (see above), they concluded that Article 3 of Royal Decree no. 143 could not have produced ab initio any legal effect and that, being bound by the primacy of Community law, the Court of Appeal could not take account of the convictions handed down, not even considering the offences as mere torts. In the alternative, the second applicant requested that a question be referred to the Court of Justice of the European Communities for a preliminary ruling on the conformity of Article 3 of Royal Decree no. 143 with the provisions of Articles 43, 49, 56, 82 and 86 of the Treaty establishing the European Community. 19. In a judgment of 23 November 2005 the Court of Appeal dismissed the applicants’ arguments. It emphasised that the European Commission’s reasoned opinion of 17 July 2002 was not binding and that the Brussels Court of Appeal’s judgment of 7 September 2000, of which the criminal provisions had the authority of res judicata, had found Article 3 of Royal Decree no. 143 to be compatible with Community law. Further noting that the Court of Cassation, in its decision of 14 February 2001, had decided that there was no need to refer preliminary questions to the Court of Justice of the European Communities, it reached the same conclusion, on the ground that such questions were not “indispensable for adjudication”. 20. Upholding the civil claims, the Mons Court of Appeal ordered the applicants to pay various amounts to the civil parties, including six mutual insurance companies jointly, for a total of EUR 1,859,200. 6. Second set of proceedings before the Court of Cassation 21. On 1 December 2005 the applicants appealed on points of law against the judgment of 23 November 2005. They reiterated in particular the argument that Article 3 of Royal Decree no. 143 was incompatible with the Treaty establishing the European Community, a higher source of law. They further submitted that, whilst the Court of Cassation itself had not found the provisions incompatible, it had a duty, under Article 234 of the Treaty establishing the European Community, to refer the matter to the Court of Justice of the European Communities for a preliminary ruling on the issue of incompatibility and the requisite solution, in the circumstances of the case, to the conflict between the principle of the authority of res judicata and the primacy of Community law. In their submission, the fact that the Mons Court of Appeal had upheld the authority of res judicata in the Brussels Court of Appeal’s judgment, whereas developments following that decision had revealed it to be erroneous, constituted a breach of the right to a fair hearing under Article 6 of the Convention and more specifically the entitlement to a hearing by an impartial tribunal. 22. On 14 June 2006 the Court of Cassation dismissed the applicants’ appeals. It reiterated among other things the principle that the authority of res judicata in criminal matters precluded the court hearing any subsequent civil claims from calling into question what had been adjudicated with final effect, certainty and necessity as to the existence of a fact forming the common basis of the criminal proceedings and the civil suit. It concluded that the Mons Court of Appeal had rightly held that the finding of the Brussels Court of Appeal of 7 September 2000 concerning the conformity of Article 43 of Royal Decree no. 143 with Community law had been correct, being in line with that principle. The Court of Cassation, moreover, considered that the question whether the principle of the primacy of Community law should take precedence over that of the authority of res judicata had already been settled by the Court of Justice of the European Communities in its judgments in Eco Swiss China Time Ltd and Benetton International NV (C-126/97) of 1 June 1999 and Rosemarie Kapferer v. Schlank & Schlick GmbH (C-234/04) of 16 March 2006. It noted in this connection that the Luxembourg Court had concluded in those judgments that the second principle prevailed, finding that “Community law [did] not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would enable it to remedy an infringement of Community law by the decision at issue”, and had explained in the Kapferer judgment that “the obligation of the body concerned to review a final decision, which would appear to have been adopted in breach of Community law [was] subject, in accordance with Article 10 EC, to the condition, inter alia, that that body should be empowered under national law to reopen that decision”. The Court of Cassation concluded that “there [was] no need to submit once again to the Court of Justice of the European Communities the point of law that it [had] thus resolved, regardless of the nature of the proceedings which [had given] rise to its case-law and despite the questions at issue not strictly being the same”. B. Application no. 38353/07 23. On 18 March 1999 the Minister for Public Health issued a decision suspending the laboratory’s accreditation for a twelve-month period. Referring to the Brussels Criminal Court’s judgment of 30 October 1998 (see paragraph 9 above), the decision was based on a failure to comply with Royal Decree no. 143. The company Biorim unsuccessfully lodged an administrative appeal: the suspension was confirmed by a ministerial decision of 9 July 1999. 24. In the meantime, on 8 June 2000, a fresh ministerial decision had extended the suspension of accreditation for a twelve-month period “on account of the continuing infringements of Article 3 of Royal Decree no. 143”. In a decision of 24 July 2000 the Minister dismissed the administrative appeal lodged by Biorim and confirmed the suspension, on the ground that the company had not put an end to the situation which had justified the first suspension of accreditation, the applicant having continued to run the laboratory. 25. On 13 September 1999 and 21 September 2000 Biorim applied to the Conseil d’Etat for the annulment of the ministerial decisions of 9 July 1999 (G/A 85.522/VI-15.170; the “first set of proceedings”) and of 24 July 2000 (G/A 94.649/VI-15.635; the “second set of proceedings”). 26. The applicant was a third-party intervener in the proceedings. 27. The company Biorim and the applicant claimed in particular that Article 3 of Royal Decree no. 143, on which the impugned decisions had been based, was in breach of Articles 43 (freedom of establishment), 49 (free provision of services) and 56 (free movement of capital) of the Treaty establishing the European Community, and of Article 86 taken together with Articles 82 (prohibition of abuse of dominant position), 43, 49 or 56. They concluded that those decisions were devoid of admissible basis and should therefore be annulled. In the alternative, the applicant requested the Conseil d’Etat to refer questions to the Court of Justice of the European Communities for a preliminary ruling to determine whether the above-mentioned Articles of the Treaty establishing the European Community were to be interpreted as precluding the application of legislation imposing the various restrictions provided for in Article 3 of Royal Decree no. 143. 28. In his report of 22 September 2005, the Auditeur (legal assistant at the Conseil d’Etat ) declared the argument well-founded and took the view that the impugned decisions should be annulled on the ground that Article 3 of Royal Decree no. 143 was not in conformity with Community law. The Auditeur observed first of all that the Belgian courts had to refuse to give effect to any provisions of domestic law that ran counter to provisions of international law having direct effect. This was the case for national legislation concerning the services of medical laboratories, which had to be compatible with the rules of Community law on freedom of establishment and the free provision of services, since the Court of Justice of the European Communities had held that those rules applied to such services (CJEC, 11 March 2004, C-496/01). He added that it was invalid in the present case to argue that the legislation bore no relation to trade between two EC member States – especially as, in his opinion, factors of such nature were present – as justification for finding the provisions inapplicable, referring in this connection to the case-law of the Luxembourg court to the effect that since the fundamental freedoms enshrined in Community law extended in their application to the potential effects of legislation, they could not be considered inapplicable simply because the facts of the specific case were confined to a single member State (CJEC, C-321/94 to C-324/94). He went on to observe that “national measures capable of hindering or rendering less attractive the exercise of such fundamental freedoms” were admissible only under certain conditions, in particular where they did not go beyond what was necessary to achieve the aim pursued. In the present case, firstly, Article 3 of Royal Decree no. 143 hindered and rendered less attractive the freedom of establishment, the free provision of services and the free movement of capital as regards the operation of clinical biology laboratories; secondly, the measure implemented was disproportionate to the aim pursued – to avoid over-consumption of clinical biology services – as that aim could be achieved by means that were less restrictive of freedoms. 29. In two judgments of 21 February 2007, the Conseil d’Etat dismissed the submission that there had been a violation of the above-mentioned Articles of the Treaty establishing the European Community. It first observed that, under Article 86 § 1 of the Treaty, “[i]n the case of public undertakings and undertakings to which member States grant[ed] special or exclusive rights, member States [could] neither enact nor maintain in force any measure contrary to the rules contained in that Treaty, in particular to the rules provided for in Article 12 and Articles 81 to 89”. Finding that the laboratories referred to in Article 3 of Royal Decree no. 143 did not fall within those categories, it declared Article 86 of the Treaty inapplicable in the present case. As to the other provisions of the Treaty relied upon in the submission, the Conseil d’Etat referred to the case-law of the Court of Justice of the European Communities to the effect that the Treaty’s rules in matters of free circulation of persons and services did not affect any restrictions applying to nationals of a member State on the territory of that State where the situation in which they found themselves had no link to any of the situations envisaged by Community law. According to the Conseil d’Etat, the dispute did not, in the present case, contain any extraneous elements capable of justifying the application of Community law. In that connection it explained as follows: “... [Biorim] is a company incorporated under Belgian law and operating in Belgium. As it operates within the Belgian market, it has not availed itself of the freedom of establishment or the free provision of services provided for respectively by Articles 43 and 49 of the Treaty establishing the European Community. The alleged circumstance ... that Community nationals established in other member States could make use of the services of [Biorim] does not constitute, in respect of the company, a link to Community law within the meaning of the above-cited case-law of the Court of Justice of the European Communities. [The applicant] is Belgian and in order to run the laboratory of [Biorim] he did not make use of freedom of movement within the European Community. Although it has been shown in the criminal-court decisions that he used “financing packages”, in particular through the intermediary of the Luxembourg company [T.], this factor has no bearing on the grounds for the impugned decision. The case against [Biorim] is not that it was operated by that company, or that it was financed by foreign capital, but precisely that it was run by [the applicant], whereas he did not have one of the qualifications required to do so, as shown by the criminal-court decisions. The [applicant’s] situation in this connection is confined exclusively to the national sphere ...” The Conseil d’Etat further refused to refer the applicant’s questions to the Court of Justice of the European Communities for a preliminary ruling, observing as follows: “... Article 234 of the Treaty establishing the European Community does not oblige courts or tribunals against whose decisions there is no judicial remedy under national law to refer a question concerning the interpretation of Community law raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case. The same applies when the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case, where previous decisions of the Court have already dealt with the point of law in question, even though the questions at issue are not strictly identical, or where the correct application of Community law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved ... In the present case, there is no reasonable doubt as to the inapplicability of Article 86 § 1 of the Treaty establishing the European Community to the laboratories referred to in Article 3 ... of Royal Decree no. 143 .... In addition, for the reasons given, an answer by the Court as to the interpretation of Articles 43, 49 and 56 of the Treaty establishing the European Community could not affect the outcome of the present dispute ...” 30. The company Biorim additionally argued, inter alia, that there had been a breach of Articles 10 and 11 of the Constitution concerning equality before the law and the prohibition of discrimination. The Conseil d’Etat held that, in so far as Biorim was complaining of a difference in treatment between Belgian nationals established in Belgium and those established in other member States or nationals of other member States, on the ground that the latter categories enjoyed more rights and guarantees in the context of the application of Article 3 of Royal Decree no. 143, this was a new submission raised only in its rejoinder and was thus belated and inadmissible. In response to Biorim’s argument that, by reserving the intervention of the sickness insurance scheme to laboratories run by doctors, pharmacists or persons qualified in chemical sciences, Article 3 of Royal Decree no. 143 introduced, between those persons and other business operators, a prohibited difference in treatment, the Conseil d’Etat found that its decision should be reserved in order to submit a question on that subject to the Constitutional Court for a preliminary ruling. The Constitutional Court responded by a judgment of 19 December 2007 that the said provision did not breach Articles 10 and 11 of the Constitution. 31. In addition, in the context of the second set of proceedings, the Conseil d’Etat partly re-opened the case, requesting the Auditeur to pursue the investigation and produce a supplementary report on arguments other than those alleging a breach of Community law. The Auditeur found that the ministerial decision of 24 July 2000 should be annulled on grounds related to the reasoning of the impugned decision, being unconnected to the complaints submitted by the applicant to the Court. 32. The Conseil d’Etat dismissed the applications by two judgments of 10 September and 22 December 2008. | This case concerned the refusal of the Belgian Court of Cassation and the Conseil d’État to refer questions relating to the interpretation of EU law to the Court of Justice of the European Union for a preliminary ruling. |
108 | Taking of children into care | I. THE CIRCUMSTANCES OF THE CASE 6. The first applicant, Mr K.O., was born in 1974 and the second applicant, Ms V.M., was born in 1986. A. Emergency decision 7. On 1, 10 and 22 December 2014 the child-welfare services received notifications of concern ( bekymringsmeldinger ) about A, an as yet unborn child. Two of the notifications came from the police and concerned suspicions that the first applicant had physically mistreated the second applicant. The third notification came from the preventive-mental-health services ( forebyggende psykisk helsetjeneste ) and contained information about the second applicant ’ s history of anxiety, depression and drug use. 8. In addition, the child-welfare services received three notifications from private parties, two of which were anonymous. These expressed serious concerns as to how the second applicant was being controlled and manipulated by the first applicant. According to the notifications, the first applicant had forced the second applicant to use amphetamines, and he had cut up her clothes and put her shoes in water in order to hinder her from leaving their home. Moreover, the second applicant had been excluded from contact with her family and network, either as she had been manipulated into distancing herself from them, or because they had been threatened and frightened by the first applicant. According to the notifications, the second applicant had tried to leave the first applicant several times, but had always returned. 9. A, a girl, was born on 13 January 2015. On the same day, the child-welfare services received an anonymous notification of concern which stated that the first applicant was violent and that he had pressured the second applicant into taking drugs. On 14 January 2015 the second applicant ’ s grandmother sent a notification of concern where she stated that the first applicant was manipulative, controlling and that he had been selling amphetamines. On 15 January 2015 the child-welfare services received information from other public authorities about the first applicant ’ s criminal convictions and the second applicant ’ s mental-health problems and her history of drug abuse. The same day the child-welfare services arranged for the second applicant and the child to stay at a family centre, with the second applicant ’ s consent. The first applicant was informed of the decision, but not of their whereabouts, due to the concerns that had been expressed in the notifications. 10. On 22 January 2015 the child-welfare services considered that the second applicant had withdrawn her consent to stay at the family centre. It therefore adopted an emergency decision under section 4-6 of the Child Welfare Act (see paragraph 43 below) to place A in public care; to grant the applicants contact rights of one hour every second week, under supervision; and not to inform the applicants of A ’ s address. The child-welfare services found that there was a risk that A would suffer considerable harm if she were to stay with the applicants. Reference was made to the notifications concerning mental-health problems, drug abuse and suspicions of violence, and to the fact that the applicants had not agreed to cooperate with the child-welfare services prior to A ’ s birth. 11. The applicants appealed against the emergency decision to the County Social Welfare Board ( fylkesnemnda for barnevern og sosiale saker ). On 2 February 2015 the Board upheld the decision. It noted the notifications received by the child-welfare services prior to A ’ s birth; that the applicants had refused to cooperate with the child-welfare services before the birth; and that the second applicant had withdrawn her consent to stay at the family centre. 12. The applicants challenged the Board ’ s decision before the City Court, which on 26 March 2015 upheld the placement of A in emergency public care. It held that there was a considerable risk that A, a three-and-a-half-month-old infant, would suffer serious harm if she were returned to the applicants. 13. The City Court attached considerable weight to the high level of conflict in the family, which could be harmful for a small child. The applicants had acknowledged that they had argued at times, and had stated that these arguments had often begun as disagreements over trivial matters which had escalated. They had not contested that the second applicant had left the family home several times during the pregnancy and that she had, on one occasion, been thrown out by the first applicant after an argument. The police had been called to their home several times during the pregnancy, both by neighbours and by the second applicant, after loud disagreements. The applicants had stated that they would adapt to the new situation with an infant and that they would not argue in the presence of the child. In the City Court ’ s opinion there was a high risk of continued strife due to the high level of conflict that had existed between the applicants over time – both before and during the pregnancy – and on account of the added stresses that would result from the demanding task of taking care of a small child. 14. The City Court also found that the second applicant lacked proper impulse control and the ability to handle conflicts in an adequate manner. In 2014 she had pretended to be suicidal, which had resulted in her being admitted to a psychiatric institution. Her general practitioner ( fastlege ) had testified that she had not considered the second applicant to be suicidal and that the compulsory placement had been an error. The City Court noted that the second applicant ’ s mental health had not been examined, but that it was a matter of grave concern given its potential effect on her ability to provide adequate care. 15. Based on an overall assessment, the City Court found that there was a qualified risk that A would suffer material harm if the emergency placement order were lifted. Less restrictive assistance measures could not adequately safeguard her against the dangers she would be exposed to if she were returned to the applicants. In reaching this conclusion the City Court emphasised the complexity of the family ’ s problems and the fact that previous attempts to help the applicants deal with their various health and drug related problems had been unsuccessful. It therefore concluded that the applicants would need extensive and long-lasting assistance before A could be returned. 16. The applicants appealed against the City Court ’ s judgment on the emergency decision, but later withdrew the appeal, as the child-welfare services had instigated proceedings in order to obtain a care order (see below). B. Placement decision 1. County Social Welfare Board 17. Prior to the City Court ’ s judgment on the emergency care order, on 6 March 2015 the child-welfare services applied to the County Social Welfare Board for a decision to place A in public care under section 4-12 of the Child Welfare Act (see paragraph 43 below). The Board, composed of a chairperson qualified to act as a professional judge, two psychologists and two laypeople, held oral hearings for two days and heard testimony from eleven witnesses. The applicants were present and were represented by counsel. 18. On 20 May 2015 the Board decided that A should be placed in a foster home and that the applicants should not be informed of her whereabouts, in accordance with section 4-19 of the Child Welfare Act (see paragraph 43 below), due to concerns that they would try to find A, and even try to kidnap her. The Board decided not to deprive the applicants of their parental responsibilities in respect of A. 19. The Board found that the applicants, individually and together, had several traits which gave rise to concern as to their ability to provide adequate care for A. The first applicant had been diagnosed with post-traumatic stress disorder (PTSD) and attention-deficit disorder (ADHD) and had an extensive criminal history, including convictions for battery and for issuing threats. The second applicant had a long and extensive history of psychiatric illness and drug abuse. The police had been called to the applicants ’ house several times during 2013 and 2014 on account of domestic disputes. The second applicant had gone to a crisis centre twice during the pregnancy. 20. While the first applicant had two cousins and an aunt living nearby, the Board considered that this support network would not be sufficient to ensure that the child would receive adequate care. The Board held that assistance measures, for example counselling, would not be sufficient to ensure adequate conditions for the child. Neither of the applicants had, over time, taken advantage of offers to assist them with their mental-health issues or their substance abuse. The Board therefore held that it would be in the best interests of the child to be placed in a foster home. 21. As to the question of contact rights, the Board noted that no attachment had been established between A and the applicants, as she had been placed in public care shortly after birth. The placement in foster care would most likely be long-term. The purpose of visits with the applicants would therefore be for the applicants and A to get to know each other. While it would be important for A to have order and stability in the foster home, the Board found that it was not necessary to restrict the contact rights to the degree proposed by the child-welfare services – one hour, once a year. Instead it granted contact rights of one hour, four times a year. The child-welfare services would be allowed to supervise the visits. 2. City Court 22. The applicants challenged the County Social Welfare Board ’ s decision before the City Court. They asked for the decision to place A in public care to be overturned or, if the City Court upheld the placement, for their contact rights to be increased. The applicants also requested a suspension of the Board ’ s decision as far as the limited contact rights were concerned. The City Court refused the request for a suspension on 6 July 2015. 23. The City Court, composed of one professional judge, one lay person and one psychologist, heard testimony from the applicants and ten other witnesses, including a court ‑ appointed expert, also a psychologist, from 24 to 26 November 2015. 24. In its judgment of 17 December 2015, the City Court upheld the decision to place A in public care, but increased the applicants ’ contact rights to two hours, six times a year. The City Court found that while the applicants were loving parents who wanted the best for A, the evidence had revealed numerous risk factors relating to their ability to provide adequate care. 25. The City Court noted that the first applicant had previously been convicted of serious violent crimes of an antisocial character ( alvorlige voldsforbrytelser, av asosial karakter ). He had been convicted of assault at least six times and had in total been sentenced to fifteen years ’ imprisonment. In 2005 a court of first instance had ordered his preventive detention ( forvaring ), but this had, upon appeal, been altered to a prison sentence. Most of his criminal acts had been carried out while he had been a member of a motorcycle club, partly as a result of his role as a debt collector for the club. Acting in this capacity he had, inter alia, administered beatings and issued threats. According to the police he had been listed 100 times in the register of criminal complaints ( anmeldelsesregisteret ). Some of the complaints against him were still pending. The second applicant ’ s mother had for example reported him to the police for threatening her. 26. In the City Court ’ s view, the first applicant ’ s history showed that he had exhibited antisocial behaviour over a considerable period of time. Moreover, he appeared to have little confidence in, or patience with, the public authorities, including the child-welfare services. The manager of the municipal child-welfare service had obtained a restraining order against the first applicant due to the frightening or threatening messages he had posted on social media. In the City Court ’ s opinion this demonstrated that the first applicant had a worrying inability to learn from his past actions, and it therefore questioned to what extent he would be able to change his behaviour in the future. During the court proceedings he had acted aggressively and impulsively towards the lawyer representing the child-welfare services and had been unable to control himself in a normal manner. 27. The City Court did take note of positive aspects of the first applicant ’ s character that had been emphasised by his psychologist and by the court-appointed expert. However, the psychologist had also noted that the first applicant ’ s state of health had been complex, as he had been diagnosed with ADHD and had showed symptoms of PTSD, and had expressed concern on account of the first applicant “self-medicating” with cannabis on a daily basis. 28. The expert had not found any indications that the second applicant had been suffering from any serious mental illness. The City Court also noted that it was positive that she had been able to refrain from using drugs for a longer period of time. However, it also considered that she was vulnerable. She had broken off contact with her family and appeared to be dependent on the first applicant and his network. Furthermore, the City Court considered her to have several unstable character traits which could affect her ability to provide adequate care, including, inter alia, her long history of psychiatric problems, her inability to finish the treatment that had been offered to her, and her impulsivity. 29. Several witnesses, including representatives from the police, had stated that they had suspected that the first applicant had physically mistreated the second applicant. The City Court found it difficult to establish whether the second applicant had in fact been subjected to violence or whether she had exaggerated her fear of the first applicant to friends and the authorities to gain sympathy and attention. It stated that the most plausible conclusion lay somewhere in between. 30. The City Court found that A was a normally functioning child, whose development was adequate for her age, but noted that she had already experienced two separations from her caregivers: the first when she was taken from her mother to the emergency care home; and a second time when she was moved to the foster home. The City Court held that while making her move again would come at a psychological cost, it would not be impossible to do so if her new caregivers could provide her with optimal care. 31. The City Court agreed with the applicants that there were grounds for criticising the child-welfare services ’ handling of the case in the period leading up to the emergency care decision. The child-welfare services should have gathered more information about the parents before concluding that a stay at the family centre was necessary. The City Court found that it was unclear whether the second applicant had in fact retracted her consent to stay at the centre. However, it held that it was understandable that the child-welfare services had found it necessary to take steps in response to the notifications of concern that they had received. The fact that there were grounds for criticising some of their decisions did not entail that it would be in the child ’ s best interests to end her public care at the time of the City Court ’ s decision. 32. The City Court concluded that the applicants, considered both individually and together, presented a number of risk factors which made it inadvisable to return A to them. The first applicant ’ s daily drug use was a factor of great concern. Both the psychologist and the expert had noted that the process of stabilising and rehabilitating the first applicant would take several months and potentially more than a year. The applicants had been unable to make use of the assistance measures that had previously been offered to them to help them deal with their psychological issues and drug dependency. Their history of domestic disputes, which had continued throughout the pregnancy, also illustrated that their relationship was vulnerable. Between 2013 and 2014 the police had had to intervene at the couple ’ s home seven times on account of domestic disturbances ( husbråk eller lignende ). 33. The court-appointed expert and the second applicant ’ s general practitioner had spoken in favour of returning A to the applicants. The City Court however considered that they had not taken sufficient account of the above-mentioned risk factors, particularly in the light of the decisive weight to be given to the best interests of the child. 34. The City Court found that assistance measures would not be adequate to create appropriate conditions for A if she were returned to the applicants, as the level of assistance that would be required would be too extensive to be practically feasible. Furthermore, the applicants ’ difficulties with cooperating with the authorities were a factor to be considered in this regard. The City Court observed, inter alia, that on account of the first applicant ’ s behaviour the police had advised the child-welfare services not to visit the applicants ’ home without the police being present. 35. As to the question of contact rights, the City Court noted that an extensive ( omfattende ) contact scheme should only be implemented where the placement in public care was considered to be short-term, so as to facilitate an expedient return of the child. In the instant case the City Court considered that the placement would be long-term, and it would therefore not be in the child ’ s best interests for the applicants to be given extensive contact rights. However, because the applicants ’ interactions with A during visits had been described in positive terms, it found that their contact rights should be increased to two hours, six times a year. The child-welfare services were allowed to supervise the visits. 3. Leave-to-appeal proceedings 36. The applicants appealed against the City Court ’ s judgment. On 1 March 2016 the High Court ( lagmannsrett ) refused leave to appeal, noting that the case had been thoroughly examined by the City Court and that the judgment had been adequately reasoned. No new evidence had been submitted which could merit a re-examination of the case. 37. The applicants appealed against the High Court ’ s decision. On 4 May 2016 the Supreme Court ’ s Appeals Leave Committee ( Høyesteretts ankeutvalg ) refused the applicants leave to appeal, unanimously finding that their appeal had no prospects of success. C. Subsequent developments 38. While their application to the Court was still pending, the applicants, with reference to section 4-21 of the Child Welfare Act (see paragraph 43 below), asked the County Social Welfare Board to lift the care order. The municipality supported the applicants ’ claim. On 16 February 2018 the Board declined the request. 39. The applicants appealed against the Board ’ s decision to the City Court. The municipality upheld its assessment that A should be returned to her parents, particularly on account of the applicants having agreed to assistance measures. Both the applicants and the municipality consented to the City Court ’ s deciding the matter without an oral hearing. 40. On 19 March 2018 the City Court allowed the joint claim to lift the care order. It noted that two expert witnesses who had appeared before the Board had evaluated the applicants ’ care capacity as being stable and good, and that the applicants had consented to the implementation of assistance measures. The City Court accordingly saw no reason to depart from the municipality ’ s assessment that the care order should be lifted. 41. In his letter to the Court 1 June 2018, the applicants ’ representative stated that A had been returned to her parents in accordance with the City Court ’ s judgment. | This case concerned official decisions to take the applicants’ daughter into care a few weeks after her birth in 2015 and their limited contact rights. The family were ultimately reunited in 2018. |
118 | Domestic violence / abuse | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1965 and lives in Remanzaccio. 7. The applicant married A.T., a Moldovan national, and two children were born of the marriage: a daughter in 1992 and a son in 1998. 8. The applicant alleged that after their marriage her husband had started beating her. However, in 2011 the applicant followed her husband to Italy in order to provide her children with the opportunity of a more serene future. 1. The first assault committed by A.T. against the applicant and her daughter 9. The applicant submitted that her husband, who was an alcoholic, had already been physically abusing her for a long time when, on 2 June 2012, she requested the intervention of the police after she and her daughter had been assaulted by A.T. 10. When the police arrived, A.T. had left the family home. He was found in the street in a state of intoxication, with scratches on the left side of his face. The police drew up a report of the incident. The report stated that the applicant had been beaten and bitten in the face and the left leg and that she had a number of bruises. The report also stated that the applicant ’ s daughter had herself been hit after intervening to protect her mother and presented a neck injury caused by a fingernail and injuries to both arms. The applicant and her daughter were informed of their rights and expressed their intention to go to the hospital accident and emergency unit. 11. The applicant alleged that she had not, however, been informed of the possibility of lodging a complaint or contacting a shelter for battered women. She also submitted that she went to the accident and emergency unit in order to have her injuries recorded, but that after waiting for three hours she had decided to return home. 12. The Government, referring to the police report, submitted that there was no evidence that the applicant had gone to the accident and emergency unit. 2. The second assault committed by A.T. against the applicant a) The applicant ’ s version 13. The applicant submitted that after the assault on 2 June 2012 she had taken refuge in the cellar of her flat and started sleeping there. 14. She recounted the following events as follows. On 19 August 2012, after receiving a threatening telephone call from her husband, and fearing an attack by him, she decided to leave the house. When she returned home, she found that the cellar door had been broken. She tried telephoning a friend to ask if she could stay the night with her, but no one answered her call. She then decided to go back to the cellar. A.T. attacked her there with a knife and forced her to follow him in order to have sexual relations with his friends. Hoping that she would be able to seek help once outside, she resigned herself to following him. She asked a police patrol in the street for help. 15. The police merely checked her and A.T. ’ s identity papers, and despite the applicant ’ s assertions that she had been threatened and beaten by her husband, they invited her to go home without offering her help and told A.T. to keep away from her. A.T. was fined for unauthorised possession of a lethal weapon. 16. Shortly after she had returned home, the applicant called the emergency services and was taken to hospital. The doctors noted, among other things, that she suffered from cranial trauma, a head injury, multiple abrasions to her body and a bruise on her chest. It was deemed that her injuries would heal up within a week. b) The Government ’ s version 17. The Government indicated that, according to the incident report drawn up by the police, they had arrived at Leopardi Street shortly after midnight. The applicant informed them that she had been hit in the face. A.T. had given the police officers a knife. The applicant told the police that she wanted to go to hospital to have her injuries recorded. She had gone there and A.T. had returned home. The knife had been seized and the applicant fined for unauthorised possession of a lethal weapon. 3. The applicant ’ s complaint 18. At the hospital the applicant spoke to a social worker and said that she refused to return home to her husband. She was then given shelter by an association for the protection of female victims of violence, IOTUNOIVOI (“the association” ). 19. The president of the women ’ s shelter, accompanied by police officers, went to the cellar where the applicant had been living in order to fetch her clothes and personal effects. 20. From 20 August onwards A.T. began harassing the applicant by telephoning her and sending her insulting messages. 21. On 5 September 2012 the applicant lodged a complaint against her husband for bodily harm, ill-treatment and threats of violence, urging the authorities to take prompt action to protect her and her children and to prevent A.T. from approaching them. She stated that she had taken refuge in a women ’ s shelter and that A.T. was harassing her by telephone. 22. A.T. was placed under judicial investigation on charges of ill-treating family members, inflicting grievous bodily harm and making threats. The police sent the criminal complaint to the prosecution on 9 October 2012. 23. On 15 October 2012 the prosecution, having regard to the applicant ’ s requests for protection measures, ordered urgent investigative measures, in particular requesting the police to find potential witnesses, including the applicant ’ s daughter. 24. The applicant was given shelter by the association for three months. 25. In a letter of 27 August 2012 the head of Udine social services informed the association that there were no resources available to take charge of the applicant or to find alternative accommodation for her. 26. The Government gave a different interpretation of that letter, saying that, as the applicant had not first been referred to the Udine social services, which cared for victims of violence in the context of another project, called “Zero tolerance”, the latter could not pay the association ’ s expenses. In their submission, female victims of violence could contact social services requesting assistance, which the applicant had not done. 27. On 4 December 2012 the applicant left the shelter to look for work. 28. She said that she had first slept in the street before being accommodated by a friend, and had subsequently found a job as an assistant nurse for elderly people and was then able to rent a flat. According to the applicant, A.T. had continued exerting psychological pressure on her to withdraw her complaint. 29. On 18 March 2013 the prosecution, finding that no investigative measure had been carried out, again asked the police to investigate the applicant ’ s allegations rapidly. 30. On 4 April 2013, seven months after she had lodged her complaint, the applicant was questioned for the first time by the police. She altered her statements, mitigating the seriousness of her original allegations. Regarding the episode of June 2012 she stated that A.T. had unsuccessfully attempted to hit her and her daughter. With regard to the incident that had occurred in August 2012, she said that A.T. had hit her but had not threatened her with a knife. A.T. had, however, pretended to turn the knife on himself. The applicant also stated that at the time she had not spoken very good Italian and had not been able to express herself properly. She also stated that A.T. had not forced her to have sex with other people and that she had returned to live at the family home. She said that when she had been living at the shelter provided by the association, she had not spoken to her husband on the telephone because she had been told not to. She stated that, barring her husband ’ s alcoholism, the situation at home was calm. She concluded by saying that her husband was a good father and a good husband and that there had been no further episodes of violence. 31. The applicant submitted that she had altered her original statements because of the psychological pressure exerted on her by her husband. 32. On 30 May 2013 the Udine public prosecutor ’ s office, after noting, firstly, that the applicant, who had been interviewed in April, had mitigated her allegations against her husband saying that he had not threatened her with a knife and that she had been misunderstood by an employee from the shelter where she had taken refuge and, secondly, that no other violent episode had occurred, asked the investigating judge to close the complaint lodged against A.T. for ill-treatment of family members. Regarding the offence of grievous bodily harm, the prosecuting authorities indicated that they intended to continue the investigations. 33. In a decision of 1 August 2013 the investigating judge discontinued the part of the complaint concerning the allegations of ill-treatment of family members and threats. He considered that the course of the events was unclear and that, with regard to the alleged ill-treatment, the offence had not been made out because, since the applicant had complained only about the incident of August 2012, the criterion of repeated episodes of violence was not satisfied. 34. With regard to the complaint of threats aggravated by the use of a weapon, the investigating judge noted that the applicant ’ s statements were contradictory and that in the report drawn up by the hospital there was no reference to knife injuries. 35. With regard to the offence of causing bodily harm, the proceedings were continued before the magistrate. A.T. was committed for trial on 28 October 2013. The first hearing was held on 13 February 2014 and A.T. was ordered to pay a fine of 2,000 euros (EUR) on 1 October 2015. 4. The third assault by A.T., against the applicant and her son and the murder by A.T. of his son 36. It can be seen from the case file that on 18 November 2013 A.T. received notice of his committal for trial before the magistrate ’ s court on 19 May 2014 for inflicting bodily harm on the applicant in August 2012. 37. In the night of 25 November 2013 the applicant sought the intervention of the police in connection with a dispute with her husband. 38. The police made the following findings in their report : on their arrival they saw that the bedroom door had been broken down and that the floor was strewn with bottles of alcohol. The applicant had stated that her husband was under the influence of alcohol and that she had decided to call for help because she thought he needed a doctor. She told them that she had lodged a complaint against her husband in the past, but that she had subsequently changed her allegations. The applicant ’ s son had stated that his father had not been violent towards him. Neither the applicant nor her son had shown any traces of violence. 39. A. T. was taken to hospital in a state of intoxication. In the night he left the hospital and went to an amusement arcade. 40. While he was walking along the street he was arrested by the police for an identity check at 2. 25 a.m. 41. The police report shows that A.T. was in a state of intoxication and had difficulty keeping his balance and that the police had let him go after stopping and fining him. 42. At 5 a.m. A.T. entered the family flat armed with a 12 cm kitchen knife with the intention of assaulting the applicant. The applicant ’ s son attempted to stop him and was stabbed three times. He died of his wounds. The applicant tried to escape but A.T. succeeded in catching up with her in the street, where he stabbed her several times in the chest. 5. Criminal proceedings instituted against A.T. for grievous bodily harm 43. On 1 October 2015 A.T. was convicted by the magistrate ’ s court of inflicting grievous bodily harm on the applicant, on account of the injuries he had inflicted on her during the incident in August 2012, and sentenced to a fine of EUR 2 ,000. 6. Criminal proceedings instituted against A.T. for the murder of his son, the attempted murder of the applicant and ill-treatment of the applicant 44. On an unspecified date in November 2013 the investigation into acts of ill-treatment was reopened. 45. A.T. asked to be tried in accordance with the summary procedure ( giudizio abbreviato ). 46. On 8 January 2015 A.T. was sentenced to life imprisonment by the Udine preliminary hearings judge for the murder of his son and the attempted murder of his wife and for the offences of ill-treatment of his wife and daughter and unauthorised possession of a prohibited weapon. He was also ordered to pay the applicant, who had applied to join the proceedings as a civil party, EUR 400,000 in damages. 47. With regard to the ill-treatment, the preliminary hearings judge, after hearing witnesses and the applicant ’ s daughter, considered that the applicant and her children had been living in a climate of violence. He found that A.T. had been habitually violent and held that, apart from the daily harassment suffered by the applicant, there had been four violent episodes. He added that A.T., at his trial, had confessed to experiencing feelings of hatred towards his wife. According to the preliminary hearings judge, the events of 25 November 2013 were the consequence of an attempt by the applicant to get away from A.T. 48. On 22 May 2015 A.T. appealed against the judgment. It can be seen from the file that in a judgment of 26 February 2016 the judgment was upheld by the Court of Appeal. However, neither of the parties annexed the judgment to their observations. | This case concerned the conjugal violence suffered by the applicant, which resulted in the murder of her son and her own attempted murder. |
499 | Obligation to pay contributions under social-welfare scheme | I. Particular circumstances of the case 6. The applicant is a Netherlands national born in 1924 and resident in Amstelveen. He has never been married and has no children. 7. On 30 September 1987 the Inspector of Direct Taxes sent the applicant an assessment of his contributions for the year 1985 under various social security schemes, including the General Child Care Benefits Act ( Algemene kinderbijslagwet, see paragraph 21 below). 8. The applicant filed an objection ( bezwaarschrift - see paragraph 27 below) to this assessment on 21 October 1987. He based his argument on section 25 (2) of the General Child Care Benefits Act and on the royal decree of 27 February 1980 ( Staatsblad (Official Gazette) no. 89 ("the royal decree") - see paragraph 23 below), by virtue of which unmarried childless women of 45 years or over were exempted from the obligation to pay contributions under the General Child Care Benefits Act; in his view the prohibition of discrimination such as was contained in Article 1 of the Netherlands Constitution (see paragraph 18 below) and Article 26 of the International Covenant on Civil and Political Rights (see paragraph 20 below) implied that this exemption should be extended to men in the same situation. 9. The applicant later received similar assessments for the years 1986, 1987 and 1988, against which he likewise filed objections. The Inspector reserved his decision on these, pending the outcome of the proceedings relating to the 1985 assessment. 10. On 25 November 1987 the Inspector issued a decision declaring the first objection unfounded on the ground that "under national legislation the application of section 25 (2) of the General Child Care Benefits Act is not possible since the person by whom the contributions are due is not female". 11. The applicant appealed to the Amsterdam Court of Appeal (see paragraph 27 below) on 29 December 1987. Relying on Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1) and Article 26 of the International Covenant on Civil and Political Rights, he claimed that the provisions of the royal decree should be given a "gender neutral" construction. Section 25 (2) of the General Child Care Benefits Act and the royal decree were in his view discriminatory. The Inspector lodged a written defence. Thereafter the applicant filed a reply, and the Inspector a rejoinder. 12. The exemption enjoyed by unmarried childless women of 45 or over from the obligation to pay contributions under the General Child Care Benefits Act was abolished by the Act of 21 December 1988 ( Staatsblad 1988, no. 631), with effect from 1 January 1989. 13. The Amsterdam Court of Appeal gave its judgment on 6 October 1989, dismissing the applicant ’ s appeal and confirming the Inspector ’ s decision. Its reasoning included the following: "5.4. Neither the wording of the impugned provision nor its drafting history indicates that the legislature intended to discriminate or has caused discrimination. In particular, it cannot be said that the legislator wished to discriminate against unmarried men who had reached the age of 45 before the beginning of the calendar year and were not entitled to child care benefits under the General Child Care Benefits Act vis-à-vis comparable women. 5.5. By means of the provision set out in section 25 (2) of the General Child Care Benefits Act, the legislature merely wished to take due account of the difference in factual situation between women over 45 and men over 45 with regard to having (begetting or raising) children. 5.6. The fact, as stated by [the applicant], that it appears from statistical data that older men only rarely beget children makes no difference to what is considered in paragraph 5.5 above. The legislature has assessed the factual situation of the group of women referred to in section 25 (2) of the General Child Care Benefits Act differently on the basis of the possibility of their having children and not on the basis of the reality of their having children. Older men ’ s possibilities of procreating are fundamentally different from those of older women, in the sense that this difference is considerable irrespective of these statistical data. 5.7. The difference in treatment opposed by [the applicant] is therefore not based on a difference in sex, but on a difference in factual situation. This conclusion is not altered by the fact that this difference (partly) coincides with the difference between the sexes. The impugned provision does not therefore contravene the prohibition of discrimination. 5.8. It cannot be excluded in principle that the fairness and acceptability of the General Child Care Benefits Act benefit by taking account of these differences in factual situation. It not being for the Court of Appeal to rule on the intrinsic value of a statute, the Court cannot consider whether the differences in factual situation entirely justify the exemption in question. 5.9. Even if it were correct, contrary to what is set out above, that the impugned provision contravenes the prohibition of discrimination, this would not benefit [the applicant]. The Court of Appeal would not be at liberty to extend the exemption in question to one or more groups of individuals for whom the legislature definitely did not intend it. If the argument based on prohibition of discrimination should have to be accepted in principle, this could only lead to a finding that the impugned provision had no binding force. This would not be in [the applicant ’ s] interest." 14. The applicant filed an appeal on points of law ( beroep in cassatie - see paragraph 27 below) to the Supreme Court ( Hoge Raad ) on 7 December 1989. In so far as is relevant here, he challenged the above reasoning of the Court of Appeal relying on Article 14 of the Convention (art. 14) and Article 26 of the International Covenant on Civil and Political Rights of 1966. The Inspector responded in writing. 15. The Supreme Court dismissed the appeal on 11 December 1991. Its reasoning included the following: "3.4. The third ground of appeal [ middel ] argues that the principle set out in section 25 (2) of the General Child Care Benefits Act violates Article 26 of the International Covenant on Civil and Political Rights and Article 14 of the Convention (art. 14). To the extent that the ground of appeal relies on the latter provision (art. 14), it must fail as the present case does not relate to any of the rights and freedoms enumerated in the Convention. ... 3.6. In view of, inter alia, the drafting history of the provision in question the limitation of the exemption set out in section 25 (2) of the General Child Care Benefits Act to women of 45 and over was inspired by the idea that it would not be reasonable to levy contributions under the General Child Care Benefits Act from these women, since it had to be assumed that a great number of them would never have children and were prevented by social and - unlike men - biological factors from ever bearing children. The Supreme Court need not consider the question of whether the above-mentioned fact constitutes an objective and reasonable justification for exempting only women of 45 and over from paying contributions under the General Child Care Benefits Act. Since this difference in treatment between (unmarried) women and men, which in any case, given their biological differences, cannot be said to lack all reasonable ground, has been removed with effect from 1 January 1989 by the abolition of the exemption by the Act of 21 December 1988 ( Staatsblad 1988, no. 631) there is no reason for a court to intervene by declaring the exemption applicable, for the year in question, to unmarried men of 45 and over. ..." 16. After the delivery of this judgment the Inspector issued decisions dismissing the applicant ’ s objections to the assessments for the years 1986, 1987 and 1988 (see paragraph 9 above). 17. According to figures published by the Netherlands Central Bureau for Statistics ( Centraal Bureau voor de Statistiek ), the number of "legitimate" children born alive in the Netherlands to fathers aged 45 or over in 1985 was 2,341, or approximately 1,43 % of the total number of "legitimate" children born that year (163,370). The corresponding figure for mothers aged 45 or over was 177, or approximately 1 per thousand. No figures are available for children born out of wedlock. | The applicant, who had never been married and had no children, alleged that he had been the victim of discriminatory treatment with regard to the obligation to pay contributions under the General Child Care Benefits Act. He claimed that the levying of contributions under the General Child Care Benefits Act from him, an unmarried childless man over 45 years of age, constituted discrimination on the ground of gender, given the fact that at the time of the events complained of no similar contributions were exacted from unmarried childless women of that age. |
511 | The Christine Goodwin | I. THE CIRCUMSTANCES OF THE CASE 12. The applicant is a United Kingdom citizen born in 1937 and is a post-operative male to female transsexual. 13. The applicant had a tendency to dress as a woman from early childhood and underwent aversion therapy in 1963-64. In the mid-1960s, she was diagnosed as a transsexual. Though she married a woman and they had four children, her conviction was that her “brain sex” did not fit her body. From that time until 1984 she dressed as a man for work but as a woman in her free time. In January 1985, the applicant began treatment in earnest, attending appointments once every three months at the Gender Identity Clinic at the Charing Cross Hospital, which included regular consultations with a psychiatrist as well as on occasion a psychologist. She was prescribed hormone therapy, began attending grooming classes and voice training. Since this time, she has lived fully as a woman. In October 1986, she underwent surgery to shorten her vocal chords. In August 1987, she was accepted on the waiting list for gender re-assignment surgery. In 1990, she underwent gender re-assignment surgery at a National Health Service hospital. Her treatment and surgery was provided for and paid for by the National Health Service. 14. The applicant divorced from her former wife on a date unspecified but continued to enjoy the love and support of her children. 15. The applicant claims that between 1990 and 1992 she was sexually harassed by colleagues at work. She attempted to pursue a case of sexual harassment in the Industrial Tribunal but claimed that she was unsuccessful because she was considered in law to be a man. She did not challenge this decision by appealing to the Employment Appeal Tribunal. The applicant was subsequently dismissed from her employment for reasons connected with her health, but alleges that the real reason was that she was a transsexual. 16. In 1996, the applicant started work with a new employer and was required to provide her National Insurance (“NI”) number. She was concerned that the new employer would be in a position to trace her details as once in the possession of the number it would have been possible to find out about her previous employers and obtain information from them. Although she requested the allocation of a new NI number from the Department of Social Security (“DSS”), this was rejected and she eventually gave the new employer her NI number. The applicant claims that the new employer has now traced back her identity as she began experiencing problems at work. Colleagues stopped speaking to her and she was told that everyone was talking about her behind her back. 17. The DSS Contributions Agency informed the applicant that she would be ineligible for a State pension at the age of 60, the age of entitlement for women in the United Kingdom. In April 1997, the DSS informed the applicant that her pension contributions would have to be continued until the date at which she reached the age of 65, being the age of entitlement for men, namely April 2002. On 23 April 1997, she therefore entered into an undertaking with the DSS to pay direct the NI contributions which would otherwise be deducted by her employer as for all male employees. In the light of this undertaking, on 2 May 1997, the DSS Contributions Agency issued the applicant with a Form CF 384 Age Exemption Certificate (see Relevant domestic law and practice below). 18. The applicant's files at the DSS were marked “sensitive” to ensure that only an employee of a particular grade had access to her files. This meant in practice that the applicant had to make special appointments for even the most trivial matters and could not deal directly with the local office or deal with queries over the telephone. Her record continues to state her sex as male and despite the “special procedures” she has received letters from the DSS addressed to the male name which she was given at birth. 19. In a number of instances, the applicant stated that she has had to choose between revealing her birth certificate and foregoing certain advantages which were conditional upon her producing her birth certificate. In particular, she has not followed through a loan conditional upon life insurance, a re-mortgage offer and an entitlement to winter fuel allowance from the DSS. Similarly, the applicant remains obliged to pay the higher motor insurance premiums applicable to men. Nor did she feel able to report a theft of 200 pounds sterling to the police, for fear that the investigation would require her to reveal her identity. III. INTERNATIONAL TEXTS 58. Article 9 of the Charter of Fundamental Rights of the European Union, signed on 7 December 2000, provides: “The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.” | The applicant complained of the lack of legal recognition of her changed gender and in particular of her treatment in terms of employment and her social security and pension rights and of her inability to marry. |
490 | Dismissal on grounds of gender | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1975 and lives in Elazığ. 5. On 19 October 1999 the applicant sat an examination in order to become a public servant. She was successful in the examination and on an unspecified date she was informed by the State Personnel Department attached to the Prime Minister ’ s office that she had been appointed to the post of security officer in the Batman branch of TEDAŞ, the state-run Electricity Company, the first of the five choices that the applicant had made in the course of the examination procedure. 6. On 5 July 2000 the human resources department of the Batman branch of TEDAŞ informed the applicant that she would not be appointed as she did not fulfil the requirements of “being a man” and “having completed military service”. 7. In a letter dated 9 August 2000 and addressed to the Ministry of Energy and Natural Resources, the human resources department of TEDAŞ requested the Ministry to provide a list of new persons to be appointed instead of a number of persons, including the applicant, who could not be recruited for various reasons. As regards the applicant and three other persons, B.U., R.B. and A.O.C., the human resources department of TEDAŞ informed the Ministry that they were women and therefore could not work as security officers. In the letter, it was stated that security officers had the task of protecting depots, switchyards and transformer stations in rural areas far from city centres, against attacks and in case of fire and sabotage. They were obliged to work day and night and to use weapons, including those with long barrels, and physical force in case of an attack. It was therefore considered that women were not suitable for the post of security officer. 8. On 18 September 2000 the applicant lodged an action against the general directorate of TEDAŞ with the Ankara Administrative Court requesting the annulment of the decision of the Batman branch of TEDAŞ with all its financial consequences. In her deposition, the applicant noted that being a man was not a requirement for appointment to the post in question and that she fulfilled all the requirements for that post. The applicant also noted that she had been deprived of the opportunity to be appointed to one of the other four posts that she had indicated following the refusal in question and that she could not sit the examination again in 2000 as she had succeeded in 1999. 9. On an unspecified date the general directorate of TEDAŞ submitted to the administrative court that one of the requirements for the post in question had been declared by the State Personnel Department as “having completed military service” and that therefore only men could be appointed to the post. The applicant, being a woman, could therefore not be recruited as a security officer. 10. On 27 February 2001 the Ankara Administrative Court annulled the decision of the Batman branch of TEDAŞ. The court held that the requirement of “having completed military service” should be considered to apply only to male candidates and that there had been no restriction on women working as security officers in TEDAŞ. The court also noted that another woman, Y.P., who had also brought a case against TEDAŞ for the same reasons as the applicant, had been appointed to the post of security officer after she had lodged the case. 11. Subsequent to the judgment of 27 February 2001, the applicant was offered a contract by the Batman branch of TEDAŞ. On 11 July 2001 she took up her duties. On 1 March 2002 she was transferred to the Elazığ branch of TEDAŞ as her husband lived and worked in that city. 12. On 8 May 2001 TEDAŞ lodged an appeal against the judgment of 27 February 2001, requesting the Supreme Administrative Court to order a stay of execution of the judgment of the Ankara Administrative Court and to subsequently quash it. The representative of TEDAŞ submitted, inter alia, that the announcement of the post of security officers in the Batman branch contained the requirement of “having completed military service” and not “in respect of male candidates, having completed military service”, unlike the post in the Gaziantep branch of TEDAŞ, which first rejected Y.P. According to the lawyer, this expression demonstrated that the post was reserved for male candidates only and that therefore the status of the applicant was different from that of Y.P. 13. On 27 June 2001 the Supreme Administrative Court dismissed the request for a stay of execution. 14. On 31 March 2003 the Twelfth Division of the Supreme Administrative Court quashed the judgment of the Ankara Administrative Court, holding that the requirement regarding military service demonstrated that the post in question was reserved for male candidates and that this requirement was lawful having regard to the nature of the post and the public interest. The high court therefore found that the administration ’ s decision had been in accordance with the law. 15. On 1 August 2003 the applicant requested rectification of the decision of 31 March 2003. In her petition, she submitted that the post of security officer was not reserved for male candidates and that therefore the high court ’ s decision was in breach of the principle of equality. 16. On 17 March 2004 the applicant was dismissed from her post at the Elazığ branch of TEDAŞ. According to the letter sent by the deputy head of the human resources department of TEDAŞ to the Elazığ branch, the applicant ’ s contract was to be terminated on account of the decision of the Supreme Administrative Court dated 31 March 2003. 17. On 22 March 2004 the applicant lodged a petition with the Supreme Administrative Court. She maintained that she had lost her post and requested the high court to order a stay of execution of the decision of 31 March 2003. She noted, in her petition, that the post in question should not be reserved only for men, since certain acts, such as a body search on women, should be carried out by female officers. 18. On 16 April 2004 her request was dismissed by the Twelfth Division. 19. On 11 October 2005 the Twelfth Division of the Supreme Administrative Court further dismissed the applicant ’ s request for rectification. 20. On 21 February 2006 the Ankara Administrative Court dismissed the applicant ’ s case, taking into consideration the decision of the Supreme Administrative Court. 21. On 24 April 2006 the applicant appealed. In her deposition she noted that there were three other similar cases brought against TEDAŞ by female candidates for the same reasons as hers and that one of these cases, brought by R.B., who had also not been appointed to a post of security officer in the Batman branch of TEDAŞ on the same grounds as those applied to the applicant, was pending before the Supreme Administrative Court ’ s General Assembly of Administrative Proceedings Divisions. She further noted that she would have lost the opportunity to apply for another public post, had the high court decided in favour of TEDAŞ. 22. On 6 December 2007 the Supreme Administrative Court ’ s General Assembly of Administrative Proceedings Divisions ( Danıştay İdari Dava Daireleri Genel Kurulu ) issued a decision in favour of R.B. The General Assembly held that the requirement of “having completed military service” should be considered to apply only to male candidates and that the refusal to appoint R.B. to the Batman branch of TEDAŞ had therefore been unlawful. 23. On 12 February 2008 the Twelfth Division of the Supreme Administrative Court upheld the judgment of 21 February 2006, holding that the latter was in accordance with the law. In its decision, the court noted the content of the decision of the Supreme Administrative Court ’ s General Assembly of Administrative Proceedings Divisions but did not comment on it. 24. On 17 March 2008 the applicant requested rectification of the decision of 12 February 2008, maintaining that the decision in question constituted a breach of the principle of equality and the right to a fair hearing since the Supreme Administrative Court ’ s General Assembly of Administrative Proceedings Divisions had ruled in favour of R.B. She further claimed that there had been discrimination, since pursuant to the Constitution no distinction could be made in public employment. 25. On 17 September 2008 the Twelfth Division of the Supreme Administrative Court dismissed the applicant ’ s request. | This case concerned a dismissal from public sector employment – a State-run electricity company – on grounds of gender. The applicant had worked as a security officer for almost three years before being dismissed in March 2004 because she was not a man and had not completed military service. She alleged that the decisions given against her in the domestic proceedings had amounted to discrimination on grounds of sex. She also complained about the excessive length as well as the unfairness of the administrative proceedings to dismiss her. |
96 | Withdrawal of parental authority, placement of children, and disabled parents’ access rights to their children | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants, husband and wife, were born in 1957 and 1956 respectively and live in Romny. A. The applicants’ family circumstances and living conditions 6. Both applicants have been blind since childhood. 7. From 1990 to 2006 the first applicant was officially employed by an enterprise run by the Ukrainian Society of the Blind (“the USB”; Українське товариство сліпих ), a public organisation subsidised by the State to provide assistance to blind people. However, as appears from his employer’s statement that between 2001 and 2006 the first applicant actually worked at most a few days a year. In 2006 the first applicant reached retirement age and was dismissed on redundancy. The second applicant stopped working in the early nineties. 8. Since 1997 the family have officially occupied two two-bedroom flats owned by the State, although the applicants claim that they have used only one of them. The flats were supplied with oven heating, but have no drains or hot running water. 9. The applicants have given birth to seven children: O.S. born in 1991, M.S. born in 1992, Y.S. born in 1993, P.S. born in 1995, S.S. born in 1997, K.S. born in 1998 and T.S. born in 2001. 10. In February 1998 four of the children (M.S.,Y.S., P.S. and S.S.) were taken into public care on account of the applicants’ inability to provide them with adequate care and upbringing. The children were initially placed in various institutions; however, it appears that currently all of them, except P.S., who has been adopted with the applicants’ consent, reside in the Romny Boarding School ( Роменська загальноосвітня школа-інтернат І-ІІІ ступенів для дітей-сиріт і дітей, позбавлених батьківського піклування ім. О.А. Деревської ). 11. In 1997 O.S., the eldest son, who remained in the applicants’ care, was also admitted to the Romny Boarding School. The parents took him home for weekends and vacations. On several occasions the school administration complained to the municipal authorities that O.S. habitually ran away from school, wandering, collecting empty bottles and begging. No specific details or incidents were given. 12. Between 1998 and 2004 representatives of the Municipal Juvenile Service ( Служба у справах неповнолітніх ) and the Tutelage Board ( Орган опіки та піклування ), in cooperation with several other municipal authorities, visited the applicants’ flat on some ten occasions and drafted reports concerning the suitability of the living conditions for the upbringing of the children who remained in their care. According to these reports, the conditions were grossly unsatisfactory. In particular, the premises badly needed renovation; they were cold, dirty, full of cob-webs and smelled of human excrement. Clothes and rags were scattered around the floor and on the beds. Dishes were not washed. Bedding, if present, was very dirty. The baby’s mattress had rotted in the middle because of large quantities of urine. The baby’s cot was unusable. No food was found in the kitchen. The children were dirty and dressed unseasonably. One report also noted that T.S., the smallest child, had a skin rash. According to another report “the children were sick”, although no symptoms were noted. On one occasion the children would not let the inspectors in as the parents had gone out to buy milk and the children were alone with the oldest child, O.S. 13. On several unspecified dates between 1998 and 2004 the USB provided the applicants with various assistance of unrecorded amounts, including firewood, clothing, shoes and alimentary products (such as sugar, potatoes, grain and flour). In 1998 the USB also arranged for local student volunteers to do some renovations on the flat: in particular, to whitewash the walls and to paint the floor and windows. 14. On an unspecified date the applicants requested the municipal authorities to equip their household with natural gas in order to improve their heating, ability to cook and access to hot water. On 10 January 2000 they were informed that their neighbours had strongly objected to this, finding it dangerous in view of the applicants’ blindness and the presence of small children. Moreover, it was technically unfeasible. 15. On 22 February 2000 the applicants requested the Chief of the Municipal Department for Social Assistance to assist them in finding a suitable job for the first applicant. There is no information as to the ensuing response. 16. On 22 February 2000 the Juvenile Service requested the Head of the Municipal Women’s Committee to provide humanitarian assistance to the applicants’ family. There is no information as to the ensuing response. 17. On 16 February 2001 K.S. was examined by a doctor, who recorded that his speech development was delayed and he appeared to be suffering from first-stage anaemia. The doctor further noted that the child’s stomach was soft and not bloated; he had a normal temperature, displayed no signs of malnutrition or skin rash, no enlargement of the lymph nodes or the liver, no redness in the throat and no abnormalities in urination or defecation. 18. On 27 February 2001 the applicants received 150 Ukrainian hryvnyas (UAH) [1] in financial assistance to pay for electricity. 19. On 8 July 2003 the Municipal Committee for Social Protection and Prevention of Juvenile Delinquency warned the applicants that they needed to improve the conditions in which their children were being brought up. 20. On an unidentified date the administration of the kindergarten attended by K.S. since 2003 issued a report on his development, stating that K.S. had attended the establishment regularly and that the parents brought him to school and took him home on time. The second applicant was reported to be actively interested in K.S.’s affairs and generally responsive to remarks by teaching and medical staff. The child was reported to be somewhat stubborn and inactive during classes, but eager to communicate with other children. On the other hand, K.S.’s classmates were reported to have been at times appalled by his untidy looks and dirty clothes. 21. In December 2003 the Romny Children’s Health Centre certified that O.S. and K.S. had been fed at school and that they had also been provided with vouchers for summer camps, as they had been recorded as having first-stage anaemia. 22. On an unspecified date the first applicant instituted court proceedings against his employer, seeking to collect salary arrears and various compensatory payments, including compensation for idle time, for an unspecified period ending on 31 November 2004. On 3 November 2004 the Romny Court discontinued the proceedings in view of a friendly settlement between the parties, pursuant to which the first applicant was to be paid UAH 1,500 [2]. On 5 January 2006 the Romny Court further awarded the first applicant UAH 1,110 [3] in various compensatory payments in respect of the subsequent idle period. B. Court proceedings for placement of O.S., K.S. and T.S. in public care 23. On 5 January 2004 the Romny Prosecutor initiated, at the request of the Juvenile Service, court proceedings for the placement of O.S., K.S. and T.S. in public care. 24. On 2 December 2004 the court, having heard the applicants, the Juvenile Service and the Tutelage Board, allowed the prosecutor’s claim. The relevant part of the judgment stated as follows: “ The defendants [the applicants] do not take care of or bring the children up properly. The children are dirty, hungry, and often stay at home alone... The representatives of the Juvenile Service and the Tutelage Board supported the claim and described the horrible ( жахливі ) living conditions of the defendants’ family, dirt, insufficient sanitary arrangements ( антисанітарія ), very poor financial state.... ... According to a note from the children’s hospital of 16 December 2003, K.S. and O.S. are registered with the health centre due to first-stage anaemia... The court established that the living conditions of the children O.S., K.S. and T.S. are dangerous for their lives and health and moral upbringing, in particular the children are dirty, hungry, dressed unseasonably, are registered with the health centre; O.S. wanders, picks up empty bottles and begs, thus the children should be removed from the defendants and transferred to the Tutelage Board...” 25. The applicants appealed against this decision. They stated that the Family Code of Ukraine contained limited grounds for removal of children from their parents – evasion of child maintenance, cruelty, chronic alcoholism or drug addiction of parents, exploitation of children, involving them in begging and vagrancy. They insisted that they had never done any such things and that there was no proof that the conditions of their children’s upbringing, albeit basic, were in fact dangerous. The applicants further explained that the fact that they could not provide the children with better conditions was only due to their blindness. They claimed that as people with a disability they were discriminated against and underlined that the State authorities should provide their family with the necessary support instead of removing their children. The applicants also referred to Article 8 of the Convention. 26. On 14 February 2005 the Sumy Regional Court of Appeal dismissed their appeal. It repeated the conclusions of the first-instance court that leaving the children with the applicants would endanger the children’s life, health and moral upbringing. It stated, inter alia: “The fact that the defendants were visually handicapped had no impact on the court’s conclusions. The applicants did not prove that the State authorities created disadvantageous conditions for their life. Quite the opposite, as it follows from the case file, the State authorities acted within their power to help them. According to Article 8 of the European Convention of Human Rights, the State can interfere with private and family life for the protection of health or morals, or for the protection of the rights and freedoms of others. Bearing this in mind and considering the facts of the case, the court comes to the conclusion that there was no violation of Article 8 of the Convention.” 27. The applicants appealed in cassation, raising essentially the same arguments as in their previous appeal. On 22 March 2006 the Supreme Court of Ukraine dismissed the appeal in cassation. The applicants’ children were not heard at any stage of the proceedings. 28. The judgment was enforced on 23 June 2006. Eventually, K.S. was placed in a school in Romny, while O.S. and T.S. were placed in a school in Sumy (some one hundred kilometres from Romny). According to submissions by an educational social worker ( соціальний педагог ) retained by O.S.’s new school dated June 2007, O.S. continued to run away from school, wandered, and often needed to be searched for. | This case concerned the placement of children in public care on ground that their parents, who have both been blind since childhood, had failed to provide them with adequate care and housing. The domestic authorities based their decision on a finding that the applicants’ lack of financial means and personal qualities endangered their children’s life, health and moral upbringing. Notably they were unable to provide them with proper nutrition, clothing, hygiene and health care or to ensure that they adapt in a social and educational context. The applicants had appealed against the decision unsuccessfully. |
899 | Persons arrested or under criminal prosecution | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant company is the owner and publisher of the weekly magazine News and has its registered seat in Vienna. A. Background of the case 8. In June 2000 the Vienna City Counsel for Cultural Affairs ( Kulturstadtrat ), Mr Marboe, authorised the performance of Mr Schlingensief's “Container Action” during the Vienna International Festival ( Wiener Festwochen ). The staging took place in a container where actors figured as asylum seekers in Austria who were successively voted out for expulsion by the public. This container action met severe criticism by the public, inter alia, by members of the Austrian Freedom Party ( FPÖ ). 9. On 30 June 2000 the newspaper Kurier published an open letter to Mr Marboe written by the Austrian artist André Heller, in which he thanked and congratulated Mr Marboe for having allowed Mr Schlingensief's performance. One passage of the open letter read as follows: “ ... It is not to be expected that the Haiders, Böhmdorfers, Westenthalers, Riess -Passers, Mölzers, and whatever else these spiritually depraved political upstarts and their various beer-tent entertainers may be called, will have the slightest awareness of how embarrassing, dastardly and frequently absurd they are. ... (German) ... Man kann von den Haiders, Böhmdorfers, Westenthalers, Riess-Passers, Mölzers und wie diese seelenhygienisch heruntergekommenen Politemporkömmlinge und ihre sonstigen Bierzeltanimateure heißen mögen, nicht die geringste Einsicht in ihre eigene Peinlichkeit, Niedertracht und häufige Absurdität verlangen. ... ” 10. Subsequently the FPÖ politicians quoted in this letter, except for Mr Mölzer, filed private prosecution proceedings for defamation against Mr Heller, which they withdrew later on. 11. On 7 September 2000 the applicant company published the following article on page 46 of its issue no. 36/00: “ Lawsuit against André Heller FPÖ grandees sue critical artist André Heller. They are not'spiritually depraved', they maintain. Böhmdorfer is suing Heller. He is not alone, though: Jörg Haider, Peter Westenthaler and Susanne Riess -Passer have all launched a powerful attack on André Heller with the assistance of the law firm Böhmdorfer-Gheneff Rechtsanwälte KEG. The reason is that the artist André Heller, a critic of the Government, wrote an'open letter'in the Kurier lavishing praise on the Vienna city councillor for cultural affairs, Peter Marboe (ÖVP). Shortly before this, however, Peter Marboe had allowed Schlingensief's provocative container to be installed outside the Vienna State Opera House as a spectacle for the International Festival – despite bitter opposition from the Kronen Zeitung, a furious Vienna FPÖ and the Minister of Justice, Dieter Böhmdorfer, who threatened prosecution. André Heller wrote in the Kurier at the time:'It is not to be expected that the Haiders, Böhmdorfers, Westenthalers, Riess -Passers, Mölzers, and whatever else these spiritually depraved political upstarts and their various beer-tent entertainers may be called, will have the slightest awareness of how embarrassing, dastardly and frequently absurd they are'(end of quotation). Böhmdorfer & Co. will not stand for this humiliation. They have instructed Böhmdorfer-Gheneff KEG, with which the Minister of Justice severed ties in March, to file a peppery lawsuit against Mr Heller. ' Dastardly'. In the private lawsuit it was stated that the allegations made in Mr Heller's letter were'untrue'and that the'unsubstantiated accusation'that Böhmdorfer & Co. were “ dastardly ” amounted to'what would appear to be an absolutely classic case of defamation within the meaning of the Criminal Code'. The same applied to the expression'spiritually depraved political upstarts'. Huberta Gheneff-Fürst, now the sole partner of the law firm to which the current Minister of Justice Mr Böhmdorfer still belonged six months ago, has called for André Heller to be given'punishment commensurate with his guilt'as the person responsible for the deceitful smear. Last stop Maurer. As has happened in a number of similar cases, André Heller could be acquitted of defamation at first instance, since an artist really should have the right to express strong criticism. But at final instance Judge Ernest Maurer, known to be FPÖ-friendly, could come into the frame. Ernest Maurer was appointed to the Austrian Broadcasting Corporation's board of governors by the FPÖ, and that creates at least an appearance of bias. Suspicion. Even the President of the Judges'Association, Barbara Helige, is somewhat astonished at Ms Gheneff-Fürst, especially as the lawyer persists in retaining'Böhmdorfer'in the law firm's name:'If a former partner of the current Minister of Justice is stressing how important it is for Böhmdorfer's name to appear on the law firm's notepaper, the uninformed observer will suspect there is something political behind it.' Indeed. ” Above the article a photo showing Mr Westenthaler standing between Mr Haider and Mr Böhmdorfer was published. B. Proceedings for forfeiture 12. Mr Westenthaler, one of the FPÖ politicians concerned, filed a request for forfeiture of the applicant company's issue no. 36/00 of 7 September 2000. 13. On 9 October 2000 the St. Pölten Regional Court ( Landesgericht ), after having held a hearing, granted this request pursuant to section 33 § 2 of the Media Act and ordered the applicant company to pay the costs of the proceedings. 14. The court noted in its reasoning that the quoted passage consisted of value statements which insulted the plaintiff within the meaning of Article 115 of the Criminal Code ( Strafgesetzbuch ). The fact that the article merely quoted the impugned statements and had reported in a neutral manner about the criticism at issue was irrelevant for the proceedings under section 33 of the Media Act. In the light of Article 10 of the Convention, the court nevertheless expressed doubts as to the constitutionality of section 33 of the Media Act as it did not provide for protection of a correct quotation of an incriminated passage at stake in pending defamation proceedings. Thus, in the court's view, comprehensive reporting and criticism about pending defamation proceedings would be rendered practically impossible. 15. The applicant company appealed, arguing that the forfeiture infringed its right to freedom of expression under Article 10 of the Convention. 16. On 4 April 2001 the Vienna Court of Appeal ( Oberlandesgericht ) upheld the Regional Court's decision in essence. The court first noted that the article showed by its appearance and structuring that it did not intend neutral reporting. The court referred in this regard to the repeated hints to Mr Böhmdorfer, the allusions to the political motivations and misuse of the law-suits and the passage concerning the outcome of the defamation proceedings before the Court of Appeal, which in particular expressed that an artist should have the right to sharp criticism. The court further noted that the passage at issue had to be assessed in the light of the article as a whole. In this regard, the court found that the reporting style used was typical for News, namely the use of special layout, highlighting certain words in bold or italics and adding pictures etc., which aimed at influencing the reader unconsciously. The first part of the article, including the passage at issue, might still be regarded as objective reporting when being assessed isolated. Furthermore, however, the subtitle of the subsequent passage, namely the word “dastardly” written in bold, caught the reader's eye and focused his mind in an unambiguous direction, incriminating the plaintiff. Even though the subsequent passage merely dealt with the contents of the law-suits, it conveyed to the reader that the plaintiff was in fact dastardly as some words were emphasised in italics and thereby attained independent significance. The court concluded that the article had not limited itself in objective citation. The first instance court had falsely classified the article as reporting on court proceedings as such reporting presumed the existence of court trials whereas in the present case there had only been a private prosecutors'action. When balancing the interests involved, i.e., the right to freedom of expression of the applicant company on the one hand, and the interest of the plaintiff not to be defamed, on the other, the court found in favour of the latter. It noted that even accepting that there was a public interest in the subject matter at issue, the allegation against the plaintiff, namely that he had a dastardly character without having provided any factual basis for this assertion, defamed him within the meaning of Article 111 of the Criminal Code and was worthless information for public debate. Therefore, it exceeded the limits of lawful criticism under Article 10 of the Convention. Thus, the interference with the applicant company's right to freedom of expression, namely the forfeiture of the above issue, was necessary and also proportionate to the aim pursued. This all the more as forfeiture concerned in general only older issues with no relation to the present actuality and with merely historical interest. 17. Finally, the Court of Appeal did not share the Regional Court's concern as regards a possible unconstitutionality of section 33 of the Media Act. The court noted that, in any way, the criteria set up under Article 10 of the Convention had to be considered when assessing whether or not a statement concerned established an offence within the meaning of Article 111 of the Criminal Code. 18. This decision was served on the applicant company's lawyer on 26 April 2001. | The case concerned an injunction against the applicant, a publishing company, prohibiting it from publishing photographs of a businessman in the context of reports on investigations against him on the suspicion of large-scale tax evasion. A widely-read weekly magazine owned by the applicant company had printed an article on the investigation in progress, accompanied by a photograph of the businessman. |
93 | Taking of children into care | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1966 and lives in Dublin. She is married to T. 8. On 8 February 2002 she went to Seclin Hospital, in France, together with her mother and a French lawyer, to request anonymous registration of the forthcoming birth of her child ( accouchement sous X ). 9. She was admitted to the maternity ward on 17 February 2002, and on 18 February 2002 she gave birth to a girl, K., from an extramarital relationship with Mr Byrski. 10. On 19 February 2002 she had an interview lasting half a day with the social services, in the presence of her mother and a nurse who had been asked to act as an interpreter by the hospital. On the same day she signed a record of the child ’ s placement in State care in accordance with Article L. 224-5 of the Social Action and Families Code, handing over a folder intended for the child, which contained a letter, photographs and administrative documents. 11. In the record she indicated that she wished to have the child taken into State care, to request secrecy and to give her consent to adoption under Article 348-3 of the Civil Code. She stated that the child was born out of wedlock and was not recognised by the father. 12. The section entitled “Reasons for the placement” contained the following details : “[The applicant] wishes to keep secret the reasons why she is giving her child up for adoption. She would prefer to hand us the attached documents, which will be released to the child at her request on reaching the age of majority (letter, photos, official documents). Secrecy has been requested purely to ‘ protect her baby ’ from the violent and unbalanced biological father.” 13. The section entitled “Information on the placement” stated: “ We have informed her of the following : ... (3) Time-limits and conditions for return of the child: – a child who is claimed back within a period of two months by the parent who entrusted the child to the Child Welfare Service will be returned to that parent without any further formalities ( Article L. 224-6, paragraph 2, of the Social Action and Families Code ). – if the child has a second parent who did not entrust him or her to the service and who claims the child back within a period of six months, the child will be returned to that parent without any further formalities ( same Article ). – once these periods have expired ( two months if the sole parent or both parents entrusted the child to the service; six months if the second parent did not entrust the child to the service), an application for judicial review of the child ’ s placement in State care may be lodged, within thirty days from the date of the formal registration, with the tribunal de grande instance ( Article L. 224-8 of the Social Action and Families Code ). – beyond these time-limits: * if the child has been placed for adoption, any application to have the child returned will be inadmissible (Article 352 of the Civil Code) ... (6) Conditions for withdrawal of consent to adoption (Article 348-3, paragraphs 2 and 3, of the Civil Code) We have given her the following : – a notice setting out the effects of placement in State care and of consent to adoption and the conditions for recovery of the child and withdrawal of consent; – a model letter requesting the return of the child and/or withdrawing consent to adoption, if consent has been given.” 14. On the same day (19 February 2002) the applicant gave her consent to the child ’ s adoption. The form of consent stated, inter alia : “I ... certify that I have been informed: ... 2. about the effects of consent to adoption, namely: – that the placement is secret, – that I forfeit all my rights over the child, – that placement for adoption constitutes a bar to any recognition, declaration of filiation or application for recovery. 3. that this document will become FINAL after a period of TWO MONTHS, on 20 April 20 02, and that during this period the child may be returned to me in accordance with the prescribed procedures for withdrawal of consent (Article 348-3, paragraphs 2 and 3, of the Civil Code). I hereby declare that I formally consent to the adoption of my child ..., leaving the choice of the adopter to the Child Welfare Service. I acknowledge that I have received: – a notice setting out the time-limits and conditions for the return of my child, – a model letter for withdrawal of consent to adoption and to the record of the child ’ s placement in State care.” 15. On 20 February 2002 the applicant had a further interview lasting half a day with the social services, in the presence of a doctor acting as an interpreter, during which, at her request, various matters relating to the record signed the previous day were discussed. 16. On 7 May 2002, after approval had been given by the Family Council, the chairman of the Nord département council, as the official guardian of children in State care, placed K. in the care of Mr and Mrs L.- B. with effect from that date with a view to her full adoption. 17. In the meantime, Mr Byrski, the child ’ s biological father, had applied to the Dublin Circuit Family Court for recognition of his rights over the child. In decisions of 19 July and 14 and 28 August 2002 the Circuit Family Court directed that the adoption process in France should not proceed any further, that the name and a photograph of the child were to be sent to Mr Byrski and that its decisions were to be forwarded to the Nord département council and the French social services. 18. On 25 and 26 July 2002 the applicant went to the hospital ’ s maternity ward and subsequently to the French social services, seeking the return of the child. According to a note drawn up by the social services, her request was based on two reasons: firstly, the biological father had learned of the child ’ s birth in the meantime and had brought an action in Ireland, and secondly, she had managed to persuade her husband to recognise the child. Her request was refused because the two-month time-limit for withdrawing consent had expired. 19. The applicant then applied to the Lille tribunal de grande instance, seeking the annulment of the decision to give the child up and an order for her return. She submitted that the consent she had given on 19 February 2002 had been invalid on account of the family pressure exerted on her and because she had not realised the consequences of registering the birth anonymously, since the process had been explained to her without an interpreter being present. She argued that French law contravened Articles 13 and 14 of the Convention. 20. The child ’ s biological father, Mr Byrski, intervened in the proceedings. 21. In a judgment of 31 October 2002 the court dismissed the applicant ’ s claims, holding as follows: “In support of her application for the annulment of the decision to give up the child born on 18 February 2002 and for the child ’ s return, Ms Kearns alleges that an error was committed as to the meaning and scope of the document of 19 February 2002. Ms Kearns, an Irish national living and working in Dublin, came to the maternity ward in Seclin to give birth on 18 February 2002. On that occasion she expressed the wish for her admission and her identity to be kept secret. The exercise by any woman of this right, which is enshrined in Article 341-1 of the Civil Code and which the legislature has to date had no intention of reconsidering, is governed by the provisions of Article L. 222-6 of the Social Action and Families Code, as amended by the Act of 22 January 2002. It appears from the evidence before the court ... that at least two lengthy interviews were held in order to explain to this woman the conditions and effects of anonymous registration of a birth. These interviews took place in the presence of English speakers, and Ms Kearns, who chose to come to France to give birth, cannot expect the social services to have offered anything more in this respect, particularly not the presence of an official interpreter, which is not provided for or required by any statutory instrument. Furthermore, it appears from the proceedings ... and from the written submissions summarising her counsel ’ s address ... that Ms Kearns was taken to hospital by a lawyer; she had therefore clearly sought legal advice prior to the birth. Accordingly, no matter what psychological state the applicant may have been in, like any woman opting to give birth in these circumstances, it appears that Ms Kearns was nevertheless fully aware of both the immediate and the future implications of her actions and decisions. She thus acted quite consciously in having the birth registered anonymously and giving the child up to the social services to be taken into State care, and there are no grounds for arguing that her intellectual faculties were impaired or that the consent was invalid in any way; moreover, the question of consent is not applicable from a civil - status perspective. In addition, as regards the formal propriety of the document of 19 February 2002, once a child is entrusted to the social services, the latter assume a number of obligations, including the provision of information ... It appears from the record of the child ’ s placement, which contains entries whose existence is not disputed, that the social services fulfilled their obligation to provide information on a child ’ s placement in State care and the ensuing legal effects. Such information was, moreover, provided in English, and the notice and model letter requesting the return of the child were indeed given to Ms Kearns. Furthermore, Ms Kearns fully understood the meaning and scope of this information since she left documents for the child in the event that the latter expressed the wish to discover her origins at a future date. Ms Kearns clearly expressed her wish that the child should never be able to have legal ties to her. Moreover, she did not withdraw her consent within the two-month period. It should be noted in this connection that this right is strictly personal; accordingly, no action by a third person may be treated as an action to withdraw consent, that being the sole prerogative of the mother, or interrupt the relevant period. Accordingly, there are no grounds for declaring null and void the record of 19 February 2002, which served as an entirely valid basis for the placement in State care (first provisionally and later with final effect) of the child born on 18 February 2002 with no established parentage ... Since the mother did not apply for the return of the child within two months after giving her up, the child, who has no legally established parentage, was able to be placed with foster parents by the State authorities with a view to her adoption under Article 351 of the Civil Code. Such placement for adoption, by virtue of the provisions of Article 352 of the Civil Code, constitutes a bar not only to the return of the child to the mother but also to any declaration of filiation or recognition. The first ground of appeal must therefore be declared ineffective. Ms Kearns further alleges a violation of Articles 13 and 14 of the European Convention on Human Rights. As stated above, Ms Kearns gave birth ... while wishing to keep the birth and her identity secret, a right enshrined in Article 341-1 of the Civil Code and given effect by the Social Action and Families Code. More generally, these Articles govern the conditions for giving up a child, for consent to adoption or for anonymous registration of a birth, as well as the conditions and procedures applicable in the event of repudiation and/or withdrawal of any of these measures. They strike a delicate balance between the rights of a mother, which the legislature has to date had no intention of reconsidering, to give birth anonymously with the consequences that entails, and the rights of the foster parents and of the child, whose rights are now framed in such a way as to allow him or her access to more information, if he or she so desires, but in whose interests stability and certainty, both psychological and legal, must be sought, if only through the shortness of the time within which the natural parents may avail themselves of the appropriate procedures. The instant case thus cannot be said to involve any discrimination or deprivation of the enjoyment of a right secured to the mother or the child by the European Convention on Human Rights, or indeed our national law, within the meaning of Article 14 of the Convention. Similarly, no matter how short they are, time-limits do exist in French law for bringing an action in the ordinary courts, constituting, within the meaning of Article 13 of the Convention ..., an effective remedy before a national authority independent of the administrative authority that may be required to rule on an application for the return of a child or to approve an adoption.” 22. The applicant appealed. In a judgment of 22 September 2003 the Douai Court of Appeal set aside the first-instance judgment. After reiterating the content of the record of 19 February 2002, and in particular the information it provided, the court held: “Paragraph 3 of the section on information thus expressly mentions the existence of two time-limits for the child ’ s return without any further formalities, one being two months (the only possible limit that could apply in the instant case), the other being six months, where the second parent has not entrusted the child to the social services. This six-month time-limit is mentioned on two further occasions, firstly in relation to the right to have the child returned to the second parent and secondly in indicating that even after the expiry of the two-month and six-month periods, a court action may still be brought. This information could have misled Ms Kearns ... since in reality the six-month time-limit applicable under Article L. 224-6 of the Social Action and Families Code in the circumstances referred to in Article L. 224-4 did not apply in the instant case, there being no established paternity as the mother had registered the birth anonymously, and the placement therefore came under point (1) of Article L. 224-4. Ms Kearns, an Irish national who is a native English speaker and does not speak French, could not have known the consequences in French law of anonymous registration of the birth, in terms of her rights and those of the biological father, and the information given was in no way capable of enlightening her in a clear and precise manner. Having been informed of the existence of a six-month time-limit where ‘ the child has a second parent who did not entrust him or her to the service ’, she may legitimately have thought, in the light of the information set out in the record, that this time-limit was applicable in her case since she had on several occasions notified the local health and social services department of the existence of a biological father who had not been informed of the placement procedure. It will be observed that there is no mention in the record that an interpreter was present when it was signed and that it has not been disputed that a member of the maternity ward staff assisted with the translation and the explanation in English of the information given in French to Ms Kearns ... However, a translation of this nature, which was provided by a person who used English only occasionally and did not have specific legal knowledge, and which, moreover, was based on particularly ambiguous information as to the time-limits, did not enable Ms Kearns ... to have access to proper information about her rights regarding the procedures for withdrawing consent. It therefore appears that the information provided to the appellant concerning the right to have the child returned was inaccurate or at least particularly ambiguous, and was set out in a pre-printed document not specially adapted to the procedure of anonymous birth registration but designed for use in any of the circumstances covered by Article L. 224-4 of the Social Action and Families Code for the taking of a child into State care; that reference was made to a six-month time-limit not applicable in her case; and that, moreover, being an native English speaker, the mother was not effectively informed of the procedures for the return of her child and of the strict two-month time-limit that applied in her case. Furthermore, it has not been shown in any way that Ms Kearns ... otherwise received any clear information before the record was signed as to her right to recover the child. The note by Ms F. – who also drew up the record in issue – besides having no evidential value, since it was written by a party to the proceedings, does not contain any clarification as to the information given to Ms Kearns ... about the time-limit for withdrawing consent. Similarly, the fact that Ms Kearns ... was in contact with a French lawyer prior to the birth does not mean that she received precise information from him about the exclusive nature of the two-month time-limit ... Ms Kearns ’ belief ... in the possibility of recovering the child within a six-month period is corroborated by the request she made in person on 25 and 26 July 2002 to the Nord health and social services department, citing this time-limit, and by the subsequent letters from her lawyer, which also state that his client thought that she could take her child back within such a period. Having regard to all these considerations, it appears that Ms Kearns ... placed her child in State care while believing – legitimately, in view of the ambiguous information she had received when signing the record of the placement – that she could take her back within a period of six months and that this time-limit also applied to Mr B., who had, moreover, instituted proceedings in Ireland on 9 April 2002. This error as to the time-limit for the return of the child concerns a significant element of her consent to the child ’ s placement in State care, especially as the provisions of Article L. 224-5 of the Social Action and Families Code require precise information on the subject to be given to the mother. In these circumstances, the application for the record of the child ’ s placement of 19 February 2002 to be declared null and void must be allowed. ... seeing that the handing over of the child to the State authorities was rendered void by a lack of true consent affecting the validity of the record drawn up on 19 February 2002, the child ’ s placement in State care is to be retrospectively annulled and cannot therefore have any legal effect. Accordingly, the application for the child to be returned to Ms Kearns ... should be allowed, without there being any need to address the subsidiary arguments she submitted in support of that application. Pursuant to Article 334-8 of the Civil Code, parental ties shall be established between Ms Kearns ... and the child to whom she gave birth in the maternity ward of Seclin Hospital on 18 February 2002 and a reference to this judgment shall be entered in the register of births, deaths and marriages for the town of Seclin.” 23. In a letter of 24 September 2003 the applicant ’ s lawyer asked the prefect to enforce the judgment and to return the child to her mother. No action was taken on this request. 24. The prefect for the département of Nord appealed on points of law, arguing that in the absence of recognition by the mother of the child to whom she had given birth anonymously, it was not necessary to obtain her consent for the child to be taken into State care. 25. In a judgment of 6 April 2004 the Court of Cassation allowed the appeal, holding as follows: “[Article L. 224-4, point (1), of the Social Action and Families Code] provides that children whose parentage has not been established or is unknown and who have been entrusted to the Child Welfare Service for more than two months are deemed to have been taken into State care. On 18 February 2002 Mrs T. (née Kearns ) gave birth anonymously. On 19 February 2002 a record of the child ’ s placement in State care with the Child Welfare Service was drawn up in accordance with Article L. 224-5 of the Social Action and Families Code. On 7 May 2002 the child was placed for adoption after the Family Council for Children in State Care had given its approval on 25 April 200 2. On 25 July 2002 Mrs T. unsuccessfully sought to have the child returned to her. In applications of 22 August and 10 September 2002 she brought proceedings against the prefect of the département of Nord, seeking the return of the child. In allowing her claim, the Court of Appeal held that the child ’ s placement with the State authorities was rendered void by a lack of true consent affecting the validity of the record drawn up on 19 February 2002, seeing that when the record was signed Mrs T. had received only ambiguous information about the period within which she could take her child back. In so holding, despite the fact that in the absence of recognition, the child ’ s parentage was not established, such that Mrs T. ’ s consent was not required when the child was taken into care .. ., the Court of Appeal breached the provision cited above.” 26. The Court of Cassation therefore quashed and annulled the Court of Appeal ’ s judgment in its entirety and, applying Article 627, paragraph 2, of the New Code of Civil Procedure ( by which it may put an end to the dispute by applying the appropriate legal rule), dismissed the applicant ’ s claims. 27. The full adoption procedure, which had been suspended, was resumed by Mr and Mrs L.-B. In a judgment of 17 June 2004 the Lille tribunal de grande instance allowed their application and made a full adoption order in respect of the child. | This case concerned a request, outside the relevant statutory time-limit, for the return of a child born to the applicant but registered anonymously. Married and living in Ireland, the applicant had given birth in France to a baby girl, from an extramarital relationship. She complained in particular of the shortness of the two-month period within which she was entitled to claim her child back. She also submitted that the French authorities had not taken all the necessary steps to ensure that she understood the precise implications of her actions, arguing that she had not been provided with sufficient linguistic assistance to be able to understand all the relevant procedures and time-limits. |
373 | Conditions of detention and domestic remedies | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1963 and is currently in detention in Wronki. 6. The applicant has been serving a prison sentence in Wronki Prison since 31 March 2010. 7. On 19 September 2010 he brought a civil compensation claim before the Szamotuły District Court. He claimed that the conditions of detention in many of his cells in Wronki Prison were so bad as to amount to a breach of Articles 3 and 8 of the Convention. He referred to the fact that the cells were not properly heated in the autumn and winter and had no proper ventilation in the summer, meaning that the prisoners suffered from intense levels of heat. The windows were old and the frames leaked. He further submitted that the toilet facilities were only separated from the cells by a low fibreboard partition, which made even a minimum level of privacy impossible for him. 8. On 21 June 2011 the Szamotuły District Court refused a request by the applicant to gather evidence by producing photographs and carrying out an on-the-spot inspection of the cells concerned. It closed the hearing and gave judgment, dismissing the applicant ’ s claim in its entirety. The court established, referring to evidence submitted by the State Treasury, acting as the legal representative for Wronki Prison, that prisoners had access to sports, cultural and educational activities and medical care. They were provided with personal hygiene items and had appropriate food. Those factors, seen as a whole, alleviated the harm which was an inherent part and consequence of serving prison sentences. The court further found that the toilet facilities in the applicant ’ s cells were indeed separated off by fibreboard partitions. This did not provide full privacy, but was sufficient to ensure that the prisoners were out of sight of others when they used the toilet. There was a WC and a washbasin in each toilet facility. As regards the applicant ’ s allegations of inadequate ventilation and insufficient heating in the cells, the court found that the cells were well lit and properly ventilated; the windows had been repaired and the heaters had been changed and worked properly. As regards the alleged lack of light, the court found that the applicant had been granted special permission to use an additional reading lamp. The court was of the view that the State Treasury had not acted unlawfully and that there had been no intention to act in bad faith or to cause harm or damage to the applicant. In the absence of unlawfulness no breach of personal rights could be found. In any event, the conditions in Wronki Prison were not so harsh as to amount to a breach of personal rights. 9. The applicant appealed, arguing that the court had failed to establish the facts of the case correctly, in the main because it had refused to gather evidence in the form of photographs, film or an inspection of the cells. The judgment had therefore been based on insufficient factual findings. Furthermore, in so far as the court had referred to the general conditions in which the applicant served his sentence (quality of the food, medical care, access to cultural and sports activities), those factors had not constituted the basis of his claim. He had complained neither about poor food quality nor about insufficient access to cultural and sports activities. The grounds of his claim had fundamentally related to the sanitary conditions in the cells and, in particular, a lack of privacy when using the toilet. This lack of privacy had been explicitly confirmed by the first-instance court. He reiterated that the lack of a proper divide between the toilets and the cell amounted to a breach of his personal rights and dignity. He further indicated that some of the cells at the prison had toilet facilities that were properly separated from the rest of the cell by normal walls and a door. 10. By a judgment of 6 December 2011 the Poznań Court of Appeal dismissed the appeal, fully accepting the findings of fact made by the first ‑ instance court and that court ’ s legal assessment of those facts. In particular, the Court of Appeal was of the view that the nuisance caused by the manner in which cells were fitted with toilet facilities, namely by way of fibreboard partitions, did not exceed the normal difficulties and harm which were inherent in serving a prison sentence. | The applicant complained that his condition of detention in Wronki Prison were inadequate. In particular, he complained that in seven of the ten cells where he was detained the sanitary facilities were separated from the rest of the cell only by a 1.20 metre-high fibreboard partition and had no doors. |
1,085 | Dismissal | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1941 and lives in Vienna. A. Background 6. The applicant had been an employee of the embassy of the United States of America in Vienna since March 1978. From January 1981 onwards she had a contract of indefinite duration and worked as a photographer at the embassy. Following an accident in 1983 the competent authority issued a decision stating that she qualified for protection under the Disabled Persons (Employment) Act ( Invaliden einstellungs gesetz ). Following a further accident, classified as work-related, the embassy dismissed her in September 1987. 7. Her dismissal was declared void by the Vienna Labour and Social Court ( Arbeits- und Sozialgericht ) on the ground that it required the prior agreement of the competent authority under the Disabled Persons (Employment) Act. The court dismissed the argument submitted by the United States that it lacked jurisdiction on account of the United States’ immunity. It found that, while foreign States enjoyed immunity with regard to acta iure imperii, they came within the jurisdiction of the domestic courts with regard to acta iure gestionis. The conclusion and performance of an employment contract fell within the latter category. The Supreme Court ( Oberster Gerichthof ) upheld that judgment on 21 November 1990, noting that the United States had not maintained the objection of State immunity in the further course of the proceedings. 8. As a result of the above proceedings, the applicant continued to have a valid employment contract with the United States embassy in Vienna. However, the latter refused to make use of her services. Instead, on 31 January 1991, they applied to the Vienna Committee for Disabled Persons requesting retroactive approval of the applicant’s dismissal or, alternatively, agreement to a future dismissal. The Committee refused to grant retroactive approval for the applicant’s dismissal of September 1987 but gave its approval for a future dismissal. The competent Federal Ministry upheld that decision. On 13 September 1994 the Administrative Court, ruling on a complaint by the applicant, set aside the decision to grant approval for the applicant’s future dismissal, finding that the authorities had failed to establish relevant facts and had not duly weighed the parties’ interests. The case was referred back to the Committee. On 16 January 1996 the United States withdrew its application, stating that it had always maintained that the application of the Disabled Persons (Employment) Act to employees of the embassy interfered with the country’s sovereignty. 9. Meanwhile, the applicant brought proceedings against the United States requesting payment of her salary. In a first set of proceedings, concerning salary payments up to June 1995, the United States unsuccessfully raised an objection of jurisdictional immunity. Subsequently, the United States paid the applicant salary arrears of 3.7 million Austrian schillings (approximately 269,000 euros (EUR)). On the occasion of the payment, the lawyer who had represented the United States in the proceedings informed the applicant by a letter dated 16 October 1996 that the payment did not imply any acceptance of the Austrian courts’ judgments and that the United States considered her employment contract to be terminated and would, if she raised any further claims, “make use of its diplomatic rights and immunities”. 10. Further proceedings relating to the payment of salary from July 1995 to August 1996 led to a final default judgment by the Vienna Labour and Social Court. However, the United States did not pay the amount awarded to the applicant. 11. The applicant also unsuccessfully brought proceedings against the United States claiming reimbursement of the social security contributions which she had been ordered to pay by the Austrian authorities and a part of which the employer was, under her employment contract, obliged to refund. In those proceedings the United States authorities refused to serve the summons to attend the hearing. The Austrian courts dismissed the applicant’s request for a judgment in default. Their position was upheld by the Supreme Court’s judgment of 11 June 2001 (see below, paragraph 28). B. The proceedings giving rise to the present application 12. On 29 December 1998 the applicant brought an action against the United States of America before the Vienna Labour and Social Court, claiming salary payments from September 1996 onwards. The court scheduled a first hearing for 20 October 1999. 13. An attempt to serve the applicant’s action and the summons to the hearing on the United States through the Austrian Ministry of Foreign Affairs, under section 11(2) of the Service Act ( Zustellgesetz ), failed. According to the file a staff member of the Austrian embassy in Washington handed these documents over to a staff member of the United States Department of State. However, by letter of 25 January 2000 the Ministry of Foreign Affairs informed the Ministry of Justice, which in turn informed the Vienna Labour and Social Court, that the United States authorities had refused to serve the summons and had returned the documents at issue to the Austrian embassy in Washington. The letter was accompanied by a note from the United States Department of State informing the Austrian Ministry of Foreign Affairs that the United States wished to assert its immunity in any case brought by the applicant. In a letter of 4 February 2000 the Ministry of Foreign Affairs also informed the applicant accordingly. 14. On 18 February 2000 the Vienna Labour and Social Court dismissed the applicant’s request for a judgment in default, noting that it had been impossible to summon the defendant. An appeal by the applicant to the Vienna Court of Appeal ( Oberlandesgericht ) was unsuccessful. 15. The Supreme Court dismissed her appeal on points of law on 5 September 2001. Referring to its judgment of 11 June 2001 in a parallel case brought by the applicant (see paragraph 28 below), it noted that the summons had not been duly served on the defendant, namely the United States Department of Justice. Consequently, the conditions for giving a judgment in default were not fulfilled. 16. By a decision of 29 October 2001 the Vienna Labour and Social Court held that the applicant’s action and the summons to the hearing had not been served on account of the manifest refusal of the United States to comply with the request for service. It followed that further attempts to summon the defendant did not have any prospects of success. 17. Subsequently, the applicant requested that the summons be served by means of publication under Article 121 § 2 of the Code of Civil Procedure ( Zivilprozeßordnung ) or, alternatively, that it be served on a court-appointed representative ( Curator ) under Article 116 of the Code. 18. By decision of 25 April 2002 the Vienna Labour and Social Court appointed a lawyer, Dr G., to represent the United States of America. It noted that the foreign authorities had refused to serve the summonses in any of the proceedings brought by the applicant. In the court’s view the United States had wrongly relied on its alleged immunity. 19. On 18 November 2002 the Vienna Court of Appeal, following an appeal by Dr. G., quashed that decision. The relevant part of its decision reads as follows: “In acting on a request for service, the State to which the request is made is exercising sovereign powers. This applies even if the court documents in question are addressed to that State and the authority responsible for acting on the request for assistance (in this instance the Department of State) refuses to forward them to the authority empowered to represent the State in private-law proceedings (in this instance the Department of Justice). This is not a case of refusal to accept service (§ 20 of the Service Act) but rather a case of refusal to comply with a request for legal assistance. Such refusal is a sovereign right of the foreign State, against which a remedy can be sought only through diplomatic channels ... The Supreme Court endorsed this legal stance (8ObA 201/00t), stressing that, as international law currently stands, compliance or refusal to comply with a request for legal assistance is to be regarded as a sovereign act, irrespective of the subject-matter of the claim. The nature of the act is the defining factor. It is beyond doubt that the service of documents in court proceedings falls within the scope of so-called acta iure imperii and not acta iure gesionis, as a private individual cannot perform an act of this nature. Although negotiations have been in progress for some time on an international agreement concerning service of process on foreign States (which might make it sufficient for the action to be served on the country’s foreign ministry), no such agreement has to date been concluded, with the result that the issue remains unregulated by any treaty between Austria and the United States. In a commentary on this decision, which had been published in JBl 2002, 57, Hintersteininger observed, inter alia, that, while the restrictive theory of service of process applied by the Supreme Court might be appropriate for the purposes of avoiding disagreements between States, it was not a requirement under international law. The author concluded that section 11 of the Service Act – at least as currently applied to judicial proceedings instituted in Austria against foreign States – amounted to a “self-imposed shackle” as a result of which the standard of protection of individuals’ legal interests was subordinated to international-law considerations. Unless and until the Austrian courts saw fit to apply a different interpretation of the provision in question – the fact that the Supreme Court, in its 2001 ruling, continued to apply its case-law from 1963 indicated that this was unlikely – there was an urgent need for the legislature to enact amending legislation in order to provide a practical solution to the problem of service of process. Referring to Hintersteiniger’s international-law argument, the appellant raises the possibility of transmitting the action and an explanation of the legal circumstances, together with a translation into the country’s official language, to the US Department of State through diplomatic channels. In this case the defendant State would have no justification for returning the copy of the action at will; in the event of a refusal to accept service, it should be deemed to have received the request. This would make effective service possible and would remove the need to appoint a representative. The objection to this line of argument is that such a procedure – which from a general international-law perspective is possible – is incompatible with the applicable legal provisions in Austria. As clarified in 8 ObA 201/00t, the action has to be served on a competent body within the Department of Justice, which is the authority representing the United States in the present employment-related proceedings. It is not sufficient for the document to have somehow reached another authority which appears to be responsible for forwarding the request for service. Accordingly, it is incorrect to speak of a refusal to accept service if the document was never transmitted to the competent authority. In this connection the Supreme Court stressed that, conversely, it would not be sufficient, in order to institute legal proceedings, for an action against the Republic of Austria to be received by the Foreign Ministry if, for whatever reason, it was not forwarded to the Attorney-General’s Office as the competent authority representing the State in such matters. The first-instance court already acknowledged that a further request for service would have little prospect of success in view of the earlier comments of the US authorities. Nevertheless, the (definitive) refusal of the US Department of State to forward court documents concerning the appellant to the Department of Justice does not justify the appointment of a representative for the defendant in accordance with Article 116 of the Code of Civil Procedure. As the appellate court explained in detail in its decision 8 Ra 23/00t, cited above, service of process on a foreign State is (also) based on section 11(2) of the Service Act. Hence, for the purpose of performing it, recourse is to be had in any event to the Federal Ministry of Foreign Affairs. On the basis of this provision, which takes precedence, service via any means other than the diplomatic channels to which it refers – for instance, on a court-appointed representative – is ruled out. In view of the principle whereby a remedy against a refusal to comply with a request for legal assistance, which flows from the sovereign power of the foreign State, can be sought only through diplomatic channels (see SZ 36/26, EvBl 1963/210; for a critical perspective, see Schreuer, Die Durchsetzung zivilrechtlicher Ansprüche gegen ausländische Staaten, ÖJZ 1991, 41 et seq. [49]), the impugned decision lacks any legal basis.” 20. On 7 May 2003 the Supreme Court dismissed an appeal on points of law by the applicant. It started by referring to its decision of 11 June 2001 (see paragraph 28 below) in a previous case brought by the applicant against the United States. It followed from that decision that the action brought by the applicant had to be served through diplomatic channels. It held that Article 121 § 2 of the Code of Civil Procedure, although it concerned the service of summonses abroad, was not applicable in a case like the present one in which the person or legal entity to be summoned relied on their immunity. The applicant’s interpretation of the provision in question would undermine the concept of immunity. 21. Only section 11(2) of the Service Act was applicable. The applicant did not contest the fact that foreign States came within the scope of that provision as they enjoyed “privileges and immunities” under international law. In that context the Supreme Court went on to state as follows: “No agreement exists between Austria and the defendant concerning service of process from the perspective of State immunity from jurisdiction. In the absence of such agreement the generally recognised rules of international law (Article 9 of the Federal Constitution), together with section IX of the Introductory Act to the Austrian Jurisdictional Statute (EGJN) and the principles developed in this connection by the case-law and by legal commentators, must apply. On that basis it is unanimously agreed that foreign States enjoy immunity in the exercise of their sovereign powers and are to that extent exempt from the jurisdiction of the domestic courts (see, among other authorities, SZ 23/143; Herndl, JBl 1962, 15; JBl 1962, 43; Heß, JBl 1989, 285; ZfRV 1990, 300 [Seidl-Hohenveldern]; Schreuer, ÖJZ 1991, 41; Fischer, NZ 1991, 154; DRdA 1991/53 [Simotta]; Neuhold/Hummer/Schreuer, Österreichisches Handbuch des Völkerrechts Bd 1³ para. 834, 837; Seidl-Hohenveldern, Völkerrecht 9 paras. 1462 et seq.; Matscher, loc. cit, Art IX EGJN para. 2, 115 et seq., 196 et seq.; Mayr in Rechberger, ZPO² Art IX EGJN para. 3 et seq.). The service of process abroad, as a sovereign act, amounts – in the absence of an agreement between the States concerned governing the relevant procedure – to interference with the sovereign rights of the foreign State in question. For that reason it is a requirement in such cases to have recourse to the Federal Ministry of Foreign Affairs, which maintains close contact with the milieu concerned and is competent to take account of the relevant international-law considerations (RV 162 BlgNR XV.GP 10), as the appellant correctly points out. However, contrary to her assertion, exclusive recourse to the Federal Ministry of Foreign Affairs is not merely recommended, but is required by statute (the mandatory “shall” in section 32(3) of the Jurisdictional Statute and section 11(2) of the Service Act). The service of documents by any other means would be in breach of the law (Walter/Mayer, op. cit., section 11 Service Act, footnote 15). Although Hintersteininger, in her commentary on 8 ObA 201/00t (JBl 2002, 57) concludes that the “restrictive theory of service of process” is appropriate for the purpose of avoiding international disagreements, she nevertheless calls on the legislature to amend section 11 of the Service Act, as she sees evidence of a “self-imposed shackling” at least in the way in which that provision is applied. The legislature has not taken any action to date. It should further be observed that the strict approach to diplomatic immunity can be traced back to the Jurisdictional Statute, according to which the violation of immunity renders the proceedings in question null and void, in a manner which cannot be remedied even by the parties (except by a waiver of immunity) (§ 42 JN; Ballon, op. cit., § 42 JN para. 3, 14 et seq.; Mayr, op. cit., § 42 JN para. 2, 7). Contrary to the appellant’s assertion, her request for the action to be served on the defendant by publication or by the appointment of a representative does not fall in the present case within the “classic scenario” under Article 121(2) of the Code of Civil Procedure, but is governed by the exception thereto and undermines the defendant’s claim to diplomatic immunity. Accordingly it is not possible, precisely in this case, to proceed on the basis of that provision. On the contrary – in so far as the proceedings against the defendant in Austria are concerned – exclusive recourse must be had to diplomatic channels, as reasoned by the Supreme Court in case 8 ObA 201/00t.” 22. The Supreme Court’s decision was served on the applicant’s counsel on 3 July 2003. C. Further developments 23. In April 2002 the applicant reached pensionable age. She gave the United States embassy in Vienna notice of her intention to terminate her employment contract and applied to the competent Pensions Insurance Office for an old-age pension from 1 May 2002. 24. Subsequently, the applicant extended her claim in the above-mentioned proceedings to salary payments from September 1996 to April 2002. She requested again that the defendant be summoned to a hearing. In that context she referred to the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property (see paragraphs 30 to 34 below), and argued that, according to Article 22, transmission of the documents to the United States Department of State through diplomatic channels would be sufficient to effect service. The summons was handed over to a staff member of the United States Department of State but was again returned to the Austrian embassy in Washington with the remark that the United States wished to assert its immunity in any case brought by the applicant. 25. On 17 July 2006 the Vienna Court of Appeal upheld the first-instance court’s decision refusing to give a default judgment. Referring to the Supreme Court’s case-law, it held that the refusal to serve a summons was an act of sovereign power. It noted, inter alia, that the Convention relied on by the applicant did not apply to proceedings which had been initiated before its entry into force and added that there were no rules of customary international law to indicate that States could not rely on immunity in the context of the service of a summons. No further appeal on points of law lay against this decision. | A photographer for the United States of America embassy in Vienna, the applicant complained about proceedings she had brought before the Vienna Labour and Social Court against the United States claiming salary payments from September 1996 following her unlawful dismissal. In particular, she complained that she had been denied access to court because the United States’ authorities, relying on their immunity, had refused to be served with the summons to a hearing on the case and the Austrian authorities accepted this refusal, finding that they were obliged to do so under the rule of customary international law to respect a State’s sovereignty. |
1,012 | Cases concerning the international military operations in Iraq during the Second Gulf War | A. The parties’ submissions 1. The applicant 2. The Government B. The Court’s evaluation of the facts II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION A. The parties’ submissions 1. The applicant 2. The Government B. The Court’s assessment III. ALLEGED VIOLATION OF ARTICLE 5 §§ 1, 2, 3 AND 4 OF THE CONVENTION A. Jurisdiction 1. The parties’ submissions 2. The Court’s assessment B. The merits of the complaints under Article 5 §§ 1, 2, 3 and 4 1. The parties’ submissions 2. The Court’s assessment OPERATIVE PART PARTLY DISSENTING OPINION OF JUDGE SPANO JOINED BY JUDGES NICOLAOU, BIANKU AND KALAYDJIEVA In the case of Hassan v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of: Dean Spielmann, President, Josep Casadevall, Guido Raimondi, Ineta Ziemele, Mark Villiger, Isabelle Berro-Lefèvre, Dragoljub Popović, George Nicolaou, Luis López Guerra, Mirjana Lazarova Trajkovska, Ledi Bianku, Zdravka Kalaydjieva, Vincent A. De Gaetano, Angelika Nußberger, Paul Mahoney, Faris Vehabović, Robert Spano, judges, and Michael O’Boyle, Deputy Registrar, Having deliberated in private on 11 December 2013 and 25 June 2014, Delivers the following judgment, which was adopted on that last date: PROCEDURE 1. The case originated in an application (no. 29750/09) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Iraqi national, Mr Khadim Resaan Hassan (“the applicant”), on 5 June 2009. 2. The applicant was represented by Mr P. Shiner, a solicitor practising in Birmingham, together with Mr T. Otty, QC, and Mr T. Hickman, barristers practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Tomlinson, Foreign and Commonwealth Office. 3. The applicant alleged that his brother was arrested and detained by British forces in Iraq and was subsequently found dead in unexplained circumstances. He complained under Article 5 §§ 1, 2, 3 and 4 of the Convention that the arrest and detention were arbitrary and unlawful and lacking in procedural safeguards and under Articles 2, 3 and 5 that the United Kingdom authorities failed to carry out an investigation into the circumstances of the detention, ill-treatment and death. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Its examination of the application was adjourned pending adoption of the judgment in Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, ECHR 2011. Subsequently, on 30 August 2011, the application was communicated to the Government. 5. On 4 June 2013 the Chamber decided to relinquish jurisdiction to the Grand Chamber. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. 6. The applicants and the Government each filed further written pleadings on the admissibility and merits and third-party comments were received from Professor Françoise Hampson and Professor Noam Lubell, of the Human Rights Centre, University of Essex (“the Third Party”). 7. A hearing took place in public in the Human Rights Building, Strasbourg, on 11 December 2013 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMs R. Tomlinson, Agent, Mr J. Eadie QC, Mr C. Staker, Counsel, Mr M. Addison, Ms A. McLeod, Advisers; (b) for the applicantMr T. Otty QC, Mr T. Cleaver, Counsel, Mr P. Shiner, Ms B. Shiner, Ms L. Shiner, Advisers. The Court heard addresses by Mr Eadie and Mr Otty and their answers to questions put by the Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The facts of the case, as submitted by the parties, may be summarised as follows. Where certain facts are in dispute, each party’s version of events is set out. A. The invasion of Iraq 9. On 20 March 2003 a coalition of armed forces under unified command, led by the United States of America with a large force from the United Kingdom and small contingents from Australia, Denmark and Poland, commenced the invasion of Iraq from their assembly point across the border with Kuwait. By 5 April 2003 British forces had captured Basrah and by 9 April 2003 United States troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003. B. The capture of the applicant’s brother by British forces 10. Prior to the invasion, the applicant was a general manager in the national secretariat of the Ba’ath Party and a general in the Al-Quds Army, the army of the Ba’ath Party. He lived in Umm Qasr, a port city in the region of Basrah, near the border with Kuwait and about 50 kilometres from Al-Basrah (Basrah City). After the British army entered into occupation of Basrah, they started arresting high ranking members of the Ba’ath Party. Other Ba’ath Party members were killed by Iraqi militia. The applicant and his family therefore went into hiding, leaving the applicant’s brother, Tarek Resaan Hassan (henceforth, “Tarek Hassan”), and his cousin to protect the family home. 11. According to information given by the Government, members of a British army unit, the 1 st Battalion The Black Watch, went to the applicant’s house early in the morning of 23 April 2003, hoping to arrest him. The applicant was not there, but the British forces encountered Tarek Hassan, who was described in the contemporaneous report drawn up by the arresting unit (“the battalion record”) as a “gunman”, found on the roof of the house with an AK-47 machine gun. The battalion record indicated that the “gunman” identified himself as the brother of the applicant and that he was arrested at approximately 6.30 a.m. It further indicated that the house was found by the arresting soldiers to contain other firearms and a number of documents of intelligence value, related to local membership of the Ba’ath Party and the Al-Quds Army. 12. According to a statement made by the applicant and dated 30 November 2006, Tarek Hassan was arrested by British troops on 22 April 2003, in the applicant’s absence. According to this statement, “When my sisters approached the British military authority they were told that I had to surrender myself to them before they would release my brother”. In a later statement, dated 12 September 2008, the applicant did not mention his sisters but instead stated that he asked his friend, Saeed Teryag, and his neighbour Haj Salem, to ask British forces for information about Tarek Hassan. The applicant asked these friends because he could trust them; Haj Salem was a respected businessman and Saeed Teryag had been to university and spoke English. According to the applicant, “[W]hen they approached the British military authorities the British told them I had to surrender myself to them before they would release my brother”. 13. According to a summary of a telephone interview with the applicant’s neighbour, Mr Salim Hussain Nassir Al-Ubody, dated 2 February 2007, Tarek Hassan was taken away by British soldiers on an unknown date in April at around 4.30 a.m., with his hands tied behind his back. Mr Al-Ubody stated that he approached one of the Iraqis who accompanied the soldiers to ask what they wanted, and was told that the soldiers had come to arrest the applicant. Three days later, the applicant telephoned Mr Al-Ubody and asked him to find a guard for his house and to find out from the British army what had happened to Tarek Hassan. Two days later, Mr Al-Ubody went to the British headquarters at the Shatt ‑ Al ‑ Arab Hotel. He asked an Iraqi translator if he could find out anything about Tarek Hassan. Two days later, when Mr Al-Ubody returned, the translator informed him that the British forces were keeping Tarek Hassan until the applicant surrendered. The translator further advised Mr Al-Ubody not to return, as this might expose him to questioning. C. Detention at Camp Bucca 14. Both parties agreed that Tarek Hassan was taken by British forces to Camp Bucca. This Camp, situated about 2.5 kilometres from Umm Qasr and about 70 kilometres south of Al-Basrah was first established on 23 March 2003 as a United Kingdom detention facility. However, it officially became a United States facility, known as “Camp Bucca”, on 14 April 2003. In April 2003 the Camp was composed of eight compounds, divided by barbed wire fencing, each with a single entry point. Each compound contained open-sided tents capable of housing several hundred detainees, a water tap, latrines and an uncovered area. 15. For reasons of operational convenience, the United Kingdom continued to detain individuals they had captured at Camp Bucca. One compound was set aside for internees detained by the United Kingdom on suspicion of criminal offences. In addition, the United Kingdom operated a separate compound at the Camp for its Joint Forward Interrogation Team (JFIT). This compound had been built by British forces and continued to be administered by them. Although detainees captured by both the United Kingdom and the United States armies were interrogated at the JFIT compound, and teams of United Kingdom and United States interrogators worked there, the United Kingdom JFIT team controlled the detention and interrogation of all prisoners held there. Elsewhere in the Camp, the United States army was responsible for guarding and escorting detainees and the United Kingdom was obliged to reimburse the United States for costs involved in maintaining United Kingdom captured detainees held at the Camp. The British Military Provost Staff (military police) had an “overseeing responsibility” for United Kingdom detainees transferred to United States custody, except those detained in the JFIT compound. United Kingdom detainees who were ill or injured were treated in British field hospitals. The United Kingdom authorities were responsible for liaising with the International Committee of the Red Cross (ICRC) about the treatment of United Kingdom detainees and the notification of their families regarding the detention (see further paragraph 20 below). The United Kingdom also remained responsible for classifying detainees under Articles 4 and 5 of the Third Geneva Convention (see paragraph 33 below). 16. In anticipation of the United Kingdom using shared facilities to hold United Kingdom detainees, on 23 March 2003 the United Kingdom, United States and Australian Governments entered into a Memorandum of Arrangement (“MOA”) relating to the transfer of custody of detainees, which provided as follows: “This arrangement establishes procedures in the event of the transfer from the custody of either the US, UK or Australian forces to the custody of any of the other parties, any Prisoners of War, Civilian Internees, and Civilian Detainees taken during operations against Iraq. The Parties undertake as follows: 1. This arrangement will be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, as well as customary international law. 2. US, UK, and Australian forces will, as mutually determined, accept (as Accepting Powers) prisoners of war, civilian internees, and civilian detainees who have fallen into the power of any of the other parties (the Detaining Power) and will be responsible for maintaining and safeguarding all such individuals whose custody has been transferred to them. Transfers of prisoners of war, civilian internees and civilian detainees between Accepting Powers may take place as mutually determined by both the Accepting Power and the Detaining Power. 3. Arrangements to transfer prisoners of war, civilian internees, and civilian detainees who are casualties will be expedited, in order that they may be treated according to their medical priority. All such transfers will be administered and recorded within the systems established under this arrangement for the transfer of prisoners of war, civilian internees, and civilian detainees. 4. Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power will be returned by the Accepting Power to the Detaining Power without delay upon request by the Detaining Power. 5. The release or repatriation or removal to territories outside Iraq of transferred prisoners of war, civilian internees, and civilian detainees will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power. 6. The Detaining Power will retain full rights of access to any prisoner of war, civilian internees and civilian detainees transferred from Detaining Power custody while such persons are in the custody of the Accepting Power. 7. The Accepting Power will be responsible for the accurate accountability of all prisoners of war, civilian internees, and civilian detainees transferred to it. Such records will be available for inspection by the Detaining Power upon request. If prisoners of war, civilian internees, or civilian detainees are returned to the Detaining Power, the records (or a true copy of the same) relating to those prisoners of war, civilian internees, and civilian detainees will also be handed over. 8. The Detaining Powers will assign liaison officers to Accepting Powers in order to facilitate the implementation of this arrangement. 9. The Detaining Power will be solely responsible for the classification under Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of potential prisoners of war captured by its forces. Prior to such a determination being made, such detainees will be treated as prisoners of war and afforded all the rights and protections of the Convention even if transferred to the custody of an Accepting Power. 10. Where there is doubt as to which party is the Detaining Power, all Parties will be jointly responsible for and have full access to all persons detained (and any records concerning their treatment) until the Detaining Power has by mutual arrangement been determined. 11. To the extent that jurisdiction may be exercised for criminal offenses, to include pre-capture offenses, allegedly committed by prisoners of war, civilian internees, and civilian detainees prior to a transfer to an Accepting Power, primary jurisdiction will initially rest with the Detaining Power. Detaining Powers will give favourable consideration to any request by an Accepting Power to waive jurisdiction. 12. Primary jurisdiction over breaches of disciplinary regulations and judicial offenses allegedly committed by prisoners of war, civilian internees, and civilian detainees after transfer to an Accepting Power will rest with the Accepting Power. 13. The Detaining Power will reimburse the Accepting Power for the costs involved in maintaining prisoners of war, civilian internees, and civilian detainees transferred pursuant to this arrangement. 14. At the request of one of the Parties, the Parties will consult on the implementation of this arrangement.” 17. According to the witness statement of Major Neil B. Wilson, who served with the Military Provost Staff at Camp Bucca during the period in question, the usual procedure was for a detainee to arrive at the Camp with a military escort from the capturing unit. On arrival he would be held in a temporary holding area while his documents were checked and his personal possessions were taken from him. Medical treatment would be provided at this point if required. The detainee would then be processed through the arrivals tent by United Kingdom personnel with the aid of an interpreter. A digital photograph would be taken and this, together with other information about the detainee, would be entered on the database used by the United Kingdom authorities to record a wide range of military personnel information during the operations in Iraq, including detainee information, known as the AP3-Ryan database. 18. Examination of this database showed that there was no entry under the name Tarek Resaan Hassan but there was an entry, with a photograph, for “Tarek Resaan Hashmyh Ali”. In his witness statement the applicant explained that for official purposes Iraqis use their own first name, followed by the names of their father, mother, grandfather and great-grandfather. “Ali” was the applicant’s great-grandfather’s name and it appeared that Hassan (his grandfather’s name) was omitted by mistake. Tarek Hassan was issued with a wristband printed with his United Kingdom internment serial number UKDF018094IZSM; with “DF” denoting “detention facility”, “IZ” meaning allegiance to Iraq and “SM” standing for “soldier male”. Screen shots from the AP3-Ryan database also show that Tarek Hassan was asked whether he consented to the national authorities being informed of his detention and that he did not consent to this. 19. Following the United Kingdom registration process, detainees would be transferred to the United States forces for a second registration. This involved the issue of a United States number, printed on a wrist band. Tarek Hassan’s United States registration number was UK912-107276EPW46. The “UK” reference indicated that the United Kingdom was the capturing nation and “EPW” indicated that he was treated by the United States forces as an enemy prisoner of war; however, at this stage all detainees were classified as prisoners of war except those captured by British forces on suspicion of having committed criminal offences. After registration, detainees were usually medically examined, then provided with bedding and eating and washing kits and transferred by United States forces to the accommodation areas. 20. The Government submitted a witness statement by Mr Timothy Lester, who was charged with running the United Kingdom Prisoner of War Information Bureau (UKPWIB) in respect of Iraq from the start of military operations there in March 2003. He stated that the UKPWIB operated in Iraq as the “National Information Bureau” required by Article 122 of the Third Geneva Convention and monitored details of prisoners of war internees and criminal detainees in order to facilitate contact with their next ‑ of-kin. The Third Geneva Convention also required the establishment of a “Central Prisoners of War Information Agency”. This role was subsumed by the Central Tracing Agency of the International Committee of the Red Cross (ICRC). The ICRC collected information about the capture of individuals and, subject to the consent of the prisoner, transmitted it to the prisoner’s country of origin or the power on which he depended. In practice, details of all prisoners taken into custody by British forces were entered by staff at the detention facility in Iraq and sent to Mr Lester in London, who then transferred the data to a spread-sheet and downloaded it to the ICRC’s secure website. He stated that during the active combat phase he typically passed data to the ICRC on a weekly basis, and monthly thereafter. However, Tarek Hassan’s details were not notified to the ICRC until 25 July 2003, because of a delay caused by the updating of UKPWIB computer system. In any event, it was noted on Tarek Hassan’s record that he did not consent to the Iraqi authorities being notified of his capture (see paragraph 18 above). In the absence of consent, Mr Lester considered it unlikely that the ICRC would have informed the Iraqi authorities and that those authorities would, in turn, have informed the Hassan family. D. The screening process 21. According to the Government, where the status of a prisoner was uncertain at the time of his arrival at Camp Bucca, he would be registered as a prisoner of war by the United Kingdom authorities. Any detainee, such as Tarek Hassan, captured in a deliberate operation was taken immediately to the JFIT compound for a two-stage interview. According to the Government, there were United Kingdom and United States interrogation teams working in the JFIT compound, and both teams interviewed both United Kingdom- and United States-captured detainees. The first interview may have been undertaken simply by whichever team was available when the detainee arrived. The aim of the interview process was to identify military or paramilitary personnel who might have information pertinent to the military campaign and, where it was established that the detainee was a non-combatant, whether there were grounds to suspect that he was a security risk or a criminal. If no such reasonable grounds existed, the individual was classified as a civilian not posing a threat to security and ordered to be released immediately. 22. A print-out from the JFIT computer database indicated that in Camp Bucca Tarek Hassan was assigned JFIT no. 494 and registration no. UK107276. His arrival was recorded as 23 April 2003 at 16.40 and his departure was recorded as 25 April 2003 at 17.00, with his “final destination” recorded as “Registration (Civ Cage).” Under the entry “Release/Keep” the letter “R” was entered. Under the heading “TQ”, which stood for “tactical questioning”, there was the entry “231830ZAPR03 ‑ Steve” and under the heading “Intg 1” was the entry “250500ZAPR03”. According to the Government, the first of these entries meant that Tarek Hassan was first subjected to tactical questioning on 23 April 2003 at 18.30 Zulu (“Zulu” in this context meant Coordinated Universal Time, also known as Greenwich Mean Time). On 23 April, 18.30 Zulu would have been 21.30 Iraqi time. The second entry indicated that Tarek Hassan was again subject to questioning on 25 April 2003 at 5.00 Zulu, or 8.00 local time and then released into the civilian pen at Camp Bucca at 20.00 local time on 25 April 2003. 23. The Government provided the Court with a copy of a record of an interview between Tarek Hassan and United States agents, dated 23 April 2003, 18.30 Zulu, which stated as follows: “EPW [Enemy Prisoner of War] was born in BASRA on August 3, 1981. He currently resides in his home with his father, mother, older brother (Name: Qazm; born in the 1970s), and his little sister (age; unexploited). Home is across from the Khalissa school in the Jamiyat region in N. BASRA. EPW left middle school as a recruit to play soccer. He currently plays in the Basra Soccer Club and his position is attacker/forward. His team receives money from the government and the Olympic committee to pay for team expenses. EPW has no job since soccer is his life and they pay for all of his soccer expenses. EPW knows that he was brought in because of his brother, Qazm. Qazm is a Othoo Sherba in the Ba’ath party and he fled his home four days ago to an unknown destination. Qazm joined the Ba’ath party in 1990 and is involved in regular meetings and emergency action planning (nothing else exploited). Before the war, Qazm received a pickup from the Ba’ath party. When the coalition forces entered BASRA, Qazm gave the pickup to a neighbour (name not exploited) to safeguard it and Qazm went to a hotel in downtown BASRA (name of hotel is unknown). Qazm made a few phone calls during that time, but never mentioned where he was staying. A problem arose when the original owners of the pickup, the local petroleum company, came to reclaim the vehicle they had lent the Ba’ath party. Qazm became frustrated with the whole mess and fled soon after that. EPW seems to be a good kid who was probably so involved with soccer that he didn’t follow his brother’s whereabouts all that much. But it seems they have a close knit family and EPW could know more about his brother’s activities in the Ba’ath party, and some of his friends involved in the party, too. Using any type of harsh approach is not going to be effective. EPW loves his family and soccer. EPW will cooperate, but he needs someone he can trust if he’s going to tell information about his brother that is going to harm him. EPW seems to be innocent of anything himself, but may help with information about others around him.” 24. A record of the second questioning was provided by the Government in the form of a Tactical Questioning Report. This document indicated that it related to “PW 494” with the “date of information” recorded as “250445ZAPR03”, that is 4.45 Zulu or 7.45 local time on 25 April 2003. The report stated: “1. EPW [Enemy Prisoner of War] is 22 years old, single, living with his 80 year old father (who is a Sheik) and his mother in the Jamiyet district of BASRAH. He works as a handyman and has not done his military service due to his status as a student. He stated that an AK 47 was present in their house at the time of his arrest but it was only kept for personal protection. The EPW and his father are not Ba’ath Party members. 2. EPW says he was arrested at his house by United States troops [sic] who were looking for his brother, Kathim. His brother is a Ba’ath Party member, an Uthoo Shooba. He joined the party in 1990 when he became a law student in the school of law in the Shaat Al Arab College. His brother is still a student, in his last year of study, married but with no children. He has alternated study with periods of work as a car trader. His brother was in fear of his life because of fear of reprisals against Ba’ath Party members and so had run away possibly to SYRIA or IRAN. The EPW last spoke with his brother 5 days ago by phone. His brother did not disclose his location. JFIT COMMENT : EPW appears to be telling the truth and has been arrested as a result of mistaken identity. He is of no intelligence value and it is recommended that he is released to the civilian pen. JFIT COMMENT ENDS. ” E. Evidence relating to Tarek Hassan’s presence in the civilian holding area at Camp Bucca and his possible release 25. The applicant submitted a summary of an interview dated 27 January 2007 with Fouad Awdah Al-Saadoon, the former chairman of the Iraqi Red Crescent in Basrah and a friend of the applicant’s family. He had been arrested by British troops and detained at Camp Bucca, in a tent holding approximately 400 detainees. He stated that on 24 April 2003 at around 6 p.m. Tarek Hassan was brought to the tent. Mr Al-Saadoon stated that Tarek Hassan seemed scared and confused but did not mention that Tarek Hassan complained of having been ill-treated. Tarek Hassan was not interrogated during the time they were together in Camp Bucca. Since Mr Al-Saadoon was in ill-health, Tarek Hassan brought him food and cared for him. Mr Al-Saadoon was released on 27 April 2003, in a batch of 200 prisoners, since the United Kingdom authorities had decided to release all detainees aged 55 or older. The detainees were released at night, on a highway between Al-Basrah and Al-Zubair and had to walk 25 miles to the nearest place they could hire cars. Following his release, he informed the applicant’s family that he had seen Tarek Hassan at Camp Bucca. According to the applicant, this was the only information received by the family about his brother’s whereabouts following the latter’s arrest. In response to this statement, the Government submitted that Mr Al-Saadoon might have been mistaken about the date, because it appeared from the interrogation records that Tarek Hassan was released to the civilian holding area on 25 April 2003. They also emphasised that stringent efforts were made to return individuals to their place of capture or to an alternate location if requested, and that 25 miles was much greater than the distance between Al-Basrah and Al-Zubair. 26. According to the witness statement, provided by the Government, of Major Neil Wilson, who commanded a group of soldiers from the Military Provost Staff who advised on detention issues within the United Kingdom area of operations in Iraq during the relevant period, the decision to release United Kingdom captured detainees held at Camp Bucca, other than those facing criminal charges, was taken by a tribunal convened by United Kingdom military legal officers. Details were then passed to the United States guards, before those released were processed out of the Camp, with their details checked and entered on the AP3 ‑ Ryan database. According to the orders made by the United Kingdom’s Military Divisional Headquarters based in Basrah and applying at that time, the United States forces were responsible for the repatriation of all prisoners to the areas within their field of operation and the United Kingdom forces were responsible for returning prisoners to areas within their field of operation, namely South East Iraq, regardless of which force had captured the prisoners. The ICRC was to have access to all those being released. Again according to the applicable orders, prisoners repatriated by British forces were to be loaded on to buses with armed guards on-board and armed military escort vehicles to the front and rear. Release was to be to specific repatriation points in daylight hours, with sufficient food and water to last the individuals being released until they got home. According to the evidence of Major Wilson, efforts were made to return individuals to their point of capture. There were four drop-off points within the United Kingdom field of operation, including “Al-Basrah GR TBC [grid reference to be confirmed]”. Umm Qasr was not listed as a drop ‑ off point but could be entered as a point of release on the records of individuals being processed for release. 27. The Government also submitted a military order dated 27 April 2003 (FRAGO 001/03), the purpose of which was to ensure the release from detention of the maximum possible number of civilians and prisoners of war prior to the cessation of hostilities (which was subsequently announced on 1 May 2003). The annex to the order set out the procedures to be followed. A number of individuals would continue to be detained on security grounds or because they were suspected of being criminals; they had already been identified by JFIT, with the decision recorded on the AP3-Ryan database, and a list given to the United States authorities to ensure they were not released. The remaining population would stay within the individual compounds and await release processing by the United Kingdom authorities. At the processing tent, a three-point check would be made of each detainee’s wrist-band, face and digital profile held on AP3-Ryan. The following information was then required to be entered into the database: “(1) Releasing Force Element; (2) Release Date; (3) Releasing Nation; (4) Selected Place of Release.” The text of the order itself referred to four drop ‑ off points (Al-Basrah, Najef, Al-Kut and An Nasariah (the latter three towns were to the north of Al-Basrah), but the annex listed in addition Um Qasr (south of Al-Basrah and 2.5 kilometres from the Camp) as a drop-off point. The United Kingdom forces would then retain the detainee’s identity card and pass him back to the United States authorities for final processing, including the issue of food and water and the return of personal belongings. Four holding areas would be established, “one for each release location”, from which the detainees would then be transported to the agreed repatriation points and released in daylight hours. The order also required a final audit to be conducted to check that all United Kingdom detainees listed on the AP3-Ryan database had either been released or continued to be detained. Should the record be identified of any person who had neither been released nor detained, a board of inquiry had to sit to determine what had happened. 28. In addition, the Government submitted a witness statement dated 29 October 2007 by Warrant Officer Class 2 Kerry Patrick Madison, who had responsibility for the management of the AP3-Ryan database. He stated that by 22 May 2003 AP3-Ryan showed that the United Kingdom forces had captured and processed 3,738 detainees in Iraq since the start of hostilities and had released all but 361. Annexed to Warrant Officer Madison’s statement were a number of screen prints showing entries on the database relating to Tarek Hassan. They showed that an entry was made on AP3-Ryan on 4 May 2003 at 1.45 p.m. recording the release of “Tarek Resaan Hashmyh Ali” at 00.01 on 2 May 2003. The releasing authority was stated to be “United Kingdom (ARMD) DIV SIG REGT”; the place of release was stated to be “Umm Qasr”; the method of release was “By Coach” and the ground of release was recorded as “End of Hostilities”. A further entry was made in the United Kingdom AP3-Ryan system on 12 May 2003 at 10.13 p.m. recording that: “PW was found to be absent from the internment facility when 100% check was conducted. PW was released on AP3 on 12 May 03”. According to the Warrant Officer Madison, some 400 individuals’ records included the statement “PW was released on AP3 on 12 May 03”, when they had in fact been released earlier and it was therefore likely that the Camp’s computer release records were brought up to date on 12 May following a physical check. The United States computer system did not record any release until 17 May 2003 but again, according to the Government, this was probably explained by a reconciliation of the United States Camp Bucca database with a physical check of occupants of the Camp by the United States authorities on 17 May. F. The discovery of Tarek Hassan’s body 29. According to the applicant, Tarek Hassan did not contact his family during the period following his purported release. On 1 September 2003 one of the applicant’s cousins received a telephone call from a man unknown to them, from Samara, a town north of Baghdad. This man informed them that a dead man had been found in the nearby countryside, with a plastic ID tag and piece of paper with the cousin’s telephone number written on it in the pocket of the sport’s top he was wearing. According to the applicant, Tarek Hassan was wearing sportswear when he was captured by British forces. The applicant’s cousin called him and, together with another brother, the applicant went to the forensic medical station of the Tekrit General Hospital in Samara. There they saw the body of Tarek Hassan with eight bullet wounds from an AK-47 machine gun in his chest. According to the applicant, Tarek Hassan’s hands were tied with plastic wire. The identity tag found in his pocket was that issued to him by the United States authorities at Camp Bucca. A death certificate was issued by the Iraqi authorities on 2 September 2003, giving the date of death as 1 September 2003, but the sections reserved for the cause of death were not completed. A police report identified the body as “Tariq Hassan” but gave no information about the cause of death. G. Correspondence with Treasury Solicitors and legal proceedings 30. The applicant remained in hiding in Iraq until October 2006, when he crossed the border to Syria. In November 2006, through a representative in Syria, he made contact with solicitors in the United Kingdom. The applicant’s solicitors wrote to the Government’s Treasury Solicitors on 21 December 2006 requesting explanations for the arrest and detention of Tarek Hassan and the circumstances that resulted in his death. It took some time to identify the applicant’s brother, because he was entered in the Camp Bucca databases under the name “Tarek Resaan Hashmyh Ali” (see paragraph 18 above). However, in a letter dated 29 March 2007 Treasury Solicitors stated that a check of the United Kingdom’s prisoner of war computer records had produced a record of Tarek Resaan Hashmyh Ali being detained at Camp Bucca. In a further letter dated 5 April 2007 Treasury Solicitors stated that further computer records had been recovered which “confirm the handover” of Tarek Hassan from the United Kingdom authorities to the United States authorities at Camp Bucca and which recorded his release on 12 May 2003. 31. The applicant commenced proceedings in the High Court on 19 July 2007 seeking declarations in respect of breaches of his brother’s rights under Articles 2, 3 and 5 of the Convention, as set out in Schedule 1 to the Human Rights Act 1998, financial compensation and an order requiring the Government to initiate an independent and public investigation into the fate of the deceased after he was detained by British forces on 22 April 2003. The claim was heard on 19 and 20 January 2009 and was rejected in a judgment delivered by Walker J on 25 February 2009 ([2009] EWHC 309 (Admin)). The judge held that, in the light of the judgment of the House of Lords in Al-Skeini (see further the summary of the House of Lords’ judgment in Al-Skeini v. the United Kingdom, cited above, §§ 83-88), it could not be said that Tarek Hassan was within the United Kingdom’s jurisdiction under Article 1 of the Convention at any time. In Al-Skeini the House of Lords had recognised a number of exceptions to the general rule that a State did not exercise jurisdiction extra-territorially, but these did not include detention of a person unless this took place within a military prison or other comparable facility controlled by the Contracting State. The judge’s analysis of the MOA (see paragraph 16 above) indicated that Camp Bucca was a United States rather than a United Kingdom military establishment, for the following reasons: “... It is plain that the detaining power [the United Kingdom] relinquishes, until such time as it requires return of the individual in question, responsibility for maintaining and safeguarding those transferred. Accountability in that regard is the responsibility of the accepting power [the United States]. As regards adjudications concerning the individual’s contact after transfer to the accepting power the detaining power relinquishes to the accepting power primary jurisdiction. Overall this amounts to a legal regime in which the detaining power has no substantial control over the day to day living conditions of the individual in question.” 32. The applicant was advised that an appeal would have no prospect of success. | This case concerned the capture of the applicant’s brother by British armed forces and his detention at Camp Bucca in Iraq (close to Um Qasr). The applicant alleged in particular that his brother had been arrested and detained by British forces in Iraq and that his dead body, bearing marks of torture and execution, had subsequently been found in unexplained circumstances. He also complained that the arrest and detention had been arbitrary and unlawful and lacking in procedural safeguards. He lastly complained that the British authorities had failed to carry out an investigation into the circumstances of his brother’s detention, ill-treatment and death. |
1,025 | (2) A State may take measures derogating from its Convention obligations only to the extent strictly required by the situation | I. THE EMERGENCY SITUATION AND ITS BACKGROUND 11. The tragic and lasting crisis in Northern Ireland lies at the root of the present case. In order to combat what the respondent Government describe as "the longest and most violent terrorist campaign witnessed in either part of the island of Ireland ", the authorities in Northern Ireland exercised from August 1971 until December 1975 a series of extrajudicial powers of arrest, detention and internment. The proceedings in this case concern the scope and the operation in practice of those measures as well as the alleged ill-treatment of persons thereby deprived of their liberty. 12. Up to March 1975, on the figures cited before the Commission by the respondent Government, over 1,100 people had been killed, over 11,500 injured and more than £140,000,000 worth of property destroyed during the recent troubles in Northern Ireland. This violence found its expression in part in civil disorders, in part in terrorism, that is organised violence for political ends. A. Social, constitutional and political background 13. Prior to 1922 the whole of the island of Ireland formed part of the United Kingdom. In that year, following a treaty of 1921, legislation was passed which endorsed the setting-up, with self-governing status within the British Commonwealth, of the Irish Free State comprising initially all of the island ’ s thirty-two counties. Provision was made for six of the nine counties of the province of Ulster in the north to opt out and remain within the United Kingdom and they did this in 1922. Thereafter, the Irish Free State became responsible for the government of the remaining twenty-six counties and, in 1937, a new Constitution was introduced proclaiming the independence and sovereignty of the State of what is now known as the Irish Republic. After the Second World War it left the Commonwealth and declared itself a republic. 14. From the 1920 ’ s onwards, Northern Ireland, that is the above-mentioned six counties, had a separate Government and Parliament of its own. In addition, the electorate of the province (meaning in this judgment the six counties) returned twelve members to the United Kingdom Parliament. With certain defined matters excepted, the Northern Ireland Parliament and Government were the legislative and executive authorities for the six counties until 30 March 1972 when the United Kingdom authorities resumed "direct rule" of the province (see paragraph 49 below). 15. Northern Ireland is not a homogeneous society. It consists of two communities divided by deep and long-standing antagonisms. One community is variously termed Protestant, Unionist or Loyalist, the other is generally labelled as Catholic, Republican or Nationalist. About two-thirds of the population of one and a half million belong to the Protestant community, the remaining third to the Catholic community. The majority group is descended from Protestant settlers who emigrated in large numbers from Britain to Northern Ireland during the seventeenth century. The now traditional antagonism between the two groups is based both on religion and on social, economic and political differences. In particular, the Protestant community has consistently opposed the idea of a united Ireland independent of the United Kingdom, whereas the Catholic community has traditionally supported it. 16. The Irish Republican Army (IRA) is a clandestine organisation with quasi-military dispositions. Formed during the troubles prior to the partition of the island and illegal in the United Kingdom as well as in the Republic of Ireland, the IRA neither accepts the existence of Northern Ireland as part of the United Kingdom nor recognises the democratic order of the Republic. It has periodically mounted campaigns of terrorism in both parts of the island of Ireland and in Great Britain. After 1962, the IRA was not overtly active for some years. During the time covered by the complaints of the applicant Government that is from 1971 to 1975 virtually all those members of the IRA living and operating in Northern Ireland were recruited from among the Catholic community. 17. Legislation designed to deal with matters affecting law and order and the security of the State was first enacted by the Northern Ireland Parliament in 1922 in the form of the Civil Authorities (Special Powers) Act ( Northern Ireland ). This legislation (hereinafter referred to as "the Special Powers Act") was an enabling Act under which Regulations were from time to time made and brought into operation. Thus, for instance, a Regulation dating from before 1949 declared illegal certain organisations, including the IRA. In 1950 and 1954, following raids carried out by the IRA in Great Britain and Northern Ireland, Regulations were introduced granting powers of entry and search. In 1956 and 1957, in order to combat an IRA campaign then being launched, further Regulations were made dealing with internment, curfew, special trial procedures, firearms and explosives control, and restriction on movement. An account of the particular Regulations at issue in the present case, namely Regulations 10, 11 (1), 11 (2) and 12 (1), appears below at paragraphs 81 to 84. 18. The differing aspirations of the two communities resulted in the division between the main political parties in Northern Ireland being based primarily on their attitude to the status of the province as part of the United Kingdom rather than on political differences of the type commonly found in the rest of the United Kingdom and elsewhere. The Protestant community in general voted for the Unionist Party, which wished Northern Ireland to remain within the United Kingdom, whilst the Catholic community in general supported candidates favouring a united, independent Ireland. Given the relative sizes of the two communities, the inevitable result of this polarisation was that the Unionist Party, supported almost exclusively by Protestants, had a permanent majority in the Northern Ireland Parliament and formed the Government of the province throughout the fifty years leading up to direct rule in 1972. The abolition of proportional representation in the early 1920 ’ s and the geographical arrangement of constituencies affected a great increase in the size of the Parliamentary majority. This situation understandably disenchanted the Catholic community. 19. Thus, whilst only a small minority of the latter community has ever actively supported the IRA, a very much greater proportion had always been discontented with Unionist government and the effects of its in-built majority. The Catholics in the population regarded themselves as discriminated against on various counts. The Cameron Commission, a body appointed by the Northern Ireland Government in March 1969 to report, inter alia, on the causes of disturbances in the six counties in 1968-1969 (see paragraph 23 below), considered justified many of the grievances then felt by the Catholics, in particular those concerned with the allocation of houses, local authority appointments, limitations on local electoral franchise and deliberate manipulation of ward boundaries and electoral areas. The European Commission of Human Rights itself came to the conclusion that there certainly was an element of inherent bias in the whole political system in Northern Ireland in favour of one community. From the time of partition onwards there has always been a greater or lesser degree of tension between the two communities, although since the early 1920 ’ s there have been no disturbances comparable in scale to those of recent years. B. Development of the crisis up to 1969 20. In 1963 the first moves towards a campaign for "civil rights" for the Catholic community began to be made. The objectives of this campaign were, broadly speaking, the removal of the discrimination referred to above. At the same time, though, manifestations of Protestant violence began to emerge. In 1964 there was serious rioting in Belfast following a Protestant march. In March 1966, several petrol bombs were thrown at Catholic schools and property. In May 1966, a body calling itself the Ulster Volunteer Force (UVF), previously unknown to the police, issued a statement declaring war on the IRA and warning of its intention to execute all IRA men. Shortly thereafter, two Catholics were murdered and two others seriously wounded in Belfast. Three Protestants, members of the UVF, were subsequently charged and convicted for these attacks. The UVF, believed by the police to have consisted of only 5 to 6 persons, was declared illegal in June 1966 and seems to have remained inactive from then until 1969. During this period, there was no violent activity of significance by the IRA, who, after 1962, appear to have concentrated on political activity. 21. Throughout 1967, the movement for "civil rights" for the Catholic community gathered momentum. The first civil rights march took place in August 1968 without incident, but in October a clash with the police and two days ’ rioting ensued after a march in Londonderry. 22. On 22 November 1968, the Northern Ireland Government announced a reform programme to deal with the Catholic grievances. Nevertheless, the civil rights movement continued its campaign and marches. The marches again led to clashes with the police and to violent confrontation with Protestant counter-demonstrators, often armed with cudgels, stones and the like. 23. The demonstrations, disturbances and rioting continued in various places into 1969. In paragraph 226 of its report, presented to the Northern Ireland Parliament in September 1969, the Cameron Commission expressed the view that certain Protestant extremist organisations "must ... bear a heavy share of direct responsibility for [certain of] the disorders ... and also for inflaming passions and engineering opposition to lawful, and what would in all probability otherwise have been peaceful, demonstrations or at least have attracted only modified and easily controlled opposition". Police conduct in handling certain disturbances was also criticised by the Cameron Commission. 24. In March and April 1969, five major explosions thought to have been caused by the UVF occurred at water and electricity installations in three counties. Units of British troops were flown into the province. The Northern Ireland Prime Minister, whose reform policies were unpopular with many Protestants, resigned at the end of April. A few days later, his successor declared a general amnesty for persons charged with or convicted of offences connected with the recent political protests and demonstrations. 25. Tension remained high; sectarian disturbances continued periodically up to mid-August. On 12 August 1969, a traditional Protestant anniversary parade sparked off several days of large-scale rioting, first of all in Londonderry and thereafter spreading to Belfast and other places. After 10 civilians had been killed and 145 civilians and 4 policemen wounded, it was found necessary to call in aid units of the British army. The riots in August 1969 greatly exceeded in severity any that had occurred in the previous years. Casualties and damage to property were extensive. In Belfast, for instance, a large number of houses and licensed premises, mostly Catholic owned or occupied, were burnt down, destroyed or damaged. 26. The Northern Ireland Prime Minister called a peace conference on 18 August which was attended by representatives of the two communities. On the next day, the United Kingdom and Northern Ireland Governments issued a joint declaration re-affirming, inter alia, their commitment to reforms in the six counties. In October, a programme of reform was announced; it included the reorganisation of the police force and local government, measures to prohibit discrimination in public employment, and the establishment of a Community Relations Commission and a central housing authority. 27. However, the publication of a government report into the functions and organisation of the province ’ s police force had produced a violent reaction in Protestant circles. On 11 October, a policeman was shot dead by a bullet fired from a crowd of Protestant rioters in Belfast. He became the first member of the security forces to be killed during the disorders of the past few years. 28. The IRA carried out no major acts of violence in 1969. However, at Easter 1969 they had reactivated their forces, placing all volunteers on full alert. At the same time, the IRA are thought to have gained much more support as a result of the riots and of an accompanying loss of confidence by Catholics in the police. Towards the end of the year, the IRA split into two wings. For some time there had been dissension in the movement between those who hoped to bring about a form of socialist people ’ s republic for all Ireland and those who considered that such involvement deflected the IRA from its traditional aims. The traditionalists formed themselves into the Provisional IRA whilst the followers of the new political doctrines became the Official IRA. Both factions remained organised along military lines. C. Situation from 1970 until the introduction of internment on 9 august 1971 29. The situation worsened in 1970. The number of explosions recorded by the police jumped dramatically from a total of 8 in 1969 to 155 in 1970. Some explosions were caused by Loyalists - about 25 according to statistics cited by the Commission - but there is no dispute that the majority were the work of the IRA. In total, 23 civilians and 2 policemen were killed during the course of the year. None of these deaths was attributed by the police to Protestant activity. 30. The terrorist campaign by the IRA appears to have begun in earnest in 1970 and to have been one primarily of bombing buildings and attacking the security forces. There was also undoubtedly some terrorist activity on the part of Loyalists, directed largely against politicians seen as hostile to Unionism and against Catholic owned or occupied property, particularly licensed premises. Responsibility for certain explosions was in fact claimed by the UVF. 31. The sharp increase in what may be termed terrorist-type activity was not accompanied by the cessation of inter-communal street disturbances which continued sporadically during the year of 1970 and accounted for the deaths of a number of people. 32. Between January and July 1971, the violence intensified, being marked by a dramatic upsurge in terrorist activity by the IRA. Police statistics record a total of 304 explosions, including 94 for the one month of July. Shooting at the security forces ’ patrols built up and for the first time soldiers numbered amongst those killed. By 9 August, 13 soldiers, 2 policemen and 16 civilians had died since the beginning of the year. In addition, serious and prolonged rioting occurred in both Catholic and Protestant areas. Apart from one explosion in which a civilian was killed, there is no evidence of any deaths or even injuries having been caused by Loyalist terrorists. On the applicant Government ’ s own approximate estimate, Loyalist explosions accounted for only 14 out of the overall total of 304. Furthermore, as in 1970, Loyalist terrorists used mainly pipe bombs which were not very powerful in comparison with the devices employed by the IRA. The Commission stated in its report that the IRA were indisputably responsible for the very great majority of the acts of violence during this period. Loyalist terrorist activity had declined; there is no evidence that such Loyalist terrorism as did exist formed part of a highly organised campaign in the sense that IRA activity did. The Commission ’ s conclusion was that the threat and reality of serious terrorism came almost exclusively from the IRA. 33. On the political front during 1970 and 1971, progress was made in implementing the reforms announced in October 1969 (see paragraph 26 above). The Prime Minister of Northern Ireland, however, resigned in March 1971. In June 1971, his successor proposed a number of further steps designed to provide a positive role for representatives of the minority community in the actual process of government. D. 9 August 1971 (introduction of internment) until 30 March 1972 (introduction of direct rule) 1. The decision to introduce internment 34. It was against the background outlined above that on 9 August 1971 the Northern Ireland Government brought into operation extrajudicial measures of detention and internment of suspected terrorists. From 9 August 1971 until 7 November 1972, when certain of the Special Powers Regulations were replaced, the authorities in Northern Ireland in fact exercised four such extrajudicial powers: (i) arrest for interrogation purposes during 48 hours (under Regulation 10); (ii) arrest and remand in custody (under Regulation 11 (1)); (iii) detention of an arrested person (under Regulation 11 (2)); and (iv) internment (under Regulation 12 (1)). An account of the operation of these powers and the procedures there under is given below at paragraphs 81 to 84. 35. For some time, the possibility of internment had been extensively canvassed in the press and amongst politicians. Pressure had also been mounting within the Protestant community for its introduction; in the early months of 1971 there had been demonstrations against the then Prime Minister because of his Government ’ s alleged failure to deal with the IRA threat. The decision to introduce a policy of detention and internment was taken on 5 August 1971 by the Northern Ireland Government, following a meeting in London between the Northern Ireland and United Kingdom Governments. Prior to this, the question had been considered at the highest level in Northern Ireland and frequent consultations had taken place between the two Governments. In the latter half of July 1971, as an apparent last resort to avoid introducing internment, the security forces had intensified operations against suspected terrorists, mounting searches and detaining for questioning what were believed to be key figures in the IRA. Some 90 persons were arrested but no significant results were yielded. Prior to August 1971, the intelligence obtained by the police had failed to provide anything but a very general picture of the IRA organisation. 2. Reasons for the decision to introduce internment 36. The campaign of violence carried out by the IRA had attained unprecedented proportions by the middle of 1971. This was clearly the dominant factor behind the decision to exercise the extrajudicial powers. Three principal reasons for the decision have been cited by the respondent Government. Firstly, the authorities took the view that the normal procedures of investigation and criminal prosecution had become inadequate to deal with IRA terrorists; it was considered that the ordinary criminal courts could no longer be relied on as the sole process of law for restoring peace and order. The second reason given, which was closely related to the first, was the widespread intimidation of the population. Such intimidation often made it impossible to obtain sufficient evidence to secure a criminal conviction against a known IRA terrorist in the absence of an admissible confession or of police or army testimony. Furthermore, the conduct of police enquiries was seriously hampered by the grip the IRA had on certain so-called "no-go" areas, that is Catholic strongholds where terrorists, unlike the police, could operate in comparative safety. Thirdly, the ease of escape across the territorial border between Northern Ireland and the Republic of Ireland presented difficulties of control. In addition to the three "security" reasons, there was, in the judgment of both the Northern Ireland Government and the United Kingdom Government, no hope of winning over the terrorists by political means, the reform programme initiated in 1969 having failed to prevent continuing violence. The authorities therefore came to the conclusion that it was necessary to introduce a policy of detention and internment of persons suspected of serious terrorist activities but against whom sufficient evidence could not be laid in court. This policy was regarded as a temporary measure primarily aimed at breaking the influence of the IRA. It was intended that a respite would be provided so as to enable the political and social reforms already undertaken to achieve their full effects. 3. The decision whom to arrest, detain and intern 37. The possibility of interning Loyalists was discussed in the preparatory stages. The security forces were aware of some Loyalist terrorist activity in 1971 and also of certain Protestant extremists, described by those forces as "rabble rousers" and suspected by them of acts of violence or intimidation, if not of terrorism strictly speaking. However, the security forces did not judge at this stage that there was any serious threat coming from the Loyalist quarter. There was said to be no army or police intelligence then available which indicated that any organisation other than the IRA had been actively engaged in bombing and killing in the very recent months. On account of the unprecedented level it had reached, and because of its nature as a highly organised, politically motivated campaign designed to overthrow the State, IRA terrorism was regarded as the real menace to law and order. Protestant terrorist activity, which was in the main directed against the Catholic community and not the State or the security forces, was seen by the authorities more as sporadic and as being on a minute scale in comparison and on a much less organised basis. 38. In the weeks preceding the introduction of internment, the police, in consultation with the army, were preparing lists of persons to be arrested. The lists included not only suspected IRA terrorists but also persons suspected of being involved or associated with the IRA or even, in a few cases, of possessing information about others so involved or associated. It was generally understood that the target of the planned exercise was the IRA. 4. Operation Demetrius 39. Starting at 4.00 a.m. on Monday, 9 August 1971, the army, with police officers occasionally acting as guides, mounted an operation to arrest the 452 persons whose names appeared on the final list. In the event, some 350 persons were arrested in accordance with the Special Powers Regulations. The arrested persons were taken to one of the three regional holding centres (Magilligan Weekend Training Centre in County Londonderry, Ballykinler Weekend Training Centre in County Down and Girdwood Park Territorial Army Centre in Belfast) that had been set up to receive the prisoners during 48 hours. All those arrested were subjected to interrogation by police officers of the Royal Ulster Constabulary (RUC). 104 persons were released within 48 hours. Those who were to be detained were sent on to the prison ship" Maidstone" or to Crumlin Road Prison, both in Belfast. Prior to being lodged in detention, 12 individuals were moved to one or more unidentified centres for "interrogation in depth" extending over several days. Operation Demetrius, as the Commission points out, was not a selective manoeuvre aimed at individuals but a "sweeping-up" exercise directed against the IRA organisation as a whole. It is generally accepted that because of the scale and speed of the operation, some persons were arrested or even detained on the basis of inadequate or inaccurate information. 5. Events subsequent to Operation Demetrius 40. At 11.15 a.m. on 9 August 1971, the Prime Minister of Northern Ireland announced to the public the introduction of internment. He stated, inter alia: "The main target of the present operation is the Irish Republican Army ... They are the present threat; but we will not hesitate to take strong action against any other individuals or organisations who may present such a threat in the future." 41. Arrests continued to be made during the rest of the year, partly of persons on the above-mentioned list and partly of persons who came under suspicion thereafter. The three regional holding centres were closed down in August 1971 shortly after Operation Demetrius was completed, and in September/October 1971 police centres were established at Palace Barracks ( Holywood, County Down ), Girdwood Park ( Belfast ), Gough ( County Armagh ) and Ballykelly ( County Londonderry ) for the purpose of holding and interrogating persons arrested under the Special Powers Regulations. 42. The introduction of internment provoked a violent reaction from the Catholic community and the IRA. Serious rioting broke out in Belfast and elsewhere, there was a considerable increase in shootings and bombings, and the security situation in general deteriorated rapidly. Within the minority community there occurred a further alienation from the authorities and the security forces, together with a rise in support for the IRA. 43. Although surprised by the extent of this reaction, both the Northern Ireland and the United Kingdom Governments continued their efforts to secure political progress. In London, the Home Secretary announced in September 1971 his Government ’ s determination to ensure that the Catholic population in the province should have an active, permanent and guaranteed role in the conduct of public business. In the same month, a meeting took place in England between the Prime Ministers of the United Kingdom, Northern Ireland and the Irish Republic. In October, the Belfast Government published proposals for involving the opposition in government. However, these proposals were considered unacceptable by the political representatives of the Catholic community and nothing came of them. 44. Neither internment nor the political initiatives ended the violence. On the contrary, the numbers of deaths, explosions and shootings recorded by the police for each month throughout the period from August to December 1971 were higher than those recorded in any of the previous seven months of the year. There was a total of 146 persons killed, including 47 members of the security forces and 99 civilians, 729 explosions and 1,437 shooting incidents. 45. Apart from rioting and a small-scale bombing campaign of licensed premises, there was apparently little serious violence by Protestants in 1971. Only one death occurring between August and the end of the year, an assassination of a Protestant in September, was attributed by the police to Loyalists. On the other hand, intimidation of members of the opposite community to move from their homes seems to have become more prevalent on both sides, although the official figures indicate that Catholics were principally affected. 46. On the Protestant side, the increased violence at this time led to the formation of defence associations or vigilante groups which ultimately amalgamated in or about September 1971 to become the Ulster Defence Association (UDA). The UDA did not appear openly on the streets until the spring of 1972. There was also seen the start of a development later to become significant, that is the holding of large, carefully prepared parades by Loyalist organisations (see paragraph 51 below). The latter and in particular the UDA were looked on by the police as primarily political organisations not engaged in violence as such. 47. At the beginning of 1972, despite a small drop, the level of violence remained higher than at any time before 9 August 1971. On 30 January 1972, 13 people were killed by army gunfire in the course of disorders taking place in the predominantly Catholic town of Londonderry. This incident led to a new upsurge in support for the IRA amongst the Catholic community. In the first three months of 1972, 87 people were killed, including 27 members of the security forces. Two assassinations carried out in March, one of a Protestant and the other of a Catholic, were the only deaths attributed to Loyalist activity. 421 explosions, the vast majority attributed to the IRA, were caused during the same period. 48. From August 1971 until 30 March 1972 there had been in Northern Ireland 1,130 bomb explosions and well over 2,000 shooting incidents. 158 civilians, 58 soldiers and 17 policemen had been killed, and 2,505 civilians, 306 soldiers and 107 RUC members injured. Throughout these months the numbers held under detention or internment orders proceeded to rise until a total of over 900 persons, all suspected of involvement with the IRA, were held at the end of March 1972. At the same time, the ordinary processes of the criminal law continued to be used, against Protestants as well as Catholics, whenever there was thought to be sufficient evidence to ground a criminal conviction. Thus, between 9 August 1971 and 31 March 1972, over 1,600 people were charged with "terrorist-type" offences. 49. In March 1972, in view of the deteriorating circumstances, the Government in London decided that they should assume direct responsibility for the administration of law and order in Northern Ireland if there was to be any hope of political progress. This decision was unacceptable to the Government of the province and accordingly it was announced on 24 March 1972 that direct rule from Westminster not only on law and order but on all matters was to be introduced. Under the Northern Ireland (Temporary Provisions) Act 1972 (hereinafter referred to as the "Temporary Provisions Act"), which was passed by the United Kingdom Parliament and came into force on 30 March 1972, temporary provision was made for the exercise of the executive and legislative powers of the Northern Ireland Parliament and Government by the United Kingdom authorities. The Belfast Parliament was prorogued and the Queen empowered to legislate in its stead by Order in Council. The executive powers of the Belfast Government were transferred to the Secretary of State for Northern Ireland. This was a new office created for the purpose; its holder was a member of the United Kingdom Government and answerable to the United Kingdom Parliament. The legislation was enacted for a period of one year but was subsequently extended. E. 30 March 1972 (introduction of direct rule) until 5 February 1973 (first detention of loyalists) 50. On assuming direct rule, the United Kingdom Government stated that one of their most important objectives was to bring internment under the Special Powers Act to an end and to consider how far the powers under that Act could be dispensed with. On 7 April 1972, the Secretary of State for Northern Ireland announced the immediate release of 47 internees and 26 detainees. By mid-May 259 persons had been released. The decision to phase out internment was not dictated by any fall in the level of violence. Rather it was intended to open the way for political progress by reducing tension as the first step in the process of reconciliation. On the political level, the United Kingdom was seeking the establishment of an equitable form of government for Northern Ireland, acceptable to both communities. 51. The introduction of direct rule, together with the release of detainees, caused resentment and dismay amongst the Protestant community. A two-day strike, which proved largely effective, was immediately called by the leader of one of the extremist movements on the Loyalist side. Street demonstrations and marches called by the UDA appear to have begun shortly after 30 March 1972. The UDA was organised on pseudo-military lines, its members, estimated at between 20,000 and 30,000 persons, giving themselves military ranks. The UDA used its forces to erect barricades, set up road blocks and disrupt civil life generally. They paraded in large numbers through the centre of Belfast and elsewhere, many of them masked and dressed in para-military uniforms and on occasions openly carrying weapons such as sticks or cudgels. Such demonstrations, however, seem rarely to have led to physical violence. Whilst it was illegal to block roads, wear uniforms or carry offensive weapons, the security forces did not attempt to arrest those taking part in UDA demonstrations since they feared that major riots would result. Neither were the extrajudicial powers of detention and internment ever used, against either Catholics or Protestants, to combat this kind of illegal activity. According to the respondent Government, consideration was given to the possibility of proscribing the UDA, but it was decided that on balance no good purpose would be served by doing so, not least because most of its members were not engaged in violence. It is generally accepted, however, that UDA membership overlapped, to some extent at least, with the smaller and more militant extremist bodies which were illegal, such as the UVF (see paragraph 20 above). 52. Other aspects of Loyalist activity during this stage of the crisis included the erection of barricades and the continuing intimidation of Catholics, a problem that became particularly grave in the summer of 1972. There were serious disturbances in Protestant areas in September and October 1972, with Loyalist terrorists exchanging fire with the security forces. The rioting in October ceased after the UDA had ordered the confrontation with the security forces to stop. 53. After the introduction of direct rule, there occurred a marked upward turn in Loyalist terrorism, evidenced by a few bombing attacks, a large-scale build-up of arms and ammunitions, and above all sectarian assassinations. Sectarian assassinations, which the respondent Government term the outstanding feature of Loyalist violence since 1972, first reached serious proportions in the spring of 1972. Victims seem largely to have been chosen at random on no other ground than their membership of, or links with, the other community. Kidnapping and torturing sometimes accompanied this kind of indiscriminate killing. While both sides committed sectarian murders, it is generally accepted that Protestants were responsible for more than Catholics. The police had difficulty in detecting those responsible for sectarian assassinations. In particular, witnesses were reluctant to come forward and were subjected to intimidation. Accordingly, a confidential telephone system was installed in August 1972, whereby information could be given anonymously to the security forces. 54. Although Loyalist terrorist activity had grown significantly, it nonetheless remained that the great bulk of serious violence in this period was attributed to the IRA (see paragraph 61 below). The high level of IRA terrorism did not at all abate despite the phasing-out of internment. In fact, there was a steady rise in explosions, shooting incidents and casualties amongst the security forces over the period from March until the end of May. However, on 29 May 1972 the Official IRA, who had been responsible for a lesser amount of violence than the Provisionals, declared a truce which they have on the whole respected ever since. On 22 June 1972 the Provisional IRA in their turn announced a truce, becoming effective on 26 June. The Provisionals ’ truce was, however, called off on 9 July following an incident arising out of a communal argument between the UDA and Catholics about the allocation of accommodation on a Belfast housing estate. 55. After the breakdown of the ceasefire, Provisional IRA violence was resumed at an increased level. In July 1972 alone, 21 members of the security forces and 74 civilians were killed; in addition, there were nearly 200 explosions and 2,800 shooting incidents. These figures were the highest for any month in the entire emergency up to the end of 1974. Responsibility was attributed to Loyalists for 18 deaths and only 2 explosions. 56. Faced with the mounting tide of violence, the United Kingdom Government decided to restore the presence of the security forces in the "no-go" areas. After due warning had been given to the civilian population, a large-scale manoeuvre, known as Operation Motorman, was mounted on 31 July beginning at 4.00 a.m. Even after Operation Motorman the police were still not able to function properly in Catholic areas. Access to Protestant areas remained easier for the police and they were not subject there to the same risk of attack. The army operated principally, and was employed to carry out police duties, in those areas where the minority community predominated. 57. Nevertheless, the level of violence, although still high, immediately fell. In August, September and October, there was an overall total of approximately 2,200 shooting incidents as opposed to 2,800 for July alone. The monthly average of deaths was less than half the July total, and the number of explosions became progressively less. According to the respondent Government, a development contributing to the maintenance of this gradual reduction was the institution in November 1972 of a revised system for the detention of terrorists. In the months following the introduction of direct rule – including July, the worst of these months for violence - no new internment orders were made and fresh detentions virtually ceased. From September onwards, after the breakdown of the attempted ceasefire, the number of detention orders - as before, against IRA suspects only - increased, while the rate of releases fell. There was, however, no large-scale operation to re-detain and re-intern people. 58. The political gesture of phasing out internment had not, as hoped, elicited a positive response from the IRA; on the contrary, violence had mounted to fresh heights. Furthermore, the authorities judged that the capability of the ordinary processes of law to counter IRA terrorism continued to be impeded by a number of circumstances such as the intimidation of potential witnesses and the difficulty of bringing to trial those responsible for directing terrorist operations. The United Kingdom Government therefore became convinced that it was necessary to find fresh means of separating known terrorists from the population at large. On 21 September 1972, the Government announced that it was to set up a Commission, subsequently appointed in October under the chairmanship of Lord Diplock, - to consider "what arrangements for the administration of justice in Northern Ireland could be made in order to deal more effectively with terrorist organisations by bringing to book, otherwise than by internment by the Executive, individuals involved in terrorist activities, particularly those who plan and direct, but do not necessarily take part in, terrorist acts"; and - "to make recommendations". Without waiting for the report of the Diplock Commission, the Government brought into effect on 7 November 1972 the Detention of Terrorists (Northern Ireland) Order 1972 (abbreviated hereafter to the "Terrorists Order"), an Order made in exercise of the powers conferred by the Temporary Provisions Act (see paragraph 49 above). This Order, which was of a temporary nature, revoked Regulations 11 (2) (detention) and 12 (1) (internment); in replacement it instituted, with further procedural guarantees for the protection of the individual concerned, a new system of "interim custody" and "detention" for persons suspected of participation in terrorist activities. Regulations 10 and 11 (1) (arrest) remained. Further details on the Order are given below at paragraphs 85 to 87. 59. The report of the Diplock Commission was presented to the United Kingdom Parliament in December 1972. This report analysed the minimum requirements of a judicial process, the effects of intimidation, possible changes in the rules of evidence and the need for detention without trial. It stated, inter alia: "The fear of intimidation is widespread and well-founded. Until it can be removed and the personal safety of witnesses and their families guaranteed, the use by the Executive of some extrajudicial process for the detention of terrorists cannot be dispensed with." The European Commission of Human Rights, on the basis of the evidence it had itself obtained, accepted that the findings of the Diplock report as to the level of intimidation were generally warranted. 60. Another contributory factor invoked by the respondent Government in connection with the fall in violence (see paragraph 57 above) was the intensive programme of consultations which they undertook with the political parties in Northern Ireland on the question of the future government of the province. These consultations, first commenced in July and August 1972, continued throughout the last weeks of 1972 and the early months of 1973. Apart from the steps taken on the security front, the United Kingdom Government thus maintained the new emphasis placed, since the introduction of direct rule, on attempting to find a solution to the crisis through political means (see paragraph 50 above). 61. The gradual reduction in the level of violence was maintained until the end of this period. The figures for deaths and explosions for January 1973 were, with one slight exception, lower than for any month since the introduction of internment. Despite this general reduction, though, the development of Loyalist militancy and terrorist activity continued. From 1 April 1972 until 31 January 1973, 398 persons were killed, 72 of these deaths being attributed to Loyalists. The overall total included 123 members of the security forces, the vast majority of whom were considered to have been killed by the IRA, and an equal number of victims of "factional or sectarian" assassinations. Of these assassinations, 69 were ascribed to Loyalists, 34 to the IRA, with no attribution being possible in the remaining 20 cases. For their part, explosions totalled 1,141; no more than a small percentage - for example, 29 out of 691 explosions recorded between 1 July 1972 and 31 January 1973 - were regarded as being the work of Loyalists. The increasing Protestant militancy was further evidenced by the statistics on intimidation, arms and ammunitions recovered, and charges brought for "terrorist-type offences". Thus, between 31 July 1972 and 31 January 1973, charges of the kind just referred to were laid against 640 persons, namely 402 Catholics and 238 Protestants; within this total, 45 individuals - 24 Protestants, including 16 in the one month of January 1973, and 21 Catholics – were charged with murder or attempted murder. 62. Loyalist terrorism was linked by the police with Protestant extremist organisations, notably the UVF. The police considered that the UVF ’ s membership and acts of terrorism had increased from 1972 onwards following a period of relative inactivity after its 1969 bombing campaign (see paragraphs 24 and 30 above). It was looked on as a well-armed and organised body. In general, by about the middle of 1972 the police had reasonably good intelligence as to the identity of the violent elements on the Protestant side, but there were cases in 1972 in which it was impossible to procure sufficient evidence to bring such persons before the ordinary criminal courts. Nevertheless, none of the extrajudicial orders made between the introduction of direct rule and 5 February 1973 (see paragraph 64 below) applied to Loyalists. 63. Loyalist violence, however, remained on a far smaller scale than that of the Provisional IRA who, as the above-cited figures show, were still responsible for the great bulk of the terrorist deeds recorded. In the view of the respondent Government and of the Commission, Loyalist and IRA violence were to be distinguished in further respects in addition to volume. Loyalist terrorism consisted largely of intimidation and sectarian assassinations, whereas the IRA campaign also included attacks on members of the security forces and the bombing of public places. As indicated earlier (paragraph 37 above), the character, aims and background of the various organisations engaged in terrorism on the two sides differed. The evidence suggests that the Loyalist terrorist groups were at the time more amorphous than the IRA. Within the security forces there was a tendency, which the Commission regarded as justified in many ways, to look on Loyalist terrorists as "criminals" or "hooligans" and on the IRA as the organised "terrorist" enemy. The prospects of obtaining sufficient admissible evidence for a criminal prosecution were, it seems, judged by the security forces as being better in relation to Loyalists than to IRA suspects. Given the continued inability of the police to operate normally in Catholic areas and the greater extent and organisation of the IRA campaign, the Commission found such an attitude "not surprising". Finally, the statistics referred to above at paragraph 61 indicate that action, in the form of searches, recovery of arms and the bringing of criminal charges, was being taken by the authorities against both sides. 64. From 30 March until 7 November 1972 no new internment orders were made, although it was considered necessary to make 107 detention orders under Regulation 11 (2). By the latter date 628 men had been released from internment and 334 from detention, leaving 167 still interned and 119 still detained. Between the entry into force of the Terrorists Order and 31 January 1973, 166 interim custody orders and 128 detention orders were made while 94 persons were released. 65. In the context of the period from 30 March 1972 to 5 February 1973, the Commission noted in its report that subsequent to the introduction of direct rule the extrajudicial powers appear to have been exercised on a more selective basis and, broadly speaking, in accordance with the following criteria: (i) extrajudicial orders were served only on persons suspected of involvement in serious and organised terrorism; (ii) they were used solely as a "last resort", that is only in cases where sufficient evidence was not available to justify prosecution before the ordinary courts; (iii) as a general practice, they were not made against a person in respect of matters for which he had been tried and acquitted by an ordinary court, provided that it had been possible to put before the court all the relevant evidence. 66. At the beginning of February 1973, a British soldier was shot dead in a Protestant part of Belfast. Shortly afterwards, on 5 February 1973, two interim custody orders were made in respect of Loyalists. These two men were the first Loyalists against whom the extrajudicial powers were exercised. According to the applicant Government, the specific act of which one of these men was suspected - the bombing of a bus, responsibility for which had been claimed immediately after the event by the UVF - had caused a public outcry and had actually forced a decision to "intern" the first suspected Protestant terrorist. The decision itself had been the subject of discussions between the Secretary of State for Northern Ireland, the General Officer Commanding the British forces in the province and high ranking civil servants. The relevant higher authorities are noted in the Commission ’ s report as recognising that the detention of Loyalists would lead to repercussions in the security situation. The Commission accepts that the risk of a severe outbreak of Protestant violence in response was clearly a very real one. Prior to February 1973, it seems, no recommendations had been made to the Secretary of State for the detention or internment of Loyalists. F. 5 February 1973 onwards 67. According to the applicant Government, the exercise of the extrajudicial powers against Loyalists brought in its wake widespread threats from the UDA. In general, however, the pattern of violence from February 1973 onwards can be said to have followed the previous pattern, although at a somewhat lower level than in 1972. The bulk of the terrorist acts that is most of the bombing and shooting attacks on members of the security forces were still perpetrated by the Provisional IRA, with the Loyalists committing the majority of the sectarian assassinations. From 1 February 1973 until 31 October 1974, the police registered 403 deaths, of which 116 were considered to be the responsibility of Loyalists. Of the 145 "factional or sectarian" murders recorded, 95 were ascribed to Loyalists and 40 to the IRA and in 10 cases no attribution was possible. In these twenty-two months, the number of explosions dropped to less than 1,600 - about 330 being attributed to Loyalists - as compared with approximately 1,400 in the one year of 1972. For their part, shootings fell from 10,628 to 7,112, although an increase occurred in punishment shootings such as "executions" and "knee- capping ". 68. On 8 August 1973, the Northern Ireland (Emergency Provisions) Act 1973 (hereafter abbreviated to the "Emergency Provisions Act") came into force. This Act, which was based mainly on the recommendations of the Diplock Commission (see paragraphs 58 and 59 above), repealed the 1922 Special Powers Act, Regulations 10 and 11 (1) and the 1972 Terrorists Order, while retaining in substance the procedure laid down in the latter Order. Briefly, the extrajudicial powers introduced under the Emergency Provisions Act were: (i) arrest and detention for 72 hours; (ii) interim custody for 28 days; and (iii) detention (see paragraphs 88 and 89 below for a fuller explanation). These emergency powers remained in force for a period of one year unless renewed. The Act also dealt with the trial and punishment by the ordinary courts of certain scheduled offences, for the most part offences concerned with violence. One provision, section 6, is referred to below at paragraph 136. 69. Between 1 February 1973 and 31 October 1974, interim custody orders were served on 99 Protestants and 626 Catholics; at all times many more Catholics than Protestants were actually held. Shortly before Christmas 1973, 65 detainees, 63 of whom were Catholics, were released. 70. During the same period, 2,478 persons were charged with "terrorist-type offences", the total being made up as follows: 1,042 Protestants, 1,420 Catholics and 16 soldiers. These figures included 60 Protestants and 66 Catholics charged with murder. In addition, searches were being conducted and arms recovered in relation to both sides. 71. While the level of violence was reduced in the years 1973 and 1974, progress on the political front was somewhat erratic. In March 1973, the United Kingdom Government published a White Paper setting out proposals for the constitutional future of the six counties. These proposals envisaged a new regional government with participation at "cabinet" level by representatives of both communities. A 1973 Act provided for the election of a Northern Ireland Assembly before the main constitutional legislation was enacted. Elections, based on the principle of proportional representation in order to ensure a fair representation for the Catholic minority, were held on 30 June 1973. Of the 78 members elected to the Assembly, 51 were in favour of the proposed constitutional changes, even though the extreme Loyalist parties had conducted a campaign of opposition. 72. The White Paper proposals were enacted in July 1973 in the form of the Northern Ireland Constitution Act 1973. This Act empowered the Assembly to legislate within certain limits and established an Executive. A Standing Advisory Commission on Human Rights was instituted to advise the Secretary of State. The Act also specifically provided that legislation passed by the Assembly would be void if it discriminated on the ground of religious belief or political opinion; in addition, discrimination by public authorities on such grounds was expressly rendered unlawful. The provisions of the Act relating to legislative and executive powers required the passing by the United Kingdom Parliament of a Devolution Order. The Order was made on 19 December 1973 and the devolution became effective on 1 January 1974. This devolution, which was based on the principle of "power-sharing" between the two communities, marked for a certain time the end of direct rule. 73. The Northern Ireland Executive came into office on 1 January 1974. For the first time, a Northern Ireland Government contained representatives of both the majority and minority communities, but its life proved to be very brief. In May 1974, Protestant extremist groups combined to organise a politically motivated strike which brought about the downfall of the Executive and a return to direct rule from Westminster. On 29 May, Her Majesty, acting under the Constitution Act referred to in the preceding paragraph, by Order in Council directed that the Northern Ireland Assembly should stand prorogued for four months. On 17 July 1974, the Northern Ireland Act 1974 was passed by the United Kingdom Parliament in order to make temporary provision for the government of the six counties. This Act suspended the functions of the above-mentioned Assembly and enabled laws to be made by Order in Council, enacted that no appointments to the Executive were to be made, and made the province ’ s departments subject to the direction and control of the Secretary of State for Northern Ireland. 74. In 1974, the United Kingdom Government appointed the Gardiner Committee whose terms of reference were to consider what provisions and powers, consistent to the maximum extent practicable in the circumstances with the preservation of civil liberties and human rights, were required to deal with terrorism and subversion in Northern Ireland, including provisions for the administration of justice; to examine the working of the 1973 Emergency Provisions Act; and to make recommendations. The report of the Gardiner Committee was presented to the United Kingdom Parliament in January 1975. This report critically examined trial procedures before the ordinary courts, existing and proposed offences connected with terrorism, the powers of the security forces, prison accommodation, special category prisoners and detention. When dealing with the question of detention, the Gardiner Committee noted at paragraph 143: "... We have detailed evidence of 482 cases of intimidation of witnesses between 1st January 1972 and 31st August 1974 : and there must be many more. Civilian witnesses to murder and other terrorist offences are either too afraid to make any statement at all, or, having made a statement identifying the criminal, refuse in any circumstances to give evidence in court. The prevalence of murder and knee-capping make this only too easy to understand." The Gardiner Committee, while making certain recommendations about detention and existing detention procedures, concluded at paragraphs 148 and 149: "After long and anxious consideration, we are of the opinion that detention cannot remain as a long-term policy. In the short term, it may be an effective means of containing violence, but the prolonged effects of the use of detention are ultimately inimical to community life, fan a widespread sense of grievance and injustice, and obstruct those elements in Northern Ireland society which could lead to reconciliation. Detention can only be tolerated in a democratic society in the most extreme circumstances; it must be used with the utmost restraint and retained only as long as it is strictly necessary. We would like to be able to recommend that the time has come to abolish detention; but the present level of violence, the risks of increased violence, and the difficulty of predicting events even a few months ahead make it impossible for us to put forward a precise recommendation on the timing. We think that this grave decision can only be made by the Government ..." 75. The Emergency Provisions Act of 1973, the main subject of the examination by the Gardiner Committee, was extended by Orders of 17 July 1974, 17 December 1974 and 27 June 1975. On 7 August 1975, the United Kingdom Parliament, acting on the recommendations of the Gardiner report, passed the Northern Ireland (Emergency Provisions) (Amendment) Act 1975 (hereafter abbreviated to the "Emergency Provisions Amendment Act"). This Act, which came into effect on 21 August 1975, amended the law relating to detention without trial (see paragraph 90 below), as well as containing further provisions concerned with criminal proceedings, the maintenance of order and the detection of crime in Northern Ireland. The Emergency Provisions Amendment Act is still in force, having twice been continued by Parliamentary Resolution. 76. No detailed statistics for the year 1975 are before the Court, although a few figures as to murder charges appear in the Commission ’ s report. By 19 June, the police had been able to bring criminal charges against a total of 73 Protestants and 20 Catholics in respect of 49 sectarian murders. On 5 December 1975, the Secretary of State for Northern Ireland signed orders for the release from detention of the last 75 individuals held under the emergency legislation. Since December 1975, according to the data before the Court, no person has been held in detention under the extrajudicial measures in Northern Ireland. The terrorism and violence in the province have persisted through 1976 until the present day, accounting, for instance, for the murders of 173 persons and injuries to 770 others between 1 January and 28 June 1976. 77. The respondent Government have drawn attention, before both the Commission and the Court, to the continuous programme of reform implemented in Northern Ireland since 1969 in order to tackle the problems of unfair discrimination which had prompted the civil rights movement. Radical changes have been made in the structure of local government in the province: universal suffrage was introduced in 1969, proportional representation in 1972, local government boundaries were revised in 1973, and many important functions such as education and housing were transferred to special area boards or to central government bodies in the hope of ending or reducing the fear of discrimination in the social field. In 1969, the Northern Ireland Government established a Parliamentary Commissioner (i.e. Ombudsman ) for Administration and a Commissioner for Complaints. The provisions of the Northern Ireland Constitution Act of 1973 directed against discrimination have already been referred to (paragraph 72 above). The Standing Advisory Commission on Human Rights, set up under the last-mentioned Act, began in 1975 a detailed study of the extent to which the existing legislation provides a sufficient protection for human rights in the six counties. Legislation making discrimination unlawful in the private sector was introduced in 1976. II. EXTRAJUDICIAL DEPRIVATION OF LIBERTY 78. During the period under consideration, in addition to the ordinary criminal law which remained in force and in use, the authorities had various special powers to combat terrorism in Northern Ireland. These were all discretionary and underwent modification from time to time, as is described below; they enabled the authorities to effect extrajudicial deprivation of liberty falling into the following three basic categories: - initial arrest for interrogation; - detention for further interrogation (originally called "detention" and subsequently "interim custody"); - preventive detention (originally called "internment" and subsequently "detention"). 79. In accordance with Article 15 para. 3 (art. 15-3) of the Convention, the United Kingdom Government sent to the Secretary-General of the Council of Europe, both before and after the original application to the Commission, six notices of derogation in respect of these powers. Such notices, of which the first two are not pertinent in the present case, were dated 27 June 1957, 25 September 1969, 20 August 1971, 23 January 1973, 16 August 1973 and 19 September 1975 and drew attention to the relevant legislation and modifications thereof. A. The special powers act and regulations there under 80. The Special Powers Act empowered the Minister of Home Affairs for Northern Ireland, until 30 March 1972, or, thereafter and until 8 August 1973, the Secretary of State for Northern Ireland to take all such steps and issue all such orders as might be necessary for preserving peace and maintaining order. It was an enabling Act whose substantive provisions were contained in Regulations made there under. Before direct rule, either House of Parliament of Northern Ireland could, at the time Regulations were made, request the Governor to annul them; subsequently, new Regulations were subject to approval by the United Kingdom Parliament. The number and scope of the Regulations in force varied over the years; they could be brought into use without any legislative act or proclamation. Those relevant to the present case were made in 1956 (Regulations 11 and 12) and 1957 (Regulation 10). They were utilised to implement the policy of internment introduced on 9 August 1971 and advice of their use was given to the Secretary-General by the United Kingdom Government ’ s notice of derogation of 20 August 1971 (Yearbook of the Convention, volume 14, page 32). They conferred the four powers described below. 1. Arrest under Regulation 10 81. Under this Regulation - any individual could be arrested without warrant and detained for the purpose of interrogation; - the arrest could be authorised by any officer of the RUC; - the officer had to be of the opinion that the arrest should be realised "for the preservation of the peace and maintenance of order"; - the detention could not exceed forty-eight hours. Exercise of the power was not conditional on suspicion of an offence and, following a practice originating in instructions issued to the military police in May 1970, the individual was not normally informed of the reason for his arrest. Although looked upon in principle as a preliminary to detention and internment (see paragraphs 83 and 84 below), arrest sometimes had the object of interrogating a person about the activities of others. Some arrests, and some subsequent detention orders, seem to have been made on the basis of inadequate or inaccurate information. The individual could not apply for bail (see the judgment of 12 October 1971 delivered by the High Court of Justice in Northern Ireland in the case of In Re McElduff). Moreover, arrests under this Regulation could not as a general rule be questioned in the courts but it was held in the judgment of 18 February 1972 delivered by the Armagh County Court in the case of Moore v. Shillington and Ministry of Defence that failure to comply with the proper procedure, including certain fundamental principles of the common law, invalidated exercise of the power. On 8 August 1973 the Emergency Provisions Act (see paragraph 88 below) repealed Regulation 10. 2,937 persons had been arrested there under prior to 30 March 1972, of whom 1,711 had been released within forty-eight hours and 1,226 had had their detention prolonged under other Regulations. 2. Arrest under Regulation 11 (1) 82. Under this Regulation - any individual could be arrested without warrant; - the arrest could be effected by any police constable, member of the forces or person authorised by the "Civil Authority" (i.e. the Minister of Home Affairs or his delegates); - the person making the arrest had to suspect the individual of acting, having acted or being about to act in a manner prejudicial to the preservation of the peace or maintenance of order or of having committed an offence against the Regulations; - the duration of the arrest was unlimited in law but limited in practice to seventy-two hours. Arrest under this Regulation could follow arrest under Regulation 10, giving a total of at most one hundred and twenty hours. The individual was not normally informed of the reason for his arrest. Judicial decisions show that review by the courts of the exercise of this power was limited. They could intervene if there had been bad faith, absence of a genuine suspicion, improper motive or failure to comply either with the statutory procedures or with such principles of the common law as were held not to be excluded by the language of the Regulation; however, they could not in general enquire into the reasonableness or fairness of the suspicion or of the decision to exercise the power (see the McElduff case and the judgment of 11 January 1973 delivered by the High Court of Justice in Northern Ireland in the case of Kelly v. Faulkner and others). Under Regulation 11 (4), the individual could apply to the Civil Authority for release on bail and, if that Authority so directed, might be conditionally discharged from custody by a magistrate; however, this right was abolished on 7 November 1972 with the revocation of Regulation 11 (4) by the Terrorists Order (see paragraph 85 below). Regulation 11 (1) was repealed on 8 August 1973 by the Emergency Provisions Act (see paragraph 88 below). 3. Detention under Regulation 11 (2) 83. Under this Regulation - any individual arrested under Regulation 11 (1) could be detained in prison or elsewhere on the conditions directed by the Civil Authority; - the power to make detention orders was vested in the Civil Authority and the initiative for them came from the police. The respondent Government said that they were always made on the personal decision, before direct rule, of the Prime Minister of Northern Ireland or, thereafter, of the Secretary of State for Northern Ireland or two other Ministers; - detention continued until the individual was discharged by the Attorney-General or brought before a court. Its duration was unlimited in law but limited in practice, generally, to twenty-eight days. The respondent Government said that detention orders were made to enable the police to complete enquiries. If they had sufficient evidence to secure a conviction, the individual would be brought before an ordinary court in which event he was entitled to at least twenty-four hours ’ notice of the charge. Alternatively, he might be released after a limited period or be the subject of an internment order (see paragraph 84 below). The detainee had the limited right to apply for bail afforded by Regulation 11 (4) (see paragraph 82 above). The position concerning supervision by the courts was the same as under Regulations 10 and 11 (1) (see the McElduff and the Kelly cases) and there was no other procedure for review of the detention. More than 1,250 detention orders were made under Regulation 11 (2), the vast majority before 30 March 1972. Nearly 120 orders were still in force on 7 November 1972 when the Regulation was revoked by the Terrorists Order (see paragraph 85 below). 4. Internment under Regulation 12 (1) 84. Under this Regulation - any individual could by order be subjected to restrictions on movement or interned; - the power to make such orders was vested before direct rule in the Minister of Home Affairs for Northern Ireland on the recommendation of a senior police officer or of an advisory committee. The respondent Government said that they were always made on the personal decision of the Prime Minister of Northern Ireland; - the Minister had to be satisfied that for securing the preservation of the peace and the maintenance of order it was expedient that a person suspected of acting, having acted or being about to act in a manner prejudicial te peace and order be subjected to such restrictions or interned; - the duration of internment was unlimited. In many cases, after prolongation under later legislation (see paragraphs 85 and 88 below), it lasted for some years. Every order had to provide for the consideration by and advisory committee of representations made by the individual. In fact it reviewed the position of all internees whether they made representations or not. The committee composed of a judge and two laymen, could recommend, but not order, release. The individual had no right in law to appear or be legally represented before the committee, to test the grounds for internment, to examine witnesses against him or to call his own witnesses. In fact, he was allowed to appear and be interviewed and every effort was made to trace witnesses he proposed. The committee required the security forces to produce the information in their possession but statements of evidence against the internee so obtained remained anonymous, apparently to avoid retaliation. According to the Commission, the committee probably relied on evidence not admissible in a court of law. The position concerning the review of internment orders by the courts was the same as under Regulations 10, 11 (1) and 11 (2) (see the Kelly case). 796 orders were made under Regulation 12 (1), all before the introduction of direct rule. Nearly 170 orders were still in force on 7 November 1972 when the Regulation was revoked by the Terrorists Order (see paragraph 85 below). By 30 March 1972, 588 of the 796 cases had been reviewed by the advisory committee (although 451 internees refused to appear) and 69 releases recommended. Of the 69 individuals all were released except 6 who refused to give an undertaking as to future good behaviour. B. The terrorists order 85. The Terrorists Order, a temporary measure made under the Temporary Provisions Act (see paragraph 49 above), introduced an independent review of decisions on detention for further interrogation and on preventive detention whereas, previously, such decisions had been taken by the administrative authority alone. The Order revoked with effect from 7 November 1972 Special Powers Regulations 11 (2) and (4) and 12 (1) - but not 10 and 11 (1) - and converted existing detention or internment orders into interim custody orders (see paragraph 86 below). The Order defined "terrorism" as "the use of violence for political ends [including] any use of violence for the purpose of putting the public or any section of the public in fear". The Secretary-General of the Council of Europe was advised of the making of this Order by the United Kingdom Government ’ s notice of derogation of 23 January 1973 (Yearbook of the Convention, volume 16, pages 24 and 26). The Order conferred the powers described below and was repealed by the Emergency Provisions Act on 8 August 1973 (see paragraph 88 below). 1. Interim custody under Article 4 86. Under this Article - any individual could by an interim custody order be temporarily detained; - the power to make such orders was vested in the Secretary of State for Northern Ireland; - the power was exercisable where it appeared to the Secretary of State that the individual was suspected of having been concerned in the commission or attempted commission of any act of terrorism or the organisation of persons for the purpose of terrorism; - detention was limited to twenty-eight days unless the case was referred by the Chief Constable - or, as regards persons originally held under the Special Powers Regulations, by the Secretary of State - to a commissioner for determination, in which event it could continue only until such determination. The individual had to be released after twenty-eight days if his case had not by then been referred to a commissioner but, in fact, all cases, including those of persons originally detained or interned under the Special Powers Regulations, were so referred. During the order ’ s initial twenty-eight days and during its extension pending the commissioner ’ s adjudication, which could take up to six months, the individual had no means under the Terrorists Order of challenging the lawfulness of his detention. Figures for interim custody orders appear in paragraph 89 below. 2. Detention under Article 5 87. Under this Article - where the case of an individual subject to an interim custody order under Article 4 was referred to a commissioner, he could make a detention order for that individual ’ s detention; - the commissioner had first to satisfy himself by enquiry that the individual had been concerned in the commission or attempted commission of any act of terrorism or the organisation of persons for the purpose of terrorism and that his detention was necessary for the protection of the public. If so satisfied, he had to make an order; if not, he had to direct the individual ’ s discharge; - the duration of detention was unlimited. In many cases, after prolongation under later legislation (see paragraph 88 below), it lasted for some years. Unlike the recommendation of the advisory committee under Regulation 12 (1), a commissioner ’ s decision to release was binding. The Secretary of State retained independent powers to release detainees with or without conditions and to recall to detention an individual conditionally released by him. He could also at any time refer a detention order case to a commissioner for review; in that event discharge was obligatory unless the commissioner considered continued detention necessary for public protection. Proceedings before a commissioner took place in private. At least three days before the hearing the individual had to be notified in writing of the nature of the terrorist activities to be enquired into. He had the right to legal aid and to be legally represented and had to be present unless removed on grounds of disorderly conduct or of security. He could be required to answer questions; he had no right to examine or have examined witnesses against him but the respondent Government said that, in practice, cross-examination took place. The individual had to be informed, as far as possible, of matters dealt with in his absence for security reasons but had no right to test evidence given at that time. The commissioner might receive evidence however obtained and irrespective of whether it would be admissible in a court of law. This procedure applied, mutatis mutandis, both to initial references to a commissioner and to later references for review. Article 6 of the Terrorists Order introduced a right for the individual to appeal within twenty-one days against a detention order to a detention appeal tribunal of at least three members. Procedurally the individual ’ s position before the tribunal was similar to his position before a commissioner; however, he was entitled to be present only when fresh evidence was produced, which was rare as the tribunal generally relied on the evidence furnished to the commissioner. Both commissioners and members of the tribunal had to have experience of judicial office or at least ten years ’ experience as a barrister, advocate or solicitor. Figures for detention orders appear in paragraph 89 below. C. The emergency provisions act 88. The Emergency Provisions Act, based on the recommendations of the Diplock Commission (see paragraph 59 above), repealed with effect from 8 August 1973 the Special Powers Act, Regulations 10 and 11 (1) and the Terrorists Order but maintained in effect - under its own provisions - the existing interim custody and detention orders. The emergency powers contained in the new Act were to remain in force for one year unless renewed for a period not exceeding one year by an Order of the Secretary of State approved by both United Kingdom Houses of Parliament; they were in fact renewed for six-monthly periods commencing on 25 July 1974, 25 January 1975 and 25 July 1975 and then amended on 21 August 1975 by the Emergency Provisions Amendment Act (see paragraph 90 below). The Secretary-General of the Council of Europe was advised of the new legislation, and of the subsequent renewal and amendment of the emergency powers, by the United Kingdom Government ’ s notices of derogation of 16 August 1973 (Yearbook of the Convention, volume 16, pages 26 and 28) and 19 September 1975 (document DH (75) 5, page 5). The new Act (section 10 (5) and Schedule 1) re-enacted, in substance, the powers contained in the Terrorists Order, retaining its definition of terrorism. Accordingly, the powers to make interim custody and detention orders, and the review thereof by a commissioner and the appeal tribunal, continued in the manner, on the conditions and subject to the procedure described in paragraph 86 and 87 above, with the significant differences that: - the individual had to receive a written statement concerning the terrorist activities to be investigated by the commissioner at least seven (rather than three) days before the hearing; - in addition to his optional power to refer, the Secretary of State had to refer to a commissioner the case of anyone held under a detention order for one year since the making of the order or for six months since the last review. Section 10 of the Act also provided that any constable might arrest without warrant a person whom he suspected of being a terrorist; detention after arrest was limited to seventy-two hours. The Act conferred certain other powers of arrest (sections 11 and 12) which are not in issue in the present case. 89. Figures for interim custody and detention orders (under the Terrorists Order and the Emergency Provisions Act) are: - November 1972 to 1 February 1973 : 166 interim custody orders (under the Terrorists Order); - November 1972 to January 1973: 128 individuals detained under the Terrorists Order and 94 released; - November 1972 to 5 September 1973 : the commissioners reviewed 579 cases (296 interim custody orders made under the Terrorists Order or the Emergency Provisions Act; 165 former internments and 118 former detentions under the Special Powers Regulations); they made 453 detention orders and directed release in the remaining 126 cases; - November 1972 to 3 October 1973 : 44 appeals were lodged with the detention appeal tribunal; 34 had been heard and 25 releases directed. D. The emergency provisions amendment act 90. With effect from 21 August 1975, the Emergency Provisions Amendment Act, based on the recommendations of the Gardiner Committee (see paragraph 74 above), made, inter alia, new provisions for the detention of terrorists which have not been the subject of the present case. The Act reverted to the principle of detention by order of the Secretary of State, rather than of a commissioner, such order to be preceded by a report from a legally qualified Adviser. 91. As indicated in the United Kingdom Government ’ s communication of 12 December 1975 to the Secretary-General of the Council of Europe (Yearbook of the Convention, volume 18, page 18), on 5 December 1975 the Secretary of State signed orders for the release of the last 75 persons detained under the emergency legislation; all were released forthwith except those remanded in custody on criminal charges or serving sentences of imprisonment. Since then, according to the data before the Court, the power to make detention orders under the Emergency Provisions Amendment Act has not been exercised. III. ALLEGATIONS OF ILL-TREATMENT A. Introduction 92. As recounted above at paragraphs 39 and 41, on 9 August 1971 and thereafter numerous persons in Northern Ireland were arrested and taken into custody by the security forces acting in pursuance of the emergency powers. The persons arrested were interrogated, usually by members of the RUC, in order to determine whether they should be interned and/or to compile information about the IRA. In all, about 3,276 persons were processed by the police at various holding centres from August 1971 until June 1972. The holding centres were replaced in July 1972 by police offices in Belfast and at Ballykelly Military Barracks. 93. Allegations of ill-treatment have been made by the applicant Government in relation both to the initial arrests and to the subsequent interrogations. The applicant Government submitted written evidence to the Commission in respect of 228 cases concerning incidents between 9 August 1971 and 1974. The procedure followed for the purposes of ascertaining the facts (Article 28, sub-paragraph (a), of the Convention) (art. 28-a) was one decided upon by the Commission and accepted by the Parties. The Commission examined in detail with medical reports and oral evidence 16 "illustrative" cases selected at its request by the applicant Government. The Commission considered a further 41 cases (the so-called "41 cases") on which it had received medical reports and invited written comments; it referred to the remaining cases. The nature of the evidence submitted by the two Governments and the procedure followed by the Commission in its investigation of such evidence are set out in some detail in the Commission ’ s report. The Commission came to view that neither the witnesses from the security forces nor the case-witnesses put forward by the applicant Government had given accurate and complete accounts of what had happened. Consequently, where the allegations of ill-treatment were in dispute, the Commission treated as "the most important objective evidence" the medical findings which were not contested as such. The following account of events is based on the information set out in the Commission ’ s report and in the other documents before the Court. 94. In order to protect the identity of certain persons, notably witnesses, the published version of the Commission ’ s report (see paragraph 7 above) incorporated changes to the original text; these changes mainly took the form of designating such persons by letters and/or figures. 95. The Commission grouped the cases into five categories, according to the place where the ill-treatment was said to have been inflicted, namely: (1) the unidentified interrogation centre or centres; (2) Palace Barracks, Holywood; (3) Girdwood Park Barracks; (4) Ballykinler Regional Holding Centre; and (5) various other miscellaneous places. B. The unidentified interrogation centre or centres 96. Twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were singled out and taken to one or more unidentified centres. There, between 11 to 17 August and 11 to 18 October respectively, they were submitted to a form of "interrogation in depth" which involved the combined application of five particular techniques. These methods, sometimes termed "disorientation" or "sensory deprivation" techniques, were not used in any cases other than the fourteen so indicated above. It emerges from the Commission ’ s establishment of the facts that the techniques consisted of: (a) wall-standing: forcing the detainees to remain for periods of some hours in a "stress position", described by those who underwent it as being" spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers"; (b) hooding: putting a black or navy coloured bag over the detainees ’ heads and, at least initially, keeping it there all the time except during interrogation; (c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise; (d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep; (e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations. The Commission ’ s findings as to the manner and effects of the application of these techniques on two particular case-witnesses are referred to below at paragraph 104. 97. From the start, it has been conceded by the respondent Government that the use of the five techniques was authorised at "high level". Although never committed to writing or authorised in any official document, the techniques had been orally taught to members of the RUC by the English Intelligence Centre at a seminar held in April 1971. 98. The two operations of interrogation in depth by means of the five techniques led to the obtaining of a considerable quantity of intelligence information, including the identification of 700 members of both IRA factions and the discovery of individual responsibility for about 85 previously unexplained criminal incidents. 99. Reports alleging physical brutality and ill-treatment by the security forces were made public within a few days of Operation Demetrius (described above at paragraph 39). A committee of enquiry under the chairmanship of Sir Edmund Compton was appointed by the United Kingdom Government on 31 August 1971 to investigate such allegations. Among the 40 cases this Committee examined were 11 cases of persons subjected to the five techniques in August 1971; its findings were that interrogation in depth by means of the techniques constituted physical ill-treatment but not physical brutality as it understood that term. The Committee ’ s report, adopted on 3 November 1971, was made public, as was a supplemental report of 14 November by Sir Edmund Compton in relation to 3 further cases occurring in September and October, one of which involved the techniques. 100. The Compton reports came under considerable criticism in the United Kingdom. On 16 November 1971, the British Home Secretary announced that a further Committee had been set up under the chairmanship of Lord Parker of Waddington to consider "whether, and if so in what respects, the procedures currently authorised for interrogation of persons suspected of terrorism and for their custody while subject to interrogation require amendment". The Parker report, which was adopted on 31 January 1972, contained a majority and a minority opinion. The majority report concluded that the application of the techniques, subject to recommended safeguards against excessive use, need not be ruled out on moral grounds. On the other hand, the minority report by Lord Gardiner disagreed that such interrogation procedures were morally justifiable, even in emergency terrorist conditions. Both the majority and the minority considered the methods to be illegal under domestic law, although the majority confined their view to English law and to "some if not all the techniques". 101. The Parker report was published on 2 March 1972. On the same day, the United Kingdom Prime Minister stated in Parliament : "[The] Government, having reviewed the whole matter with great care and with reference to any future operations, have decided that the techniques ... will not be used in future as an aid to interrogation." He further declared: "The statement that I have made covers all future circumstances. If a Government did decide ... that additional techniques were required for interrogation, then I think that ... they would probably have to come to the House and ask for the powers to do it." As foreshadowed in the Prime Minister ’ s statement, directives expressly prohibiting the use of the techniques, whether singly or in combination were then issued to the security forces by the Government (see paragraph 135 below). 102. At the hearing before the Court on 8 February 1977, the United Kingdom Attorney-General made the following declaration: "The Government of the United Kingdom have considered the question of the use of the ‘ five techniques ’ with very great care and with particular regard to Article 3 (art. 3) of the Convention. They now give this unqualified undertaking, that the ‘ five techniques ’ will not in any circumstances be reintroduced as an aid to interrogation." 103. The Irish Government referred to the Commission 8 cases of persons submitted to the five techniques during interrogation at the unidentified centre or centres between 11 and 17 August 1971. A further case, that of T 22, considered in the Commission ’ s report in the context of Palace Barracks, concerned the use of the five techniques in October 1971. The Commission examined as illustrative the cases of T 6 and T 13, which were among the 11 cases investigated by the Compton Committee. 104. T 6 and T 13 were arrested on 9 August 1971 during Operation Demetrius. Two days later they were transferred from Magilligan Regional Holding Centre to an unidentified interrogation centre where they were medically examined on arrival. Thereafter, with intermittent periods of respite, they were subjected to the five techniques during four or possibly five days; neither the Compton or Parker Committees nor the Commission were able to establish the exact length of the periods of respite. The Commission was satisfied that T 6 and T 13 were kept at the wall for different periods totalling between twenty to thirty hours, but it did not consider it proved that the enforced stress position had lasted all the time they were at the wall. It stated in addition that the required posture caused physical pain and exhaustion. The Commission noted that, later on during his stay at the interrogation centre, T 13 was allowed to take his hood off when he was alone in the room, provided that he turned his face to the wall. It was not found possible by the Commission to establish for what periods T 6 and T 13 had been without sleep, or to what extent they were deprived of nourishment and whether or not they were offered food but refused to take it. The Commission found no physical injury to have resulted from the application of the five techniques as such, but loss of weight by the two case-witnesses and acute psychiatric symptoms developed by them during interrogation were recorded in the medical and other evidence. The Commission, on the material before it, was unable to establish the exact degree of any psychiatric after-effects produced on T 6 and T 13, but on the general level it was satisfied that some psychiatric after-effects in certain of the fourteen persons subjected to the techniques could not be excluded. 105. T 13 claimed in addition to have been beaten and otherwise physically ill-treated, but the medical evidence before the Commission, as the delegates explained at the hearing before the Court on 21 April 1977, gave reason to doubt that he had been assaulted to any severe degree, if at all. Accordingly, the Commission treated the allegations in regard to T 13 as concerning the five techniques only. T 6 similarly alleged that he was also assaulted in various ways at, or during transport to and from, the centre. On 17 August 1971 he was medically examined on leaving the centre and also on his subsequent arrival at Crumlin Road Prison where he was then detained until 3 May 1972. The medical reports of these examinations and photographs taken on the same day revealed on T 6 ’ s body bruising and contusions that had not been present on 11 August. While not accepting all T 6 ’ s allegations, the Commission was "satisfied beyond a reasonable doubt that certain of these injuries ... [were] the result of assaults committed on him by the security forces at the centre". As a general inference from the facts established in T 6 ’ s case, the Commission also found it "probable that physical violence was sometimes used in the forcible application of the five techniques". 106. Although several other cases were referred to before the Commission by the applicant Government in connection with the unidentified interrogation centre or centres, no detailed allegations or findings are set out in the Commission ’ s report except in the case of T 22 which was one of the "41 cases". The medical evidence established that when leaving the centre and on entering Crumlin Road Prison, T 22 had suffered superficial bruising. The Commission ’ s short assessment of this case, which it described as comparable to the case of T 6, was that "there exists a strong indication that the course of events was similar to that found in the illustrative [case]". 107. T 13 and T 6 instituted civil proceedings in 1971 to recover damages for wrongful imprisonment and assault; their claims were settled in 1973 and 1975 respectively for £15,000 and £14,000. The twelve other individuals against whom the five techniques were used have all received in settlement of their civil claims compensation ranging from £10,000 to £25,000. C. Palace barracks 1. Introduction 108. Palace Barracks, a military camp in Holywood, County Down, on the outskirts of Belfast, was used as a holding centre for some days in August 1971 and then from September 1971 until June 1972. During this period, when it was the main interrogation centre in Northern Ireland, some 2,000 persons from all over the province passed through Palace Barracks. The centre was operated jointly by the army and the RUC. Persons held there were photographed immediately after arriving and, from November 1971 onwards (see paragraph 133 below), examined by a doctor on entry as well as departure. The interrogations - records of which were kept for filing – were conducted solely by police, usually at least two in number, from the Special Branch of the RUC. These men, who were independent of the uniformed RUC, came under the responsibility of an officer in charge with the rank of inspector. Many of them interrogated prisoners both at Palace Barracks and at Girdwood Park on a rotating system. 109. A total of 45 cases concerned with Palace Barracks were submitted to the Commission by the applicant Government. The Commission examined in detail 9 illustrative cases, all relating to the period between September and November 1971. It also considered a further 8 cases, included in the "41 cases"; of these 8 cases, 6 covered the months October to December 1971 while 2 concerned events occurring in January and May 1972. 2. The illustrative cases (a) The cases of T 2, T 8, T 12 and T 15 110. These four men were all arrested early on 20 September 1971 at their homes in County Tyrone and taken to Palace Barracks for interrogation. They were photographed and examined by an army doctor immediately after their arrest; apart from one small scar, no injuries were apparently found. The next day they were transferred together from Palace Barracks to Crumlin Road Prison. They all alleged that at various times they had been made to stand spread eagled against a wall and had been severely beaten or otherwise physically ill-treated, particularly during interrogations. On their arrival at Crumlin Road, a prison doctor found contusions and bruising on three of the men; on 23 September, another doctor found similar injuries on the fourth man. In the Commission ’ s view, this medical evidence made "it highly probable that all the four received their injuries while at Palace Barracks". Despite the absolute denials given in evidence by witnesses from the security forces at Palace Barracks, the Commission held the following facts, amongst others, to be established beyond reasonable doubt: "The four men ... were severely beaten by members of the security forces ... The beating was not occasional but it was applied in a sort of scheme in order to make them speak ..." Each man instituted civil proceedings for damages and rejected the offer of £750 made in settlement of his claim. (b) The cases of T 9 and T 14 111. T 9 and T 14 were arrested together by an army patrol in a Belfast street on the night of 16 October 1971. They were brought to Palace Barracks for interrogation and held there until the evening of 18 October when they were transferred to Crumlin Road Prison. On arrival at the latter institution, they were examined by a prison doctor. T 14 was immediately transported to the prison hospital wing where he spent the next three weeks. Both men soon made statements alleging ill-treatment at Palace Barracks. T 14, for instance, claimed that he had been made to stand spread eagled against a wall while being questioned by a Special Branch man who was kicking him continuously on the insides of the legs. They obtained legal assistance and were further medically examined. The medical evidence disclosed injuries described as "substantial" in T 9 ’ s case and "massive" in T 14 ’ s case. The Commission concluded that "the proved injuries must have been caused while the two men were at Palace Barracks". Fourteen members of the security forces at the centre gave evidence completely denying any knowledge of the injuries or their causes, but these denials were not believed by the Commission. While viewing certain of the two men ’ s assertions as exaggerated, invented or improbable, the Commission made the following finding: "T 9 and T 14 ... were subjected to physical violence, especially kicking and beating, during or between a series of ‘ interviews ’ conducted by the Special Branch." Civil proceedings seeking damages were instituted by T 14 and T 9; their claims were settled for £2,250 and £1,975 respectively. They also, it seems, complained to the police, but no evidence was produced to the Commission of a police enquiry into their complaints. (c) The cases of T 1 and T 4 112. These two cases, although not directly connected, have certain similarities and were grouped together by the Commission. 113. T 1 was arrested at his home in the early hours of 20 October 1971 and taken by soldiers to Palace Barracks. He was questioned several times that day. At about 6.30 p.m. he was released without being charged. The following morning, he was examined by a general practitioner who found what he considered to be rather superficial injuries. T 1 alleged that he had been kicked and punched while being made to stand against the wall with his weight on his fingertips. These allegations were completely denied by witnesses from the police. No corroborated evidence was produced by either side to confirm or rebut the suggestion made by police witnesses that T 1 might have received his injuries after his release while being "questioned" by the IRA. T 1 did concede having had some previous contacts, albeit superficial and undesired, with IRA members. The Commission found inter alia: "It cannot ... be concluded beyond a reasonable doubt that [T 1] ... received these injuries in the way alleged by him." Although T 1 said that he had brought a civil action for damages, there is no information as to the outcome of those proceedings. He further stated that after complaint to the RUC, he was told that his allegations had been investigated but found to be unsubstantiated. 114. T 4 was arrested by an army patrol in the street near his home in the afternoon of 2 November 1971. He was taken by army vehicle first to a police station, where he stayed for less than an hour, and then on to Palace Barracks for questioning. He was released the same day. He alleged that he had been kicked and beaten by soldiers when lying on the floor of the army vehicle and thereafter beaten during interrogation by the police at Palace Barracks. Both the army and the police witnesses denied these allegations. The day after his release, T 4 saw his family doctor who found extensive bruising to his body. On 4 November, he was admitted to hospital where he remained under observation for about two weeks. The Commission considered that the medical evidence was difficult to reconcile with the account given by T 4 of his alleged ill-treatment. The findings of the Commission included the following: "Bearing in mind that twelve hours elapsed from his release until his medical examination, the statements of the soldiers and some doubt about T 4 ’ s reliability, it cannot be concluded, solely on T 4 ’ s own statements, that he received these injuries at the hands of the army or the police." There is no evidence of any civil action brought by T 4 or of any army investigation into complaints he apparently made; the results of a police enquiry are not known. (d) The case of T 10 115. T 10 was arrested at his house early in the morning of 18 November 1971 and subsequently taken to Palace Barracks for interrogation. The next day a detention order was served on him and he was transferred to Crumlin Road Prison. T 10 alleged that while at the interrogation centre he was subjected to what the Commission terms "comparatively trivial beatings". He was medically examined on arrival at Palace Barracks, when entering Crumlin Road Prison and on 20 November by his family doctor who saw him in prison. The latter two examinations revealed that T 10 had suffered a perforation to the right eardrum and some minor bruising. Despite absolute denials on the part of the five witnesses from the security forces, the Commission found it proved beyond reasonable doubt that T 10 ’ s injuries could not have been caused in any way materially different from that described in his evidence. In the Commission ’ s view, it was to be taken as established that the acts complained of occurred at Palace Barracks. T 10 did not, it seems, institute civil proceedings for damages. On the other hand, he complained through his lawyer against a number of police officers, but no evidence was produced by the respondent Government of any real police investigation. 3. The "41 cases" 116. Within this group, there are 8 cases (T 22, T 27, T 28, T 29, T 30, T 31, T 48 and one other) raising allegations of ill-treatment by the army during transport to Palace Barracks and by the police during interrogation there. The case of T 22 had already been mentioned in connection with the unidentified centre or centres (see paragraph 106 above). The medical reports show that the persons concerned had sustained injuries in varying degrees. No evidence, though, was obtained from the respondent Government. The Commission, while therefore feeling it unsafe to make any findings on the basis of the medical reports alone, stated in its short assessment: "Nevertheless, in those cases in which the victims were detained following their interrogation and were medically examined shortly after their committal to detention (the cases of T 22, T 27, T 48, T 29, T 30 and T 31), there exists a strong indication that the course of events was similar to that found in the illustrative cases." T 27, T 30 and T 31 accepted sums of £900, £200 and £750 respectively in settlement of civil claims brought. At the time of the Commission ’ s report, actions for damages were still pending in the cases of T 22 and T 29; a substantial sum was ultimately received by the former person as a victim of the five techniques (see paragraph 107 above). 4. The remaining cases 117. In the absence of corroborative, including medical, evidence, the Commission did not find it possible to examine further another 28 cases concerning Palace Barracks. It merely confirmed that allegations of ill-treatment had been made and that, in some cases, compensation had been paid. 5. General 118. The Commission considered on a number of grounds that the police officers in command at Palace Barracks at the relevant time could not have been ignorant of the acts of ill-treatment found to have been committed. Yet, on their own evidence, these officers took no action to prevent the occurrence or repetition of such ill-treatment. Knowledge on the part of the higher authorities of allegations regarding this centre was inferred by the Commission from various facts. Nevertheless, no evidence of police investigations into these allegations was produced to the Commission and, apart from Sir Edmund Compton ’ s "supplemental" report into three Palace Barracks cases (see paragraph 99 above), no general enquiry took place. Furthermore, no disciplinary or criminal proceedings seem to have been instituted against any of the police officers who either committed or failed to react against the acts established. No special instructions relating to the proper treatment of persons in custody were issued to the RUC until April 1972 (see paragraph 135 below). Through their inaction, the authorities in Northern Ireland were held by the Commission to have shown indifference towards the treatment of prisoners at Palace Barracks in the autumn of 1971. D. Girdwood park regional holding centre 1. Introduction 119. This army camp on the outskirts of Belfast, adjacent to Crumlin Road Prison, was used as a regional centre for holding and interrogating suspects, 186 of whom passed through it in August 1971. It was temporarily closed in that month and re-opened in October 1971 as a police holding centre. The arrangements at Girdwood for receiving, detaining, interrogating and releasing suspects were essentially the same as at Palace Barracks (see paragraph 108 above). 2. Illustrative case 120. Of 36 cases involving allegations of ill-treatment at Girdwood, the Commission examined in detail as illustrative that of T 16. It found that this Protestant, aged over sixty and arrested in connection with the possession of arms and a radio aerial, had been severely injured on 13 August 1971 by army personnel during transport to Girdwood and following his arrival there. He had been insulted, kicked, beaten and dragged by the hair and his evidence had been corroborated by that of T 23 who had been arrested at the same time. T 16 ’ s ill-treatment was not connected with his formal interrogation which was correctly conducted by the Special Branch. Although the army doctor at Girdwood treated T 16 for a diabetic condition, the Commission considered the medical examination inadequate since no notice was taken of the injuries which were observed later by other doctors. T 16 instituted civil proceedings for damages and the respondent Government indicated to the Commission that his action would certainly be settled. He had also complained immediately to the RUC but, according to the applicant Government, some three years elapsed before he was told that no action was going to be taken against the army; the British Government attributed the impossibility of initiating a prosecution to T 16 ’ s inability to identify his assailants. 3. The "41 cases" 121. The Commission also considered, from the "41 cases", the cases of T 23, T 32, T 33, T 49 and T 50, three of which dated from August 1971, one from November 1971 and one from January 1972. All these persons had been released after questioning, except T 49 who had been charged and presumably detained thereafter. They alleged that they had been assaulted by army personnel on arrest and during transport to Girdwood; T 49 also complained of ill-treatment by the Special Branch during interrogation. Each case was submitted by the Irish Government by means of a medical report and also, except for T 33, the complainant ’ s own statement; no evidence was obtained from the respondent Government. A medical examination, made within twenty-four hours of release or detention, revealed injuries to each individual. In the Commission ’ s view: (a) it was fairly safe to conclude that certain of T 23 ’ s and T 50 ’ s injuries had been caused as alleged, particularly in the case of T 23, where the circumstances had been examined in connection with T 16 ’ s case (see paragraph 120 above). A strong probability also existed for T 32 whose claim for damages was later settled for £750; (b) although injuries had been found on T 33, it would be difficult to consider the facts established; (c) the allegations and injuries in the case of T 49 were comparable to those in the Palace Barracks cases; reference was made to the Commission ’ s assessment of some of the "41 cases" relating to that place (see paragraph 116 above). 4. The remaining cases 122. In the absence of corroborative, including medical, evidence, the Commission did not find it possible to examine further another 30 cases concerning Girdwood. It merely confirmed that allegations of ill-treatment had been made and that, in some cases, compensation had been paid. E. Ballykinler regional holding centre 1. Introduction 123. Ballykinler was an army camp in County Down used in August 1971 for holding and interrogating some of those arrested during Operation Demetrius (see paragraph 39 above). It was under the overall authority of the RUC, the army being responsible for security and the Special Branch conducting the interrogations. On 9 and 10 August, 89 persons were brought to Ballykinler of whom, by 11 August, 80 had been removed to a place of detention and the remainder released. The applicant Government requested the Commission to make findings on all the 18 cases in respect of which they had filed statements alleging ill-treatment at the camp. 124. Prior to the Commission ’ s enquiry, conditions at Ballykinler in August 1971 had been examined by the Compton Committee (see paragraph 99 above) and by the Armagh County Court in the Moore case. The Compton Committee considered that certain exercises which detainees had been made to do "under some degree of compulsion" must have caused hardship but were the result of lack of judgment rather than an intention to hurt or degrade; it accordingly made no findings of deliberate ill-treatment. In the Moore case, on the other hand, the judge rejected defence evidence, in particular as to the origin of the exercises, and concluded that the treatment of persons held at Ballykinler was "deliberate, unlawful and harsh"; he awarded the plaintiff £300, the maximum amount within his jurisdiction. 2. Illustrative case 125. The Commission examined, as illustrative, the case of T 3 and found that: (a) he and other persons arrested were made (in some cases before medical examination) to do exercises which caused considerable strain and hardship, especially to the elderly and those in poor physical condition; (b) the exercises consisted partly of sitting on the floor with the legs outstretched and the hands raised high above, or clasped behind, the head, and partly of kneeling on the floor with the forehead touching the ground and the hands clasped behind the back; (c) it was not possible to ascertain the exact length of time during which, or the degree of compulsion with which, the exercises were enforced; (d) allegations, concerning both T 3 and others, of specific incidents of violence and of the use of considerable force had not been established; (e) the camp had been swept out, and beds removed for security reasons, before persons arrested arrived; for a purpose not sufficiently explained, bedding was provided only for those who had been interrogated. 3. The "41" and the remaining cases 126. None of the "41 cases" concerned Ballykinler. There is no separate section in the Commission ’ s report on the remaining 17 cases relating to that centre but findings on the general conditions there were made within the context of T 3 ’ s case. F. Miscellaneous places 1. Introduction 127. 121 cases involving allegations of ill-treatment at miscellaneous places were referred to the Commission by the applicant Government. The allegations included beating and assaults by the army or the police at army posts, police stations, a prison, in the street, at home or during transport at dates falling between August 1971 and 1974. 65 of these cases were in connection with interrogation. The Commission examined in detail as illustrative the cases of T 7, T 11 and T 5. 2. The illustrative cases (a) The case of T 7 128. The Commission found that on 28 October 1971, without provocation or resistance, this civilian had been severely assaulted and injured in a street in Belfast by a corporal effecting his arrest. When it was realised that his arrest had been a mistake, he was discharged with apologies, having been given medical treatment. Neither his evidence nor the medical evidence was disputed and the respondent Government called no witnesses. The soldier in question was detained for four or five days and then admonished. T 7 ’ s claim for damages was settled for £600. (b) The case of T 11 129. The Commission found that, after his arrest on 20 December 1971, this civilian had been severely assaulted and injured by a number of soldiers during interrogation at Albert Street Barracks, Belfast. Neither the main facts nor medical evidence of physical injuries were disputed, although medical opinion differed concerning mental after-effects. The respondent Government called no witnesses to rebut the charges of physical ill-treatment. Additional allegations of harassment by soldiers after the event were found by the Commission to be neither proved nor disproved. T 11 ’ s claim for damages was settled for £300. He also lodged a complaint with the RUC which was still under investigation when the Commission heard evidence on his case; the respondent Government stated that they did not know the reason for the delay. (c) The case of T 5 130. T 5 alleged that he was kicked, punched and hooded by the army at St. Genevieve ’ s School, Belfast, on 13 August 1972. He was too young to be detained but, after arrest and questioning, he was taken, allegedly for identification purposes, to various army posts. A claim by T 5 for damages was settled in the sum of £236.79. His complaint to the RUC was unsuccessful. In the light of its review of the medical evidence and the evidence of the security force witnesses and of T 5, the Commission concluded that T 5 ’ s allegations were not sufficiently established. 3. The "41 cases" 131. From these cases, the Commission considered 28 on which the Parties had commented. It took the view that the evidence, in the shape of medical reports accompanied in some cases by a statement from the complainant, did not make it possible to establish beyond reasonable doubt the cause of the injuries. 4. The remaining cases 132. In the absence of corroborative, including medical, evidence, the Commission did not find it possible to examine further the remaining 90 cases. It merely confirmed that allegations of ill-treatment had been made and that, in some cases, compensation had been paid. G. Measures concerning the treatment of persons arrested or held by the security forces 1. Medical and other records 133. From May 1970 onwards, the army rule was that the person arrested and the arresting soldier were to be photographed together. With regard to the practice followed during Operation Demetrius, the Compton Committee noted that a photograph was taken of each person admitted to a regional holding centre and that on entry to Ballykinler and Magilligan, though not to Girdwood Park, a medical examination was carried out and its result recorded. As from 15 November 1971, every individual brought to a holding centre was medically examined on arrival and departure. Medical staff was instructed to submit reports whenever there was evidence of a complaint of ill-treatment. Furthermore, after a certain time, records were kept of the prisoner ’ s condition during his progress through interrogation. 2. Provisions designed to prevent ill-treatment 134. It would appear that at the beginning of the internment operation reliance was simply placed on the normal regulations requiring humane treatment and forbidding the use of violence. 135. Following the Parker report and the Prime Minister ’ s statement to Parliament (see paragraph 101 above), a directive on interrogation was issued prohibiting the use of coercion and, in particular, of the five techniques. In addition, it made mandatory medical examinations, the keeping of comprehensive records and the immediate reporting of any complaints of ill-treatment. In April 1972, army instructions and the RUC Force Order 64/72, concerning respectively arrests under the Special Powers Regulations and the treatment of prisoners, directed that excessive force should never be used. Shortly after the introduction of direct rule, the United Kingdom Attorney-General gave a ministerial directive on the proper treatment of persons in custody, making it clear that where any form of ill-treatment was reported the Director of Public Prosecutions would prosecute. Further army and RUC instructions of August 1972 in respect of arrest and interrogation enjoined the proper and humane treatment of prisoners; they strictly forbade resort to violence, the five techniques, threats or insults and concluded with a prohibition similar to Article 3 (art. 3) of the Convention. In August 1973 new instructions with regard to arrests by the army re-emphasised the need for correct behaviour. The respondent Government submitted that steps had been taken for the diffusion and enforcement at all levels of these orders and directives. However, both the Commission and the applicant Government considered that there was a lack of satisfactory evidence as to how the regulations were implemented and obeyed in practice. 136. Section 6 of the Emergency Provisions Act (see paragraph 68 above) contained provisions designed to exclude as evidence before an ordinary criminal court statements by an accused obtained by torture or inhuman or degrading treatment; the section did not apply to the extrajudicial procedures or to statements by third parties. 3. Complaints procedures and criminal prosecutions (a) The police 137. Under the Police Act ( Northern Ireland ) 1970, an investigation department within the RUC had been set up to report to the Chief Constable on all complaints against the police whatever their source. An official committee of five members of the Police Authority of Northern Ireland, including two Catholics and two Protestants, examined each month the records of complaints kept by the Chief Constable. Where a serious criminal offence was disclosed, reports were submitted to the Attorney-General for Northern Ireland or, after the introduction of direct rule, to the Director of Public Prosecutions in Northern Ireland, a newly-created office, for decision whether to prosecute. On 15 June 1972, the United Kingdom Attorney-General instructed the Director of Public Prosecutions to direct the RUC to investigate and report on any circumstances which might involve the commission of a criminal offence by a member of the security forces. From November 1972 onwards, all completed investigations of both police officers and army personnel had to be sent to the Director of Public Prosecutions. In September 1973, new disciplinary regulations brought the arrangements for the investigation of complaints against the RUC into line with the arrangements existing elsewhere in the United Kingdom. In 1975, a fresh unit was established within the RUC under the direct control of the Deputy Chief Constable to be responsible for the investigation of complaints. 138. The Gardiner Committee in its report of January 1975 (see paragraph 74 above), while expressing itself satisfied that full investigations were made, nevertheless found a widespread belief in Northern Ireland that complaints against members of the security forces were not taken seriously. It therefore recommended the setting up of an independent means of investigating complaints. The Police ( Northern Ireland ) Order 1977 established a completely independent Police Complaints Board for Northern Ireland with supervisory functions in the matter. (b) The army 139. The policy of the General Officer Commanding, as stated in the evidence before the Commission, was that every complaint should be investigated. An investigator was automatically appointed as soon as an incident was reported, even before a formal complaint had been made. As with the RUC, notice was also taken of allegations in the press or from third parties. It would seem that in the early stages of the emergency complaints against soldiers were handled by the army authorities themselves; later on, two RUC officers were appointed to oversee army enquiries and subsequently investigations were actually carried out by the RUC, at least where there appeared to be a serious criminal offence. In addition, complainants were encouraged to channel their complaints through the police. On 20 January 1972 a joint army/RUC investigation team was created. Complaints against the army were referred to an outside authority - the Director of Public Prosecutions as from April 1972 – for directions whether to prosecute. (c) Statistics relating to complaints and prosecutions 140. Between 9 August 1971 and 30 November 1974, 2,615 complaints against the police were made, 1,105 alleging ill-treatment or assault; the 23 prosecutions for assault resulted in 6 convictions leading to fines and, in one case, a conditional discharge. As regards the army, from 31 March 1972 to 30 November 1974, 1,268 complaints in respect of assaults or shootings had been received and 1,078 cases of alleged assault were submitted to the Director of Public Prosecutions. By January 1975, directions to prosecute had been given in 86 out of the 1,038 cases then dealt with. Overall, between April 1972 and the end of January 1977, 218 members of the security forces were prosecuted for assault at the direction of the Director of Public Prosecutions and 155 were convicted. (d) Particular instances of investigation, disciplinary action or prosecution 141. Soon after complaints relating to the arrests carried out on 9 August 1971 became known, nearly 1,800 soldiers, including 300 or so who had left Northern Ireland, were interviewed in order to determine their role in the arrest operation. The Commission ’ s report also mentions a few other specific examples of members of the security forces being investigated or disciplined, but these examples are not connected with the cases submitted by the applicant Government. No information of any investigation into the submitted cases was vouchsafed to the Commission by the respondent Government except in relation to the illustrative cases. Even as regards the illustrative cases, the Commission had before it just one item of direct evidence - the Compton reports, filed by the applicant Government - and it noted that in none of them had the authorities carried out a thorough investigation of the allegations of ill-treatment; evidence as to disciplinary action or prosecution was furnished to the Commission in one case alone, that of T 7 (see paragraph 128 above). 4. Compensation 142. Procedures to obtain compensation were available before the domestic courts to all persons who considered themselves to have been ill-treated by the security forces. There is no suggestion that the domestic courts were or are anything other than independent, fair and impartial. The respondent Government have emphasised the difference between domestic civil and criminal law. Under the former the authorities are liable for any wrongful act, established on the balance of probabilities, committed in the course of their duty by soldiers or policemen, whether individually identified or not. The criminal law, in contrast, requires proof beyond reasonable doubt of the guilt of an identified individual. Like any plaintiff in a civil action, a plaintiff alleging ill-treatment by the security forces was entitled to obtain disclosure of relevant documents, for example medical reports, in the possession of the defendant authorities. 143. Between 9 August 1971 and 31 January 1975, compensation totalling £302,043 had been paid in settlement of 473 civil claims for wrongful arrest, false imprisonment, assault and battery, leaving 1,193 actions still outstanding. At the time of the Commission ’ s report, compensation, ranging from about £200 to £25,000, had been paid in settlement of 45 of the 228 cases submitted by the applicant Government. In the only case of alleged physical ill-treatment which seems to have been fought, namely the case of Moore v. Shillington (see paragraph 124 above), the judge disbelieved the evidence of the security forces. | In the view of the Irish Government, the powers applied in Northern Ireland, from 9 August 1971 to March 1975, allowing extrajudicial deprivation of liberty, had exceeded the "extent strictly required" by the exigencies of the situation, whereas the British Government asserted the contrary. |
690 | Apology of violence and incitement to hostility | I. the CIRCUMSTANCES OF THE CASE A. The applicant 8. The applicant is a Turkish citizen who was born in 1957 and lives in Istanbul. 9. At the material time, the applicant was the major shareholder in Deniz Basın Yayın Sanayi ve Ticaret Organizasyon, a Turkish limited liability company which owns a weekly review entitled Haberde Yorumda Gerçek (“The Truth of News and Comments”), published in Istanbul. B. The impugned news report 10. The issue dated 26 April 1992 contained a news report providing information given at a press conference by a delegation - which included two former Turkish parliamentarians Leyla Zana and Orhan Doğan, Lord Avebury and a member of the Anglican Church - on its visit to Şırnak village, in the wake of tensions in the area. The news report included an article reporting the Governor of Şırnak as having told the delegation that the Şırnak Chief of Police had given an order to open fire on the people. It further rendered a dialogue between Leyla Zana, Orhan Doğan and İsmet Yediyıldız, a Gendarme Commander. The relevant part of the report read: “Gendarmerie Regiment Commander İsmet Yediyıldız : ‘Your blood would not quench my thirst…’ While the British delegation and Diyarbakır MP Leyla Zana, Şırnak MP Orhan Doğan and Bismil District Governor Mehmet Kurdoğlu managed to persuade the people of Tepe village, which was blockaded by the security forces, after talking to them for a while and telling them that permission had been obtained for them to get the bodies of their dead, an interesting conversation took place between Diyarbakır Security Director Ramazan Er and Gendarmerie Regiment Commander İsmet Yediyıldız. The conversation between the MPs Leyla Zana and Orhan Doğan on the one hand and Colonel İsmet Yediyıldız on the other hand was recounted by Leyla Zana as follows: Colonel Yediyıldız : What business do you have here? There had been nobody here until you arrived. You have come and stirred things up again. Leyla Zana : No, Sir. The situation had been extremely tense before we arrived. We have come with the District Governor and are trying to calm down the tension here. Here is the District Governor. Colonel Yediyıldız : No, that’s not true. We saw when we were flying by helicopter that there was nobody here before. People gathered when you arrived. Orhan Doğan : No, you can ask the District Governor if you like. (Meanwhile, District Governor Mehmet Kurdoğlu was also being told off.) Colonel Yediyıldız : Do you know who these dead people are? Orhan Doğan : Yes, they are our children, the children of all of us. Colonel Yediyıldız : No, these are not our children, they are your children. Orhan Doğan : But my Colonel ... Colonel Yediyıldız : Do not call me your colonel. I am not your colonel. Your blood would not quench my thirst. You should also be honest and freely admit that my blood would not quench your thirst. Right now I could kill you like a rat. Your death would give us pleasure. Your blood would not quench my thirst. Leyla Zana : If the problem can be solved by killing us, then here are our people; let’s go among them and you kill us and this problem is solved. Colonel Yediyıldız : No, I would not kill you now. I would kill you after disgracing you in the eyes of the people.” C. The charges against the applicant 11. On 29 May 1992 the Public Prosecutor at the Istanbul National Security Court ( İstanbul Devlet Güvenlik Mahkemesi ) charged the applicant, being the owner of the review, with revealing the identity of officials mandated to fight terrorism and thus rendering them terrorist targets. The charges were brought under section 6 of the Prevention of Terrorism Act 1991 ("the 1991 Act"; see paragraph 16 below). 12. In the proceedings before the Istanbul National Security Court the applicant denied the charges and advanced the following arguments in his defence. The news report had been published with the aim of informing the public of the events which had occurred during the 1992 Newroz celebrations. It had been based on a joint press declaration by former deputies Leyla Zana and Orhan Doğan and an English delegation, during their visit to south-east Turkey. By virtue of the fact that section 6 of the 1991 Act contained an absolute prohibition on the disclosure and dissemination of the identity of officials appointed to fight terrorism, it enabled officials to abuse their authority, violate the law and subject citizens to ill-treatment. The right to receive and impart information, including information concerning acts of officials, was fundamental in a democratic society. Section 6 of the 1991 Act contravened not only the Turkish Constitution but also Article 10 of the Convention. D. The applicant’s conviction 13. In a judgment of 2 September 1993 the National Security Court convicted the applicant under section 6 of the 1991 Act and sentenced him to pay a fine of 54,000,000 Turkish lira. It noted that the news report had contained an allegation to the effect that the Governor of Şırnak had stated to the visiting delegation that the Şırnak Chief of Police had given an order to open fire on the people. It had further affirmed that a gendarme commander had stated to Orhan Doğan in Leyla Zana’s presence "[y]our death would give us pleasure. Your blood would not quench my thirst". By having disclosed the identity of these officials, the publication had rendered them targets for terrorist attack. E. The applicant’s appeal against conviction and subsequent proceedings 14. The applicant appealed, reiterating his defence before the National Security Court. He also argued that the press declaration at issue had already been reported in other newspapers and magazines and that the incriminated news report had added nothing to these. 15. On 10 December 1993 the Court of Cassation dismissed the appeal. It upheld the cogency of the National Security Court's assessment of the evidence and its reasoning for rejecting the applicant's defence. | The applicant was the owner of a weekly review which published two readers’ letters vehemently condemning the military actions of the authorities in south-east Turkey and accusing them of brutal suppression of the Kurdish people in their struggle for independence and freedom. The applicant was convicted of “disseminating propaganda against the indivisibility of the State and provoking enmity and hatred among the people”. He complained that his right to freedom of expression had been breached. |
911 | Tribunal established by law | THE BACKGROUND TO THE CASELegislative history of the judicial appointment procedure in IcelandAct no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level Legislative history of the judicial appointment procedure in IcelandAct no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level Legislative history of the judicial appointment procedure in IcelandAct no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level 11. As part of the efforts to restructure the judiciary in Iceland, on 19 May 1989 the Icelandic Parliament ( Althingi ) adopted Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level. Amongst the provisions introduced by the Act was the establishment of an Evaluation Committee to evaluate the competencies and qualifications of candidates for the post of District Court judge. Originally proposed in 1976, the introduction of such a committee was – according to the preparatory material in respect of the relevant Act – meant to ensure judicial independence and to increase public confidence in an independent judiciary. The Committee, an independent administrative body, was advisory vis-à-vis the Minister of Justice and was to be composed of three members appointed by the Supreme Court, the District Courts and the Icelandic Bar Association, respectively. 12. As regards the appointment of Supreme Court justices, the Supreme Court had been designated to act as an advisory body for that purpose at an earlier stage under Act no. 75/1973 on the Supreme Court ( Lög um Hæstarétt Íslands ). Judiciary Act no. 15/1998 13. The Judiciary Act no. 15/1998 (“the former Judiciary Act”), which entered into force on 1 July 1998, originally maintained, as far as is relevant, the Evaluation Committee’s mandate, composition and advisory role. In a judgment delivered on 14 April 2011 in relation to a dispute on the appointment of a District Court judge, the Supreme Court stressed that despite the advisory role of the Evaluation Committee at the material time, the Minister of Justice, when making a proposal for a judicial appointment contrary to the Committee’s recommendation, was nevertheless bound by the principle of appointing the most qualified candidate to a public post and by the duty of “sufficient investigation” under section 10 of the Administrative Procedures Act (see paragraph 115 below for further information on this judgment). 14. The role of the Evaluation Committee in the judicial appointment process was further reinforced in 2010 through amendments made to section 4a of the former Judiciary Act by Act no. 45/2010 (see paragraph 103 below). Amongst other important changes concerning the composition and the mandate of the Evaluation Committee, including an increase in the number of members to five and the extension of its mandate to cover the appointment of Supreme Court justices, the amendments introduced the rule that when making judicial appointments the Minister of Justice could only appoint candidates who were considered by the Committee to be the most qualified for a given post. In order to appoint a candidate who had not been considered the most qualified by the Committee, the Minister of Justice needed to obtain the approval of Parliament. This was, according to the Act’s preparatory material, intended to further ensure the independence of the judiciary. That material referred to international legal instruments and recommendations on the appointment of judges, and underlined the importance of proper procedure in judicial appointments, in the light of the judiciary’s significant role in securing fair trial rights and maintaining the checks and balances inherent in the separation of powers. It furthermore referred to an unwritten fundamental principle of Icelandic administrative law, whereby appointments to public posts had to be based on objective considerations and the most qualified candidate had to be appointed to any public post (see paragraph 114 for further information on the aforementioned unwritten administrative law principle). 15. In view of the increased role conferred upon the Evaluation Committee in the judicial appointment process through these amendments, the Minister of Justice established a set of rules in 2010 (Rules no. 620/2010) to govern the Committee’s work (see paragraph 107 below for further information on the relevant Rules). Establishment of the new Court of Appeal and appointment of its judgesGeneral legal framework General legal framework General legal framework 16. On 26 May 2016 the Icelandic Parliament enacted Judiciary Act no. 50/2016 (“the new Judiciary Act”). The new Judiciary Act came into force on 1 January 2018, whereas a number of its temporary provisions, including temporary provision IV concerning the appointment of judges to the Court of Appeal, had entered into force earlier on 14 June 2016. 17. The new Judiciary Act introduced a new court of second instance in the Icelandic judicial system, namely the Court of Appeal ( Landsréttur ), thereby replacing the former two-tier system – consisting of District Courts and the Supreme Court – with a three-tier system. 18. Under section 21 of the new Judiciary Act, the Court of Appeal would be composed of fifteen judges. The initial procedure for the selection and appointment of the judges to the new Court of Appeal was regulated under temporary provision IV of the new Judiciary Act. The first paragraph of temporary provision IV provided that the appointment process would be completed by 1 July 2017 and the appointed judges would take up their duties as of 1 January 2018, from which date the Court of Appeal would start operating. Referring to section 4a of the former Judiciary Act (see paragraph 14 above), the first paragraph of temporary provision IV further indicated that an Evaluation Committee would assess the qualifications of the individual candidates for the position of judge at the Court of Appeal and would provide the Minister of Justice with an evaluation report as to which candidates were considered to be best qualified to serve in that position. Pursuant to the relevant paragraph of the temporary provision, which largely reiterated section 4a of the former Judiciary Act (see paragraph 103 below), the Minister of Justice could not appoint a candidate whom the Evaluation Committee had not considered to be amongst the most qualified for the post. It also provided, however, that the Minister of Justice could depart from the assessment of the Evaluation Committee and propose a different candidate (or candidates) who had not been shortlisted by the Committee, on the condition that the proposed candidate(s) had nevertheless been found by the Evaluation Committee to fulfil all the minimum requirements set by section 21 of the new Judiciary Act (see paragraph 105 below) for appointment to the office of Court of Appeal judge, and that the proposal was accepted by Althingi. 19. The second paragraph of temporary provision IV then provided that for the first-round of appointments to the new Court of Appeal, the Minister of Justice would submit his or her proposals on each proposed candidate to Althingi. If Althingi accepted the Minister’s proposals, they would then be sent to the President of Iceland, who would formally appoint the relevant judges. If Althingi did not accept any one of the Minister’s proposals, the Minister would then have to submit new proposals to Althingi to replace the refused candidates. Call for applications 20. On 10 February 2017 a call for applications was issued for the posts of fifteen judges at the Court of Appeal. The application deadline was set at 28 February 2017. According to the information obtained from the official website of the Icelandic Government, the prospective candidates were requested to provide information on the following matters as part of their applications: “(1) Current occupation. (2) Education and further education. (3) Experience of judicial work. (4) Experience of legal practice. (5) Experience of administrative work. (6) Experience of academic work, e.g. teaching and other academic work and information concerning published, peer-reviewed articles and books, academic lectures, etc. (7) Experience of management. (8) Experience of additional work which might be useful for judicial post candidates, e.g. preparation of legislation, etc. (9) Information on general and special competencies. (10) Information concerning character and independence at work. (11) Information concerning two former or current colleagues or superiors who can give the committee both orally and in writing information about the work and co-working skills of the candidate. (12) Other information which can show the candidate’s professional qualities and skills which are important for Court of Appeal judges.” The prospective candidates were moreover informed that applications should be accompanied, as applicable, by: “(1) Copies of degree certificates. (2) Copies of judgments which the candidate has drafted in the last 12 months, in orally argued court cases. (3) Copies of written submissions which the candidate has drafted and orally argued in the last 12 months in court cases. (4) Copies of administrative decisions which the candidate has drafted in the last 12 months. (5) Published academic books and copies of articles by the candidate. It is requested that peer-reviewed articles be labelled as such. (6) Other documents which can demonstrate the candidate’s professional competence to work as a judge at the Court of Appeal.” 21. Thirty-seven applications were initially received, including one from a certain A.E. However, only thirty-three of those applications were ultimately assessed by the Evaluation Committee, because three candidates withdrew their applications and one candidate did not fulfil the legal requirements for the post. Assessment procedure before the Evaluation Committee 22. At a meeting held on 2 March 2017, the Minister of Justice (who, at the material time, served in that capacity under the title of Minister of the Interior) submitted the applications to the Chairman of the Evaluation Committee [1]. During the meeting, the Minister suggested to the Chairman that the Evaluation Committee provide her with a list of some twenty qualified candidates to choose from. 23. Following the meeting with the Minister of Justice, the Evaluation Committee set in motion the assessment process. According to the testimony provided by the Chairman of the Evaluation Committee in judicial proceedings brought in the aftermath of the appointment process by two of the shortlisted candidates, namely J.R.J. and Á.H., the Committee conducted its assessment on the basis of an evaluation table devised by it (see paragraphs 60-75 below for further information on these judicial proceedings). It appears from the Chairman’s testimony that each candidate was individually evaluated and given points on the basis of twelve specific assessment criteria [2] noted on the evaluation table, which included education, judicial experience, and experience of legal practice or of public administration. The total number of points received by the candidates then determined their ranking. 24. The Evaluation Committee interviewed the candidates between 24 and 26 April 2017 and on 2 May 2017, and also sent questionnaires to the persons indicated by the candidates as referees. 25. On 11 May 2017 the Chairman of the Evaluation Committee submitted the Committee’s draft assessment report to the Minister of Justice. The report included a list of fifteen candidates who were considered by the Committee to be the most qualified for appointment to the Court of Appeal as judges. According to information obtained from the judicial proceedings mentioned in the previous paragraph, the Minister asked once again during this meeting whether the Committee could provide her with a list that contained more than fifteen qualified candidates, upon which the Chairman showed the Minister the evaluation table that they had worked on and from which the list of the fifteen most qualified candidates had been generated. 26. On the same day, the Committee sent the draft assessment report to the candidates for their comments. 27. Seventeen candidates sent in comments, which were discussed at the Committee’s meetings on 18 and 19 May 2017. Final assessment report prepared by the Evaluation Committee 28. On 19 May 2017 the Evaluation Committee submitted its assessment report to the Minister of Justice, which had been finalised after the review of the comments received from the candidates in response to the draft report. According to the information provided in the report, while the comments received from the candidates had given rise to some changes in the Committee’s assessment, they had not affected its recommendations regarding the fifteen most qualified candidates. 29. According to the testimony provided by the Minister of Justice before the District Court in a different set of judicial proceedings brought in the aftermath of the appointment process by two other candidates, namely E.J. and J.H., the Committee also submitted to the Minister on 19 May 2017, along with the assessment report, the evaluation table noted in paragraph 23 above, which showed the number of points allocated to each of the thirty ‑ three candidates under each evaluation category and their rankings (see paragraphs 91-96 below for further information on these judicial proceedings). The Government argued in their observations that the assessment table had been submitted to the Minister of Justice at a later date – that is on 28 May 2017, together with the Evaluation Committee Chairman’s letter to the Minister of Justice (see paragraph 40 below) – but they did not present any evidence in support of their argument. 30. The 117-page assessment report was divided into six chapters. The first chapter stated the names of the candidates, the second chapter set out the assessment criteria, the third chapter explained the procedure adopted by the Committee in conducting its assessment, the fourth chapter provided general information about the candidates, and the fifth chapter contained the evaluation of the candidates. The last chapter was divided into twelve sections – corresponding to the twelve different assessment criteria noted in paragraph 23 above – where the candidates were evaluated at the end of each section according to their qualifications. In the conclusion part of the report, the Evaluation Committee provided the following explanations on its assessment process: “... The Evaluation Committee’s conclusion is based on a comprehensive assessment of the applicants’ merits, in which the most important aspect is that the applicants have a broad, general legal education, knowledge and ability. In assessing the extent to which applicants’ professional experience is utilised in the work of judges of the Court of Appeal, it is most important that they have solid experience of judicial work, legal practice, and administrative work related to the resolution of disputes. It also matters whether the applicants’ experiences have been varied, such as whether they have experience in applying legal rules in different areas of law. In addition, the experience of the first few years of each job is given relatively the greatest weight in this regard, so there is less reason to differentiate between applicants with lengthy work experience because one of them has held a job longer than the other. ... In assessing general competence, and the ability to prepare and draft judgments and to preside in court, the Committee has given consideration to comments of referees, application documents, other relevant documents and the interviews held with the applicants.” 31. The Committee found in its report that all thirty-three candidates that it reviewed were legally qualified to serve as Court of Appeal judges. However, in the conclusion of the report, it proposed a list of fifteen candidates whom it deemed to be the most qualified for the post of judge at the Court of Appeal. The assessment report, as opposed to the evaluation table on which the assessment was based, did not provide any ranking of those fifteen candidates; yet it stated explicitly that they were all more qualified for the post of judge at the Court of Appeal than the remaining eighteen candidates. A.E. was not among the fifteen candidates that the Committee considered to be the most qualified. It appears from the evaluation table attached to the assessment report that A.E. was ranked 18th among the thirty-three candidates [3]. 32. According to information that emerged during the first set of judicial proceedings brought by the candidates J.R.J. and Á.H. mentioned above (see paragraph 23), on 19 May 2017 the Evaluation Committee also submitted a memorandum to the Minister of Justice on the procedure by which it had evaluated the comments made by the candidates in response to the draft assessment report (see paragraphs 27 and 28 above). Procedure before the Minister of Justice (a) Preliminary exchange with Parliament regarding the appointment procedure 33. By email of 12 May 2017, the Secretary-General of Parliament sent a memorandum to the Minister of Justice and the Speaker of Parliament on the procedure to be followed for the judicial appointments to the Court of Appeal and the role of Parliament in the process. The memorandum noted at the outset that the procedure before Parliament was without precedent and not entirely clear, but that it would be conducted in accordance with section 45(5) of the Parliamentary Procedures Act no. 55/1991 (see paragraph 109 below) and then provided further details in relation to the proposed procedure. Accordingly, the Minister of Justice would submit to Parliament one proposal for appointment to each of the fifteen posts. The Minister was expected to provide grounds for her proposals, stating in particular if she intended to deviate from the assessment of the Evaluation Committee. The Minister’s proposals would then be sent to the Constitutional and Supervisory Committee of Parliament (hereinafter “the CSC”), which would give its opinion on those proposals in a manner that enabled Parliament to decide on each proposed candidate. The memorandum stated that no changes could be made to the Minister’s proposals by Parliament; if any one of the proposals was not accepted by Parliament, then the procedure would have to be repeated. 34. By email of 16 May 2017, the ad hoc Permanent Secretary of the Ministry of Justice informed legal advisors from the Prime Minister’s office, the Ministry of Justice and the Ministry of Finance that the Minister had approved the proposed procedure set out in the memorandum of the Secretary-General of Parliament. (b) Proposal of the Minister of Justice concerning the appointments to the Court of Appeal 35. In an email dated 26 May 2017, the Minister of Justice sent to two in ‑ house legal advisors the draft of the letter that she was planning to submit to Parliament concerning the appointments to the Court of Appeal and asked them to provide feedback. While the draft letter was not included in the case file for examination by the Court, it appears from further correspondence between one of the legal advisors and the ad hoc Permanent Secretary of the Ministry of Justice (see paragraph 37 below) that the Minister intended to depart from the list prepared by the Evaluation Committee. 36. In their response on the same day, the legal advisors informed the Minister that they had inserted some comments and suggestions in the draft letter. According to this email, their main comment was that if the Minister intended to change the Committee’s list of proposed candidates, such change had to be specifically reasoned on the basis of the qualifications of the relevant candidates. They further suggested informing the candidates of the changes, at the latest before the list was submitted to Parliament or before it was processed by it. 37. On 28 May 2017 one of the legal advisors that the Minister had consulted sent an email to the ad hoc Permanent Secretary of the Ministry of Justice, reiterating the views noted above. He stated mainly that if the Minister of Justice considered that the Evaluation Committee’s assessment procedure or the outcome of its assessment had been flawed, then she (the Minister) had two options. The first option would be to refer the matter back to the Committee for reassessment. As a second option, the Minister could choose to remedy the flaws herself, which would require her to evaluate all the candidates in the light of the “Minister’s objectives” (the expression used in the email) and the relevant legal criteria. In such circumstances, a substantive assessment would have to be made of the qualifications of each applicant based on new grounds. In the legal advisor’s opinion, the standard procedure in these circumstances would be to request the Committee to conduct a new evaluation. He further noted that the Minister’s decision in respect of judicial appointments was an administrative act and therefore had to comply with the Administrative Procedures Act no. 37/1993 (see paragraph 108 below). He lastly proposed that it might be wise to inform the candidates about any change in the emphasis placed on one of the assessment criteria and to give them an opportunity to present new information that could be relevant for the fresh evaluation. 38. It appears from the text of the judgments delivered by the District Court on 25 October 2018 in respect of the candidates E.J. and J.H. (see paragraphs 91-96 below) that on 28 May 2017, the ad hoc Permanent Secretary of the Ministry of Justice sent an email to the Minister of Justice concerning the latter’s proposals for appointments to the Court of Appeal. According to the Permanent Secretary, who had reviewed the draft of the Minister of Justice’s proposal, the Minister had three options before her: “1. It is possible that the Minister may declare tomorrow [to Parliament] that she is unhappy with the criteria on which the Evaluation Committee based its conclusions, and propose that the entry into force of the [new Judiciary Act] be postponed until 1 October [2017]... and that the Evaluation Committee reassess the issue based on criteria which the Minister emphasises with proper reasoning ... 2. That the Minister may send a letter to Althingi tomorrow with proposals that envisage amendments [to the Evaluation Committee’s list] based on reasoning concerning the increased weight of judicial experience. The Minister [would thus be] repairing the faults with an independent assessment, which means that the same evaluation has to be carried out in respect of all the candidates based on the reasonable and legitimate criteria upon which the Minister proceeds. This means that a substantive evaluation has to be made of the competencies of each candidate based on the new criteria. It would be best to give increased weight to the judicial experience and refer to that in respect of the whole group ... We could also say that with this amendment, the gender balance is changed, without referring to those [particular] considerations in the [Minister’s] proposal. 3. The Minister may send [her] unamended list to Althingi (which requires work from the Minister to choose the new names, with legitimate reasoning) – not an attractive option –.” 39. In the meantime, on 27 May 2017 the Minister of Justice asked the Evaluation Committee to provide further information and documents on its evaluation of the thirty-three candidates, and inquired in particular as to whether the Committee had discussed the grounds on which the weight of each assessment criterion had been decided, and whether any documentation relating to that decision existed. She also requested information on whether the Committee had discussed its decision to find only fifteen candidates to be the most qualified for the fifteen posts, in the light of, inter alia, Act no. 10/2008 on Equality. 40. By a letter of 28 May 2017, the Chairman of the Evaluation Committee provided the Minister of Justice with details as to its evaluation procedure. He informed the Minister about the manner in which the Committee had given weight to each of the twelve pre-determined assessment criteria – which had been the same since the amendments introduced by Act no. 45/2010 (see paragraph 14 above) – and explained that the same method and approach had been used in all judicial appointments during his four years as Chairman of the Committee. He stated that, following the same approach, all candidates had been evaluated separately under each criterion, and the points they received were noted in the assessment table; these points then determined the candidates’ overall ranking. He stressed that the Committee had chosen to apply the same weight to each individual criterion as that applied in previous appointment procedures, noting in particular the importance of maintaining consistency in such matters. According to the Chairman, changing the weightings after the submission of candidatures, for the benefit of particular candidates and to the disadvantage of others, had to be avoided. 41. As regards the Minister’s second question as to why only fifteen names had been proposed in the Committee’ report, the Chairman explained that the Committee had not found that there had been several candidates of equal merit, nor had it encountered any difficulties in determining whether one candidate was more qualified than another. In this instance, fifteen positions had been advertised and the Committee had found that fifteen of the candidates under its review had been more qualified than the remaining ones for those positions. It had, therefore, not been necessary to propose a list of more than fifteen candidates in its report. The Committee’s evaluation table had clearly shown the ranking of the individual candidates. The Chairman continued that the Minister had asked to be able to choose from among, for example, twenty candidates for the fifteen vacant posts. If this approach were to be followed, the candidate ranked 20th in the Committee’s evaluation table could be chosen over candidates ranked 5th, 10th and so forth. According to the Chairman, this approach would contradict the purpose of Act no. 45/2010 as it had been described in the preparatory material (see paragraph 14 above). The intention behind the legislative framework requiring a separate expert committee to assess candidates for judicial posts, as opposed to leaving that assessment to the Minister of Justice alone, had been to safeguard judicial independence in the light of developments in other European countries. 42. Lastly, with regard to the reference made by the Minister to Act no. 10/2008 on Equality, the Chairman stated that the Committee did not evaluate qualifications according to the gender of the candidate. Moreover, Act no. 10/2008, which was of relevance to the Committee’s work under Rules no. 620/2010, did not allow discrimination based on gender, whether direct or indirect. Such gender ‑ based considerations could be entertained by the Minister only if two or more candidates had been considered as equally qualified for the post by the Evaluation Committee, which was not the case in the present circumstances. Procedure before Parliament (a) Submission of the Minister of Justice’s list of candidates to Parliament 43. In a letter dated 29 May 2017, the Minister of Justice presented to the Speaker of Parliament her proposal of fifteen candidates for appointment as Court of Appeal judges. The proposal contained only eleven of the fifteen candidates whom the Evaluation Committee had found to be the most qualified for the post of judge at the Court of Appeal. The candidates ranked 7th, 11th, 12th and 14th [4] in the Committee’s evaluation table had been removed from the list, and replaced with four other candidates ranked 17th, 18th, 23rd and 30th [5]. The Minister’s proposal therefore included A.E., who had been ranked 18th by the Evaluation Committee (see paragraph 31 above). 44. In a separate letter sent on the same day, the Minister presented arguments for her proposals and the changes she had made in the Evaluation Committee’s list. The Minister stated at the outset that, in its comprehensive report, the Evaluation Committee had relied on the assessment factors set out in Rules no. 620/2010 (governing the work of the Committee), and the weight ascribed to each assessment factor by the Committee had had a decisive effect on the ranking of each applicant. The Minister was, however, of the opinion that the Evaluation Committee had not given “judicial experience” the weight that the post of judge at an appellate court required. The Minister further argued that the assessment of candidates for judicial posts was not an exact science; it would not be possible to separate a qualified candidate from an unqualified one by a difference of 0.025 points on a scale of 1 to 10, and nothing in Rules no. 620/2010 had called for such working practices. After reviewing the assessment report, the candidates’ comments on that report and the working documents presented to her, the Minister had concluded that a number of other candidates with many years of judicial experience should also have been included on the Evaluation Committee’s list. She thus stated that she considered a total of twenty-four candidates to be eligible for the judicial posts, including those proposed by the Committee, and that she had drawn up her list of fifteen candidates on the basis of the principles described above. The Minister did not provide any further explanation as to why she had decided specifically to replace the candidates ranked 7th, 11th, 12th and 14th with those ranked 17th, 18th, 23rd and 30th. Nor is there any information before the Court as to the names of the twenty-four candidates considered eligible by the Minister of Justice. (b) Procedure before the Parliamentary Constitutional and Supervisory Committee 45. Upon receipt of the Minister’s proposals, the CSC held a meeting on 29 May 2017. It invited the Minister of Justice to the meeting, as well as the ad hoc Permanent Secretary of the Ministry of Justice, a number of experts, representatives from the Icelandic Bar Association and the Icelandic Judges’ Association, the Parliamentary Ombudsman and the Chairman of the Evaluation Committee. Although the Court is not in possession of the minutes of this meeting, it transpired from the judicial proceedings brought subsequently by J.R.J. and Á.H. that the Minister of Justice had met with some criticism during this meeting for having failed to provide justification for each of the candidates that she had proposed to Parliament. 46. On 30 May 2017 the CSC held three meetings on the proposal of the Minister of Justice for the appointment of judges to the Court of Appeal. At the first meeting, B.N., who was the Chairman of the CSC at the material time, declared that he was the husband of one of the proposed candidates, namely A.E., and therefore stood down. 47. At one of the meetings held on 30 May 2017, the Minister of Justice presented a memorandum to the CSC to further substantiate her proposals. In the memorandum, the Minister reiterated her view that more weight should be accorded to judicial experience in the assessment of the candidates for an appellate court, including successful courtroom experience, and stated that she had also taken into account the Equality Act (no. 10/2008) in her proposal [6]. She continued to briefly outline the careers and qualifications of the four candidates whom she had added to the proposal [7]. She concluded with the following remarks: “As described above, it is the substantial judicial experience of these [four] candidates which motivated the Minister’s proposal, in addition to the consideration which must be given to the Equality Act. The Minister is bound to propose those who are most qualified for the post of judge at the Court of Appeal. In this instance, the Minister considers that the aforementioned four candidates are also the most qualified for the post of judge at the Court of Appeal. The Minister’s assessment is based on a thorough examination of the documents of the case, including the applications, the Evaluation Committee’s report, the candidates’ comments, and the working documents of the Committee, and is made in light of the legitimate objectives discussed above. The Minister has not raised any objections regarding the Evaluation Committee’s preparation of this matter. She believes that the Evaluation Committee has shed sufficient light on the matter and that a satisfactory investigation has been performed for the assessment of the factors that constitute the grounds for the conclusion. The Minister considers it appropriate that more weight be given to judicial experience than that given by the Evaluation Committee. The Committee has already evaluated the candidates on the basis of this criterion and all the information about the judicial experience of the candidates is contained in the file. No new information or data has served as a basis for the Minister’s proposal.” 48. On 30 May 2017 the CSC also met with the Chairman of the Evaluation Committee, as well as representatives from the Icelandic Bar Association and the Icelandic Judges’ Association and two academics, who answered questions put by the members of the CSC. At the close of the meeting, one of the members of the CSC – who was a member of parliament (MP) from an opposition party – requested the following statement to be entered in the official records: “In view of the limited time allowed to the Committee [the CSC], it is clear that the matter will not be dealt with in a sufficiently professional manner, and this will affect public confidence in the courts.” 49. On 31 May 2017 the majority of the CSC, divided along party lines, proposed a parliamentary resolution, recommending that Parliament approve the Minister’s proposal. The CSC held at the outset that under the Constitution, the role of the judiciary was to supervise the other holders of State powers, and that evaluation committees, such as that which had been set up in Iceland, served the purpose of limiting the power of the executive branch in the appointment of judges, by providing professional opinion on the qualification of candidates. If the Minister of Justice wished to depart from the list of candidates proposed by the Evaluation Committee, she had to present arguments for her proposal. Moreover, the choice had to be objective and the most qualified person had to be selected for the position. The CSC noted that the Evaluation Committee had considered that all thirty-three candidates fulfilled the legal requirements to be eligible for the relevant office. On this basis, and upon a discussion of the grounds underlying the Minister’s proposal for appointment of judges to the Court of Appeal, including the deviations from the Committee’s proposal, the CSC stated that it accepted the list proposed by the Minister. It stressed that Parliament’s role in this process should be limited to reviewing whether the proper procedure had been applied by the Minister, whether an appropriate comparison of the candidates had been undertaken and whether the Minister’s evaluations had been objective. 50. The minority, on the other hand, recommended that the proposal be dismissed, as they considered the reasons given by the Minister to be insufficient, in particular as to why she had chosen to depart from the Committee’s proposal. They argued, inter alia, that the Minister had not made it clear how the four candidates removed from the original list and the four added ones had been evaluated and compared. Moreover, the minority expressed serious reservations regarding the Minister’s compliance with principles of administrative law, including the requirement of sufficient investigation, the right of the candidates to comment and the general principle of domestic law that only the most qualified candidates should be selected for office, referring to the Supreme Court’s judgment of 14 April 2011 in case no. 412/2010 (see paragraph 13 above and 115 below). They furthermore claimed that the CSC had been unable to obtain sufficient expert opinion on the matter and had had insufficient time to review the proposal. (c) Vote in Parliament 51. The resolution proposed by the majority of the CSC was scheduled to be discussed at the parliamentary session of 1 June 2017. It appears from the letter that the Secretary-General of Parliament sent to the President of Iceland on 7 June 2017 (see paragraph 57 below) that, prior to the start of the session, the Speaker of Parliament consulted with the chairpersons of the different parliamentary groups and some individual MPs regarding the voting procedure, and that the consultations revealed that all MPs would vote in the same manner on every single proposal. 52. After opening the session, the Speaker formally informed the MPs that the candidates proposed by the Minister of Justice for appointment as Court of Appeal judges could be voted on individually or, if there were no objections, the proposals in respect of all fifteen candidates could be put to a single vote. Since there were no objections from any MPs, it was decided to proceed to a single vote. 53. Accordingly, on 1 June 2017 Parliament first voted on and rejected the CSC minority’s proposal to dismiss the list prepared by the Minister of Justice by 31 votes to 30, strictly along party ‑ political lines. This was followed by a vote on the majority’s proposal, which was adopted – also along party-political lines –, with 31 MPs in favour, all of whom were members of the political parties composing the majority in the coalition government, and 22 MPs against, all members of opposition parties. A total of 8 MPs abstained, none of whom were members of the governing parties. 54. In a letter of 2 June 2017, the Minister of Justice was informed that at its session on 1 June 2017 Parliament had approved the list of fifteen candidates that she had proposed to be appointed as Court of Appeal judges. The letter was signed by the Speaker and the Secretary-General of Parliament. 55. On the same day, the Minister of Justice sent a letter to the Permanent Secretary of the Prime Minister’s Office, who was acting at that time in her capacity as Secretary to the State Council, and requested that presidential letters of appointment be issued in respect of the candidates who had been selected as Court of Appeal judges. Appointment of the Court of Appeal judges by the President of Iceland 56. On 6 June 2017 the Secretary to the President of Iceland requested information from Parliament on the procedure adopted by it for the selection of judges to be appointed to the Court of Appeal, the events leading up to the voting and the discussions held in Parliament, in the light of the relevant requirements of temporary provision IV to the new Judiciary Act and the Parliamentary Procedures Act. 57. By a letter of 7 June 2017 the Secretary-General of Parliament gave the President an account of the procedure before Parliament, and indicated that the voting had been lawful and in conformity with Parliament’s statutory and customary procedures. The letter also stated the following: “... It should be emphasised that the provision [temporary provision IV] does not contain further instructions on how the matter should be handled in Althingi. The matter is therefore governed by parliamentary procedure and its customary implementation. However, it is clear from the temporary provision, ..., that Althingi will, or may, take a stand on each proposed candidate [separately] for the position of judge if it so wishes. It is a customary practice and an old tradition for a number of issues to be taken together during a vote if it is clear that everyone will vote in the same manner or when there is no proposal for amendments on individual matters, ... This is referred to as the sections being ‘taken together’ and the voting, or its conclusion, applies to each section. Generally, the right of MPs to request a ‘separate vote’ for a specific article, articles, sections or even individual words is respected, ... ... Particularly thorough preparation was made for the vote on Thursday, 1 June, ... The Althingi Secretariat prepared the vote, and before the parliamentary meeting commenced, the Speaker of Parliament sought the opinions of the leaders of the parliamentary groups and other MPs concerning the voting arrangements. The parliamentary document from the Constitutional and Supervisory Committee sets out a numbered proposal for each individual, so that the vote could be held for each person if this was desired. It was disclosed in conversations between the Speaker and leaders of parliamentary groups that MPs would all vote in the same way for each individual in the proposal and this view was confirmed by comments from various MPs when voting at the Althingi meeting. The Speaker of Althingi, furthermore, repeated formally at the meeting, at the time the voting commenced, that it [the vote] could be held for each candidate separately. There were, however, no objections to having the proposals presented as a whole, and no request for the Committee’s proposals to be voted on separately. For instance, it could have been expected that a separate vote would be requested for those four candidates who had been included in the [Minister’s proposal], ..., but that had not been the case. ... The conclusion of the Secretariat is therefore that the voting is fully legitimate and in accordance with the statutory and customary procedures of Althingi, to reply specifically to the query from the Office of the President of Iceland. The principal intention and requirement of the aforementioned temporary provision ... is to enable Althingi to take a position on each prospective judge, reject individual proposals by the Minister, and not to be faced with the obligation of having to approve or reject all proposals. When dealing with this matter in Althingi, this intention was respected; ...” 58. On 8 June 2017 the President of Iceland signed the letters of appointment in respect of the fifteen judges of the Court of Appeal, as proposed by the Minister of Justice and accepted by Parliament. The letter of appointment sent to A.E. read as follows: “The President of Iceland makes known: that in accordance with the Judiciary Act, I hereby appoint [A.E.] to the position of judge of the Court of Appeal, effective as of 1 January 2018. She shall respect the State’s constitutional law and Icelandic laws in general, all in accordance with a solemn declaration by her. ...” 59. On the same day, the President of Iceland issued a statement referring to the correspondence between Parliament and his Office (see paragraphs 56 and 57 above). The President stated that no errors had been committed in the preparation and arrangement of the voting on 1 June 2017 and that the voting procedure had been in conformity with the law, parliamentary conventions and procedures. Proceedings before national courts to challenge the lawfulness of the appointment procedure 60. In June 2017 J.R.J. and Á.H. – who were among the fifteen candidates that the Evaluation Committee had considered as the most qualified to be appointed to the bench of the Court of Appeal, but had been removed from the final list proposed to Parliament by the Minister of Justice – brought separate judicial proceedings in the District Court of Reykjavik against the Icelandic State. J.R.J. and Á.H. both requested in the first place the annulment of the Minister’s decision of 29 May 2017 not to include them in the list of fifteen candidates proposed to Parliament for appointment to the Court of Appeal. They further requested the annulment of the decision not to include them on the list of fifteen candidates proposed to the President of Iceland for appointment after the vote in Parliament. In addition, they demanded compensation for pecuniary damage and 1,000,000 Icelandic krónur (ISK, approximately 9,000 euros (EUR) at the material time) for personal injury (non-pecuniary damage). They submitted that the Minister’s decision not to propose them as Court of Appeal judges had been unlawful, because she had failed to give sufficient grounds for her departure from the Evaluation Committee’s proposal and to demonstrate her proposal’s compliance with the requirement to appoint the most qualified candidate; they also claimed that she had not sufficiently investigated the matter. In their view, these violations could not be rectified by Parliament’s approval of the Minister’s proposal. 61. In both cases, the Icelandic State requested the District Court of Reykjavik to dismiss the claims of J.R.J. and Á.H. as inadmissible for being unsubstantiated, or in the alternative, to reject those claims on the merits. It reasoned that the administrative decision not to propose them as Court of Appeal judges was not of such a nature as to be subject to annulment, that the appointing power lay not with the Minister of Justice but with Parliament and the President, and that the plaintiffs’ claims for damages were insufficiently substantiated. 62. On 7 July 2017 the District Court dismissed the plaintiffs’ claims for annulment and pecuniary damage as inadmissible by way of a preliminary decision. The District Court held that the claim for annulment of the decision not to propose the plaintiffs as Court of Appeal judges was not one which could be adjudicated, as it was unclear what effects it would have if upheld, given that a finding for the plaintiffs in this respect would not annul the appointment of the fifteen judges proposed to Parliament. The District Court furthermore agreed with the State that the plaintiffs’ claims for pecuniary damage were insufficiently substantiated. 63. On 10 July 2017 both J.R.J. and Á.H. appealed against the decisions of the District Court before the Supreme Court. It appears that in their appeal requests, J.R.J. and Á.H. had explained that they did not as such demand any change to the situation of those fifteen judges already appointed to the posts, but only the invalidation of the Minister’s decision to sideline them. They stated that it was not for them to decide what such invalidation might lead to, in terms of its effects on the fifteen appointed judges. 64. On 31 July 2017 the Supreme Court upheld the District Court’s judgments in both cases, in so far as they concerned the plaintiffs’ requests for the annulment of the relevant decisions in which their names were not included among the list of fifteen candidates proposed to Parliament and the President, respectively, for appointment to the Court of Appeal. The Supreme Court held, in particular: “... it is not in the power of the courts to decide who should be appointed to the office of judge of the Court of Appeal. Bearing this in mind, and having received the [appellants’] ... explanation as to [the nature of their] claim, which will serve as a basis here, the [appellants] have not demonstrated that [they] have a lawful interest in obtaining a court ruling on the invalidity of decisions by the Minister of Justice.” The Supreme Court, however, annulled the District Court’s decisions to dismiss the claims of J.R.J. and Á.H. for pecuniary damage. The cases were therefore remitted to the District Court for a fresh examination of that matter. 65. On 15 September 2017 the District Court found in favour of the Icelandic State and rejected the claims of J.R.J. and Á.H. for pecuniary and non ‑ pecuniary damage. According to the District Court, the plaintiffs had sufficiently proven that the procedure employed by the Minister had not been in accordance with the law. That said, the plaintiffs had failed to prove that they would necessarily have been appointed as Court of Appeal judges had the proper procedure been applied and that they had, therefore, sustained damage. The District Court also found that the voting procedure in Parliament had not breached the law. 66. On 19 September 2017 J.R.J. and Á.H. appealed to the Supreme Court against the judgments of the District Court. 67. On 19 December 2017 the Supreme Court upheld the District Court’s conclusions regarding the claims for pecuniary damage. However, it granted the applicants ISK 700,000 each (approximately EUR 5,700 at the material time) in compensation for non-pecuniary damage. 68. In its judgments the Supreme Court addressed at the outset the Icelandic State’s argument that the plaintiffs had been misguided in challenging the decisions of the Minister of Justice in respect of the judicial appointments at issue, as it was the Icelandic Parliament, and not the Minister, which had the final say in deciding which candidates would be presented to the President of Iceland for appointment. In this connection, the Supreme Court reiterated that although the President of Iceland was formally the highest State official under the Constitution, in practice the Ministers were the supreme holders of executive power according to a well ‑ rooted constitutional tradition. The arrangements made under the former Judiciary Act and the new Judiciary Act entailing the involvement of the Evaluation Committee and Parliament in the process of the appointment of judges did not change this constitutional tradition. Accordingly, it was the Minister of Justice, and not Parliament, which held the power to determine who would be proposed to the President of Iceland for appointment as judge to the Court of Appeal. The Icelandic State’s argument to the contrary was therefore rejected. 69. The Supreme Court further reiterated in both judgments the general principle of Icelandic administrative law that when making appointments to public posts, the executive was bound by the rule that only the most qualified candidates had to be selected. It referred in this connection to two of its earlier judgments, delivered on 14 April 2011 and 5 November 1998, respectively. According to the first of those judgments, which concerned a dispute over the lawfulness of an appointment of a District Court judge, section 10 of the Administrative Procedures Act on the rule of investigation required the authorities to ensure that decisions concerning appointments to public posts were not made until all the relevant and necessary information had been obtained. In the second judgment, the Supreme Court had held that the power of a Minister in respect of appointments to public posts was limited by the applicable laws and general principles of administrative law concerning such appointments and the evaluation of the competencies of the candidates. The Supreme Court stated that in the context of judicial appointments, the rule of investigation under section 10 of the Administrative Procedures Act had been transferred from the Minister to the Evaluation Committee following the establishment of such committee by Act no. 92/1982. 70. Turning to the specific facts before it, the Supreme Court observed at the outset that in the proposal that she had made to Parliament, the Minister of Justice had decided to retain eleven of the fifteen candidates which the Evaluation Committee had deemed to be the most qualified to be appointed as Court of Appeal judge. The Supreme Court noted that the qualifications of those eleven candidates had been assessed by the Evaluation Committee, which clearly possessed the expertise to assess such matters, and had conducted its assessment in accordance with the relevant domestic laws. In these circumstances, the procedure followed in respect of those eleven candidates, including the single vote held before Parliament, did not present any irregularities, provided that an opportunity had been made available to vote separately on each candidate upon request. 71. The Supreme Court went on to find, however, that to the extent that the Minister of Justice had decided to propose to Parliament to depart from the Evaluation Committee’s assessment in respect of four candidates, as the law had permitted, her proposal had to be based on an independent investigation of all the elements necessary to substantiate it in accordance with section 10 of the Administrative Procedures Act (see paragraph 108 below). Accordingly, the Minister had to ensure that her own investigation and assessment were based on expert knowledge, on a par with that of the Evaluation Committee, and that the instructions concerning the evaluation procedure as set out under Rules no. 620/2010 on the work of the Evaluation Committee – rules that had been put in place by the Ministry of Justice to guide the work of the Committee (see paragraph 107 below) – were taken into account in her assessment. According to the Supreme Court, this was all the more important given that under the relevant law, the assessment report prepared by the Evaluation Committee limited the powers of the Minister of Justice and prohibited her from proposing a candidate who was not considered by the Committee to be the most qualified to the post of judge, unless the Minister obtained the consent of Parliament. The Supreme Court stressed that when making appointments to judicial posts, the decision taken by the Minister did not involve a post accountable to the Minister, but rather concerned members of a different branch of the State’s government which had a monitoring role vis-à-vis the other branches and whose independence was guaranteed by Article 61 of the Constitution and section 24 of the former Judiciary Act. 72. On the basis of these considerations, the Supreme Court held that, having regard to her duty of investigation under section 10 of the Administrative Procedures Act, the Minister of Justice should, at the very least, have compared the competencies of the four candidates that she had added to the list with the four that she had removed. Depending on the outcome of such comparison, the Minister should then have given due reasons for her decision to seek Parliament’s approval for her proposal to depart from the Committee’s conclusions. Only in this manner could Parliament have sufficiently served its role in the process and taken a position on the Minister’s assessment. Accordingly, and in keeping with the requirements of temporary provision IV of the Judiciary Act no. 50/2016, the Minister of Justice had been bound to present an independent proposal for each of the four candidates who had not been among the fifteen listed by the Evaluation Committee. In the Supreme Court’s opinion, this view was also supported by the second paragraph of temporary provision IV, under which the non-acceptance by Parliament of any of the candidates proposed by the Minister of Justice would require the Minister to submit new proposals for Parliament’s acceptance. 73. Having regard to the information and documents presented before it, the Supreme Court found that the Minister of Justice had not conducted an independent investigation and assessment comparable to that of the Evaluation Committee when departing from that Committee’s opinion. The inadequate character of the investigation conducted by the Minister of Justice prevented her from reaching a different decision on the competencies of the candidates from that previously reached by the Evaluation Committee on the basis of the same data. Furthermore, she could not rely on considerations of gender under the Equality Act no. 10/2008 as those were only applicable in cases where two candidates of different genders had been considered equally qualified. The Supreme Court noted that neither in its initial letter addressed to Parliament on 29 May 2017, nor in the memorandum sent to the CSC the next day, had the Minister substantiated her proposals in a manner that had satisfied the minimum requirements noted above. The Minister of Justice had therefore breached the requirements of section 10 of the Administrative Procedures Act in the context of the procedure for appointment of Court of Appeal judges. 74. The Supreme Court added that the deficiencies in the procedure before the Minister of Justice had in turn resulted in a flawed procedure before Parliament, as those deficiencies were not rectified when the matter came to a vote in Parliament. 75. As to the plaintiffs’ claims for non ‑ pecuniary damage under section 26 of the Tort Act no. 50/1993 (see paragraph 113 below), the Supreme Court stated that although nothing suggested that the Minister had acted with the intention of causing injury to their reputation and personal honour, she should nevertheless have been aware that her actions could be to the detriment of the plaintiffs’ reputation and thus cause them personal injury. The Minister had, however, acted “in complete disregard of this obvious danger” (“ Þrátt fyrir þetta gekk ráðherrann fram án þess að skeyta nokkuð um þessa augljósu hættu ”). THE CIRCUMSTANCES OF THE CASEThe criminal proceedings against the applicant The criminal proceedings against the applicant The criminal proceedings against the applicant 76. The applicant was born in 1985 and lives in Kópavogur. 77. On 31 January 2017 the applicant was indicted for a violation of the Traffic Act no. 50/1987, on the charges of driving without a valid driving licence and driving under the influence of drugs. 78. On 23 March 2017 the District Court of Reykjanes convicted the applicant on the charges against him. The case was processed summarily as the applicant accepted the charges and pleaded guilty. The applicant was sentenced to seventeen months’ imprisonment and his driving licence was revoked for life. 79. On 6 April 2017 the applicant appealed against the judgment to the Supreme Court. He did not as such challenge his conviction, but requested his sentence to be reduced. The public prosecutor requested that the judgment of the District Court be upheld. Since the case was not examined by the Supreme Court before the end of 2017, it was transferred to the newly established Court of Appeal in accordance with section 78(1) of Act no. 49/2016 on Amendments to the Criminal Procedure Act and Civil Procedure Act. 80. On 29 January 2018 the Court of Appeal notified the applicant and the prosecution of the date of the trial (6 February 2018), as well as the composition of the court that would be hearing the case. According to this letter, the Court of Appeal would be composed of three judges, including A.E., who was one of the four judges who had been proposed by the Minister of Justice for appointment to that court (see paragraph 43 above). 81. On 2 February 2018 the applicant’s defence counsel requested that A.E. withdraw from the case, on account of the irregularities in the procedure by which she, and the other three candidates in question, had been appointed as judges to the Court of Appeal. 82. On 6 February 2018, at a preliminary hearing before the Court of Appeal, the applicant formally lodged a procedural motion requesting that A.E. stand down from the case as required by section 6 (g) of the Criminal Procedure Act no. 88/2008 (see paragraph 110 below). Referring to his right to have his case adjudicated by a qualified, impartial, independent and lawfully constituted court, and to the relevant requirements in this respect under Articles 59 and 70 § 1 of the Icelandic Constitution and Article 6 § 1 of the Convention, the applicant claimed that he would not be given a fair trial before an impartial and independent tribunal established by law if A.E. were to participate in the proceedings, owing to the irregularities in the procedure leading to her appointment as judge of the Court of Appeal. In support of his claim, the applicant referred to the decision of the Court of Justice of the European Free Trade Association States (EFTA Court) of 14 February 2017 in case E-21/16 and the judgment of the General Court of the European Union (EU) of 23 January 2018 in case no. T ‑ 639/16 P (see paragraphs 142 and 132 below, respectively). He argued that according to those rulings, a judge whose appointment had not been in conformity with the law could not be considered to have been fully vested with judicial powers and his or her judgments would therefore have no validity. Having regard to the Supreme Court’s findings of 31 July and 19 December 2017 on the irregularities in the procedure for the appointment of Court of Appeal judge (see paragraphs 64-75 above), any judgment delivered by the Court of Appeal in his case with the participation of A.E. would therefore lack validity. 83. On 22 February 2018 the Court of Appeal, with the participation of A.E., rejected the applicant’s motion for A.E. to withdraw from the case. The court reasoned that A.E. had fulfilled the general eligibility criteria for appointment, had been appointed for an indefinite term and had enjoyed independence in that post as guaranteed by the Constitution and the new Judiciary Act. The Court of Appeal did not, therefore, agree that there were any events or circumstances, as indicated in section 6 (g) of the Criminal Procedure Act, that would give rise to a justifiable doubt as to the eligibility of A.E. to properly handle the case. The applicant appealed against that decision on 24 February 2018. 84. On 8 March 2018 the Supreme Court dismissed the appeal on the ground that the conditions for appeal had not been fulfilled for procedural reasons. It held that, whereas the applicant’s main request was that A.E. should withdraw because of her unlawful appointment, he had incorrectly presented that claim as a “recusal request”. 85. Following the Supreme Court’s dismissal of the applicant’s request for the withdrawal of A.E., the proceedings before the Court of Appeal continued with the participation of A.E. 86. In a letter of 13 March 2018, the applicant changed his pleadings before the Court of Appeal. His primary claim was that he be acquitted, on the grounds that the appointment of Court of Appeal judges had been in violation of Articles 59 and 70 of the Constitution and Article 6 § 1 of the Convention. In the alternative, he requested that his sentence be reduced. 87. On 23 March 2018 the Court of Appeal upheld the District Court’s judgment on the merits. 88. On 17 April 2018 the Supreme Court granted leave to appeal and on 20 April 2018 the applicant appealed against the judgment to the Supreme Court, by way of an appeal lodged by the prosecutor at his request. 89. The applicant’s main submission before the Supreme Court was to seek the quashing of the Court of Appeal’s judgment and the remittal of his case for retrial. Alternatively, he requested to be acquitted or to be given a reduced sentence. His submissions were based on the following arguments: “Independent and impartial tribunals are a fundamental pillar of the rule of law. A prerequisite for the precluding of doubt regarding the independence and impartiality of tribunals is the strict observance of the laws and rules that apply to the appointment of judges. ... It is of particular importance to ensure the independence of the courts of law from the executive branch of government. The fact that politicians, political parties, a certain majority of parliament, the current government or a certain minister might be owed a favour by certain judges undermines their independence and can justifiably weaken public trust in the judiciary. It is therefore of key importance for it to be ensured beyond reasonable doubt that the appointment of judges is determined on the basis of the professional competence of candidates and not the political views and political connections of the candidate or the arbitrary decision of the Minister of Justice ... Pursuant to Article 59 of the Constitution, the organisation of the judiciary can only be established by law. According to the second sentence of Article 6 § 1 of the European Convention on Human Rights, a tribunal must be established by law. This entails not only a mandatory condition that general rules on appointments to the judiciary must be clearly enshrined in statute law, but also, and no less importantly, a mandatory condition that the appointment of judges in each instance must be in compliance with the law. In fact, it can be maintained that the former condition, [that is] the condition on the general rules of statute law, would be worth little if the above conditions did not entail a requirement of compliance with all applicable laws and rules in each instance.” Relying on these arguments, as well as on the decisions of the EFTA Court and the General Court of the EU as noted above (see paragraph 82 above), and on the previous findings of the Supreme Court regarding the irregularities in the procedure leading to the appointment of A.E. as a Court of Appeal judge (see the relevant judgments noted in paragraphs 67-75 above), the applicant claimed that he had been denied the right to a fair hearing before an independent and impartial tribunal established by law, as provided under Article 70 § 1 of the Constitution and Article 6 § 1 of the Convention. He stressed in this connection that the appointment of A.E. to her post had not been in accordance with the law, as required by Article 59 of the Constitution and Article 6 § 1 of the Convention. He further contended that during the parliamentary elections held in October 2017, A.E.’s husband B.N. – a member of parliament belonging to the same political party as the Minister of Justice, namely the Independence Party ( Sjálfstæðisflokkurinn ) (also mentioned in paragraph 46 above) – had given up the first place on the party’s constituency list in Reykjavik in favour of the Minister, after the latter’s decision to include his wife in her proposal to Parliament. By that action, B.N. had effectively foregone the possibility of serving as a Minister in the new coalition government formed after the elections. In the applicant’s opinion, the deal between the Minister and B.N. had undermined, from an objective perspective, the Court of Appeal’s appearance of independence. 90. On 24 May 2018 the Supreme Court rejected the applicant’s claims and upheld the judgment of the Court of Appeal. After setting out the facts and the procedure leading to the appointment of A.E. to the Court of Appeal, and recalling its conclusions in the judgments of 19 December 2017 in related proceedings brought by J.R.J. and Á.H., the Supreme Court made the following findings, as relevant: “[The applicant’s] arguments for his primary and secondary claims before the Supreme Court are inter alia that under Article 59 of the Constitution and Article 6 of [the Convention], an appointment of a judge has in all respects to be in accordance with the law. Where that is not the case and the appointment is thus unlawful ‘the judge in question is not a lawful holder of judicial power and a court’s judicial rulings in which he has participated constitute a dead letter’, as is argued in [the applicant’s] observations before the Supreme Court. The conclusion drawn from the cited words cannot be sustained unless it is considered that a person’s appointment as a judge under these circumstances would be vitiated by nullity [ markleysa ], thus not only that flaws in the appointment process would result in its annulment. It must be taken into account that in the aforementioned assessment report of the Evaluation Committee of 19 May 2017, it was concluded that all the 33 candidates fulfilled all the requirements provided for by law to hold the office of judge in the Court of Appeal, a fact that has not been challenged. The appointment of the judges was conducted in accordance with the formal procedural rules of Chapter III of Act no. 50/2016, as well as temporary provision IV of the same Act, albeit with the exception that, during the parliamentary procedure on the Minister of Justice’s proposals on the appointment of the judges, the requirements of the second paragraph of the temporary provision were not followed in that Parliament should have voted on each and every judge separately, but not all the judges at the same time, as was in fact done. This issue, however, has already been addressed in the aforementioned judgment of the Supreme Court [of 19 December 2017], where it was concluded that this was a defect of no significance. Taking this into account, as well as the fact that all the fifteen judges were appointed to office by letters signed by the President of Iceland on 8 June 2017, co-signed by the Minister of Justice, it cannot be concluded that the appointment of [A.E.] was vitiated by nullity, nor is it accepted that judicial rulings of the Court of Appeal, which she has delivered along with others, are for that reason a ‘dead letter’. When it is assessed whether the accused, due to [A.E.’s] participation, did not enjoy the right to a fair trial before an independent and impartial tribunal in accordance with the first paragraph of Article 70 of the Constitution (cf. Article 6 of the European Convention on Human Rights), it must be recalled that in the aforementioned judgments of the Supreme Court [of 19 December 2017] it was concluded that such flaws were in the procedure at the level of the Minister of Justice preceding the appointment of the fifteen Court of Appeal judges and that the State was liable for damages. In this case, this finding has in no way been challenged and these judgments have, therefore, evidential value in this respect in accordance with section 116(4) of the Civil Procedure Act. In this regard, it must also, in particular, be emphasised that it cannot be accepted, as was argued in the aforementioned memorandum of the Minister of Justice of 30 May 2017, that by only increasing the weight ascribed to judicial experience from that which such experience was ascribed by the Evaluation Committee in its internal table, relied upon in its assessment report of the 19th of the same month, but relying in other respects on the ‘sufficient investigation’ of the Committee as to each assessment factor, the finding could be made that four named candidates for the post of judge in the Court of Appeal, but not others, would be removed from the group of the fifteen most qualified, and four specific named candidates would be moved up into that group rather than others [ sic ]. When assessing the consequences of the said flaws in the Minister of Justice’s procedure, account must be taken of the fact that the appointment of all the fifteen judges of the Court of Appeal for an indefinite term, which has in no way been annulled by a court, became a reality upon the signing of their letters of appointment, dated 8 June 2017. As stated above, they all fulfilled the requirements of section 21(2) of Act no. 50/2016 for appointment to the office of judge, including the requirement of item 8 of the said paragraph, that is, being considered to be qualified to hold such office in the light of their professional experience and legal knowledge. From that time, the judges have held positions (cf. Article 61 of the Constitution) which preclude them from being discharged from office except by a judicial decision. From the time the appointment of these judges took effect, they have, according to the same provision of the Constitution (see section 43 (1) of Act no. 50/2016) been under the main obligation in the performance of their official duty to follow only the law. They have also been afforded, in accordance with the last mentioned provision of law, independence in their judicial work but also the duty to perform it under their own responsibility and never to follow instructions from others in their work. With reference to all of the above, there is no sufficient reason to justifiably doubt that [the applicant] enjoyed a fair trial before independent and impartial judges, in spite of the flaws in the procedure at the level of the Minister of Justice.” The Supreme Court did not specifically address the applicant’s arguments regarding the lack of independence of the Court of Appeal on account of the allegedly political motives behind the Minister of Justice’s proposals. Further developmentsFurther judicial proceedings to challenge the lawfulness of the procedure for appointment of Court of Appeal judges Further judicial proceedings to challenge the lawfulness of the procedure for appointment of Court of Appeal judges Further judicial proceedings to challenge the lawfulness of the procedure for appointment of Court of Appeal judges 91. In February and March 2017 E.J. and J.H. – the two other candidates who were among the fifteen candidates that the Evaluation Committee had considered to be the most qualified, but had been removed from the final list proposed to Parliament by the Minister of Justice – brought judicial proceedings in the District Court of Reykjavik against the Icelandic State. E.J. requested a declaratory judgment to the effect that the State was obliged to compensate him for pecuniary damage in view of his non-appointment to the post of Court of Appeal judge on account of an unlawful decision on the part of the Minister of Justice. J.H. demanded awards in respect of pecuniary damage and non-pecuniary damage on the same grounds. He requested, in particular, an explanation as to what aspect of the assessment of qualifications had been reduced at the expense of increased weighting of judicial work and how the assessment of individual applicants was altered as a result of those changes. He also questioned why some candidates, who had less judicial experience than him or no judicial experience at all, had been added to the list or kept on the list by the Minister. 92. In two separate judgments of 25 October 2018, the District Court of Reykjavik found for the plaintiffs. In the first judgment the District Court acknowledged E.J.’s right to compensation for pecuniary damage on the grounds that he had put forth. The District Court concluded, inter alia, that the candidate had sufficiently established that, had the procedure been conducted in a lawful manner with a reasonable assessment being made of his application and a comparison performed of his merits in relation to other candidates, it would have resulted in his appointment as judge of the Court of Appeal. In the other judgment, the District Court referred to the related Supreme Court judgments of 19 December 2017 (see paragraphs 67-75 above) and awarded the plaintiff, J.H., ISK 1,100,000 (approximately EUR 7,300 at the material time) in compensation for personal injury (non ‑ pecuniary damage). As to pecuniary damage, the District Court awarded him ISK 4,000,000 (approximately EUR 29,200 at the material time) on the basis of the same argument as that made in respect of E.J. 93. In both cases, the District Court referred to the Supreme Court’s finding in the 19 December 2017 judgments that when deviating from the Evaluation Committee’s list, the Minister should at least have made a comparison between the qualifications of the four candidates that she removed from the list and the four that she added. According to the District Court, this finding could not be understood to mean that the Minister was limited in her comparison to those particular candidates directly concerned by her decision; if the Minister considered it appropriate to grant increased weight to judicial experience, then she should have duly assessed all candidates on the basis of that consideration. Otherwise, she would be prevented from claiming that she had selected the fifteen most qualified candidates on the basis of their experience of judicial work. The court held that neither the evidence in the case file, nor the Minister’s submissions before it, offered a clear picture as to the nature of the comparison made by the Minister between the candidates in terms of their judicial experience. 94. Following the appeals lodged by the Icelandic State, on 27 March 2020 the Court of Appeal overturned both District Court judgments – partly in J.H.’s case and entirely in E.J.’s – by a two-to-one majority. 95. The Court of Appeal quashed the District Court’s judgments to the extent that they concerned the claims for pecuniary damage. It held that the plaintiffs could not have taken it for granted that they would be appointed as judges to the Court of Appeal. The procedure set out under temporary provision IV had clearly provided the Minister with the possibility of deviating from the Committee’s proposal and appointing other candidates, provided that they fulfilled the basic qualifications. In these circumstances, and despite the proposal by the Evaluation Committee for their appointment, J.H. and E.J. could not be considered to have had a legal right to be appointed as judges to the Court of Appeal. The Court of Appeal upheld, however, the District Court’s findings in respect of J.H.’s claims for non-pecuniary damage. It stressed that while J.H. had been removed from the list on the grounds of the need to attach more weight to judicial experience, he actually had more judicial experience than at least four of the candidates whom the Minister had retained from the Evaluation Committee’s list. 96. By two decisions dated 8 May 2020, a three-judge panel of the Supreme Court granted E.J. and J.H. leave to appeal against the Court of Appeal’s judgments, having regard to the precedential value of the cases. According to the latest information available to the Court, the cases are currently pending before the Supreme Court. Other relevant developments 97. On 5 March 2018 a motion of no confidence was tabled in Parliament against the Minister of Justice by several members of two opposition parties, on the grounds of the breaches committed by her in the process of the appointment of Court of Appeal judges. 98. On 6 March 2018 Parliament rejected the motion by a vote of thirty ‑ three MPs voting against the motion and twenty-nine in favour, with one MP abstaining. The thirty-three MPs rejecting the motion were all members of parties composing the majority in the coalition government. However, two other members of those parties voted in favour of the motion. 99. On 13 March 2019, following the judgment delivered by the Chamber in the instant case (see Guðmundur Andri Ástráðsson v. Iceland, no. 26374/18, 12 March 2019), the Minister of Justice resigned from office and the operation of the Court of Appeal was completely suspended for one week. Subsequently, the Court of Appeal resumed operation with only eleven of the fifteen appointed judges – since the four judges whose appointments had been called into question decided not to sit. It appears from publicly available information that provisional arrangements were made to temporarily appoint four judges to the Court of Appeal to serve until 30 June 2020. 100. On 17 April 2020 a new call for applications was made for a post of judge at the Court of Appeal, in response to which A.E. applied. It appears that following her recommendation for the post by the Evaluation Committee, A.E. made a request to the new Minister of Justice to be discharged from her existing (inactive) post at the Court of Appeal. On 16 June 2020 the new Minister of Justice announced that she would follow the Evaluation Committee’s opinion and would propose to the President of Iceland that A.E. be appointed to the advertised post at the Court of Appeal, with effect from 1 July 2020. It appears from publicly available information that A.E. was appointed by the President of Iceland as proposed. It further appears that following vacancies advertised on 19 June 2020, two more judges have been appointed to the Court of Appeal. | This case concerned the applicant’s allegation that the new Icelandic Court of Appeal (Landsréttur) which had upheld his conviction for road traffic offences was not a tribunal “established by law”, on account of irregularities in the appointment of one of the judges who heard his case. |
921 | Absence of outside influence | I. PARTICULAR FACTS OF THE CASE A. General background and the incident on 16 September 1976 8. The first applicant, Mr. John Joseph Campbell, is a United Kingdom citizen, born in Northern Ireland in 1944 and resident in England since 1965. In November 1973, he was convicted of various offences, including conspiracy to rob and possession of a firearm with intent to commit robbery, and sentenced to ten years ’ imprisonment. He was subsequently detained in a number of different prisons and, on 16 September 1976, was in Albany Prison, Isle of Wight. He is now at liberty. 9. The second applicant, Father Patrick Fell, is a United Kingdom citizen, born in England in 1940. He is a Roman Catholic priest. In November 1973, after being convicted of conspiracy to commit arson, conspiracy to commit malicious damage, and taking part in the control and management of an organisation using violent means to obtain a political end, he was sentenced to twelve years ’ imprisonment. He too was subsequently detained in a number of different prisons and, on 16 September 1976, was in Albany Prison. He is now at liberty. 10. At all relevant times, both applicants were classified as "category A" prisoners (see paragraph 44 (a) below). The offences of which they were convicted were believed by the authorities to form part of, or to be connected with, Irish Republican Army terrorist activities. According to the Commission ’ s report, both applicants have consistently denied that they were members of that organisation. 11. On 16 September 1976, an incident occurred in Albany Prison. Before the Commission, there was considerable dispute between the Government and the applicants as to precisely what took place, notably as to the weapons and amount of violence used, but the following summary suffices for the present purposes. Mr. Campbell, Father Fell and four other prisoners engaged in a protest at the treatment of another prisoner, by sitting down in a corridor of the prison and refusing to move. They were removed by prison officers after a struggle and in the process injuries were sustained by certain members of staff and by both applicants. Mr. Campbell, who had been more seriously injured, was transferred to Parkhurst Prison hospital for treatment and returned to Albany Prison on 3O September 1976. B. The disciplinary proceedings against Mr. Campbell 12. The six prisoners involved in the above-mentioned incident were all charged with, and found guilty by the Prison Board of Visitors of, disciplinary offences against the Prison Rules 1964, as amended ("the Rules"; see paragraphs 26-33 below). The Board heard the cases on 24 September 1976, except that of Mr. Campbell who was then still at Parkhurst. 13. On 1 October 1976, immediately after his return to Albany Prison, Mr. Campbell was informed that he was charged with the disciplinary offences of mutiny or incitement to mutiny and doing gross personal violence to an officer, contrary to Rules 47 (1) and (2) (see paragraph 27 below). The first charge concerned his participation with the other prisoners in the incident; the basis of the second charge was an allegation that, on that occasion, he had struck an officer with a broomhandle. A preliminary hearing before the Prison Governor (see paragraph 31 below) took place on 1 October, when the charges were referred to the Prison Board of Visitors. The latter heard the case, in private, on 6 October. The applicant had received, before both hearings, "notices of report" and, before the Board ’ s hearing, a copy of a form outlining its procedure (see paragraph 36 below). The "notices of report" in connection with the Board ’ s proceedings were issued at 8 a.m. on 5 October. One notice began as follows: "A report has been made against you by [a prison officer] that at about 19.30 on 16 September 1976 at ‘ D ’ hall you committed an offence under paragraph 1 of Rule 47, i.e. mutiny." The other notice began: "A report has been made against you by [a prison officer] that at about 22.05 on 16 September 1976 at ‘ D ’ hall you committed an offence under paragraph 2 of Rule 47, i.e. did strike an officer with a broomhandle." Both notices concluded as follows: "Your case will be dealt with at adjudication tomorrow, when you will be given every opportunity to make your defence. If you wish to reply to the charge in writing you may do so on the back of this form." Mr. Campbell attended neither hearing. It is recorded that he declared prior to the Governor ’ s hearing that he would be prepared to attend only if he were legally represented. His request for legal representation before the Board was also refused, in accordance with the standard practice at the time (see paragraph 36 below). Before the Board met, he had been visited by its chairman and warned that it would proceed in his absence; the records state that he understood this warning and the charges against him. It appears that he did not expressly seek either an adjournment of the Board ’ s hearing or a consultation with a solicitor beforehand; under the then practice, a request of the latter kind would also have been unsuccessful (ibid.). Before the Commission and the Court, Mr. Campbell gave additional reasons for his non-attendance: firstly, having learned of the outcome of the Board ’ s hearing on 24 September and having previous experience of such proceedings himself, he did not believe that he would receive a fair hearing and considered that his presence would be otiose; secondly, he was feeling very ill as a result of his injuries and, on 6 October, he was "in the punishment cell; lying on the floor; unable to walk; not being fed and in considerable pain". As regards the latter allegations, which were disputed by the Government, the applicant had been certified by the medical officer, before both hearings, to be fit for punishment. The Commission concluded that it was not established that Mr. Campbell was prevented from attending rather than that he had decided, for his own reasons, not to attend; it proceeded on the assumption that his absence from the Board ’ s hearing was a matter within his own responsibility. 14. Before the Board of Visitors, a plea of not guilty on each charge was entered on behalf of the applicant, who did not submit any written defence. According to the record of the proceedings - which apparently in neither case lasted longer than fifteen minutes -, one prison officer gave evidence on the mutiny charge, reading a statement describing the part allegedly played by Mr. Campbell and the other prisoners in the incident, and another gave evidence on the personal violence charge, to the effect that he had been struck by Mr. Campbell. The evidence of the first witness was accepted by the Board and its chairman put certain questions to the second. On 6 October 1976, the applicant was found guilty on both charges and was awarded, for the mutiny and the violence offences respectively, 450 days ’ and 120 days ’ loss of remission, together, again respectively, with 56 days ’ and 35 days ’ loss of certain privileges, exclusion from associated work, stoppage of earnings and cellular confinement, the sanctions for the two offences to run consecutively (see paragraphs 28 and 29 below). On his reception into prison, Mr. Campbell had been given an estimated date for release (see paragraph 29 below) of May 1980; at the time of the Board ’ s award, he had already forfeited 145 days of remission in ten separate adjudications for offences against discipline and the balance of potential remission available to him totalled 1,072 days. 15. Observations filed with the Commission on behalf of Mr. Campbell on 1 September 1977 and on 17 April 1979 indicated, respectively, that he was contemplating making and had made an application to the English courts, by way of certiorari proceedings (see paragraphs 39-41 below), for review of the October 1976 adjudication by the Board of Visitors in his case. A memorandum filed on 23 July 1980 revealed, however, that on counsel ’ s advice, given in November 1979 and June 1980, both Mr. Campbell and Father Fell had decided not to make such an application; counsel considered, as regards the former, that proceedings would be destined to fail on the ground that he had "refused" to participate in the adjudication. At the hearings of 20 September 1983 before the Court, the Government indicated that, even in 1980, the Home Office would probably not have opposed a request by Mr. Campbell for leave to apply for certiorari out of time (see paragraph 41 below), but would do so now. He has, in fact, never pursued the matter. The question was subsequently reconsidered in the case of Father Fell who had previously been advised, in November 1979, that an application might be feasible. In February 1981, senior counsel advised him to seek certiorari immediately on the ground of "substantial unfairness" in the Board ’ s hearing of 24 September 1976 in his case, which he had attended. Later in the year, he obtained the necessary leave from the court, but his application failed, both at first instance and on appeal. 16. Whilst in custody Mr. Campbell was the subject of fifteen adjudications for disciplinary offences, as a result of which he lost 957 days of remission (including the 570 forfeited as a result of the Board ’ s award of 6 October 1976 ). Following applications by him pursuant to the procedure described in paragraph 38 below, 236 days of remission were restored to him. He was released from prison on 31 March 1982, having served approximately eight years and eight months of his ten years ’ sentence, including time spent in custody on remand. C. The applicants ’ access to legal advice in connection with their personal-injuries claim 17. Father Fell petitioned the Home Secretary on or about 21 September 1976 in the following terms: "During the course of [an incident at Albany Prison on 16 September], I sustained a number of physical injuries. My request to yourself is that I be permitted to see and to consult with my lawyer, pending further action that I may deem necessary to take." About a week later, in a supplementary petition, the applicant stated that he wanted to see his solicitor regarding compensation for his injuries and any civil proceedings he might be advised to take. The Home Secretary replied on 1 October. He informed Father Fell that, in accordance with the "prior ventilation rule" (see paragraph 44 (c) below), he would be able to seek legal advice on the substance of his complaints once they had been investigated through the normal internal channels and he had been given the result of the investigation. 18. Father Fell petitioned again on 4 October 1976. He gave details of his allegations concerning the incident of 16 September and its aftermath and asked for a thorough investigation; he added further information concerning his injuries in a supplementary petition of 27 October. In his reply of 9 February 1977, the Home Secretary indicated that he was satisfied, after investigation, that there was no substance in the applicant ’ s allegations of assault and of inadequate or unnecessarily delayed medical treatment; he informed the applicant that he would be granted facilities to seek legal advice on the matters referred to in his petition, if he still wished to do so. 19. In a petition of 28 November 1976 to the Home Secretary, Mr. Campbell stated, but without indicating the reasons, "I want to see my lawyer". On 8 December, the request was refused, on the ground that he had not supplied sufficient details for a proper internal inquiry to commence. On 3 March 1977, the same ground was given for refusing a further petition, dated 28 December 1976, in the following terms: "As a result of injuries received at the hands of prison staff at Albany Prison I intend to take legal action and therefore need to see my solicitor. The incident happened in mid-September and I have petitioned about it once before." 20. At this time, there was also a certain amount of correspondence with Messrs. Woodford & Ackroyd, the solicitors then acting for both applicants. After a letter of 17 January 1977 from Mr. Campbell to them had been posted through the normal prison channels, they wrote to the Home Office on 28 January stating that they had been instructed to represent him in civil proceedings and seeking authority to approach the Prison Governor to discuss their client ’ s allegations. However, a letter of 24 January from them to Mr. Campbell, referring, it seems, to legal aid, was stopped. Instructions from the prisoners involved in the September 1976 incident also apparently reached the solicitors by other means. On 10 February 1977, they wrote to the Albany Prison Governor stating that both of the applicants and four other prisoners wished to see them "concerning certain matters of a legal nature" and requesting confirmation that this could be done in private. On 14 February - that is five days after the Home Secretary had told Father Fell that he could consult a lawyer (see paragraph 18 above) -, the Governor replied that appointments to see, inter alios, that applicant could be made, but that according to prison rules Mr. Campbell was not yet in a position to seek legal advice, since the Prison Department ’ s examination of his complaints had not yet been completed. In a reply of 3 March to the solicitors ’ above-mentioned letter of 28 January, the Home Office stated that Mr. Campbell ’ s letter of 17 January to them had been posted in error and that he could not correspond with or receive visits from them until the "prior ventilation rule" (see paragraph 44 (c) below) had been complied with as regards any complaint he might wish to make. On 23 March, Messrs. Woodford & Ackroyd were given permission to consult with Mr. Campbell in connection with his application to the Commission (see paragraph 44 (e) below). His account of the September 1976 incident, contained in a memorandum of 1 September 1977 to the Commission, was subsequently accepted by the authorities as a sufficient basis for an internal inquiry into his complaints to be commenced. The inquiry - in which the applicant had not co-operated - was completed on 29 November and, on or about 16 December 1977, he was told that he could take legal advice concerning the complaints that had been investigated. 21. Both applicants subsequently obtained various legal advice and, by writs issued on 13 September 1979, instituted proceedings, alleging assault, against individual prison officers, the Deputy Governor and the Home Office. These actions, in which statements of claim were served some fifteen months later, were still pending at the time of the hearings before the Court (September 1983). D. Conditions for visits to Father Fell by his solicitors 22. In a reply of 23 March 1977 to a letter of 21 March from Messrs. Woodford & Ackroyd - who had already raised the matter in their letter of 10 February (see paragraph 20 above) -, the Albany Prison Governor stated that at that stage a visit by them to Father Fell would be subject to Rule 37 (2) (see paragraph 44 (d) below) and would therefore have to take place within sight and hearing of an officer. They replied that they were unable to accept these conditions and intended to refer the matter to "the European Court of Human Rights". On 11 May, the solicitors informed the Governor of the introduction, on 31 March, of Father Fell ’ s application to the Commission; on the following day, the Governor informed them that they could interview their client in connection with that application in sight but out of hearing of an officer (see paragraph 44 (e) below). E. The applicants ’ access to medical advice 23. On or about 23 September 1976, Father Fell asked, in a petition to the Home Secretary, for the opportunity for an independent medical consultation. On 5 October, the Home Office stated that the Secretary of State was not prepared to grant this request. 24. After Mr. Campbell ’ s return from Parkhurst to Albany Prison, a request was made by him or his family, apparently on about 18 October 1976, for him to be examined by an independent doctor. According to the Government, he was advised to pursue the matter by way of petition to the Home Secretary, but did not do so. According to the applicant, the request was categorically refused. F. Restrictions on Father Fell ’ s personal correspondence 25. In October 1974, when in Hull Prison, Father Fell was informed, in reply to his petition of the previous July, that the Home Secretary was not prepared to allow him to correspond with a Sister Monica Power, on the ground that although she had been known to him before he came into custody, their relationship was not considered to amount to a "close personal friendship". In a letter of 17 December to a Member of Parliament, the Home Secretary maintained this decision, which he explained by reference to the practice concerning the permitted correspondents of "category A" prisoners (see paragraph 44 (a) below): there was no evidence of a friendship as aforesaid between the applicant and Sister Power, although he had known her for longer than some of his approved correspondents. Father Fell also alleged that he had not been allowed to correspond with other friends, including another nun, Sister Mary Benedict. According to the Government, he corresponded with 200 persons prior to his conviction, whilst detained on remand, and was allowed to correspond with 40 persons thereafter. | The first applicant, a prisoner at the time of facts, alleged, inter alia, that he had not received a fair hearing before the Board of Visitors which had convicted him of disciplinary charges amounting in substance to criminal charges. He contended in particular that Boards were not seen by prisoners to be independent and were, in practice, an arm of the executive. |
98 | State’s duty to protect physical and psychological integrity of individuals | I. THE CIRCUMSTANCES OF THE CASE A. The background facts 5. The applicant was born in 1962 and lives in Bridgwater. 6. The applicant’s son, K., was born on 21 April 2001. The father of the child is P.C. P.C. is partly incapacitated due to breathing and circulation problems and sometimes uses a wheelchair. The parents were in a relationship for around fourteen years and are not married. 7. In 2003 the family came to the attention of social services as a result of an “alcohol fuelled” incident between the parents. Thereafter, incidents of domestic violence escalated from the end of 2007 with the police being called to the family home on numerous occasions. The parents resisted the involvement of social services. The local authority offered them assessments at Turning Point in respect of their use of alcohol but these were declined. Although in many instances the applicant was the victim of assaults by P.C., she was on one occasion arrested for assaulting him and on another occasion K. injured her while defending his father from an attack by her. On 3 June 2008 P.C. was arrested and taken into custody when K. was injured in the course of a violent incident between his parents. B. The domestic proceedings 1. The emergency protection order application 8. On 4 June 2008 the local authority applied to the Family Proceedings Court for an emergency protection order (“EPO” – see paragraph 92 below) in respect of K. The application was heard the same day. 9. The court made an EPO, limited in time to 10 June 2008, for the following reasons: “There is significant risk of further harm – emotional and physical abuse if [K.] is not removed from his current environment. We are concerned about the mother consuming alcohol to excess when in sole charge of [K.] and further possible violent conflict when father is released probably on bail tomorrow. This is in light of previous domestic violent incidents between the parents in [K.]’s presence, which could lead to further physical harm to [K.]. 10. The court took into account K.’s right to respect for his family life but considered that he should be protected and placed in a safe environment. 2. The care proceedings before the Family Proceedings Court a. The interim care orders and preparation for hearing 11. On 5 June 2008 the local authority applied for a care order (see paragraph 93 below) in respect of K., with interim care orders (see paragraph 95 below) as requested. In its application, the local authority referred to the high level of police involvement in the family due to incidents of domestic violence and alcohol abuse and the need for a full assessment to be undertaken. 12. On 6 June 2008 the applicant attended a meeting where she informed the local authority that she had separated from P.C. She then had a contact session with K. and after the session, was observed walking with and talking to P.C. 13. A hearing took place on 10 June 2008 and an interim care order (“ICO”) was made, to expire on 8 July 2008. 14. K. was placed in the care of foster parents, with frequent contact with the applicant and P.C. A guardian was appointed for K. In her Initial Analysis and Recommendation report, dated 23 June 2008, she described K. as a “very traumatised little boy”. She strongly recommended the appointment of a psychologist as soon as possible. 15. As P.C. contested the proposed renewal of the ICO, a contested ICO hearing was fixed for 8 July 2008. 16. The applicant and P.C. attended Turning Point to assess their alcohol dependency. Reports were prepared, on 30 June 2008 in respect of the applicant and on 1 July 2008 in respect of P.C. It was found that neither party was dependent on alcohol. In the applicant’s report, it was noted that she acknowledged the existence of a long, abusive relationship with P.C. that had involved the use of alcohol and that she had talked about the difficulty of dealing with the recent loss of her mother. The report recommended bereavement counselling, emotional support and activities to help the applicant rebuild her self-esteem and confidence to be able to cope with the changes occurring in her life. 17. At the contested ICO hearing on 8 July 2008 the court had sight of the guardian’s report and heard evidence from the guardian, three social workers and P.C. It made a further ICO, to expire on 5 August 2008, referring to the history of domestic violence and noting: “We understand that [P.C.] and [the applicant] are currently residing at different premises but we are not convinced that they have separated on a permanent basis ... We have had sight of the Turning Point reports in which it is reported that [P.C.] and [the applicant] are not alcohol dependent; however we are not convinced that they will not continue to drink to excess in the future. Further counselling in respect of their alcohol consumption will benefit both parties as would domestic violence counselling. We are pleased that [the applicant] has made efforts to access help from various agencies ...” 18. The court noted that the guardian supported the renewal of the ICO and continued: “... [K.] should not be returned to either parent until each has been assessed for their parenting ability and receive any necessary support. ...” 19. It considered K.’s right to respect for his family life and concluded that the making of the ICO was a proportionate response to the situation. 20. Further ICOs were made on 5 August 2008, 2 September 2008, 30 September 2008, 28 October 2008, 11 November 2008, 2 December 2008, 15 December 2008, 12 January 2009, 9 February 2009 and 9 March 2009. 21. In the meantime, K. was examined by D.I., a psychologist, who produced an expert report dated 13 August 2008. 22. As to K.’s perceptions of his mother and father, the report noted that he both loved and feared his parents and that his main concern was the arguing and shouting that he associated with his parents. Regarding the possible psychological implications of the domestic violence and alcohol abuse he had witnessed, D.I. described the emotional damage suffered by a child growing up in an “invalidating environment”. He noted that K. demonstrated some of the characteristics of such damage, but was also showing signs of resilience. 23. In terms of therapeutic work which should be undertaken with K., D.I. said that K.’s main need was to have a stable and safe environment with predictable relationships where he could play and grow in self-esteem, and have experiences which developed happy feelings and a sense of self efficacy. D.I. noted that K. appeared to be experiencing this in foster care and at school and commented: “[K.’s] parents would do well to consider the positive effects that [K.’s] relationship with them can have upon his development and sense of identity should they address the issues that underlie their violence and drinking.” 24. He highlighted the need to focus on K.’s sense of identity and his emotional development, problem solving, cognitive functioning, self-esteem and social competence. 25. The social worker appointed to K. carried out a formal parenting assessment of the applicant from July to September 2008, based on five sessions between the applicant and social workers and observations of the supervised contact sessions with K. When the assessment began the applicant was living alone at the family home. She told the social worker that she had ended her relationship with P.C. and she would not consider re-establishing it unless he changed his behaviour towards her and his relationship with alcohol. All the meetings took place while the applicant was separated from P.C. However, on 13 August 2008 P.C. confirmed to the local authority that he had moved back into the family home and was once again in a relationship with the applicant. The applicant subsequently informed that court that she and P.C. had reconciled. She explained that they had been together for a long time and that the relationship had, with the exception of the previous twelve months, been strong and stable. 26. In an undated parenting assessment report in respect of the applicant completed after the applicant’s reconciliation with P.C., the social worker noted that she had discussed with the applicant domestic violence and controlling behaviour, and the support that she could access. When asked how she would manage situations in the future if she was no longer in a relationship with P.C. and he came to visit, the report noted: “[The applicant] said she would allow him in for a coffee. [The applicant] then added that she would not allow alcohol in the house and would throw him out if this happened. [The applicant] was not able to reflect on her past experiences involving [P.C.] and was unrealistic in her responses in regard to this.” 27. The report recorded that although the applicant admitted that she became more argumentative after drinking, she did not consider that the arguments had had any impact on K. or that her parenting ability had been impaired after drinking. She continued to receive support from Turning Point and attended weekly. 28. The social worker commented on the fact that on each of the visits, she had found the applicant’s home to be in good order, clean and tidy. She observed that the applicant demonstrated a strong loving bond towards K. and that she offered him appropriate affection. However, observations of K.’s behaviour and responses suggested that he had developed an insecure attachment. The applicant’s knowledge of the dietary needs of a child were found to be adequate, although in practice it appeared that they ate convenience foods rather than fresh vegetables and that the applicant allowed K. too many unhealthy snacks. The social worker also raised some concerns regarding the applicant’s ability to address and treat signs of illness in K. and the lack of attention paid to K.’s dental care. She noted that the applicant showed poor knowledge of the need for visual stimulation, interaction and setting appropriate routines and that she had difficulty interacting with K. and keeping him occupied for any length of time. 29. The social worker considered that the applicant deferred to P.C. on the majority of issues, apparently because she was afraid of the repercussions of challenging him. The applicant was unable to recognise that the behaviour she described was abusive and that it would have a detrimental effect on K. She unintentionally put K. at risk because her perception of parenting did not afford her the ability to identify risk, make decisions and set appropriate boundaries for K. The report concluded: “[The applicant] has informed me that she is in a relationship with [P.C.] and that their intentions are to parent [K.] together. [The applicant] cannot be considered a protective factor within the relationship. The Local Authority are concerned about the significant risk that this will place on [K.] if in the care of his parents in terms of all aspects of his development, safety and security. It is therefore the view of the Local Authority that should [K.] be returned to the care of [the applicant and P.C.] he would be [at] risk of further significant harm.” 30. An undated parenting assessment report of P.C. indicated that a significant concern was that he displayed aggression, intimidation and controlling behaviours when not under the influence of alcohol. 31. Alcohol tests of the applicant and P.C. from samples collected on 30 September and 11 September respectively showed no evidence of frequent excessive alcohol consumption. 32. The social worker prepared further statements for the court following the parenting assessment reports. In a statement dated 21 September 2008, it was noted that K. had become upset on occasions during contact with the applicant and said that he wanted to go home. 33. Between October 2008 and January 2009 the applicant and P.C. attended a Time to Talk parent support group and had three one-to-one parenting sessions. 34. D.I. also carried out a full psychological assessment of both parents and produced an addendum report dated 3 February 2009. In his report, D.I. noted: “... [K.] told me when asked that he wants to go home, that his mum likes him and added that his dad takes him out and gives him presents ...” 35. D.I. observed that K. displayed fewer characteristics of emotional trauma than in the previous meeting. When questioned about his relationships with his family he indicated strong positive feelings for his parents, and in particular for his mother. 36. D.I. commented that both parents had told him that they had maintained their abstinence from alcohol, but he said that this would only be tested if they were challenged by situations which mirrored the original issues which prompted them to turn to alcohol. As to their ability to prevent further domestic violence, D.I. referred to incidents of aggressive behaviour by P.C. which he had personally witnessed and noted that this did not “augur well for someone who considers that their aggression is due only to drinking behaviour”. He considered that he had insufficient details of P.C.’s history to make a more accurate prediction. He criticised the parents’ lack of self-awareness and noted that there was still work to be done in this regard. In terms of the parents’ ability to engage meaningfully with professionals, D.I. commented only on P.C., making reference to problems encountered in this respect. Similarly, in so far as their commitment to the care of K. was concerned, D.I. referred to certain indications of P.C.’s level of commitment, with no specific examples of the applicant’s conduct, while making the overall assessment that he was not convinced that the parents had fully taken on board what they needed to learn from their mistakes and what new parenting behaviour they were going to practise. 37. As regards the aspects of each parent’s psychological profile that were likely to assist or hinder their parenting of K., D.I. explained that serious limitations were placed on his assessment of P.C. by his lack of cooperation. In respect of the applicant, he explained: “[The applicant’s] profile ... is characterized by prominent compulsive, narcissistic and histrionic patterns. This does not imply that she has a personality disorder but does have patterns of behaviour that need addressing ... These patterns need to be addressed by [the applicant] in counselling to address bereavement and domestic violence. Otherwise they will have an impact that hinders good enough parenting. [The applicant’s] love for [K.], her physical parenting to date, participation in the Time to Talk programme and her declared abstinence from drinking thus far are to be praised and built upon.” 38. D.I. noted that K. appeared to see the applicant as the main source and object of his love, but cautioned that K. might be idealising the situation at home as he was no longer there. He continued: “... [K.] is attached to both his parents. He stated a strong preference to return home. [K.] is less attached to his father than his mother ...” 39. In terms of therapeutic intervention required, D.I. considered that the applicant needed to address her role in the fighting with P.C., with discussion about her drinking, her lack of assertiveness and her inability to impose boundaries on K. 40. On 20 February 2009 the social worker filed her final statement on behalf of the local authority with the court. She indicated that since K. had been taken into care in June 2008, there were no recorded domestic incidents and that both parties had informed her that they were still abstaining from alcohol. 41. She reported that both the applicant and P.C. had “continued to work with professionals to a limited extent”. She gave examples of P.C.’s unwillingness to work with the local authority and how the applicant often found herself in the middle of conflicts between the two. 42. As to K’s own views, she noted: “... When I have tried to ask [K.] how he would feel about going home he has changed the subject.” 43. In her analysis and conclusions, she noted: “In a very simplistic form it may appear that [K.] is in the care of the local authority due to his parents drinking and violence and as the parents have self reported that there have been no further incidents and we have no evidence to say there are then [K.] should return home. However there are a significant number of other factors which evidence that there remain extensive concerns.” 44. She referred to attempts by the local authority to conduct a parenting assessment prior to K.’s removal into care, which had been unsuccessful as a result of the parents’ failure to engage. She also referred to the separation of the applicant and P.C. in 2008, which she considered not to have been genuine from the very outset. She raised concerns about K.’s health, and notably his lack of immunisations and bad dental condition, which she noted appeared to some extent to result from P.C.’s difficult behaviour. She explained that her professional opinion was that P.C. had engaged only superficially in the parenting assessment and had failed to recognise or accept his shortcomings and their impact on his parenting. She continued: “We acknowledge that [the applicant] is in a very difficult position and we have seen that she has made efforts to work with the local authority but is often stuck in the middle of the conflict [P.C.] has with the department. She has been successful in persuading [P.C.] to comply with some issues, but on occasions she has been unable to share information with him until she has chosen the right time as she predicted ‘he will blow’. However [the applicant] is a very vulnerable woman who is not strong enough to separate or manage on her own. She is aware of the conflict [P.C.] creates with others and tries to be the ‘peacemaker’ ...” 45. As to the parents’ abstinence from drinking, she noted that it was not possible to predict whether this would continue, partly because of their failure to participate in any meaningful assessments, and she referred in this regard to P.C.’s refusal to provide relevant information. Similarly, as regards the likelihood of further incidents of domestic violence occurring, she noted that past behaviour was the best predictor, and that P.C. had a history of violence in previous relationships. He had done minimal work to address concerns and nothing which could give the local authority confidence that K.’s needs would be met appropriately. She continued: “... [T]he level of cooperation and lack of awareness in my professional opinion is sadly lacking and has not given the local authority any information which enables them to make a decision that it is appropriate for [K.] to return to his parents. The court could consider that a further opportunity is given to [the applicant and P.C.] to undertake that assessment. However it has been made very clear to them during the court process that this information is essential in informing the court care plan and it is unlikely that [P.C.’s] attitude is likely to change in the short term and we cannot delay planning for [K.] any further. [The applicant and P.C.] have been aware of the seriousness of this case from the outset and despite the possibility of their son not being returned to their care they remain resolute in their attitude and lack of acknowledgment of the issues. [P.C.] in particular has deflected the issues away from his parenting of [K.] and the issues within the family focussing on acrimonious relationships with professionals and losing sight of [K.’s] needs.” 46. In her professional opinion, K. had an idealised view of returning home, seeing the opportunity for treats and presents with the ability to manipulate his parents into giving him all he wanted with few boundaries and controls. He maintained his strong desire to have supervised contact to ensure that the arguments between his parents did not recommence. 47. In conclusion, she repeated her view that K. would suffer significant harm if he returned home as their drinking and violence were likely to reoccur. Neither parent had engaged in any meaningful assessments which would indicate a positive outcome were K. to return home. The parents were committed to one another and P.C. had shown no ability to work in partnership with the local authority. She considered that K. was of an age where there was a very limited time window for achieving legal permanence and long-term fostering with ongoing parental contact would not be in his best interests, given his parents’ level of negative influence in his life. She was of the view that K. needed the opportunity to form attachments with long-term carers without the placement being undermined by his parents. She therefore concluded: “The local authority respectfully recommends to the court that [K.’s] long term interests can be best met through adoption preferably with some form of contact with his parents. [K.] is only 7 and deserves the opportunity to live in a family where he will be legally secure, developing positive attachments without feeling disloyal to his parents. He needs to be with a family who can exercise parental responsibility and make decisions in [K.’s] life without the negative influence of the birth parents.” 48. She asked the court to make a care order and a placement order in respect of K. 49. On 17 March 2009 the applicant filed a statement in response. The statement noted: “I can confirm that not only have there been no reported incidents between myself and my partner [P.C.], but also there have been no actual domestic incidents ... I confirm that we do not consume alcohol and although we have indicated that we would be willing to undergo further testing when we have met on contact appointments the same has never been pursued ...” 50. She refuted several aspects of the social worker’s statement, noting: “... It often feels like whatever we are being asked to do we are then asked to do more. I certainly do not agree that I have only worked with professionals to a limited extent.” 51. She concluded that while she and P.C. had hoped that K. could be returned to their joint care, they both recognised that the social services’ opinion of P.C. was so damaged that their only chance of parenting might be to do it separately. The applicant indicated that for this reason, she and P.C. were thinking of separating so that she could parent K. on her own. She requested the court not to make a placement order and to return K. to her care. 52. A statement from P.C. confirmed the absence of any domestic incidents and the fact that neither he nor the applicant had consumed any alcohol. No mention was made of the possibility of separation. 53. The guardian’s Final Analysis and Recommendations report was dated 30 March 2009. It was based on full consideration of the welfare checklist (see paragraph 97 below). In the section of her report dealing with recent developments, she indicated that the status of the relationship between the applicant and P.C. was not clear as they had recently informed the authorities that they had separated. The report also referred to information regarding a violent domestic incident at the home on 14 March 2009 when the police were called. The applicant had told the police that P.C. had hit her, although he denied it. The guardian explained that the information had been received after the report had been prepared in draft, but noted that the incident added “cogent testimony” to the detail of her report. 54. The guardian compared K. as she then saw him with his condition in the summer of 2008 and reported that he had grown in confidence and settled in all aspects of his placement. He presented as happy and settled, embracing family life in his carers’ home and making very good progress at school. 55. As to K.’s wishes and feelings, in November 2008 he had appeared confused about returning home. He had felt safe with his carers and gave mixed messages about whether he wished to stay with them or return home. He was firm in his view that he did not want contact with his parents without social workers being present. In March 2009 he indicated that he wanted to go home to live with his parents. When questioned about how that would work since he wished to have supervised contact with them, he replied that social services would also be there. She observed: “These statements clearly demonstrate what [D.I.] has stated in ‘that [K.] both loves and fears his parents – his father more so’. He wants to go home but wants the safety net of social workers being in his home to protect him.” 56. The report continued: “In my opinion [the parents] both needed to access treatment programmes for their drinking and violence, they would also have to begin to discover, reflect and recover from the underlying issues that led to the drinking and violence in the 1 st place ...” 57. The report went on to consider in more detail P.C.’s behaviour and history. 58. The guardian also commented on the parenting assessments conducted, noting in respect of the applicant that she appeared to lack understanding of the impact of arguments on K. and of alcohol on her parenting ability, and that she failed to see that P.C.’s behaviour towards her was abusive and controlling. The guardian considered the crux of the issue for reunification to be that the parents had not engaged in or completed treatment programmes for alcohol or domestic abuse, noting that P.C. refused to accept that he was a perpetrator. She concluded: “There can be no delay for K. His parents have sadly not even begun to do the work that is needed to support and assist them with their fundamental problems/difficulties and the underlying issues that predispose their drinking and violence. Without the input they need I would expect their behaviour to revert to type, especially in the case of [P.C.], which would fundamentally seriously impact on K. causing him further significant harm if he was returned to their care.” 59. She recommended that the court endorse the local authority plan for a care order with a plan for adoption. b. The hearing before the Family Proceedings Court 60. A four-day hearing took place before the Family Proceedings Court between 6 and 9 April 2009. It had before it applications by the local authority for a care order and for a placement order. 61. At the start of the hearing, the court was presented with a new case on behalf of the applicant. In a position statement dated 5 April 2009, she said that on 14 March 2009 she had discovered that P.C. had been to a pub and had drunk two pints of beer. She had remonstrated with him for drinking when they were so close to having K. returned to them and he had pushed her into a chair and slapped her. She had called the police. She said that the relationship with P.C. was over, and that from the guardian’s report she had learned new information about domestic violence in P.C.’s past relationships. She was planning, with the help of a recent inheritance, to rent a property near her sister, with the support of her sister and P.C.’s adult son, P.G. The applicant asked to be given a chance to prove that she could safely parent K. on her own, away from parental conflict, and requested a section 38(6) assessment of her as a sole carer (see paragraph 96 below). She proposed that K. be assessed with her by an independent social worker who would address K.’s relationship with the applicant, the applicant’s parenting abilities and the management of any risks to K. In the interim, she sought a further ICO. 62. In a brief written statement dated 8 April 2009, P.G. said that he intended to sign a joint lease shortly, move in with the applicant and support her as much as he could. 63. The court heard oral evidence. Notes were taken by the clerk and a transcribed note of evidence has been provided to the Court by the respondent Government. However, it is in note form, with no clear distinction drawn between questions asked by counsel and responses made by witnesses. The notes are therefore of limited assistance in identifying the exact nature of the oral evidence given and any conclusions drawn from them should be treated with caution. 64. It appears from the notes that, in his oral evidence, D.I. expressed concern regarding the lack of evidence of a change in parenting skills by the applicant. Some discussion of adoption took place with him. He appeared to agree that if K. could be rehabilitated to the applicant’s care, in circumstances in which his needs were properly met by her, then that would be a better solution than adoption. The notes suggest that he referred to K.’s age and the greater difficulties encountered in seeking to place an older child for adoption. However, he seems to have expressed pessimism about the prospects for change in the applicant’s behaviour, and indicated that his preference was for K. to stay with his foster placement on a long-term basis, although he appeared to recognise that this was not an option. He commented that the applicant had been entirely cooperative with him. His views on the value of a further assessment of the applicant are not clear. 65. The notes suggest that the social worker did not believe that the applicant’s separation from P.C. was genuine. She expressed the view that the applicant was so entrenched in domestic violence and her self-esteem was so eroded that she would be unable to separate properly from P.C. She added that in any event the local authority had already carried out a parenting assessment; a further assessment would unsettle K., disrupt his placement and delay the matching process. 66. The notes confirm that the applicant gave an account of the incident of 14 March 2009. She explained that she had subsequently asked her social worker for help in separating from P.C. She accepted that her statement of 17 March 2009, in which she had said that there had been no further violent incidents, was untruthful. She said she was too scared to tell anyone. She indicated that she had not drunk alcohol since June 2008, nor had she been violent towards P.C. She reiterated that she had decided to move to a new house close to her sister and that P.G. was going to move in with her to assist. She had a fund of GBP 37,000 which she would use for the benefit of K. She would apply for an injunction to prevent P.C. from visiting her, and his contact with K. would have to be supervised. She said that she would undergo any programmes or assessments by a social worker, and that she was willing to see the guardian and D.I. again. She concluded that she had no intention of resuming a relationship with P.C. if K. were returned to her. She had discovered from the guardian’s report how he had treated his older children. She asked for the opportunity to be assessed as a sole parent for K. and accepted that K. would have to remain in care while the assessment took place. 67. Finally, the guardian gave evidence. The notes indicate that she opposed any further assessment of the applicant. It appears that she did not think that the separation was genuine. In any case, whether the separation was genuine or not was immaterial because in order for the applicant to keep herself and K. safe, her personality had to change. It seems that the guardian gave evidence to the effect that a quarter of the children placed for adoption the previous year were K.’s age. She appears to have expressed concern that any work with the applicant to address her issues would require long-term psychological input. She recommended adoption and indirect contact with the parents until they came to terms with the adoption. 68. At the conclusion of the evidence and submissions on 9 April 2009 the court reserved its decision. On 15 April 2009 it handed down judgment. Commenting on the parenting assessments, the court indicated that in its view the contact sessions had generally gone well. It observed: “... We note that [K.] is not distressed when he returns from contact with his parents and understand that during contact he does ask his parents when he can come home and whether they have stopped drinking.” 69. The court found that the threshold criteria for the making of a final care order (see paragraph 93 below) had been established, in light of the parents exposing K. to domestic violence and alcohol misuse causing him emotional and physical harm. It considered its range of powers and the need for a care order, referring to section 1 of the Children’s Act 1989 (see paragraph 97 below) and emphasising that the child’s welfare was the paramount consideration. It continued: “In determining the child’s welfare we have considered the welfare checklist. We have referred to the welfare consideration in the Children’s Guardian’s report and consider this to be comprehensive. We accept the welfare aspects but consequent upon the late position statement by mother, dated 5 April 2009, reach a different conclusion. The Guardian’s report does not address [the parents’] separation. ... At this juncture we believe that this separation is genuine and this therefore leads us into considering whether [the applicant] is capable of meeting [K.’s] needs, which includes protecting him from [P.C.]. This information is not before the court and puts us in great difficulty in deciding whether a care order should be made. The only way to achieve this information would be by making a s.38(6) direction [for an assessment], however this needs to be balanced against a further delay for [K.]. In considering our range of powers we could make an interim care order with a s.38(6) direction for [the applicant] to undergo a parenting assessment as a sole carer for [K.]. We are told that the assessment would take at least three months and realistically five months, before the case can be properly considered again by the court. This delay must be weighed against [K.’s] best interests. Any delay is considered in law to be prejudicial unless it is planned and purposeful.” 70. After examining domestic case-law on the circumstances in which a parenting assessment was appropriate, the court continued: “... We therefore believe in fairness to [the applicant] she should be given one last opportunity to have her parenting ability assessed in respect of [K.]. ...We accept that [K.] needs a secure and stable environment in which to develop and have his needs met but this must be weighed up against him losing the opportunity to be brought up within his birth family, particularly his mother. He is 8 years old next week and has memories of his parents and has continuously asked when he can return to live with them. Although we are sure that he is scared of the domestic violence, through the parents’ separation and an injunction against [P.C.] this risk can be managed. We have considered the human rights issues. We believe that making an interim care order with a s 38(6) direction is necessary and a proportionate response given that neither parent is at present capable of caring for [K.] and that it will provide the court with further crucial information before reaching a final decision ...” 71. The court recorded that this option was not recommended by the guardian, and explained why it disagreed: “The reasons why we have gone against the Guardian’s recommendation are that we believe that a delay of 5 months is acceptable in this case provided that it is purposeful and could prove to be in [K.’s] best interests, should the assessment be positive as this will allow him to be raised with his birth mother, with whom [D.I.] has clearly stated [K.] has a very strong bond. This assessment will provide us with valuable information when reaching our final decision and we intend to return for the final hearing.” 72. The court accordingly made a direction for a section 38(6) assessment and made a further ICO in respect of K. 3. The appeal to the County Court 73. The local authority and the child’s guardian appealed the decision of the Family Proceedings Court, arguing that there was no sufficient basis for the proposal that the applicant would be able to parent K. well enough on her own; that the proposed assessment would duplicate earlier assessments; and that the prospects of any assessment being favourable were too poor to justify the harm to the child of disruption and delay. They argued that the court ought to have made a final care order on the evidence before it. In their notices of appeal, they specifically sought a final care order and a placement order. 74. On 2 June 2009 the social worker lodged a further statement with the court. She confirmed that K. had been informed of the separation of his parents and appeared to have accepted the situation, noting that he seemed more relaxed during contact sessions with his mother and made no reference to having contact with his father. The social worker also confirmed that the applicant had moved to a new address, on the basis of a joint tenancy agreement with P.G., but indicated that P.G. had not actually yet moved into the property. The applicant remained in direct and indirect contact with P.C., and the social worker noted that she appeared to be confused about his behaviour towards her. 75. The statement indicated that the applicant had been informed of the support she could access in order to develop her parenting skills, but observed that to date she had not accessed such support. The applicant had also spoken with a domestic violence worker, although a planned meeting had not taken place as there was some confusion over the venue and had not been rescheduled. The social worker reported that contact sessions between the applicant and K. had been broadly positive. However, she considered that the applicant had demonstrated that she was unable to make a clean break from P.C., which remained a concern to social services. 76. The case came before the County Court on 5 June 2009. By that time, the applicant and P.G. had signed a lease on a property and the applicant had moved there. The judge considered extensive written and oral argument from the local authority and the guardian in support of the appeal. He took into account a substantial skeleton argument submitted by the applicant, who was represented by counsel at the hearing. He also had before him the various reports prepared for the hearing before the Family Proceedings Court and the note of oral evidence prepared by the clerk (see paragraph 63 above). He reserved his decision to 16 June 2009. 77. In the interim, on 6 June 2009, the court issued an order allowing the appeal. In its second paragraph, the order stated: “The Judge is satisfied that the conditions for making a care order exist and accordingly make a placement order, dispensing with the consent of the parents under SS.22(3)(b) and 52 of the Adoption and Children Act 2002.” 78. On 16 June 2009 the judge handed down his judgment on the appeal. He summarised the relevant reports and the oral evidence as recorded in the notes by the clerk, commenting: “10. ... [T]he justices [in the Family Proceedings Court] heard first oral evidence from [D.I.], and then from [the social worker] in support of the local authority’s application. Their evidence is recorded in notes kept by the justices’ clerk. I should observe that these notes are quite difficult to follow and there is sometimes little distinction between questions put and answers given. It is however clear that, when questioned about the mother’s proposal to be assessed as a sole care for [K.], both witnesses were unsupportive. [D.I.] said it was necessary to consider [K.’s] needs now, and that a promise was not the same as change. He said that the mother’s contact had not demonstrated a change in parenting skills. He was struck by the guardian’s report, acknowledging that although the parents loved their child and wanted to change, they could not change. He said that [K.] was insecurely attached to both parents. He said that he was not recommending returning [K.] to his parents as it would cause him emotional and developmental damage. He said that his preference would be for [K.] to stay with his foster placement on a long-term basis, but it appears that he recognised that this was not an option. [The social worker] expressed the view that the mother’s self-esteem was so eroded that she would not be able to separate properly from the father. She said that it was unclear whether the proposed assessment would be residential or in the community, but that in any event the local authority had already carried out a parenting assessment. She said that a further assessment would unsettle [K.], disrupt his placement and delay the matching process.” 79. The judge summarised the evidence of the applicant and P.G. before turning to the evidence of the guardian, in respect of which he noted: “13. ... Again it was clear from her evidence that she opposed the further assessment of the mother. She said that she did not think that the mother could separate from the father simply by moving house, as he had a lot of power and control over her. But whether or not the separation was genuine was immaterial because in order to keep herself and [K.] safe her personality needed to change. This could only happen with long term psychological support. She agreed with [D.I.] that everything would not be fine if the mother separated because she would return to the father.” 80. The judge acknowledged that the decision of the Family Proceedings Court was reached after hearing oral evidence from the principal witnesses over a period of several days. He further acknowledged that the course of action selected by the Family Proceedings Court was one that was open to it. He continued: “17. The temptation for a court to give directions for further evidence, often in the form of a s.38(6) assessment, is often strong. The decision to do so must always be taken in the best interests of the child. The proposition that the ‘... court needs all the help it can get’ has an immediate attraction, but the help must always be directed at achieving the right outcome for the child. Often there is the disadvantage of delay, and it is necessary accordingly to consider the possible outcomes of an assessment. In the present case the justices justified the delay as it retained the prospect of what they regarded as the best outcome for [K.] – rehabilitation to his family. But that outcome depended on the assessment being able to demonstrate that the mother had the capacity to parent [K.] in the long term. Given that the justices’ findings contain the phrase ‘neither parent is at present capable of caring for [K.]’, it is necessary to give consideration as to how the proposed assessment would proceed. If it was envisaged that [K.] would remain with his foster parents and spend increasing periods of visiting contact with his mother the report, ‘if successful’, would merely state that the mother had given all the signs of being able to care for her son, at least in the contact situation. If it was envisaged that there would be a phased return to the mother, with increasing periods of staying contact, then the report would be able to speak with greater confidence of the mother’s capacity to parent her son. In either case however [K.] would be exposed to a degree of disruption of his foster placement, and to the risk of emotional harm should the assessment break down. In both cases the duration of the assessment would be too short to enable the report writer to give any sufficient guarantee that the mother would not, as predicted by the local authority and the guardian, resume her relationship with the father in due course.” 81. He continued: “18. I have come to the conclusion that the evidence about the mother was clear. [D.I.] regarded the mother’s separation from the father as a promise of change, not change itself, and it was his view that there was no change in her parenting skills. The assessment of the mother would never have been able to provide evidence that would be sufficient to justify the refusal of a care order and the decision to return [K.] to his mother, given her shortcomings and the real risk that she would be unable to maintain her separation from the father. In reality the only effect of postponing the decision to make a care order was to delay, and therefore to jeopardise, the process of finding an alternative long term placement for [K.] by way of adoption ... In these circumstances the decision of the justices must be categorised as wrong, and must be set aside ...” 82. He therefore allowed the appeal, indicated that he was satisfied that the conditions for making a care order existed and accordingly made a placement order, dispensing with the consent of the parents, under sections 22(3)(b) and 52 of the Adoption and Children Act 2002 (“the 2002 Act” – see paragraphs 99 and 101 below). He added: “I have come to the above conclusions independently of information which I was given at the outset of the hearing before me about P.G.’s failure so far to join the mother at her new accommodation, her further contact with the father at public houses, and her taking of small quantities of alcohol. Nonetheless this information tends to confirm the pessimistic view expressed about the mother’s inability to separate from the father. ... I do not propose that the judgment be formally given at a court hearing, although if there is anything that requires my further attention in court, an appropriate hearing can be arranged.” 83. On 2 July 2009 K. informed the applicant that he was not happy with the decision of the judge and that he wanted to come home. 4. The appeal to the Court of Appeal 84. The applicant sought leave to appeal the judgment of the County Court, arguing that as there had previously been no care order in place, the judge should not have made a placement order without having due regard to the responsibilities placed on him by section 1 of the 2002 Act (see paragraphs 103-104 below). In particular, she contended, the judge should have considered the child’s ascertainable wishes and feelings regarding the decision and the relationships which he had with relatives and any other relevant person. 85. Permission to appeal was refused on the papers on 18 September 2009 on the ground that the County Court judge had been sitting in an appellate capacity, that he had reached a conclusion that was clearly open to him and that he had explained his conclusion most clearly. The applicant renewed her request for leave. An oral hearing subsequently took place on 28 October 2009. 86. On 24 November 2009 the Court of Appeal handed down its judgment on the request for leave to appeal. In relation to the applicant’s complaint that the County Court had failed to take into account relevant considerations, and in particular had failed to have regard to the welfare checklist, the judge delivering the opinion of the court noted: “Her proper remedy in my judgment was to take advantage of the judicial offer in the final sentence of the [County Court] judgment ... She could have asked the judge to clarify the order that he was making and to indicate in his judgment how he arrived at such a conclusion. She could equally have asked him for permission to appeal. None of those things were done in the county court and a notice of appeal was filed in this court ...” 87. He continued: “... it seems to me on fuller investigation that [the applicant’s case] lacks merit. First of all, the judge was reviewing a decision from the magistrates who had, I suspect out of understandable sympathy for the mother, held off the local authority’s application with an order under Section 38(6). But it is hard to see how that application was justified on the facts and circumstances, and [the County Court’s] decision to set aside an order which stood on flimsy legal foundation is hardly open to challenge. Nor do I think in the end that there is any substance [to the complaint] that he dealt with the outcome in too peremptory a fashion. After all, the mother’s legal team knew from the form of the notices of appeal to the circuit judge precisely what the local authority sought to gain from the hearing. It was quite open to [counsel for the applicant] to submit to the judge that he should not make a placement order even if he were persuaded to make a care order, since there was insufficient material to enable him to carry out the Section 1 review. It seems that she did not make that submission prior to judgment and, as I have already observed, she ignored the opportunity to make it immediately on receipt of the written judgment and to ask the judge to reconsider the order of 6 [June].” 88. He concluded that there was no error of law in the County Court’s decision and dismissed the application for permission to appeal. 5. Subsequent events 89. A final supervised contact between K. and the applicant took place in December 2009. 90. K. was placed with a prospective adoptive parent on 18 January 2010. 91. On 5 May 2010 the applicant made an application to the court for contact with K. pursuant to section 26(3) of the 2002 Act (see paragraph 102 below). This was refused on 16 September 2010. No court decision has been submitted to the Court but it appears that there were ongoing concerns about the level of the parents’ separation. In a statement to the court the social worker said that K. was forming a positive attachment to his prospective adopter and that he had unhappy memories of his life with his parents. In her professional opinion direct contact would undoubtedly cause K. stress and anxiety which would impact on the stability of his placement. The guardian filed a report along similar lines. It is unclear whether the applicant sought leave to appeal. | The applicant and her partner of several years had a son in 2001. In 2003 the family came to the attention of social services as a result of an “alcohol fuelled” incident between the parents. There were subsequent incidents of domestic violence and alcohol abuse which escalated from the end of 2007 with the police being called to the family home on numerous occasions. In June 2008 the local authority obtained an emergency protection order after the boy was injured during a further violent altercation between the parents. Childcare proceedings resulted in an order authorising the child to be placed for adoption. The applicant complained that the courts’ refusal to order an assessment of her as a sole carer for her son and their failure to have regard to all relevant considerations when making the placement order had violated her rights under Article 8 (right to respect for private and family life) of the Convention. |
15 | Family reunification rights | I. THE CIRCUMSTANCES OF THE CASE 7. The first applicant was born in 1967 and the second applicant in 1974, both in Kosovo. Their children R., L. and B. were also born in Kosovo in 1994, 1996 and 2003 respectively. The applicants have a fourth child, E., who was born in Switzerland in 2010. They all live in Lausanne, Canton of Vaud. 8. In June 1997 the first applicant entered Switzerland, where he applied for asylum. His asylum request was rejected by the Federal Office for Migration on 19 November 1997 and it ordered that he should be expelled. The expulsion was not executed, and on 21 May 1999 the first applicant received a temporary residence permit for Switzerland. 9. On 28 February 2000 the first applicant married a Swiss national. On 2 March 2005 he received a permanent residence permit for Switzerland. On 26 August 2006 he got divorced. 10. On 10 January 2007 he married the second applicant - whom he had known since 1993 and with whom he had had the three children - in Rahovec (Kosovo). The second applicant entered Switzerland on 6 April 2007 with a visa. On 7 June 2007 the first applicant applied for a residence permit for the second applicant on the ground of family reunification. The second applicant announced her arrival in Lausanne on 8 June 2007. When she filled in the arrival form she left the question regarding family members unanswered. On 6 September 2007 the Office for Migration of the Canton of Vaud ( Le service de population du canton de Vaud; hereafter “the Migration Office ” ) granted her a residence permit valid until 5 April 2012. 11. On 4 December 2007 the second applicant applied to the Swiss representation in Pristina (Kosovo) for residence permits on the ground of family reunification for the three children, R., L. and B. She enclosed with the application the birth certificates of the three children, which named the first applicant as the father. On the basis of that application the Migration Office decided on 2 June 2008 to investigate the applicants ’ family situation. Both applicants, as well as the first applicant ’ s ex-wife, were interviewed. On this occasion the ex-wife declared that the first applicant “had abused her naivety and her good will ” and “had lied to her by hiding from her the fact that he had children, especially one born during their marriage”. The first applicant in turn stated that he had hidden those facts from his ex- wife because “ his relationship with the second applicant was not a serious one at that time ” and “ he was not sure whether he was the father of the children”. Further, “[ he ] did not know then whether he was going to marry the second applicant ”. On 18 December 2008 the second applicant wrote another letter to the Migration Office, informing it that her oldest daughter, L., had fallen seriously ill and had been hospitalised in Pristina. L. ’ s only relative who could care for her in Kosovo was her elderly grandmother. She therefore urged the Migration Office to decide the matter promptly. She attached a medical certificate of 11 December 2008 issued by the children ’ s hospital in Pristina, which stated that L. was suffering from rheumatic fever ( febris rheumatica ). 12. On 9 January 2009 the Migration Office informed the second applicant that it was minded to refuse the request for residence permits for the children on the ground of family reunification. The Migration Office held that neither she nor the first applicant had previously mentioned the existence of the three children, and it doubted whether the first applicant was in fact the father of the three children. The second applicant was however given the opportunity to contest those findings within a time-limit. 13. By a letter of 2 March 2009 the second applicant answered that she had never concealed the existence of her three children from the Swiss authorities. She explained that when she had entered Switzerland she had had no knowledge of the French language and had had to “improvise” when completing the entry form. That was why she had not answered the question regarding her children. However, in her personal visa application to the Swiss representation in Pristina on 13 March 2007 she had revealed the identity of her three children. She stated furthermore that her children had been mentioned regularly in the tax declarations to the Swiss authorities, and that the first applicant ’ s employer in Switzerland had paid child allowances for them for many years. Therefore, the Swiss authorities had always been aware of the existence of the children. As evidence she attached a copy of the tax declaration for the year 2007. 14. On 28 April 2009 the Migration Office refused the applicants ’ request for family reunification with their children. It ruled that neither the first nor the second applicant had mentioned the existence of their three children when they entered Switzerland, and they doubted that the first applicant was the father of the three children. They established that the applicants had not conducted themselves correctly with regard to the application, and accordingly they were no longer entitled to family reunification. The applicants did not appeal against this decision and it became final. 15. On 15 August 2009, the three children, R., L. and B., entered Switzerland clandestinely. 16. On 12 April 2010 the second applicant gave birth to a fourth child, E. 17. By a letter of 31 May 2010 the first applicant informed the Migration Office that R., L. and B. had been living in Switzerland illegally since 15 August 2009. He explained that it had been urgent to bring them to the respondent State because L. ’ s chances of recovery were better in Switzerland. Furthermore, he alleged that it had been for various reasons impossible for the children to remain in their home country. On 1 June 2010 the Migration Office officially registered the entry of the three children into Switzerland on 15 August 2009, and noted that the applicants had submitted a request for residence permits for them on the ground of family reunification. 18. On 13 July 2010 the Migration Office informed the applicants that it intended to dismiss their request. It established that the applicants had brought the children to Switzerland illegally despite the negative decision of the Migration Office of 28 April 2009. Therefore, the applicants had acted contrary to the rules of the immigration authorities. The Migration Office also reiterated that the children ’ s existence had previously been concealed from the Swiss authorities, and that the paternity of the first applicant had not been established. In addition, the legal requirements for family reunification had not been met. According to Article 47 (1) together with Article 47 (3b) of the new Foreign Nationals Act (see below, § 31 ), the right to family reunification had to be exercised within five years after the granting of a residence permit to the family member. This time - limit was only twelve months if the children were more than twelve years old. The request regarding R. and L., aged fifteen and fourteen respectively at the time of the application, was therefore late. Conversely, the request for B., aged seven at that time, was within the set time - limit. The Migration Office however found that, according to Rule 6.8 of the Federal Directive regarding family reunification, the purpose of a residence permit on the ground of family reunification was to enable all the members of a family to live together in the respondent State. Since R. and L. did not fulfil the prerequisites for a residence permit, it was not possible for the whole family to live together in Switzerland. Therefore, in the case of B. the requirements for family reunification were not met either. The Migration Office further added that, given that the second applicant had been granted a residence permit on 6 September 200 7, the applicants had waited quite a while before applying for family reunification, and they had not cited any other important family reasons for seeking reunification. Finally, they established that R., L. and B. had lived their entire lives in their home country of Kosovo, where they had attended school, that the two oldest siblings would soon attain the age of majority and that in the circumstances of the case it remained doubtful whether it had always been the applicants ’ true intention to construct family life in Switzerland. The Migration Office gave the applicants another opportunity to contest those findings. 19. By a letter of 29 July 2010 the applicants informed the Migration Office that they wanted to maintain their request. They affirmed that the children had come to live in Switzerland because their grandmother, with whom they had been living in Kosovo, was old and could no longer care for them. Furthermore, it had always been the intention of the applicants to be reunited with their children once the second applicant had obtained a residence permit in Switzerland; this was illustrated by the first request for family reunification, made on 4 December 2007. They held that they could not be reproached with tardiness in applying for family reunification, because it was the Migration Office which had taken a year and four months to decide on the first application. They further reiterated that they had never attempted to deceive as to the existence of the children, and they indicated that a refusal to issue residence permits to the three children would breach Article 8 of the Convention and be against their best interests as children as established in Article 3 (1), 8 (1), 9 (1) and 10 (1) of the United Nations Convention on the Rights of the Child ( see below § 3 3 ). Finally, they drew attention to the birth of the applicants ’ fourth child and the risk that a refusal of family reunification would separate the siblings. 20. By a decision of 23 August 2010 the Migration Office rejected the applicants ’ request for family reunification with their three children, on the grounds given previously. It further ordered that the children had to leave Switzerland within a month of the notification of the decision. 21. The applicants and their children appealed against this decision to the Cantonal Administrative Court of the Canton of Vaud (“the Cantonal Court”). They attached Swiss school certificates for R., L. and B. which stated that they were well integrated in Switzerland. In particular, the applicants reiterated that, if returned to their home country, the children would be obliged to live in an orphanage, because their grandmother was no longer able to care for them. Furthermore, they stated that the first applicant had always been officially recognised as the father of the children and that he had regularly visited them and financially supported them in Kosovo as well as now in Switzerland. 22. At the Cantonal Court ’ s request, a DNA examination was conducted. In a report of 30 December 2010 the University Centre of Legal Medicine Lausanne- Geneva established that the applicants were indeed the parents of the three children. 23. By a fax of 22 February 2011 the Cantonal Court asked the Swiss embassy in Pristina to send it a copy of the visa application the second applicant had made on 13 March 2007, in which she had allegedly mentioned the existence of her three children. In its answer the embassy informed the Cantonal Court that it could not provide a copy of the visa application because in accordance with internal instructions it had been destroyed after two years. 24. By a decision of 23 March 2011 the Cantonal Court dismissed the applicants ’ appeal. It first concluded that the decision of the Migration Office of 28 April 2009 had indeed become final. Therefore, only the facts as presented by the request for family reunification made on 1 June 2010 were relevant. On the merits, the Cantonal Court established that the domestic law indicated that the request for residence permits on the ground of family reunification for R. and L. had been submitted late. Residence permits could therefore only be issued to them if there were important family reasons as set out in Article 47 (4) of the Foreign Nationals Act. According to Article 75 of the Federal Ordinance “ Admission, Residence and Exercise of a Lucrative Activity ” ( see below, § 32 ) - the operative provision to Article 47 ( 4) of the Foreign Nationals Act - “important family reasons” were given when the best interests of the child could only be guaranteed by family reunification in Switzerland. The Cantonal Court however considered that in the case of R. and L. no such important family reasons could be identified; in particular, the positive development of L. ’ s recovery would not justify the permanent establishment of the children in Switzerland. Regarding the request of B., the Cantonal Court reiterated that in application of Article 96 (1) of the Foreign Nationals Act (see below § 31), the applicants had failed to establish that their private interest in a family reunification outweighed the public interest of the respondent State in controlling the entry of foreigners into its territory, although the second applicant had applied within the legal time - limit. In particular, it held: that in light of the statements made by the first applicant ’ s ex-wife, the applicants had engaged in deliberate deception between July 1997 and December 2007 as regards the existence of their three children; that according to Article 51 (2) and 62 (a) of the Foreign Nationals Act (see below § 31 ) this dissimulation alone justified the refusal of the children ’ s residence permits, because it breached public order; that the applicants had illegally brought the children to Switzerland and thereby presented the authorities with a fait accompli; that the applicants had not substantiated the age of the children ’ s grandmother in Kosovo and had not produced any medical evidence that the grandmother was no longer in a position to care for them; and that neither the birth of the fourth child nor the three children ’ s positive (Swiss) school certificates were decisive elements which would justify the issuing of residence permits. The application for residence permits for the three children should therefore be dismissed. 25. The applicants and their children appealed to the Federal Supreme Court against the Cantonal Court ’ s decision. They argued in particular that the Cantonal Court had not considered whether the refusal of the residence permits for the children was in breach of Article 8 of the Convention. Furthermore, they claimed that expulsion of the three children would violate Article 3 of the Convention, because in their home country the children would have to be dependent on social services or be sent to an orphanage. 26. By a decision of 18 November 2011 the Federal Supreme Court rejected the applicants ’ appeal. It endorsed the Cantonal Court ’ s findings, and ruled that the refusal of the residence permits was proportionate under domestic law as well as under Article 8 of the Convention. It further ruled that the applicants ’ claim of a breach of Article 3 of the Convention in the event of the children ’ s expulsion to Kosovo was manifestly ill-founded. 27. By a letter of 29 February 2012 the applicants addressed the Court requesting that, pending the proceedings before it, the Swiss Government be invited to revoke the expulsion of their three children. By a letter of 12 March 2012 the applicants were informed that their request for the application of Rule 39 of the Rules of the Court had been dismissed but that their application had been granted priority. 28. In addition to the documents produced in the domestic proceedings, the applicants also submitted to the Court new certificates from the schools where B. and L. were enrolled. With respect to B., the school certificates of the primary school of 15 February 2012 and 13 December 2012 indicated that she was an excellent student, speaking French fluently and being well integrated. Her teacher expressed incomprehension regarding the proposed expulsion, and stated that it would be against B. ’ s best interests as a child. Regarding L., the Director of the secondary school ( établissement secondaire ) wrote in a certificate dated 8 February 2012 that L. was very well integrated and that her high marks would presuppose her entry into high school ( le lycée ) the following school year. 29. On 17 July 2012 the cantonal authorities of the Canton of Vaud issued a permanent residence permit to the second applicant. 30. By a letter of 18 April 2013 the applicants ’ lawyer confirmed that R., L. and B. were still residing in Switzerland. | This case concerned the Swiss authorities’ refusal to grant residence permits to the applicants’ three children, who were born in Kosovo and entered Switzerland illegally, and the authorities’ decision to expel the children to Kosovo. |
473 | Obligation to report suspicions | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1947 and lives in Paris. He is a member of the Paris Bar and the Bar Council. 9. He submitted that the European Union had adopted three Directives in succession aimed at preventing the use of the financial system for money-laundering. The first (91/308/EEC of 10 June 1991) targets credit and financial institutions. It was amended by a Directive of 4 December 2001 (2001/97/EC) which, among other things, widened its scope to include professions outside the financial sector, including members of the independent legal professions. The third Directive (2005/60/EC of 26 October 2005) repealed the Directive of 10 June 1991, as amended, and reproduced and added to its content. The laws transposing these Directives – Law no. 2004-130 of 11 February 2004 in the case of the Directive of 10 June 1991, as amended – and the regulations implementing that law – Decree no. 2006-736 of 26 June 2006 – have been incorporated into the Monetary and Financial Code (for more details see sections III and IV below on relevant European Union and domestic law). 10. These texts place lawyers under an “obligation to report suspicions” which the legal profession – who see it as a threat to professional privilege and the confidentiality of exchanges between lawyers and their clients – have constantly criticised, in particular through the National Bar Council. 11. However, on 12 July 2007 the National Bar Council took a “decision adopting regulations on internal procedures for implementing the obligation to combat money-laundering and terrorist financing, and an internal supervisory mechanism to guarantee compliance with those procedures” (published in the Official Gazette on 9 August 2007). In so doing it was effectively applying section 21-1 of the Law of 31 December 1971 reforming certain legal and judicial professions, which empowered it, with due respect for the laws and regulations in force, to take general measures to unify the rules and practices of the legal profession. 12. Article 1 of the above-mentioned decision states that “all lawyers who are members of a French Bar” are bound by these rules of their profession when, in the course of their business activity, they participate for and on behalf of their client in any financial or real-estate transaction or assist their client in the preparation or execution of transactions relating to: (1) the buying and selling of real estate or businesses; (2) the management of funds, securities or other assets belonging to the client; (3) the opening of current accounts, savings accounts or securities accounts; (4) the organisation of the contributions required to create companies; (5) the formation, administration or management of companies; and (6) the formation, administration or management of trusts governed by a foreign legal system, or of any other similar structure. They are not bound by these rules “when acting as legal counsel or in the context of judicial proceedings” in connection with one or other of the above activities (Article 2). 13. The regulations establish in particular that lawyers must always “show due diligence” in this context and “develop internal procedures” to ensure compliance with, inter alia, the laws and regulations governing the reporting of suspicions (Article 3), indicating in particular the procedure to be followed when an operation appears to warrant such reporting (Article 7). More specifically, they must adopt written rules describing the steps to be taken (Article 5). They must also ensure that the regulations are properly applied in their structure, and that lawyers and staff receive the necessary information and training, tailored to their particular activities (Article 9), and set up an in-house monitoring system (Article 10). At the same time, the regulations also specify that “lawyers must, in all circumstances, ensure that professional confidentiality is respected” (Article 4). 14. Failure to comply with these regulations can entail disciplinary sanctions and even being struck off (Articles 183 and 184 of Decree no. 91 ‑ 1197 of 27 November 1991 organising the legal profession). 15. On 10 October 2007, considering that it undermined lawyers’ freedom to exercise their profession and the essential rules regulating that profession, the applicant appealed to the Conseil d’Etat to have the decision set aside. He submitted that there was no law or regulation giving the National Bar Council regulatory powers in such matters as money-laundering. Furthermore, pointing out that the decision concerned required lawyers to adopt in-house procedures to ensure compliance with the instructions on the reporting of suspicions, subject to disciplinary sanctions, and that the term “suspicions” was not defined, he complained that this was in breach of the requirement of legal certainty inherent in Article 7 of the Convention. In addition, referring to the André and Another v. France judgment (no. 18603/03, 24 July 2008), he contended that the regulations adopted by the National Bar Council were incompatible with Article 8 of the Convention, as the “obligation to report suspicions” jeopardised legal professional privilege and the confidentiality of exchanges between lawyer and client. Lastly, under Article 267 of the Treaty on European Union, he asked the Conseil d’Etat to refer the matter to the Court of Justice of the European Union for a preliminary ruling on the conformity of the “declaration of suspicion of criminal offence” with Article 6 of the Treaty on European Union and Article 8 of the Convention. 16. By a judgment of 23 July 2010, the Conseil d’Etat rejected the bulk of the submissions in the application. 17. Concerning the submission based on Article 7 of the Convention, the judgment found that the “reporting of suspicions” referred to in the disputed decision was not unclear in so far as it referred to the provisions of Article L. 562-2 of the Monetary and Financial Code (subsequently amended to become Article L. 561-15). As to the submission based on Article 8, the judgment rejected it on the following grounds: “... if, according to the applicant, the provisions of [Directive 91/308/EEC, as amended] are incompatible with those of Article 8 of the Convention ... which protect the fundamental right to professional confidentiality, among other things, that Article also permits interference by the authorities with that right when necessary in the interests of public safety, for the prevention of disorder or crime ...; ... regard being had on the one hand to the general interest served by combating money-laundering and, on the other, to the safeguard provided by the exclusion from its scope of information received or obtained by lawyers in the course of activities connected with judicial proceedings, or in their capacity as legal counsel, save, in this latter case, where the lawyer is taking part in money-laundering activities, or the legal advice is provided for money-laundering purposes, or the lawyer knows that the client is seeking legal advice for money-laundering purposes, the obligation under the Directive concerned for lawyers to report their suspicions does not amount to excessive interference with professional confidentiality; ... accordingly there is no need to refer the matter to the Court of Justice of the European Union for a preliminary ruling and the submission concerning the breach of the Convention provision concerned must be rejected.” II. THE RECOMMENDATIONS OF THE FINANCIAL ACTION TASK FORCE (FATF) ON MONEY LAUNDERING AND the COUNCIL of Europe Convention ON Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and ON THE financING of terrorism 18. The recommendations adopted by the FATF provide, inter alia, for a duty of diligence on the part of financial institutions and require them to report suspicious transactions. Recommendation no. 12 proposed widening the scope of the professions concerned by the requirement of due diligence to include “lawyers, notaries, other independent legal professionals and accountants” when they prepare or carry out transactions for their clients concerning the following activities: buying and selling of real estate; managing of client money, securities or other assets; management of bank, savings or securities accounts; organisation of contributions for the creation, operation or management of companies; and creation, operation or management of legal persons or arrangements, and buying and selling of business entities. Recommendation no. 16 widened the scope of the obligation to report suspicious transactions to include the same professions when engaging in the above activities, but provided for an exception when the relevant information was obtained in circumstances where they were subject to professional secrecy or legal professional privilege. 19. The Council of Europe Convention of 16 May 2005 on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (which came into force on 1 May 2008 but has not been ratified by France) contains the following provisions concerning the prevention of money-laundering (Article 13 §§ 1 and 2). “1. Each Party shall adopt such legislative and other measures as may be necessary to institute a comprehensive domestic regulatory and supervisory or monitoring regime to prevent money-laundering and shall take due account of applicable international standards, including in particular the recommendations adopted by the Financial Action Task Force on Money Laundering (FATF). 2. In that respect, each Party shall adopt, in particular, such legislative and other measures as may be necessary to: (a) require legal and natural persons which engage in activities which are particularly likely to be used for money-laundering purposes, and as far as these activities are concerned, to: (i) identify and verify the identity of their customers and, where applicable, their ultimate beneficial owners, and to conduct ongoing due diligence on the business relationship, while taking into account a risk-based approach; (ii) report suspicions on money-laundering subject to safeguards; (iii) take supporting measures, such as record-keeping on customer identification and transactions, training of personnel and the establishment of internal policies and procedures, and if appropriate, adapted to their size and nature of business; (b) prohibit, as appropriate, the persons referred to in sub-paragraph (a) from disclosing the fact that a suspicious transaction report or related information has been transmitted or that a money-laundering investigation is being or may be carried out; (c) ensure that the persons referred to in sub-paragraph a are subject to effective systems for monitoring, and where applicable supervision, with a view to [ensuring] their compliance with the requirements to combat money-laundering, where appropriate on a risk-sensitive basis.” According to the explanatory report, the intention of the drafters of this Convention was that it should also cover the “non-financial professions” referred to in FATF Recommendation no. 12. Moreover, the expression “subject to safeguards” in Article 13 § 2 (a) (ii) primarily means that it is in respect of the independent legal professions that the restriction “resulting from professional secrecy or legal professional privilege” contained in FATF Recommendation no. 16 (and its explanatory note) is relevant. | This case concerned the obligation on French lawyers to report their suspicions regarding possible money laundering activities by their clients. Among other things, the applicant, a member of the Paris Bar and the Bar Council, submitted that this obligation, which resulted from the transposition of European directives, was in conflict with Article 8 of the Convention, which protects the confidentiality of lawyer-client relations. |
599 | Obligation to swear a religious oath | the circumstances of the case 7. The applicants were elected to the General Grand Council (the parliament of the Republic of San Marino) in elections held on 30 May 1993. 8. Shortly afterwards, they requested permission from the Captains-Regent, who act as the heads of government in San Marino, to take the oath required by section 55 of the Elections Act (Law no. 36 of 1958) without making reference to any religious text. The Act in question referred to a decree of 27 June 1909, which laid down the wording of the oath to be taken by members of the Republic’s parliament as follows: “I, …, swear on the Holy Gospels ever to be faithful to and obey the Constitution of the Republic, to uphold and defend freedom with all my might, ever to observe the Laws and Decrees, whether ancient, modern or yet to be enacted or issued and to nominate and vote for as candidates to the Judiciary and other Public Office only those whom I consider apt, loyal and fit to serve the Republic, without allowing myself to be swayed by any feelings of hatred or love or by any other consideration.” 9. In support of their request the applicants referred to Article 4 of the Declaration of Rights of 1974, which guarantees the right to freedom of religion, and Article 9 of the Convention. 10. At the General Grand Council session of 18 June 1993 the applicants took the oath in writing, in the form of words laid down in the decree of 27 June 1909 save for the reference to the Gospels, which they omitted. At the same time, the first applicant drew attention to the obligations undertaken by the Republic of San Marino when it became a party to the European Convention on Human Rights. 11. On 12 July 1993 the Secretariat of the General Grand Council gave an opinion, at the request of the Captains-Regent, on the form of the oath sworn by the applicants, to the effect that it was invalid, and referred the matter to the Council. 12. At its session of 26 July 1993 the General Grand Council adopted a resolution proposed by the Captains-Regent ordering the applicants to retake the oath, this time on the Gospels, on pain of forfeiting their parliamentary seats. 13. The applicants complied with the Council’s order and took the oath on the Gospels, albeit complaining that their right to freedom of religion and conscience had been infringed. 14. Subsequently – before ever the applicants applied to the Commission – Law no. 115 of 29 October 1993 (“Law no. 115/1993”) introduced a choice for newly elected members of the General Grand Council between the traditional oath and one in which the reference to the Gospels was replaced by the words “on my honour”. The traditional wording is still mandatory for other offices, such as that of Captain-Regent or of a member of the government. | Elected to the San Marino Parliament in 1993, the applicants complained of the fact that they had been required to swear an oath on the Christian Gospels in order to take their seats in Parliament, which in their view demonstrated that the exercise of a fundamental political right was subject to publicly professing a particular faith. |
47 | Applications lodged by the parent whose child had been abducted by the other parent | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1967 and lives in Suwanee, the United States of America (“the U .S. ”). 6. In 1993 the applicant married D.B. in the U.S. state of Georgia. The couple both had American and Romanian citizenship. They had three children : A.H.B who was born on 25 March 1998, and twins, N.A.B. and P.N.B., who were born on 19 October 2000. The parents had joint custody of the children under U.S. law. They all lived in the U. S. 7. On 1 May 2007 the Superior Court of Forsyth County in the U.S. issued an injunction forbidding the applicant and his wife from removing their children or settling outside the jurisdiction of the said court without its express permission. 8. On 14 August 2008 the applicant signed a notarised form authorising his wife to leave the U.S. with their three children on 5 September 2008 for a short holiday to Romania on condition that she returned the children to the U.S. at the end of the holiday period. 9. The applicant ’ s wife failed to return the children to the U.S. and on 14 October 2008 she instituted divorce - and - custody proceedings against the applicant before the Braşov District Court in Romania. A. Proceedings conducted before the U.S. courts 10. On 19 December 2008 the applicant filed for divorce and custody of his children with the Superior Court of Forsyth County. 11. On 13 January 2011 the Superior Court of Forsyth County dismissed the applicant ’ s action for insufficient notice of the trial and lack of jurisdiction. It held that the divorce proceedings instituted by the applicant ’ s wife on 14 October 2008 were regulated under Romanian legislation. In addition, the Romanian jurisdiction applied to the two spouses because they were both Romanian citizens, held Romanian nationality and their children lived in Romania. The applicant appealed against the judgment. 12. On 14 December 2011 the Georgia Court of Appeal dismissed the applicant ’ s appeal against the judgment of 13 January 2011. B. Proceedings under the Hague Convention conducted in Romania 13. On an unspecified date the applicant submitted a request for the return of his three under - age children to the U.S., under Article 3 of the Hague Convention, to the U.S. Central Authority responsible for the obligations established by the Hague Convention. On 11 December 2008, the U.S. authority submitted the request to the Romanian Ministry of Justice. The applicant argued that his children had been unlawfully removed from U.S. territory by his wife, in breach of the joint - custody agreement between the spouses at the time of the removal. 14. On 12 December 2008 the Romanian Ministry of Justice contacted the applicant ’ s wife, informed her about the Hague Convention request lodged by her husband and asked her to express her position on a potential friendly settlement of the case and voluntary return of the children to the U.S. 15. On 14 January 2009 a private psychologist ’ s practice produced a psychological evaluation report concerning the applicant ’ s children. The report concluded based on tests and a psychological interview with the children that they were extremely affectionate; had a maternal fixation; had a need for safety, security and stability; they feared authority and unknown circumstances; felt anxiety in respect of the troubled family situation; wished to reject or quash any threat and had a defensive attitude. The report also noted that at the time of the examination the children were well balanced emotionally, were willing to communicate and cooperate, were expressive, adapted to the situation and willing to integrate and did not show any discordant behavior. 16. On 4 February 2009, the Romanian Ministry of Justice, acting as the Central Authority responsible for the obligations established by the Hague Convention, instituted proceedings on behalf of the applicant, who was represented by a lawyer of his choosing, before the Bucharest County Court. 17. By an interlocutory judgment of 2 March 2009 the Bucharest County Court adjourned the proceedings so that the applicant ’ s wife could prepare her defence, the children could receive psychological counselling prior to being heard by the court and the Braşov Guardianship Authority could prepare a social inquiry report on the children ’ s living conditions, family situation and adjustment to the new conditions in Romania. The applicant was present at the hearing and submitted documentary evidence and requests before the court through his legal representative. 18. On an unspecified date the Braşov Guardianship Authority produced the social inquiry report ordered by the court. It concluded that the mother knew best and was most responsive to the children ’ s development needs. She had decided jointly with the children to leave the marital home and the children refused to return to the former family environment which they considered hostile as a result of the father ’ s abusive behavior. It noted inter alia that according to the children they had not perceived their father as a model and disapproved his abusive behavior. They referred to restrictions and physical punishments which they had considered unfair. They had witnessed their parents ’ disputes and they had perceived their mother as a victim. Consequently, they empathised with her. In the case of divorce they wished to live with their mother because they felt close to her and because she had constantly supported them both morally and affectively. They wished to remain in the mother ’ s custody and from the beginning they had been happy with the idea of moving to Braşov. They had been familiar with the new environment because they had often visited their maternal grandparents during the holidays and had contact with the mother ’ s extended family. They had been enrolled in school and they were adapting gradually to the new situation. They had made friends and the language barrier problem had almost disappeared. 19. By interlocutory judgments of 13 and 15 April 2009 the Bucharest County Court adjourned the proceedings after allowing the parties to submit oral and written submissions and pending deliberation. 20. On 16 April 2009 the Bucharest County Court dismissed the applicant ’ s action on the basis of testimonial and documentary evidence, the social inquiry report produced by the Braşov Guardianship Authority, and the children ’ s testimonies heard by the court after they had attended counselling sessions organised by the Bucharest Social Assistance and Child Protection Agency. It held that after the children had arrived in Romania they had settled in Braşov together with their mother and had been enrolled in school. The social inquiry had shown that the children had been familiar with the new environment because they had often spent their holidays there with their maternal grandparents and with their mother ’ s wider family. However, according to the decision of the U.S. courts and the available evidence, the applicant enjoyed joint custody of the children and had a right to decide where they should live. Moreover, while the applicant had agreed that the children could leave the U.S., his wife ’ s failure to return them to the U.S., the country of their habitual residence, was unlawful. Although, the applicant and his wife had discussed the option to leave the U.S. and to return to Romania, a final decision had not been taken in that regard prior to her departure. Furthermore, her argument that the applicant ’ s strict social and religious upbringing of the children posed a serious risk if they were to return to the U.S. and would expose them to physical and psychological harm, within the meaning of Article 13 § 1 (b) of the Hague Convention, was unfounded. However, citing the Elisa Perez-Vera Explanatory Report and Article 13 § 2 of the Hague Convention, and taking into account the available evidence, the court held that the children ’ s views concerning the essential question of whether they should return to the U.S. or remain in Romania could be decisive, because they had attained an age and degree of maturity sufficient for their views to be taken into account. This was the only reason the court refused to order their return to the U.S. In this context, it acknowledged that the twins were less than ten years old at the time, an age considered by Romanian law to be the minimum age for the views of a child to be taken into account. However, A.H.B. was eleven years old and she had stated freely and unequivocally that she wished to stay in Romania, where the children were integrated in their new school and extra- curricular environment. Consequently, the opinion of the twins could not be ignored by the court, given that it was not in the best interests of the children to be separated and that their potential return to the U.S. would generate new and potentially traumatic circumstances affecting their psychological development. 21. The applicant, represented by his lawyer, and the Romanian Ministry of Justice appealed on points of law ( recurat ) against the judgment. He argued that the County Court had misinterpreted the provisions of the Hague Convention and that its decision interfered with the jurisdiction held by the U.S. courts in respect of custody matters. Also, the court had failed to provide any reasons why it considered all his children sufficiently mature in order to rely on their opinion. He argued that allowing A.H.B. to make decisions also for her siblings was unacceptable. The Romanian Ministry of Justice argued on behalf of the applicant that the court had incorrectly assessed the evidence in the file and had considered the opinion of an eleven year - old sufficient for its decision. Since there was no evidence in the file to suggest that the children ’ s return to the U.S. would expose them to serious harm, the Romanian authorities had a duty to return them to their State of habitual residence. 22. By an interlocutory judgment of 3 June 2009 the Bucharest Court of Appeal adjourned the proceedings pending the receipt of procedural information it had requested from the Bucharest County Court and in order to allow the applicant ’ s wife to prepare her defence. 23. On 24 June 2009 the Bucharest Court of Appeal allowed the applicant ’ s appeal on points of law, quashed the judgment of 16 April 2009 and ordered a retrial. It noted of its own motion that the interlocutory judgment of 13 April 2009 postponing the date of the decision was missing from the file. Therefore, the appellate court was unable to determine whether the applicant ’ s right to a fair trial and of access to court had been observed by the judicial authorities. 24. On 28 July 2009 the case file was re-registered on the Bucharest County Court ’ s docket. 25. By interlocutory judgments of 14 September, 7 October and 4 November 2009 the Bucharest County Court adjourned the proceedings in order to examine a request by one of the judges to abstain; to allow the parties to submit written observations and evidence, including documents obtained by the applicant from the U.S. State Department attesting that the unlawful failure to return children to the U.S. was a federal offence; and to deliberate. 26. By a judgment of 24 November 2009, following a second set of proceedings, the Bucharest County Court dismissed the applicant ’ s action. It acknowledged, by referring also to the decision of the U.S. court of 1 May 2007, that the applicant shared the custody of his children, that their removal from the U.S. had been unlawful and that their return to that country in spite of the applicant ’ s wife ’ s claims of inter alia physical corrections applied to the children, would not expose them to physical and psychological harm within the meaning of Article 13 § 1 (b) of the Hague Convention. However, by relying on the Elisa Perez-Vera Explanatory Report, the children ’ s views had been considered decisive for the court ’ s decision to dismiss the applicant ’ s action. 27. The applicant, through his legal representative, and the Romanian Ministry of Justice appealed on points of law against the judgment. They argued, inter alia, that the County Court had failed to acknowledge that by unlawfully removing the children from the U.S., their mother had breached U.S. laws. Moreover, the court had ignored the U.S. legislation and the decisions of the U.S. courts. They were wrong to have considered as conclusive the views of children who had not attained an age and a degree of maturity sufficient for their views to be taken into account. Furthermore, the courts had misinterpreted the provisions of the Hague Convention and of the domestic legislation. Lastly, by dismissing his action, the Romanian courts had transferred the jurisdiction of the U.S. courts concerning divorce and custody matters to the Braşov District Court. 28. On 12 February 2010, relying on Article 11 of the Hague Convention, the applicant submitted a request for a statement on the delay in the proceedings instituted by him for the return of his children with the Bucharest County Court. He argued that the repeated delays caused by the Romanian authorities in examining his case, including by not respecting the statutory ten - day time-limit for the reasoning of the judgment, had breached his right to a trial within a reasonable time guaranteed by Article 6 of the European Convention on Human Rights. 29. On 25 February 2010 the Bucharest County Court acknowledged the applicant ’ s request of 12 February 2010 and informed him that the judgment it had delivered on 24 November 2009 had been reasoned and communicated to the parties and the case file had been archived on 23 February 2010. 30. By interlocutory judgments of 18, 25 and 29 March 2010 the Bucharest Court of Appeal adjourned the proceedings for deliberations and in order to allow the applicant ’ s wife to submit written observations. 31. By a final judgment of 25 March 2010 the Bucharest Court of Appeal dismissed the applicant ’ s appeal on points of law. It held that, although the children had dual nationality, they had been born and had resided in the U.S. In addition, there was no evidence in the file that the applicant had not had custody rights over them or that he had not exercised them immediately prior to their departure. Consequently, their retention in Romania by their mother against the applicant ’ s will had been unlawful. However, it noted that the provisions of the Hague Convention, as interpreted also by the Elisa Perez-Vera Explanatory Report, suggested that the best interests of the children were at the heart of the unlawful removal principles regulated by the said Convention and the exceptions thereto. Consequently, the lower court ’ s decision to refuse the return of the children to the U.S. by relying on Article 13 § 2 of the Hague Convention – after examining both parties ’ submissions and the particular schooling and extra ‑ curricular circumstances of the children, and declaring the mother ’ s refusal to return them unlawful – was not contradictory and did not amount to a misinterpretation of the Hague Convention. 32. The court further noted that according to the available evidence that the parties had wished for their children to maintain strong ties with Romania. However, it dismissed the applicant ’ s wife ’ s argument that through his actions and behavior at the moment of their departure from the U.S., the applicant had agreed to settle the children ’ s residence in Romania and that therefore the retention had been lawful within the meaning of Article 13 § 1(a) of the Hague Convention. At the same time, the refusal to order the return of the children was based on Article 13 § 2 of the Hague Convention; it did not amount to a transfer of jurisdiction to the Romanian courts in respect of custody matters because the Hague Convention itself provided for the refusal to return in exceptional circumstances and gave precedent to the child ’ s best interest. The decision of the lower court could not change the fact that the parties and their children were also Romanian nationals, a factor that may be considered relevant by a court when determining its competence to examining the custody proceedings; something that this court was not lawfully allowed to do. 33. Moreover, the children, the eldest of whom was approximately twelve years old, had been heard by the first-instance court in the presence of a psychologist and after counselling sessions. They had all freely and unequivocal stated, in the absence of any parents or relatives, that they did not wish to return to the U.S. The children had shown a sufficient degree of maturity in expressing their opinions. They understood their situation and made logical assessments which were not plagued by contradictions concerning their relationship with their parents, their future perspectives in the two countries and their views on family life. In this context, the argument that the twins were under ten years old at the time and that therefore their opinions could not be considered relevant for the case was unfounded. In addition, the lower court ’ s reliance on Article 13 § 2 of the Hague Convention was also justified by A.H.B. ’ s clear refusal to return to the U.S. Her refusal was compelling and had been expressed at an age and maturity which fulfilled the requirements set out in Article 13 § 2 of the Hague Convention. According to the evidence and the psychological evaluation reports available in the case file, the connection between the three siblings was very strong. Consequently, an assessment that the twins did not show a sufficient degree of maturity in expressing their opinions would not serve the best interests of the children. A separation of the siblings would be traumatic and would have a detrimental impact on their future psychological development. Also, according to the conclusions of the psychological evaluation reports the children ’ s separation from the current environment would result in a serious risk for them. Furthermore, there was no evidence in the file to support the applicant ’ s argument that his wife had denied him personal relations with his children and had deprived him of his family life. In addition, the present case did not concern custody rights; consequently, the court dismissed the applicant ’ s argument that under the domestic legislation it should not attach more weight to the children ’ s statements than to those of the parent exercising his parental rights or that by doing so it had discriminated against him in relation to his wife. 34. By attaching more weight to the children ’ s best interest, the court further held that the return of the children to the U.S. against their will could have only destabilized them and subjected them to new pressure, which could have negatively influenced their future development, given that the relationship between their parents had radically changed since they had left the U.S. Lastly, the Court of Appeal considered that the first-instance court had correctly interpreted the provisions of the Hague Convention. It had not misinterpreted the provisions of Article 12 § § 1 and 2 of the Hague Convention, given that its decision had been based on the best interests of the children, as required by Article 13 § 2. In addition, it considered that the first-instance court would have been forced to order the return of the children only if after it had examined the circumstances of the new environment the children enjoyed, it would have found that their health and future development had been endangered. C. Divorce - and - custody proceedings conducted in Romania 35. By an interlocutory judgment of 20 February 2009 the Braşov District Court allowed the parties ’ request seeking the suspension of the custody and divorce proceedings pending the outcome of the Hague Convention proceedings, and ordered the postponement of the trial. 36. By an interlocutory judgment of 18 June 2010 the Braşov District Court reopened the divorce - and - custody proceedings at the parties ’ request and allowed them to submit documentary and testimonial evidence. In addition, it ordered a social inquiry report on the applicant ’ s living conditions in the U.S. through an international rogatory commission. 37. On 30 September 2010 the Romanian Ministry of Justice informed the Braşov District Court that it had forwarded the court ’ s request for a social inquiry at the applicant ’ s home in the U.S. to the relevant American authorities with the aid of the U.S. State Department. At the same time the Ministry of Justice informed the court that the international rogatory commission proceedings would take between six months and a year. 38. By interlocutory judgments of 13 December 2010, and 18 March and 10 June 2011, the Braşov District Court adjourned the proceedings repeatedly in order to allow the parties to submit evidence and for procedural reasons. In addition, it dismissed the applicant ’ s request to reiterate its request for a social inquiry at his home through the international rogatory commission proceedings on account of the information note of 30 September 2010. At the same time it allowed the applicant ’ s request to adjourn the proceedings for a longer period of time pending the receipt of documents requested from the U.S. 39. At the hearing of 2 September 2011 the applicant raised a preliminary objection, arguing that under the Hague Convention and Council Regulation no. 2201/2003 of 27 November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial and parental responsibility matters (“the Council Regulation”), the Romanian courts did not retain jurisdiction in respect of divorce - and - custody proceedings as a similar action was pending before the U.S. courts. In addition, the children ’ s habitual residence prior to their unlawful removal was in the U.S. Consequently, the courts in the U.S. retained jurisdiction in respect of child ‑ custody matters. Lastly, the U.S. courts had issued an injunction forbidding the removal of the children from their jurisdiction. 40. By an interlocutory judgment delivered the same day, the Braşov District Court dismissed the applicant ’ s preliminary objection. It held that under the relevant domestic legislation the Romanian courts had jurisdiction in respect of proceedings concerning divorce and custody matters instituted by Romanian citizens living abroad. The applicant, his wife and their children were Romanian citizens and their civil - status papers had been registered in Romania. In addition, the Romanian courts had dismissed the applicant ’ s action seeking the return of his children to the U.S. The children had been residing in Romania with their mother since September 2008 and were well adapted to their new living conditions. Consequently, under the Hague Convention the jurisdiction of the U.S. courts had ceased from the time the children had been settled in Romania, that is after the Romanian courts had dismissed the applicant ’ s request for the return of his children. Moreover, the Council Regulation could not be applied to the present case because it concerned only situations where both parties were European residents. The court adjourned the proceedings for procedural reasons. 41. By interlocutory judgments of 30 September and 11 November 2011 the Braşov District Court ordered that the separate set of proceedings which D.B. had instituted against the applicant seeking an injunction for his agreement to the children being issued a Romanian passport and to their travelling abroad be joined to the divorce - and - custody proceedings. In addition, the court allowed the parties ’ request for evidence, including testimonial evidence. It adjourned the proceedings pending the submission of evidence and for procedural reasons. 42. By an interlocutory judgment of 21 November 2011 the Braşov District Court dismissed the applicant ’ s preliminary objection concerning the Romanian courts ’ lack of jurisdiction in respect of the proceedings regarding the injunction requested by his wife. It held that the proceedings were subsidiary to the divorce - and - custody proceedings and that the court had already ruled that the Romanian courts had jurisdiction in matrimonial and custody matters. The court reiterated the arguments it had relied on in the interlocutory judgment of 2 September 2011. It dismissed the application for the suspension of the proceedings before the Romanian courts pending the outcome of the divorce proceedings instituted by the applicant against his wife before the U.S. courts. It held that the suspension request was unfounded given the provisions of the Council Regulation. Also, it had already been ruled that the Romanian courts held jurisdiction in respect of the proceedings to which the applicant was party, and the Superior Court of Forsyth County in the U.S. had acknowledged that decision. The court adjourned the proceedings pending the submission of evidence by the parties. 43. By interlocutory judgments of 23 January, 5 March, 14 May, 30 July and 24 September 2012 the Braşov District Court adjourned the proceedings pending the submission of evidence by the parties, the receipt of information about the applicant ’ s income from his employer and the outcome of the international rogatory commission proceedings conducted by the Ministry of Justice in order to hear the foreign nationals chosen by the applicant to testify on his behalf. 44. By an interlocutory judgment of 27 May 2013 the Braşov District Court adjourned the proceedings in order to allow the applicant to submit a written declaration stating his intention or refusal to pay for the travel expenses of the witnesses he had asked for and who were living abroad. 45. By an interlocutory judgment of 10 June 2013 the Braşov District Court dismissed the applicant ’ s request that the court order the Ministries of Justice and Foreign Affairs to contact the U.S. authorities in order to hear the American witnesses selected by the applicant. It held that since the proceedings had started, it had repeatedly issued such orders without any results for the case. In addition, Article 1 of the Hague Convention acknowledged that the civil - procedure rules applied to the administration of evidence before the first - instance court. Consequently, it turned down the applicant ’ s request to have American witnesses heard because he had refused to pay their travel expenses to Romania in order to appear before the court. Lastly, it allowed the applicant ’ s request to adjourn the proceedings pending the submission by his wife of documentary evidence regarding her income. 46. By an interlocutory judgment of 20 June 2013 the Braşov District Court dismissed a request submitted by the applicant to replace the foreign witnesses who could not be heard, on the ground that the lawful requirements for witness replacement had not been met. It adjourned the proceedings for deliberations. 47. By a judgment of 26 June 2013 the Braşov District Court allowed in part an action lodged by the applicant ’ s wife. It took into account the children ’ s best interests and relied on the children ’ s testimonies of 14 December 2012, other documentary and testimonial evidence and a social inquiry report produced by the Braşov Guardianship Authority in respect of the children ’ s living conditions, their social and educational development, and their relationship with their father and his family since their departure from the U.S. It held that both spouses were responsible for the divorce. Also, it considered that a request by D.B. to maintain her married name even after the divorce had been finalised was in her best interests and those of the children. In awarding sole custody of the children to their mother, it ordered that the children live with their mother and that their father pay monthly maintenance. Moreover, it ordered the applicant to agree to passports being issued in his children ’ s names and to their occasional travel abroad accompanied by their mother. It granted the applicant visiting rights at their mother ’ s home. The applicant appealed against the judgment. 48. By a judgment of 13 December 2013 the Braşov County Court allowed in part the applicant ’ s appeal and amended the judgment of the first-instance court. In particular, it awarded the applicant joint custody of the children and yearly visiting rights for a month during the summer holiday and for a week during the winter holiday. It also granted the applicant the right to take the children to his home in Romania or the U.S. or to leave the country with them during the periods they were allowed to spend time together. The applicant ’ s wife appealed on points of law against the judgment. 49. By a final judgment of 12 March 2014 the Braşov Court of Appeal allowed his wife ’ s appeal on points of law against the judgment of 13 December 2013, quashed the said judgment and upheld the judgment delivered by the first-instance court on 26 June 2013. | The applicant and his wife, both Romanian and American national, had three children, born in 1998 and 2000. They all lived in the United States of America until September 2008, when the mother took the children to Romania, without ever returning. The applicant alleged in particular that the Romanian courts, which had in March 2014 awarded sole custody of the children to their mother, had misinterpreted the provisions of the Hague Convention of 25 October 1980, relying exclusively on the opinion of his children to deny him their return to the United States. |
46 | Applications lodged by the parent whose child had been abducted by the other parent | I. THE CIRCUMSTANCES OF THE CASE A. Background 5. The applicant was born in 1967 and lives in Madrid. 6. He was living in Spain together with a Slovak national, to whom he was not married. On 27 May 2009 a child was born to the applicant ’ s partner (“the mother”) in Slovakia. The applicant is the father of the child. The child is both a Slovak and a Spanish national. 7. Following the birth, the applicant, the mother and the child lived together with the applicant in Spain until 21 July 2010, when the mother took the child from Spain to Slovakia. Neither of them has ever returned. 8. On 31 August 2010 the mother petitioned the District Court ( Okresný súd ) in Martin (Slovakia) to make an order governing the exercise of parental rights and responsibilities in respect of the child. At the same time, she requested that, pending the final outcome of the proceedings, the District Court deal with these matters by way of an interim order. 9. On 14 September 2010 the District Court issued an interim order, pursuant to which the child was placed with the mother and the applicant was ordered to contribute towards the child ’ s maintenance pending the outcome of the proceedings on the merits. It was submitted by the applicant and not disputed by the Government that the written version of the interim order was not served on the applicant before 9 February 2011 and that, upon its service, the applicant was contributing to the child ’ s maintenance as ordered. 10. The interim order remained in force until the proceedings on the merits of the mother ’ s petition were terminated by the District Court on 28 February 2011 and, following the mother ’ s appeal, by the Regional Court ( Krajský súd ) in Žilina (Slovakia) on 30 June 2011. These courts found that the relevant law for the determination of jurisdiction in the matter was Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“Regulation No. 220 1 /2003”) and that, under Regulation No. 220 1 /2003, the crucial criterion for establishing jurisdiction over the matter was the place of habitual residence of the child. Having regard to the conclusions that had meanwhile been reached in that respect by the Bratislava I (Slovakia) District Court and the Bratislava Regional Court (see paragraphs 2 0 and 2 3 below), the place of the child ’ s habitual residence was Spain, and the Slovakian courts had no jurisdiction to entertain the matter. B. Hague Convention proceedings 11. Meanwhile, on 5 August 2010, the applicant had complained about the removal and retention of the child by the mother before the Spanish Central Authority responsible for implementing the Hague Convention. 12. Subsequently, on 21 October 2010, the applicant lodged an application with the Bratislava I District Court under the Hague Convention and Regulation No. 220 1 /2003. In his application, he argued that the child ’ s habitual residence was in Spain and that the mother had removed or retained the child wrongfully within the meaning of Article 3 of the Hague Convention. Accordingly, the applicant sought an order for the child ’ s return to Spain. 13. On 3 November 2010 the District Court appointed the social services department for the city of Martin to represent the child ’ s interests in the proceedings. 14. The District Court called a hearing for 11 November 2010. However, two days before that date, that is to say on 9 November 2010, the mother ’ s lawyer asked for an adjournment on the grounds that the summons had only been received on that day, that a copy of the application had been served on them without enclosures, and that they had consequently not had adequate time and facilities to prepare. 15. On 10 November 2010 the District Court informed the mother ’ s lawyer, in response to her request of the previous day, that, in view of the short time limits in proceedings under the Hague Convention, it was not possible to have the hearing postponed and that it would take place. On the same day the mother ’ s lawyer inspected the case file; informed the court that, nevertheless, and on the same grounds as previously relied upon, they would not appear; and insisted that the hearing be adjourned. 16. On 11 November 2010 the District Court held a hearing as scheduled, in the presence of the applicant and his lawyer, who both made oral submissions. Neither the mother, nor the child, nor the social services department on the child ’ s behalf were present. The hearing was adjourned until 18 November 2010. 17. On 16 November 2010 the mother ’ s lawyer again inspected the case file and, on 18 November 2010, she lodged extensive written submissions. She explained the development of her client ’ s relationship with the applicant and described it. She submitted that, in connection with her falling out with the applicant, the mother had sought care from a mental health specialist; and that the child was closely attached to the mother and their separation was unthinkable. In addition, she submitted a letter from an association in Slovakia supporting women in need attesting that since 26 August 2010 the mother had been receiving their support in connection with allegations she had made that the applicant had been mistreating her. While admitting that there was no risk of direct harm to the child, the lawyer submitted that the applicant ’ s behaviour towards the mother should nonetheless be taken into account. 18. On 18 November 2010 the District Court held a hearing in the presence of the parties and their legal representatives, who all made oral submissions. The social services department on behalf of the child were not present. 19. At the conclusion of the hearing, the District Court allowed the applicant ’ s claim and ordered the child ’ s return to Spain. The order had the procedural form of a decision ( uznesenie ). 20. The District Court established that the child ’ s habitual residence was in Spain, that the mother had removed the child from there wrongfully, and that there were no obstacles to the return of the child there within the meaning of the Hague Convention. In addition, the District Court pointed out that its ruling in the present proceedings had nothing to do with questions of care and residence. 21. As to the mother ’ s specific claim that the return of the child should be declined in view of the applicant ’ s behaviour toward the mother, the District Court found that she had failed to substantiate her allegations. The letter from the association that had been offering care and support to the mother was solely based on the mother ’ s allegations and as such could not serve to support those allegations. In her own words, the applicant had never mistreated her physically and there was nothing to support her allegations of psychological mistreatment. In that respect, the District Court found it of relevance that the mother had not brought the alleged psychological mistreatment to the attention of the Spanish authorities at the time when it had allegedly taken place. 22. On 29 December 2010 the mother filed an appeal ( odvolanie ) with the Bratislava Regional Court. In the first place, she reiterated her argument concerning the time and facilities made available for preparation prior to the hearing of 11 November. Moreover, she challenged the District Court ’ s conclusions as regards the letter from the association that had been providing her with care and support and contended that the Distract Court had failed to obtain a report from the mental health specialist treating her. In addition, she argued that the District Court had failed to take into account the loss which the child would suffer by separation from the mother. In that respect, she relied on a written statement of the court-appointed representative for the child. Moreover, the mother claimed that risk within the meaning of Article 13 (b) of the Hague Convention did not have to be imminent, but could lie in the future. Lastly, in connection with the District Court ’ s conclusions as regards the habitual residence of the child and the wrongfulness of the child ’ s removal, the mother submitted that it had been her and not the applicant who had actually been taking care of the child and was better disposed and equipped to do so. 23. On 21 January 2011, in the procedural form of a decision, the Regional Court dismissed the appeal and upheld the first-instance decision. The Regional Court fully endorsed the District Court ’ s reasoning and conclusions. In addition, it pointed out that the object and purpose of the Hague Convention was to ensure immediate restoration of the status quo which has been unlawfully changed by a person who wrongfully removes or retains a child by returning the child to the country of his or her habitual residence so that questions on the merits concerning care and residence may be examined by the court in that country. The purpose of the present proceedings had nothing to do with such substantive questions and they fell within the exclusive jurisdiction of the courts of the country of the child ’ s habitual residence. The Regional Court further held that the Hague Convention and Regulation No. 220 1 /2003 represented a departure from the traditional private-international-law principle of nationality towards a principle based on the child ’ s habitual residence. On the facts of the case, the Regional Court found no merit in the mother ’ s argument concerning the time and facilities given for preparation prior to the hearing of 11 November 2010, pointing out that time-limits under the Hague Convention had precedence over time-limits under the national procedural rules; that the mother and her lawyer had been duly summoned to the hearings; and that they had been granted ample opportunities to familiarise themselves with the case and to answer it. As to the mother ’ s complaints of the District Court ’ s alleged failure to obtain evidence she had sought to have adduced, the Regional Court pointed out that, under Article 13 of the Hague Convention, in return proceedings it was the person opposing the return who bore the burden of proof. Moreover, and in any event, some of the evidence adduced by the mother bore on questions falling outside of the scope of the present proceedings. As to the mother ’ s specific allegations of mistreatment, these were contradicted by the contents of the case file, in particular by copies of her e -mail communications with the applicant and his sister, as well as by photographs of the mother, the child and the applicant from the period between the child ’ s birth and her wrongful removal from Spain. Lastly, the Regional Court held that the order for the child ’ s return by no means implied her separation from the mother, as the mother was free to return to Spain with the child and to assert her claims in respect of the child before the courts having jurisdiction to entertain them. 24. The order for the child ’ s return to Spain became final and binding on 4 February 2011. C. Extraordinary remedies 1. Appeal on points of law 25. Subsequently, on 15 February 2011, the mother lodged an appeal on points of law ( dovolanie ) with the Supreme Court ( Najvyšší súd ) of Slovakia. The applicant was then allowed to submit observations in reply. 26. On 22 March 2011 the Supreme Court declared the appeal inadmissible. As to the applicable principles, it acknowledged that, in Hague Convention proceedings, the courts are duty-bound diligently to establish the facts, and not to limit themselves to the evidence adduced by a single party to the proceedings. As to the specific facts of the present case, the Supreme Court observed that the applicant ’ s application for the commencement of the Hague Convention proceedings had been served on the mother without its enclosures. However, it held that this error had quickly been corrected when, on 10 November 2010, the mother ’ s lawyer had inspected the case file (see paragraphs 1 1, 1 4 and 1 5 above). Moreover, the Supreme Court held that it had been wrong of the Bratislava I District Court to hold the hearing of 11 November 2010 in the absence of the mother and her lawyer and without giving them adequate time and facilities to prepare. However, that error had also been rectified by hearing the case again on 18 November 2010. At that hearing, the mother had made extensive submissions and, in addition, she had had further ample opportunity to make her case before the Court of Appeal. Finally, as to the child, whose court - appointed representative (see paragraph 1 3 above) had failed to show up without any excuse at either of those hearings, the Supreme Court observed that the representative had duly been summoned and held that, in the circumstances, the representative ’ s absence had been no obstacle to the District Court proceeding with the determination of the case. 2. Extraordinary appeal on points of law 27. In parallel to her appeal on points of law, the mother also petitioned the Public Prosecution Service (“PPS”) to exercise their discretionary power to challenge the lower courts ’ decisions by way of an extraordinary appeal on points of law ( mimoriadne dovolanie ). 28. The PPS decided not to act upon the petition, on the grounds that the mother ’ s appeal on points of law and her later petition for reopening (see paragraphs 29 et seq. below) were still pending, these remedies having precedence over an extraordinary appeal on points of law. This position was upheld in a letter of the Bratislava Regional Office of the PPS of 12 January 2012. In that letter, the PPS endorsed the reasoning behind the judgment of the Supreme Court of 22 March 2011 (see paragraph 2 6 above) and, in addition, expressed a detailed and reasoned opinion that the order for the child ’ s return was correct on merits. 3. Petition for reopening 29. In addition to the extraordinary remedies mentioned above, on 20 June 2011 the mother filed a petition to have the Hague Convention proceedings reopened ( návrh na obnovu konania ). 30. The petition was dismissed by the Bratislava I District Court on 5 August 2011 and, following the mother ’ s appeal, by the Bratislava Regional Court on 25 October 2011. The grounds for the rejection were that the Hague Convention proceedings had been concluded in the procedural form of a decision ( see paragraph 19 and 2 3 above ), as opposed to a judgment ( rozsudok ), and that, in the circumstances, the reopening of proceedings concluded by a decision was not permissible by law (Article 228 of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – the “CCP” ). D. Enforcement 31. By letter of 12 February 2011 the applicant invited the mother to abide by the return order, to no avail. 32. On 2 2 February 2011 the applicant applied to the Martin District Court for a warrant to have the return order enforced, pointing out that the order had become final and binding on 4 February 2011 (see paragraph 2 4 above). 33. On 16 March 2011 the District Court called upon the mother to abide by the return order voluntarily and summoned her for an interview on 31 March 2011. In response, the mother asked for the proceedings to be stayed in view of her extraordinary appeal and petition for reopening that were still pending (see paragraphs 2 7 – 3 0 above), and she did not show up for the interview. 34. On 17 March 2011 the District Court appointed the Martin Social Services Department as the representative of the child ’ s interests for the purposes of the enforcement proceedings. 35. The District Court heard the enforcement case on 28 April and 13 May 2011. At a further hearing called specifically for that purpose on 16 May 2011, it delivered a warrant for the enforcement of the return order and authorised the applicant to carry out the enforcement. 36. The mother and the child ’ s court-appointed representative appealed to the Žilina Regional Court, which – on 7 September 2011 – decided to stay the proceedings on their appeal. It did so observing that, in the meantime, the mother had petitioned for reopening of the Hague Convention proceedings (see paragraph 29 above ) and that, if her petition was granted, the enforcement proceedings would be stayed by operation of law. 37. Following the dismissal of the mother ’ s petition for reopening (see paragraph 3 0 above), on 24 November 2011 the Regional Court resumed the appeal proceedings, only to stay them again, on 1 December 2011, this time in view of the mother ’ s petition to the PPS for an extraordinary appeal on points of law (see paragraph 2 7 above), which was still pending. 38. Following the dismissal by the PPS of the mother ’ s petition for an extraordinary appeal (see paragraph 2 8 above), the appeal proceedings were again stayed on 2 February 2012, this time on the basis of the judgment ( nález ) of the Constitutional Court ( Ústavný súd ) of 13 December 2011 (see paragraphs 4 2 et seq. below). E. Constitutional complaint 39. On 1 July 2011, acting in her own name as well as that of the child, the mother challenged the decision of the Supreme Court of 22 March 2011 to reject the appeal on points of law (see paragraph 2 6 above) by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). 40. The complaint was directed against the Supreme Court. The applicant was neither a party to the ensuing proceedings nor informed of them. 41. On 18 October 2011 the Constitutional Court declared the complaint admissible. 42. On 13 December 2011 it gave a judgment dismissing the complaint on the merits in so far as it had been brought by the mother and, at the same time, in so far as the child was concerned, finding that the Supreme Court had violated the child ’ s rights as specified below. 43. In particular, a violation of the child ’ s rights was found under Articles 46 § 1 (judicial protection), 47 § 3 (procedural equality) and 48 § 2 (hearing in one ’ s presence and opportunity to comment on evidence) of the Constitution; Article 6 § 1 (fairness) of the Convention; and Articles 3 §§ 1 (consideration of the best interests of the child) and 2 (protection and care necessary for the child ’ s well-being) and 12 §§ 1 and 2 ( expression of the child ’ s views and being heard in judicial proceedings) of the Convention on the Rights of the Child. 44. The Constitutional Court endorsed the Supreme Court ’ s view that the District Court ’ s error in respect of the mother had been rectified at the hearing of 18 November 2010. 45. In so far as the child was concerned, however, the child ’ s views were to have been expressed by the court-appointed representative, whose failure to appear had not been a valid reason for ruling on the matter without having the child ’ s views established. There were tools, including procedural fines, for ensuring the proper involvement of the court-appointed representative in the proceedings. 46. Consequently, the Constitutional Court quashed the challenged decision and remitted the mother ’ s appeal on points of law to the Supreme Court for re-examination. 47. The judgment was final and not amenable to appeal. F. Subsequent developments 1. Decisions 48. On 22 March 2012 the Supreme Court re-examined the mother ’ s appeal on points of law of 15 February 2011 (see paragraph 2 5 above) against the return order. Being bound by the Constitutional Court ’ s assessment of the case, it quashed the order and remitted the case to the first-instance court with a view to having the views of the child established by means appropriate for the child ’ s age and maturity. 49. The Bratislava I District Court heard the case on 6 and 27 June 2012. A further hearing was scheduled for 18 July 2012, but it was cancelled on the grounds that a few days before, the mother ’ s lawyer had been appointed the head of the Slovakian Central Authority responsible for implementing the Hague Convention. Consequently, the lawyer had had to resign and the mother had appointed a new lawyer. At a subsequent hearing on 22 August 2012, the District Court ruled that the child was not to be returned to Spain. This ruling was upheld on 20 November 2012 by the Bratislava Regional Court following the applicant ’ s appeal. 2. Reasoning 50. The courts ’ reasoning may be summarised as follows. The child ’ s habitual residence for the purposes of the Hague Convention proceedings was Spain and her retention by the mother in Slovakia had been wrongful. However, in view of the mother ’ s objections, it had to be examined whether there was any grave risk that the child ’ s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation within the meaning of Article 13 (b) of the Hague Convention. 51. For that purpose, in addition to the other evidence taken, the District Court had interviewed the child, aged three at the time, and the child ’ s court ‑ appointed representative, and the courts had also examined complex documentary evidence, including a report from the Spanish Central Authority as to the circumstances to which the child would be returned there. 52. The courts were guided by the best interests of the child, which they considered to be twofold, namely the interest in preserving relations with the child ’ s family and the interest in developing in a healthy environment. 53. The courts found that the child was attached to the mother and, in view of the child ’ s age, also to the child ’ s home environment, to which the child had been introduced when it had been fourteen months ’ old. The child only spoke Slovak, attended a kindergarten in Slovakia and was part of an extended family circle there. The courts concluded that the child ’ s removal from this environment would give rise to the risk of considerable detriment to the child and that, in the circumstances, the child ’ s best interests prevailed over those of the applicant. As regards the applicant, the courts concluded that it had been two years since he had seen the child, that he had not been displaying a genuine interest in the child and that he had not been contributing to the child ’ s maintenance. A separation of the child from the mother did not come in question. However, the mother ’ s vulnerable financial situation made it impossible to ensure proper care for the child in Spain. The child ’ s removal to Spain with the mother would thus expose the child to the risk of living in poverty. 54. In view of those circumstances, the courts examined whether adequate arrangements within the meaning of Article 11 § 4 of the Regulation No. 2201/2003 had been made to secure the protection of the child on its return. In that respect, the courts expressed the view that adequate arrangements had to eliminate with the highest possible probability the risks that the child would face and that they should entail the provision of low-rent housing for the mother and the child, free of charge specialised social and psychological counselling, and a detailed explanation of the welfare benefits and supervision by social services available to the mother in Spain. 55. The courts held that, in so far as any guarantees had been identified by the Spanish central authority, they were not specific enough. In so far as the applicant had been offering to cover the costs of the mother ’ s and the child ’ s air travel, the child ’ s health insurance and kindergarten in Spain, and a room free of charge in his apartment there, these guarantees were found not to be adequate and the courts noted that their “ doubts as to whether he would actually keep his promises had not been assuaged ”. 56. The courts considered that they had established an overall picture of the social environment to which the child would return and had thoroughly examined the entire family situation. Based on the findings mentioned above, they concluded that the child ’ s return under the Hague Convention was not permissible. | In May 2009 the applicant had a child with a Slovak national. They lived together in Spain until July 2010, when the mother took the child from Spain to Slovakia, without ever returning. Subsequent to her departure, he initiated proceedings in Slovakia against the mother for an order for the child’s return to Spain under the Hague Convention of 25 October 1980. The applicant complained that these proceedings had been arbitrarily interfered with by a judgment of the Constitutional Court of Slovakia, and that, as a result, he has been deprived of contact with his child for a protracted period of time. |
348 | Rape and sexual abuse | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1973 and lives in Mica. She has been diagnosed with a slight intellectual disability. A. The events of 20 May 2008 8. On 20 May 2008 around 7 p.m. the applicant was walking home from the village of Căpâlna, where she had been helping her husband all day in the fields. Near the village of Mica, she was approached by an unknown individual, identified later as T.F.S., who started walking alongside her and who tried unsuccessfully to engage her in conversation. 9. At some point, they met two men. One of them, whom the applicant knew by sight as I.L., stopped T.F.S. and asked him if he wanted to accompany him in order to finalise a transaction over a horse. T.F.S. replied that he would join him later. 10. In her statement to the police made later (see paragraph 17 below), the applicant described the subsequent events as follows: After the two men went away, T.F.S. continued walking along with her. He eventually offered her money and a mobile phone if she agreed to have oral sex with him. She refused saying that she was not “that kind of person” and added that she had a husband at home. T.F.S. continued following her and, as the applicant was telling him that he was wasting his time because she would not accept the proposal, he grabbed her by the right arm and the neck and dragged her close to a nearby cemetery. The applicant alleged that she was threatened by T.F.S. to obey, otherwise he would use the knife he had in his possession. He told her to undress and lie on the ground. In a state of shock, the applicant obeyed. Then T.F.S. raped her. After he finished, he told her that they would meet again and warned her not to tell anyone about the incident. He then left. 11. The applicant went straight to the police station in Mica. Nearby, she met I.S., who had previously been the landlady of a local police officer. The applicant told I.S. that she had been raped by a man wearing black clothes. I.S. advised the applicant not to tell anyone about what had happened, as she would make a fool of herself in front of the whole village because she had no witnesses. The applicant nevertheless knocked on the window and then on the door of the police station. As no one answered, she went home and showered. Later that evening she talked to her mother and to a friend, explaining to them what had happened. Next day, when her husband came home from the field where he had spent the night, she told him that she had been raped. B. The criminal complaint and the investigation 12. In the morning of 21 May 2008 the applicant went to the local police in Mica accompanied by her husband and lodged a criminal complaint. She complained that she had been threatened with a knife by an unknown man and forced to have sexual intercourse with him. 13. The same day the police interrogated I.L., who confirmed he had seen the applicant the previous day walking with T.F.S. He stated that he had not noticed anything special in her behaviour. 14. Later that day T.F.S. gave a statement to the police. He admitted having suggested sexual intercourse to the applicant, but claimed that the applicant ’ s reply was that she was afraid that her husband would find out. He confirmed that the act had taken place on the side of the road but claimed that it had been consensual. He was then allowed to leave. 15. When they checked T.F.S. ’ s criminal record the police found out that he had a previous conviction for rape. 16. On 22 May 2008 the applicant went to the Târgu-Mureş Institute of Forensic Medicine for examination. The report drafted on that occasion concluded that the applicant had two bruises on her right arm consistent with a compression between two hard surfaces, resulting in temporary disability of two to three days. It also stated that the applicant did not have any “rape-specific injuries” in her genital area. 17. On 3 June 2008 the applicant gave a second statement to the police. She gave a detailed description of the events of 20 May, and mentioned that after T.F.S. had grabbed her violently and dragged her along the ground, she had entered into a state of shock, was afraid for her life and could neither react nor resist. She further mentioned that she feared that the aggressor might have given her a venereal infection. She concluded that ever since the attack she had been in a constant state of distress and was afraid to leave the house, fearing that the attacker would come and find her because she had dared to complain to the police. For these reasons, she requested protection for herself and her family. 18. On 9 July 2008 the police interrogated I.S., who confirmed that she had seen the applicant arriving at the police station on 20 May 2008 to lodge a complaint of rape and that she had seen the applicant leaving, as the police station was closed. 19. On several occasions in June, July and August, T.F.S. was searched for by the police for further statements, but was not found at his house. 20. On 21 January 2009 the Prosecutor ’ s Office attached to the Târnăveni District Court decided not to open criminal proceedings, as the acts committed by T.F.S. did not constitute a crime. The prosecutor relied on the following elements: I.L. had testified that he had not noticed anything unusual when he had met the applicant and T.F.S. on 20 May, prior to the alleged rape; the applicant had failed to ask for help although, prior to the sexual intercourse, she and T.F.S. must have passed in front of a petrol station on their way to the village; the forensic medical examination had revealed no injury in the genital area; as regards the bruises on the applicant ’ s right arm, the forensic report provided no indication as to when they had been caused; no other injuries had been found on the applicant ’ s body. 21. On 22 February 2009 the applicant made a complaint against the prosecutor ’ s decision to the chief prosecutor of the Prosecutor ’ s Office attached to the Târnăveni District Court. She reiterated that T.F.S. had threatened her that he would use a knife, and had violently grabbed her by the arm and throat, and that that was why she had complied with his orders. Furthermore, she mentioned that she had been advised by the police to withdraw her complaint, because there were no witnesses. She complained that after the police took her initial statement they had failed to provide her with information about her procedural rights as a victim. Subsequently, she had to call the 112 emergency services in order to find out that she needed to go to the forensic medicine institute for a medical examination. She also mentioned that when her husband went to the prosecutor ’ s office in order to submit the results of her medical exams, the case prosecutor had told him that the complaint had been withdrawn. She requested the prosecutor to ask for clarification of the forensic medical certificate as regards the possible date of the bruises found on her arm. She also requested that a psychiatric expert report be made in the case, in view of the fact that she was suffering from oligophrenia and depressive syndrome. The applicant also requested that witnesses, and in particular I.L., be reheard in more detail, and that the alleged perpetrator be subjected to a polygraph test. Lastly, she stated again that she was afraid for her life, and requested protection from the police for her and her family. A medical certificate dated 30 May 2008 indicating that she was suffering from first-degree oligophrenia with an IQ of 57 and depressive syndrome was attached to her complaint. 22. On 24 February 2009 the chief prosecutor rejected the applicant ’ s complaint, finding that the evidence available did not suggest that physical force had been used by T.F.S. to have sexual intercourse with the applicant. The prosecutor relied firstly on the fact that I.L. had not noticed anything unusual about the applicant or T.F.S. when he had met them, and secondly on the absence of injury to the applicant ’ s genital area. C. The trial 23. On 20 March 2009 the applicant, represented by her husband, complained about the prosecutors ’ decisions before the Târnăveni District Court. In her submissions, she stressed that T.F.S. had admitted having used force on her. She also claimed that during the reconstruction of the scene conducted by the Mica police, when she was showing the police officer how T.F.S. had grabbed her by the neck, the latter had “jumped at her” and stated furiously that he had not “grabbed her that hard”. The applicant stated that during the events of 20 May T.F.S. had constantly threatened that he would use the knife he had with him. She further complained about the attitude of the authorities who had investigated her complaint, mentioning that she had been advised by the police to withdraw her complaint because there were no witnesses and because “she was asking for it” and in any event “it did her good”. She requested the court to order a clarification of the forensic certificate in order to specify the possible date of the injuries on her arm. 24. On 6 May 2009 the Târnăveni District Court allowed the applicant ’ s complaint and decided to refer the case back to the prosecution with a view to opening criminal proceedings against T.F.S. The court found that the prosecutor ’ s conclusion to the effect that the sexual act had been consensual was unsupported by evidence. It further found that the lack of reference in the forensic certificate to the date of the applicant ’ s injuries should have led the prosecutor to investigate further in order to redress this omission. The court also stated that the absence of injury to the applicant ’ s genital area was consistent with the allegation of threat. Finally, the court criticised the prosecutor ’ s failure to consider the fact that the injuries to the applicant ’ s arm were consistent with being grabbed forcefully. 25. The court ordered the prosecutor to proceed to the following acts: a psychiatric examination in order to determine whether, having regard to the applicant ’ s diagnosis of oligophrenia, she was able to react or to fight back or whether she may have not been able to express her will; the re ‑ interrogation of I.S. in order to clarify the applicant ’ s state of mind when she had met and talked to this witness; a confrontation between the applicant and T.F.S. with a view to clarifying the contradictions in their statements with reference to the psychological and physical coercion; and a socio-moral assessment of the applicant to ascertain her behaviour in society and her level of credibility in the community. Finally, the court advised the prosecution to take into account the fact that T.F.S. had previously been convicted of rape and therefore may have been aware of the legal requirements for the existence of the crime of rape. 26. On 15 October 2009 the prosecutor attached to the Târnăveni District Court appealed on points of law ( recurs ) against the decision of 6 May 2009, on the grounds that the evidence the District Court had requested was irrelevant. A psychiatric evaluation of the victim, when more than seventeen months had passed since the incident, would no longer be conclusive. Similarly, neither the re-interrogation of I.S. nor a confrontation between the applicant and T.F.S. were necessary. Finally, the prosecutor stressed that, in the present case, the refusal to open criminal proceedings had been done on the ground that the act committed by T.F.S. lacked the elements defining the crime of rape. More specifically, in the absence of a connection between the injuries to the applicant ’ s arm and the alleged physical coercion, and in the absence of any injuries specific to the crime of rape in the genital area, the alleged physical coercion had not been proved. 27. The applicant was represented before the appeal court by an ex officio lawyer, appointed upon a request made by her husband. The lawyer stressed that the evidence ordered by the Târnăveni District Court in the decision of 6 May 2009 was extremely important to the case, and that failure to collect this evidence at the relevant time was the prosecution ’ s fault. She also pointed out that the applicant should have been given legal assistance ex officio during the investigation in order to adequately protect her procedural rights. 28. T.F.S. stated before the court that he agreed with the prosecutor ’ s appeal and “if the injured party thinks he is guilty, she should bring witnesses to prove it”. 29. On 11 February 2010 Mureş County Court allowed the prosecution ’ s appeal and rejected the applicant ’ s complaint with final effect. The court stated in particular that it was unnecessary to re-interrogate S.I., since in her first statement she had not mentioned having seen the applicant in a state of discomfort whilst confessing to her that she had been raped. The court further found that the forensic report did not support the applicant ’ s allegations, since, on the one hand, it did not reveal injuries specific to rape in the genital area, and, on the other, the injuries to the applicant ’ s arm were undated. It finally found both the conduct of a psychiatric assessment and the confrontation between the applicant and T.F.S to be unnecessary, and deemed a socio-moral assessment to be irrelevant. 30. As a result, the applicant was ordered to pay the court fees for the proceedings initiated by her before the first-instance court. | The applicant complained that the Romanian authorities had failed to investigate her allegation of rape properly and had breached their duty to provide effective legal protection against sexual abuse. She submitted that the authorities had also failed to protect her as a victim of crime as she had not had legal assistance or counselling and had been exposed to trauma which had violated her personal integrity during the criminal proceedings. |
174 | Deprivation of liberty and challenging the lawfulness of detention | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1996 and 1995 respectively. At the time of the introduction of the application the two applicants were detained in Safi Barracks Detention Centre, Safi, Malta. A. Background to the case 1. Mr Burhaan Abdullahi Elmi (the first applicant) 6. Mr Burhaan Abdullahi Elmi entered Malta in an irregular manner by boat on 16 August 2012. Upon arrival, he was registered by the immigration police and given an identification number (12U-029). During the registration process the immigration authorities asked the applicant to provide his personal details, including name, nationality, and age. He informed them that he was born in 1996 and therefore was sixteen years old. The Government claimed that he was seventeen years old. Although no interpreter was present the applicant was helped by some other irregular immigrants who had arrived with him and who could speak English. 7. He was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. The Return Decision stated that he was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because he was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the first applicant that his stay was being terminated and of the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant ’ s request for a period of voluntary departure had been rejected. It informed him that he would remain in custody until removal was affected and that an entry ban would be issued against him. The two documents further informed him of the right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days. 8. The first applicant claimed that the contents of the decision in English were not explained to him, and that he could not understand the language. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal, and the migrants translate for each other. 9. He was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language he did not understand. According to the Government the first applicant did not request a booklet in another language. 10. In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the first applicant was detained. He was originally detained in Warehouse 2 at Safi Barracks, and in 2013 was moved to Block B. 2. Mr Cabdulaahi Aweys Abubakar (the second applicant) 11. Mr Cabdulaahi Aweys Abubakar entered Malta in an irregular manner by boat on 31 August 2012. Upon arrival, he was registered by the immigration police and given an identification number (12W-062). During the registration process the immigration authorities asked the second applicant to provide his personal details, including name, nationality, and age. He informed them that he was born in 1995 and therefore was seventeen years old. 12. He was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. The Return Decision stated that he was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because he was in Malta “without means of subsistence and liable to become a charge on public funds” and “without leave granted by the principal Immigration Officer”. The Return Decision also informed the second applicant that his stay was being terminated and of the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant ’ s request for a period of voluntary departure had been rejected. It informed him that he would remain in custody until removal was affected and that an entry ban would be issued against him. The two documents further informed him of the right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days. 13. The second applicant claimed that the contents of the decision in English were not explained to him, and that he could not understand the language. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal, and the migrants translate for each other. 14. He was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language he did not understand. According to the Government the second applicant did not request a booklet in another language. 15. In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the second applicant was detained. He was originally detained in Warehouse 2 at Safi Barracks and in January 2013 was moved to Block B. B. Asylum proceedings 1. Mr Burhaan Abdullahi Elmi 16. A few days following Mr Burhaan Abdullahi Elmi ’ s arrival he was called for an information session provided by the Staff of the Office of the Refugee Commissioner. He was assisted in submitting the Preliminary Questionnaire (PQ), thereby registering his wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant domestic law, below). He stated on the form that he was sixteen years old. 2. Mr Cabdulaahi Aweys Abubakar 17. A few days following Mr Cabdulaahi Aweys Abubakar ’ s arrival he was called for an information session provided by the Staff of the Office of the Refugee Commissioner. He was assisted in submitting the PQ, thereby registering his wish to apply for asylum. He stated on the form that he was born in 1995 and was seventeen years old. C. The AWAS Age-Assessment Procedure 1. Mr Burhaan Abdullahi Elmi 18. In Mr Burhaan Abdullahi Elmi ’ s case, on 31 August 2012 he was referred to AWAS for age assessment. Within a few weeks of his arrival, three people from AWAS interviewed him. After the interview they informed him that as they could not confirm his minor age through the interview they would send him for a further age verification (FAV) test ‑ this would be an X -ray of the bones of the wrist. He was taken for the FAV test shortly after his interview. The first applicant claimed that, some weeks later, in or around October 2012, he was informed verbally by AWAS staff that he was found to be a minor and that he would be released shortly. 19. Until the date of the lodging of the application, that is eight months after his arrival in Malta, Mr Burhaan Abdullahi Elmi had not received a written decision informing him of the outcome of the age ‑ assessment procedure, and was still in detention. 2. Mr Cabdulaahi Aweys Abubakar 20. In Mr Cabdulaahi Aweys Abubakar ’ s case, on 18 September 2012 he was referred to AWAS for age assessment. He was interviewed by three people from AWAS in the third week of September 2012. After the interview they informed him that as they could not confirm his minor age through the interview they would send him for a FAV test. He was taken for the FAV test on 8 February 2013, five months after his interview with AWAS. The second applicant claimed that, some weeks later, in March 2013, he was informed verbally by AWAS staff that he was found to be a minor and that he would be released shortly. 21. Until the date of the lodging of the application, that is almost eight months after his arrival in Malta, Mr Cabdulaahi Aweys Abubakar had not received a written decision informing him of the outcome of the age ‑ assessment procedure, and was still in detention. 22. In the meantime both Mr Cabdulaahi Aweys Abubakar and members of the Jesuit Refugee Service who visited him in detention contacted AWAS on a number of occasions to inquire about the case, but no reply was forthcoming. D. Conditions of detention 1. Mr Burhaan Abdullahi Elmi 23. Mr Burhaan Abdullahi Elmi claims to have been held in very difficult conditions of detention with adult men of various nationalities. In Warehouse 2 and Block B, of Safi Detention Centre, physical conditions were basic and he often lacked the most basic necessities, including clothing, particularly shoes, which were only replaced every four months. Recreational activity was limited, and the yard was taken over by adult males, making it difficult for a young person like him to play with them. Educational activities were virtually non-existent. There was a lack of information, difficulties communicating with the outside world, and obstacles in obtaining the most basic services. Moreover, the centre was overcrowded and lacked protection from abuse and victimisation. Fights often broke out between men of different origins, nationalities or tribes, and he also referred to an episode where he had been beaten up by a fellow detainee. Noting there was no privacy or security, Mr Burhaan Abdullahi Elmi stressed that he felt very insecure in detention, and that his food was often stolen by detainees as was his blanket. He explained that Warehouse 2 was worse than Block B, it was like a big hall of people, hundreds of people, and he had a bunk bed in this big warehouse. He considered that the conditions in Warehouse 2 were very similar to those in Warehouse 1, which had been documented in a number of reports, including two CPT reports of 2007 and 2011. The first applicant also stated that he had difficulty communicating with a doctor in the absence of an interpreter and that he suffered from dizziness and eye problems. 2. Mr Cabdulaahi Aweys Abubakar 24. Mr Cabdulaahi Aweys Abubakar ’ s narration about the conditions of detention in Warehouse 2 and Block B are similar to those referred to by the first applicant. Mr Cabdulaahi Aweys Abubakar also noted that in the first two weeks of his detention he had had stomach pains, but no doctor was available, nor was an ambulance called. He alleged that he had headaches and rashes on his scalp; however, the detention authorities would not provide him with the shampoo prescribed by the doctor. He noted that in October 2012 the detention authorities had not taken him to a hospital appointment; it had had to be rescheduled to March 2013. On that date, the doctor prescribed medication, however, up to the date of the introduction of the application (17 April 2013) this had not been forthcoming. He also referred to an incident in which he had been beaten up by a fellow detainee who had allegedly also previously attacked another detainee with a knife. He noted that when he arrived in detention he was given two bed sheets, a blanket, a T-shirt, and two pairs of underwear, but no shoes, not even flip ‑ flops. The second applicant further explained that they were fed chicken every day and that he was unable to keep in touch with his relatives, as the five - euro phone card distributed to them every two months only allowed four minutes of talk time to Somalia. E. Latest developments 1. Mr Burhaan Abdullahi Elmi 25. The Government informed the Court that following the lodging of the application with the Court, on 19 April 2013 Mr Burhaan Abdullahi Elmi was released from detention under a care order and placed in an open centre for unaccompanied minors. He subsequently left Malta before the termination of his asylum proceedings; indeed the last day of registration at the open centre was 2 August 2013. In the absence of any further contact with the Office of the Refugee Commissioner, on 31 August 2013 the applicant ’ s asylum claim was implicitly “ withdrawn as discontinued ”. 26. It appears that the first applicant absconded and went to Germany and was held by the German authorities, who in turn requested the Maltese authorities to take him back in terms of the Dublin Regulation. Following the acceptance of that request on 7 May 2014 the Maltese authorities were informed by the German authorities that return was suspended pending proceedings in Germany. 27. In a signed declaration sent to the Court by his legal representatives the first applicant admitted to being in Schonbach, Germany, as he was waiting there for the outcome of the judicial proceedings as to whether he would be sent back to Malta in terms of the Dublin II Regulation to have his asylum claim determined. 2. Mr Cabdulaahi Aweys Abubakar 28. The Government informed the Court that following the lodging of the application with the Court, on 24 April 2013 Mr Cabdulaahi Aweys Abubakar was released from detention under a care order and placed in an open centre for unaccompanied minors. He was granted subsidiary protection on 14 September 2013. | Both applicants alleged in particular that their detention in the Safi Barracks Centre, during eight months, had been arbitrary and unlawful and that they had not had a remedy to challenge the lawfulness of their detention. |
546 | Violent acts by private individuals | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1988 and lives in Zagreb. A. Background to the case 6. On 9 June 2013 Zagreb police ( Policijska uprava Zagrebačka, hereinafter “the police”) received an emergency call informing them that two men were attacking a man and a woman of Roma origin. 7. The police immediately went to the scene, where they found the applicant and her partner Š. Š ., and another individual, I.M., with whom the applicant and her partner had had a verbal and physical conflict. They all had visible injuries. Soon afterwards, nearby, the police found and arrested another man, S.K., who had also been involved in the conflict. 8. A preliminary report prepared by the police stated that the applicant and her partner had first had an argument with I.M. and S.K., during which S.K. had said “all Gypsies should be killed, we will exterminate you”. S.K. and I.M. had then attacked the applicant ’ s partner. The applicant and her partner had tried to escape but I.M. and S.K. had managed to catch them. S.K. had grabbed the applicant ’ s T-shirt and thrown her to the ground and then kicked her in the head. I.M. and S.K. had then continued beating the applicant ’ s partner, whose hands had been slashed with a knife by S.K.. 9. The police report stated that the applicant had a contusion that was visible below her left eye. The emergency medical services also attended the scene. A doctor recorded the applicant ’ s injuries as minor bodily injuries. On the same day the applicant was examined at a hospital, where her injuries were confirmed. She was told to rest and take painkillers. 10. In connection with the incident, the police carried out an on-site inspection and a further assessment of the available material. The police also interviewed the applicant and her partner as well as the two assailants. 11. In his police interview of 9 June 2013 the applicant ’ s partner Š.Š. stated that he was of Roma origin. On the day of the incident he had been at a flea market with the applicant when some passers-by had pushed her. He had realised that it had been two young men and he had told the applicant to ignore them because they were drunk (“wasted”). One of them had heard him and had turned to Š.Š., saying “Fuck your Gypsy mother, who is wasted? Who are you to tell me that? You should all be exterminated, I fuck your Gypsy mother” ( Jebem ti mater cigansku, tko je urokan, šta ti meni imaš govoriti, sve vas treba istrijebiti mamu vam cigansku jebem ). The other man had also turned towards Š.Š., saying “Fuck your mother, you should all be exterminated, I will kill you” ( Jebem vam majku, treba vas istrijebiti, ubit ću te ). Š.Š. stated that he had then panicked and had drawn a knife in order to scare them. However, that had created a further outburst of anger from the two men; one of them had taken out a knife and they had started chasing Š.Š. As Š.Š. was running away, the applicant had joined him and they had started running away together, looking for help. However, the attackers had managed to get hold of Š.Š. and had started beating him. At that point the applicant had tried to help and had also been hit. The two men had then continued beating Š.Š., saying that he was a Rom and should be killed. 12. In her police interview of 9 June 2013 the applicant stated that she lived with Š.Š., with whom she had had two children. She confirmed Š.Š. ’ s version of events, saying that she had been pushed by the two men. After Š.Š. had reacted by saying that the men should be left alone because they were drunk, one of the two men had said, “Who is drunk? Fuck your Gypsy mother, you should all be exterminated, this will be a white Croatia again, you are garbage” ( Tko je pijan, jebem ti mater cigansku, vas treba istrijebiti, ovo će ponovno biti bijela Hrvatska, smeće jedno ). The applicant stated that after this the two men had started attacking Š.Š. She had tried to approach them to help Š.Š. but another woman had prevented her from doing so. However, at one point she had joined Š.Š. and they had started running away. The two men had then caught them and one of them had grabbed her by the T-shirt and said, “What are you going to do now you bitch? I will beat you now” ( Što ćeš sad kujo jedna, sad ću te prebiti ). He had then kicked her in the head. The two men had continued beating Š.Š., while she had run away and looked for help. 13. In their interviews of 9 June 2013 the two assailants explained that the conflict had broken out because Š.Š. had offended them by saying that they were drunk. They denied the conflict had had any racial overtones. 14. On 10 June 2013 the police lodged a criminal complaint against S.K. and I.M. with the Zagreb Municipal State Attorney ’ s Office ( Općinsko državno odvjetništvo u Zagrebu ) for suspected commission of a hate crime, perpetrated by attempting to inflict grievous bodily harm on Š.Š., and motivated by the latter ’ s Roma origin. The applicant was mentioned in the criminal complaint as a witness. 15. In the course of the investigation the Zagreb Municipal State Attorney ’ s Office questioned the two suspects and on 17 June and 3 1 July 2013 it instructed the police to conduct an identification procedure and formal questioning of the applicant and Š.Š. as witnesses. 16. When questioned as a witness, Š.Š. repeated the statement he had given during the first police interview. He explained how, after the two men had pushed the applicant, one of them had turned towards him and uttered the insults related to his Roma origin (see paragraph 11 above). Š.Š. also stated that the applicant had been attacked after she had tried to help him when the two men were beating him up. 17. During her questioning as a witness, the applicant repeated the statement she had given during the first police interview (see paragraph 12 above). B. The criminal proceedings concerning the attack on the applicant ’ s partner 18. Upon completion of the investigation, on 30 October 2013 the Zagreb Municipal State Attorney ’ s Office indicted S.K. and I.M. in the Zagreb Municipal Criminal Court ( Općinski kazneni sud u Zagrebu ) on charges of making serious threats against Š.Š. and inflicting bodily injury on him, associated with a hate - crime element. The indictment also made reference to the attack on the applicant, suggesting that she had been kicked in the head while trying to save Š.Š. from the beating. 19. The indictment was confirmed and the case was sent for trial on 21 March 2014. 20. Meanwhile, on 31 October 2013 the Zagreb Municipal State Attorney ’ s Office informed Š.Š., as a victim in the proceedings, that an indictment had been lodged against S.K. and I.M. in connection with the attack on him. On 23 January 2014 the Zagreb Municipal State Attorney ’ s Office informed Š.Š. ’ s lawyer, L.K., of the institution of the proceedings in the Zagreb Municipal Criminal Court. 21. At a hearing on 9 October 2014 the Zagreb Municipal Criminal Court questioned Š.Š. He repeated the statements given to the police. When asked whether the two assailants had said anything to the applicant related to Š.Š. ’ s racial origin, Š.Š. stated that she had told him something but he could no longer remember the details. He thought that she had said that the two assailants had told her that she was also Roma if she was with a Roma man. On the basis of an agreement between the parties, including Š.Š. ’ s representative, the applicant ’ s statement to the police was admitted in evidence and she was not questioned further at the trial. 22. By a judgment of 13 October 2014 the Zagreb Municipal Criminal Court found S.K. and I.M. guilty as charged and sentenced them to one year and six months ’ imprisonment. C. The applicant ’ s criminal complaint 23. In the meantime, on 29 July 2013 the applicant and her partner, represented by the lawyer L.K., had lodged a criminal complaint with the Zagreb Municipal State Attorney ’ s Office against two unidentified suspects in connection with the incident of 9 June 2013 (see paragraphs 6-13 above). It was alleged in the criminal complaint that one of the suspects had first pushed the applicant and had then told her that she was a “bitch” ( kuja ) who had a relationship with a Roma man and that she would be beaten. She had been grabbed by the T-shirt and thrown to the ground, banging her head. The assailants had then continued beating Š.Š., threatening to kill him and the applicant. The criminal complaint also alleged that the assailants had stolen two mobile telephones from Š.Š. at the same time. 24. The applicant ’ s representative tried to obtain the relevant information about the attackers from the police on the grounds that she needed the information in order to institute court proceedings. On 12 November 2013 the police informed the applicant ’ s representative that they had lodged a criminal complaint with the Zagreb Municipal State Attorney ’ s Office against two individuals in connection with a suspicion that they had committed the offence of attempted grievous bodily harm against the applicant and her partner, which, in the circumstances of the case, had been classified as a hate crime. The applicant ’ s representative was also informed that she should contact the Zagreb Municipal State Attorney ’ s Office for all further information. 25. The applicant ’ s representative then informed the Zagreb Municipal State Attorney ’ s Office that the applicant and her partner would participate in the proceedings as victims and requested to be informed of all relevant procedural steps. On 17 February 2014 the applicant ’ s representative, invoking the domestic authorities ’ obligations under the Convention, requested information from the police and the Zagreb Municipal State Attorney ’ s Office about the criminal complaint lodged on behalf of the applicant. 26. On 31 October 2014 the Zagreb Municipal State Attorney ’ s Office rejected the applicant ’ s criminal complaint. It examined the materials related to the investigation into the incident of 9 June 2013 and the criminal proceedings against S.K. and I.M. (see paragraphs 10-22 above). The relevant part of the decision reads: “In view of the above, it is established without any doubt that on the day in issue there was a physical conflict between S.K. and I.M. and Š.Š. whereby [S.K. and I.M.] caused bodily injury to and threatened Š.Š., and those offences were committed primarily because of hatred towards Roma. However, the statements of the witnesses Š.Š. and Maja Škorjanec show that [S.K. and I.M.] pushed her in the back, causing her to fall onto a [flea market] stall, not because she was the partner of Š.Š., who is of Roma origin, but because they were drunk and they accidentally pushed her towards the stalls. Furthermore, the medical documentation regarding Maja Škorjanec, as well as the records of the questioning of the witnesses Š.Š. and Maja Škorjanec and the statements of S.K. and I.M. given in their defence in the proceedings before the Zagreb Municipal Criminal Court, show that there is no doubt that S.K. kicked Maja Škorjanec in the left side of the face with the result that she sustained a minor bodily injury. Given that there is no indication that S.K. and I.M. inflicted injuries on Maja Škorjanec because of hatred towards Roma, as she is not of Roma origin, the criminal offence under Article 117 § 2 in conjunction with Article 87(21) of the Criminal Code has not been established. In particular, the injury which Maja Škorjanec sustained would, by its nature, suggest an injury within the meaning of Article 177 § 1 of the Criminal Code. ... As criminal proceedings for the offence under Article 177 § 1 of the Criminal Code are instituted on the basis of a private prosecution, the criminal complaint ... must be rejected ... on the grounds that the impugned criminal offence is not an offence that is prosecuted of the prosecutor ’ s own motion. With regard to the criminal offence under Article 139 § 2 in conjunction with Article 87(21) of the Criminal Code, it should be pointed out that it is obvious that S.K. and I.M. threatened Š.Š. and not Maja Škorjanec ... Moreover, ... it does not follow from the record of Maja Škorjanec ’ s witness statement, which has been examined, that S.K. and I.M. threatened her, but rather Š.Š., and thus the criminal complaint ... should be rejected on the grounds that the impugned criminal offence is not an offence that is prosecuted of the prosecutor ’ s own motion .” 27. The applicant was informed that she could take over the prosecution of S.K. and I.M. as a subsidiary prosecutor, as provided for under the relevant domestic law (see paragraph 30 below). | In June 2013, two men racially abused the applicant’s partner on the basis of his Roma origin, before attacking both him and the applicant herself. The two assailants were prosecuted and convicted on charges that included a hate crime against the applicant’s partner. However, the men were not charged for a racially motivated crime against the applicant herself. The authorities rejected her complaint of a hate crime, finding that there was no indication that the men had attacked her because of hatred towards Roma, as she is not of Roma origin. The applicant complained to the Court of a lack of an effective procedural response of the Croatian authorities in relation to a racially motivated act of violence against her. |
967 | Internet | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, Times Newspapers Ltd, is the proprietor and publisher of The Times newspaper. The applicant is registered in England. A. The two articles in The Times 6. On 8 September 1999 The Times published an article in the printed version of the newspaper headlined “Second Russian Link to Money Laundering”. This article stated: “British and American investigators are examining the role of an alleged second Russian mafia boss over possible involvement in money-laundering through the Bank of New York. Investigators are understood to be looking at links to [G.L.: his name was set out in full in the original article], whose company, Nordex, has been described by the CIA as an ‘ organisation associated with Russian criminal activity ’. [G.L.] ’ s name surfaced in earlier money-laundering investigations which may have links to the Bank of New York affair, in which millions of dollars of Russian money are alleged to have been laundered. The Russian - born businessman came to the attention of European and American investigators in the early 1990s. They suspected Nordex of using its former international base in Vienna as a front for a large-scale money-laundering operation. His name also figured in a British police report in 1995, known as Operation Ivan, which looked at the extent of the influence of the Russian mob in London. [G.L.] has repeatedly denied any wrongdoing or links to criminal activity. Nordex, which has since moved out of Vienna, is also alleged to have been involved in the smuggling of nuclear weapons and by the mid-1990s reportedly controlled about 60 businesses in the former Soviet Union and another 40 companies in the West. The Times has learnt that these included between eight and ten offshore companies in British jurisdictions, including the Channel Islands and the Isle of Man. They were administered through a chartered accountant in central London whose offices and home were raided in 1996 by officers from the City of London Police. The companies were suspected of being used to help launder money from Russia, which was then channelled through European banks. No charges were ever filed against the accountant. At about the same time a Yugoslav associate said to have been a frontman for [G.L.] was stopped and questioned after arriving at a London airport. No charges were filed against him. The British investigation into Nordex is believed to have failed because of the difficulty of establishing that the money funnelled through offshore companies controlled by Nordex was linked to criminal activities. [G.L.] is alleged to be a former business associate of Viktor Chernomyrdin, the former Russian Prime Minister, and in 1995 his name hit the headlines after it emerged that he had been photographed with President Clinton at a Democrat fund-raising event in 1993. He is also alleged to have had business dealings with Semyon Mogilevich, the Hungarian-based mafia figure at the centre of the Bank of New York investigation.” 7. On 14 October 1999 The Times published a second article entitled “Trader Linked to Mafia Boss, Wife Claims”. This article stated: “A Russian businessman under investigation by Swiss authorities pursuing allegations of money-laundering was a friend of [G.L.], a suspected mafia boss, the businessman ’ s wife claims. Lev Chernoi, the aluminium magnate under Swiss investigation, was given access to staff and a chauffeur by [G.L.] when he moved to Israel, according to Lyudmila Chernoi, Mr Chernoi ’ s estranged wife ... If Mrs Chernoi ’ s allegation about a connection between her husband and [G.L.] is true, it will raise further questions about Mr Chernoi. In 1996 the CIA described Nordex, a company operated by [G.L.] and alleged to have been used to launder money and smuggle nuclear weapons, as an ‘ organisation associated with Russian criminal activity ’. In 1996 [G.L.] triggered a row in America after a photograph was published of him with President Clinton in 1993. [G.L.] has denied any wrongdoing.” 8. Both articles were uploaded onto the applicant ’ s website on the same day as they were published in its newspaper. B. The commencement of proceedings 9. On 6 December 1999 G.L. brought proceedings for libel in respect of the two articles printed in the newspaper against the applicant, its editor and the two journalists under whose bylines the articles appeared (“the first action”). The defendants did not dispute that the articles were potentially defamatory and did not seek to prove that the allegations were true. Instead, they relied solely on the defence of qualified privilege, contending that the allegations were of such a kind and seriousness that they had a duty to publish the information and the public had a corresponding right to know. 10. While the first action was under way, the articles remained on the applicant ’ s website, where they were accessible to Internet users as part of the applicant ’ s archive of past issues. On 6 December 2000, G.L. brought a second action for libel in relation to the continuing Internet publication of the articles (“the second action”). Initially, the defendants ’ only defence to the second action was one of qualified privilege. The two actions were consolidated and set down for a split trial on issues of liability and then quantum. 11. On 23 December 2000 the applicant added the following preface to both articles in the Internet archive : “This article is subject to High Court libel litigation between [G.L.] and Times Newspapers. It should not be reproduced or relied on without reference to Times Newspapers Legal Department.” C. The Internet publications proceedings 12. In or around March 2001 the defendants applied to re- amend their defence in the second action in order “to contend that as a matter of law the only actionable publication of a newspaper article on the Internet is that which occurs when the article is first posted on the Internet ” (“ the single - publication rule”). They argued that, as a result, the second action was time- barred by section 4A of the Limitation Act 1980. 13. On 19 March 2001 the High Court refused permission to re-amend the defence, relying in particular on the common - law rule set out in Duke of Brunswick v. Harmer (see paragraph 20 below) that each publication of a defamation gives rise to a separate cause of action. The court held that, in the context of the Internet, this meant that a new cause of action accrued every time the defamatory material was accessed (“the Internet publication rule”). 14. On 20 March 2001 the High Court found that the defendants had no reasonable grounds for contending that after 21 February 2000 (the date on which the defendants lodged their defence in the first action ) they remained under a duty to publish the articles on the Internet. As a result, the court struck out the defence of qualified privilege in relation to the second action. On 27 March 2001, judgment was entered for G.L. in the second action, with damages to be assessed. By this time the applicant had removed the articles from its website. D. The Court of Appeal 15. The defendants appealed against the High Court ’ s order of 19 March 2001 rejecting the single - publication rule. They argued that the Internet publication rule breached Article 10 of the Convention, pointing out that as a result of the rule, newspapers which maintained Internet archives were exposed to ceaseless liability for republication of the defamatory material. The defendants argued that this would inevitably have a chilling effect on the willingness of newspapers to provide Internet archives and would thus limit their freedom of expression. 16. In its judgment of 5 December 2001, the Court of Appeal, per Simon Brown LJ, dismissed the appeal against the order in the second action, stating : “We do not accept that the rule in the Duke of Brunswick imposes a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression. We accept that the maintenance of archives, whether in hard copy or on the Internet, has a social utility, but consider that the maintenance of archives is a comparatively insignificant aspect of freedom of expression. Archive material is stale news and its publication cannot rank in importance with the dissemination of contemporary material. Nor do we believe that the law of defamation need inhibit the responsible maintenance of archives. Where it is known that archive material is or may be defamatory, the attachment of an appropriate notice warning against treating it as the truth will normally remove any sting from the material.” 17. On 30 April 2002 the House of Lords refused leave to appeal. The parties subsequently settled the action and the applicant agreed to pay G.L. a sum of money in full and final settlement of claims and costs arising in both actions. | The applicant company, owner and publisher of The Times newspaper, alleged that the rule under United Kingdom law, whereby a new cause of action in libel proceedings accrues each time defamatory material on the Internet is accessed (“the Internet publication rule”), constituted an unjustifiable and disproportionate restriction on its right to freedom of expression. In December 1999 the applicant newspaper published two articles that were allegedly defamatory of a private individual. Both articles were uploaded onto The Times’ website on the same day as they were published in the paper version of the newspaper. During the subsequent libel proceedings against the applicant newspaper, it was required to add a notice to both articles in the Internet archive announcing that they were subject to libel litigation and were not to be reproduced or relied on without reference to the applicant company’s legal department. |
889 | Public or political figures | I. THE CIRCUMSTANCES OF THE CASE 8. The applicants are the publication director and the publishing company, respectively, of the weekly magazine Paris Match. Ms Anne-Marie Couderc was born in 1950 and lives in Levallois-Perret. The company Hachette Filipacchi Associés has its registered office in Levallois-Perret. A. Factual background to the case 9. On 3 May 2005 the British newspaper the Daily Mail published an article headlined “ Is this boy the heir to Monaco? ”, describing the disclosures by a woman, Ms Coste, who claimed that her son ’ s father was Albert Grimaldi, who had become reigning prince of Monaco ( “the Prince ” ) following the death of his father on 6 April 2005. The article mentioned a forthcoming publication in Paris Match, and set out its core elements. It was accompanied by three photographs, one of which showed the Prince holding the child in his arms and was captioned “ His successor to the throne? Prince Albert with Alexandre ”. 10. On the same day, having been informed that an article was about to appear in Paris Match, Prince Albert served notice on the applicants to refrain from publishing it. 11. On 4 May 2005 the German weekly magazine Bunte published the interview with Ms Coste. The front cover of the magazine was headlined “ Prinz Albert ist der Vater meines Kindes ” ( “ Prince Albert is the father of my child” ). It was illustrated by two photographs of the Prince : in one of them he was pictured alongside Ms Coste, and in the other he held the child in his arms. 12. On the same day various Internet sites relayed the news. In France, information from the forthcoming Paris Match article was included in an article on the RTL radio station ’ s Internet site entitled “ Le prince Albert II aurait un fils, silence au Rocher ” ( “ Prince Albert II alleged to have a son, no comment from Monaco”). For its part, the LCI channel published an article headlined “ Albert : la rumeur d ’ un fils ” (“Albert: rumours about a son”) on its Internet site. The news also appeared on the Internet site of the MEDEF ( French Business Confederation), as follows : “ L ’ enfant caché du prince Albert de Monaco : selon certains journaux britanniques et allemands, Albert de Monaco serait le papa d ’ un petit garçon de 19 mois ” ( “ Prince Albert of Monaco ’ s secret son: according to certain British and German newspapers, Albert of Monaco is the father of a 19-month-old boy”). 13. On 5 May 2005, in spite of the Prince ’ s notice to refrain, the weekly magazine Paris Match published an article in its edition no. 2920, referred to on the magazine ’ s front cover under the headline “Albert of Monaco: Alexandre, the secret child” (“ Albert de Monaco: Alexandre, l ’ enfant secret ”), and illustrated by a small photograph showing the Prince with the child in his arms. The article, published on pages 50 to 59 of the magazine, consisted of an interview with Ms Coste, who replied to questions put by a journalist and stated that the father of her son Alexandre, born on 24 August 2003, was the Prince. In particular, the interview described the circumstances in which Ms Coste had met the Prince, their intimate relationship, their feelings, and the manner in which the Prince had reacted to the news of Ms Coste ’ s pregnancy and had behaved towards the child at his birth and subsequently. 14. The relevant passages of this interview were the following. “ Paris Match (P.M.) : When did you meet Albert of Monaco? Nicole Coste (N.C.) : Eight years ago, on a Nice to Paris flight ... Before landing he asked for my telephone number. Two weeks later I had a message on my mobile ... ... He wanted to invite me to Monaco ... I went there the following weekend ... We spent a very tender night next to each other, it was very romantic! After that weekend he called me to say that he had had a very pleasant time and that he wanted to see me again. ... As the months went by, I fell very much in love. I spent weekends in Monaco. He took me everywhere with him when he didn ’ t have official duties ... ... I had the impression that something was happening. He didn ’ t speak about his feelings, but I heard his heart beating. There are signs that can ’ t be mistaken when you ’ re in someone ’ s arms ... He didn ’ t say anything to me and I didn ’ t ask him anything. But he had tender looks and gestures towards me, even in public, and even in front of other young women. I think that he appreciated my affection. He told his friends that I was very very loving, and that he liked my maternal side. For my part, I found him touching. P.M. Did you meet up often? N.C. For the first five years I went to Monaco about once a month ... Sometimes he took me along to official events, such as the World Music Awards or tennis tournaments ... P.M. Did you ever meet his father, Prince Rainier? N.C. Yes. At a dinner with about twenty guests; Albert told me that we couldn ’ t go along together, since his father [would be] there. In the afternoon, he indirectly made me his loveliest declaration of love, by saying to a friend in front of everyone ‘ Take good care of Nicole. I am very fond of her. ’ And he kissed me ... P.M. What did he tell you about his talk with his father? N.C. We spoke about it the next day. I found him strange. I became worried. ‘ I ’ ve been thinking ’, he said. ‘ I believe it ’ s better if we stay friends. ’ P.M. How did you react? N.C. ... I was crying. I telephoned him to find out if it was really over. ‘ If you were in my situation, what would you do? ’ He answered ‘ I would wait. Not for long, but I would wait ... ” ... P.M. One has the feeling that Albert ’ s discussion with his father was a turning point in your relationship. N.C. It ’ s true, the relationship deteriorated after that. At the same time, however, he seemed to be afraid of taking a decision; he hesitated, taking one step forward and two steps back ... ... Albert is not someone who expresses his feelings or who argues. He has a good sense of humour. I had the impression that he still had feelings. We saw each other with more or less the same frequency, but for less time, one day instead of three. I had the impression that he was afraid of becoming too attached. In December 2002 I wanted us to celebrate my ... birthday together. He suggested that I come to Monaco ... we went [out] for a drink. There were lots of young women coming up to him, and I let him know that I wasn ’ t happy about that. On returning to the flat, we became lovers again, something that I didn ’ t want that night. The evening had annoyed me. P.M. Was it then that you became pregnant? N.C. Yes. Neither he nor I had planned it. I was taking precautions ... When I saw Albert on 11 December I had sore breasts. I said to him ‘ If I ’ m pregnant, what are we going to do? ’ He replied ‘ If you ’ re pregnant, you must keep it ’. He said it from the heart. He immediately began thinking of boys ’ names, and I was coming up with girls ’ names, since I already had two boys. He said ‘ I ’ m trying to think of boys ’ names – that ’ s all you know how to make!” ... ... Shortly afterwards, I had a positive pregnancy test ... I wanted him to take a decision very quickly ... I was well aware of what a child represented for Albert, given his position. In my opinion, it was for him to decide ... He said to me ‘ Keep it. I ’ ll look after things. You won ’ t lack for anything. I don ’ t promise to marry you, but keep him and don ’ t worry: I ’ ll bring him into the family little by little. I ’ d like us to keep the news to ourselves for the moment. The only person I must tell is my adviser and childhood friend, whom you know well. ’ P.M. Did he contact you for news during your pregnancy? N.C. From time to time. He spoke to me very kindly. Then one day he came to see me in Paris with his adviser ... I was three months ’ pregnant. He seemed to have changed his mind, but as far as I was concerned it was too late. The adviser said to me ‘ Do you realise that if it ’ s a boy, they ’ ll use that to prevent Albert acceding to the throne, and the child will be able to claim the throne ’. I was surprised that he was going into things that were only details for me. I wasn ’ t even thinking about these questions ... it is clear to me that a child born outside marriage cannot accede to the throne. P.M. What happened next? N.C. I learned that I was expecting a boy. I was very worried ... I asked him if it would make things difficult if it was a boy ... ‘ No, no more than if it were a girl. ’ He put his hand on my stomach and we discussed names again ... ... When I was five-and-a-half months ’ pregnant, I called him. He didn ’ t behave the way he usually did with me, I understood that something had happened and that he wanted to end the relationship. He said ‘ I ’ ve thought it through. I ’ ve asked for advice. The child is impossible ’. ... I went to see a lawyer, who alerted Albert ’ s lawyer. Albert called me immediately, and was very annoyed: ‘ You ’ ve trapped me... ’ He spoke to me as though he had been brainwashed. I was eight months ’ pregnant, and had become pregnant six years after our first meeting. I would have had multiple opportunities to become pregnant. P.M. How was the birth? N.C. 24 August 2003 is not my happiest memory. I was very alone. On the day I left hospital ... I was visited by a French laboratory, approved by the Swiss Forensic Institute, for a DNA swab from my son. That was organised by his adviser. ... My two older children still didn ’ t know who their little brother ’ s father was ... Alexandre was sleeping in my bedroom, in a crib ... He suffered from asthma and was hospitalised for six weeks ... I had to deal with this alone, with no one to confide in. ... P.M. When did he see Alexandre for the first time? N.C. Two and a half months after his birth ... the most important thing for me was that Alexandre be recognised. It was out of the question that my child would not have a father. That is how I explained it to them. For me, non-recognition would have been the only basis for taking things to court. It was up to Albert to organise things so that this little baby had a more or less normal life, even if, at the very beginning, it had been necessary to hide him. But I didn ’ t want him to grow up like Mazarine, for example. I thought only about that, and not for a second about the fact that he represented a potential heir. Meanwhile, Albert was paying me a sum every three months that I still receive. P.M. What happened subsequently? N.C. As I didn ’ t really trust my lawyer any longer, I contacted another one, to whom I explained that the only thing that counted was that Albert recognise his son. In my opinion, non-recognition of a child amounts to denying him his roots ... ... P.M. Did Albert realise how important it was for you that he recognise this child? N.C. Ultimately, yes, to my great joy: on 15 December 2003 he arranged to meet me at a notary ’ s office, with his adviser ... P.M. What happened during the meeting at the notary ’ s office? N.C. Albert signed the deed of recognition. He did it out of respect for me, while giving instructions that this deed was not to be transcribed in the official register until after his father ’ s death. P.M. Do you have a copy of this deed of recognition? N.C. I wasn ’ t given any papers, I only have the registration number of the deed. I asked the notary several times for a certificate stating that he had a document concerning my son. I was told ‘ Later ’. After Rainier ’ s funeral I contacted the notary again, asking that Albert ’ s undertaking be upheld, and that the official recognition of our son ’ s paternity be entered in the register of births and deaths. Again, the notary told me that it could wait ... I again asked for a copy of the deed. He refused. .. P.M. What about your flat? Did you finally move? N.C. ... I found a house in April 2004, and work is currently being carried out on it. P.M. To whom does it belong? N.C. To a property investment company (an SCI). 50% of the shares are in Alexandre ’ s name ... P.M. What contact have you had with Albert since seeing him at the notary ’ s office to sign the deed recognising your son? N.C. I wanted him to see his son regularly, and also to call for news of him. He has done that ... During one of his visits, I said ‘ Just because we ’ ve had a child, that doesn ’ t mean that everything has to end between us ’. He replied ‘ For the moment, I prefer that we end things, because if we continue we ’ ll end up with a second child! ’ ... P.M. Why have you decided to speak out? N.C. I ’ ve already given you some reasons. I want Alexandre to grow up normally, with a father. I want the lies to stop. For my part, I ’ m fed up with lying, hiding and passing for the mistress of his friends. On account of this silence, I no longer have an identity and I live almost like an outlaw. I ’ m afraid for my son ’ s psychological health. I should like to have him baptised as soon as possible, with a correctly drawn up birth certificate. In addition, I understand that there are rumours going around about this child, and I want the truth to be re-established, so that his two older brothers have a dignified image of their mother. ... ” 15. This interview was illustrated by five photographs of the Prince with the child and three of the Prince with Ms Coste. In particular, a double-page spread (pages 50 and 51) consisted in a photograph of the Prince holding the child in his arms, headlined “ Alexandre ‘ is Albert ’ s son ’ says his mother”, followed by this text: “A little boy who knows how to say only two words: daddy and mummy. A little boy who does not seem troubled by the huge gulf between the two cultures from which he comes. His name is Alexandre, a conqueror ’ s name, an emperor ’ s name. He was born in Paris on 24 August 2003. His mother asks that he does not grow up clandestinely, ‘ like Mazarine ’. For that reason, she is now disclosing his existence, which poses no threat to any republic or any dynasty. Because in Togo, the country of his maternal family, all children, whether or not they are born to lawfully married couples, are entitled to an official father. For the moment, the little boy with black curls isn ’ t interested in knowing whether he is a prince or not. His mother just has to lean towards him and he is happy. There ’ s already a king in the house... him.” The photograph was also accompanied by the following captions: “ The 47-year-old new sovereign of Monaco had not been known to have any long-term relationship. Today Nicole Coste, an air hostess whom he met eight years ago, claims that they have had a son. ” “He ’ s never been seen smiling like this before : Prince Albert succumbs to Alexandre ’ s charm. ” 16. Four photographs of the Prince holding the child in his arms were published on pages 52, 53, 56 and 57, and were also accompanied by captions and/or subheadings. In particular, the caption on page 52 reads “Gentleness, tenderness and patience, key words for a prince who loves children”, and on page 53, “The Prince has always had a soft spot for children” and “Albert, President of the Monegasque Olympic Committee, wearing an Olympics shirt, with Alexandre in his arms”. The following subheading appeared on pages 56 and 57: “Alexandre at 6 months. He is already trying to stand up. This is one of his very first meetings with Albert. He sleeps in his mother ’ s bedroom. Nicole and her three sons have already moved into a flat in the 16th arrondissement of Paris. ” Lastly, three photographs of the Prince with Ms Coste were published on pages 58 and 59. The photograph on page 58 was captioned as follows : “They met on a Nice to Paris flight, Nicole was an air hostess. She had left Lomé, in Togo, eight years previously, aged 17. ‘ In my country, a father would have obliged his son to recognise his child ’ ”. The photographs on page 59 were subtitled as follows : “ Nicole also attended official events. In May 2001 she was on the Prince ’ s right as he received the singer Yannick at the Monte Carlo Music Awards. In 2002 (left) she can be seen in the Royal box at the Grand Prix. ” 17. On 10 May 2005 Ms Coste issued a statement indicating that she had agreed to give an interview to Paris Match, for publication in the edition of 5 May 2005, had carefully reread its wording, and had herself handed over the photographs showing the Prince with Alexandre. She specified that she had taken those photographs, and that she had taken them with the Prince ’ s full consent. She issued a further statement indicating that she had handed these photographs over to the media for publication without charge. She added that her son had been recognised before a notary, that the notarial deed had been signed on 15 December 2003 and that it had been agreed on that date that the deed would be sent to the district hall of the 14 th arrondissement of Paris immediately after Prince Rainier ’ s death. She stated that she had attempted, by all amicable means, to find a compromise with the Prince ’ s lawyer, and that it was the fact that the Prince had failed to honour his undertaking which had induced her to bring the matter to the public ’ s attention. With regard to the media, she stated : “they have merely helped my son and myself to have Alexandre officially recognised. ” B. The proceedings before the French courts 18. On 19 May 2005, considering that the publication of the article in Paris Match interfered with his rights to private life and to protection of his own image, the Prince brought fixed-date proceedings against the applicants, on the basis of Article 8 of the Convention and Articles 9 and 1382 of the Civil Code, seeking damages from the publishing company and an order that it publish the court ’ s ruling on the front cover of the magazine, and requested that the court ’ s decision be immediately enforceable. 19. On 29 June 2005 the Nanterre tribunal de grande instance ( “ the TGI”) ordered the company Hachette Filipacchi Associés to pay the Prince 50, 000 euros (EUR) in non-pecuniary damages. It also ordered that details of the judgment be printed on the magazine ’ s entire front cover, at the publishing company ’ s expense and on pain of a daily fine, under the headline “Court order against Paris Match at the request of Prince Albert II of Monaco”. The judgment was immediately enforceable. 20. The TGI noted, in particular, that from the front page onwards, the magazine had disclosed the Prince ’ s paternity outside marriage, under the headline “Albert of Monaco: Alexandre, the secret child”, accompanied by a photograph showing him holding the child. It also noted that the article dealt with the issue of the Prince having fathered the child over ten pages inside the magazine, by means of an interview in which the questions led Ms Coste to discuss her relationship with the Prince, the couple ’ s feelings, the Prince ’ s private life and reactions and the child ’ s recognition before a notary. It emphasised that the magazine had deliberately chosen numerous photographs, taken in the context of the intimacy of the protagonists ’ private life, to illustrate and lend support to the disclosure, and that these photographs were accompanied by the magazine ’ s own captions, which also referred to the Prince ’ s love life and the circumstances in which he met the interviewee, analysing his conduct and his reactions to the young woman and the child, and speculating as to his feelings with regard to this secret child. 21. The TGI held that the entire article, including the accompanying photographs, fell within the most intimate sphere of love and family life and that it did not concern any debate of general interest. It added : “ ... the claimant ’ s accession to the throne of the Principality of Monaco did not deprive him of the right to respect for his private life, nor of his right to protection of his own image in the face of mere rumours concerning the civil status of a child, which could not in any event serve as a legitimate pretext for providing information to a prying and curious public about the lives of public figures, their feelings and their private conduct, with a view to media coverage in the columns of a newspaper which cannot in all seriousness claim to take the place of the courtroom, which is where the rights of children are legally defended, without prejudice to those of women; The disputed article, which treats rumours in a sensational manner, both in its wording and through the accompanying pictures – which are completely irrelevant in that they contribute to the impugned interference with private life – amounts to a serious and wilful breach of the claimant ’ s fundamental personality rights, the latter having specifically served notice by extrajudicial process on the publishing company to respect those rights on 3 May 2005 ... ” 22. The applicants appealed against that judgment. 23. In a press release of 6 July 2005, the Prince publicly acknowledged that he was the father of Alexandre. 24. On 13 July 2005 the Versailles Court of Appeal suspended the immediate enforcement of the TGI ’ s judgment with regard to the order to publish the court ’ s judgment. 25. On 24 November 2005 the Versailles Court of Appeal gave judgment. It noted that, through the interview with Ms Coste, the impugned article focused on disclosing the birth of the child, who was presented as having been born from the intimate relationship between the interviewee and the Prince from 1997 onwards. It also noted that although the latter might already have made a statement recognising the child in a notary ’ s office – that is, in deliberately chosen conditions of confidentiality – by the time that the article was published, this statement had not given rise to a note in the margin of the child ’ s birth certificate, with the result that his birth and his father ’ s identity remained unknown to the public. 26. The Court of Appeal also stated that a person ’ s affections, love life or family life and issues of paternity and maternity came within the sphere of private life and were protected by Article 9 of the Civil Code and Article 8 of the Convention, and that those provisions made no distinction between anonymous persons and public figures, whatever their civil, political or religious functions. It noted, however, that this principle allowed for an exception whenever the facts disclosed could give rise to a debate on account of their potential impact or consequences given the status or function of the persons concerned, in which case the duty to provide information took precedence over respect for private life. 27. It reasoned as follows. “ Given that the fact of Albert Grimaldi ’ s fatherhood had never been publicly recognised, that the Monegasque Constitution makes it impossible for a child born out of wedlock to accede to the throne and that Albert Grimaldi had not consented to the disclosure of his possible paternity of Ms Coste ’ s child, since on 3 May 2005 he had indicated to Hachette Filippachi Associés his opposition to the publication of those facts, it follows that Hachette Filipacchi Associés deliberately breached the provisions of Article 9 of the Civil Code and of Article 8 of the European Convention on Human Rights, without being able to justify this offence on the inexistent requirements of current - affairs reporting, the legitimacy of the information or its readers ’ right to information, which did not include Albert Grimaldi ’ s secret paternity, even if he had become the reigning Prince of the Principality on his father ’ s death in April 2005; This interference in his private sphere, in that the article did not merely disclose the existence of a ‘ secret ’ child but also contained numerous digressions derived from Ms Coste ’ s confessions concerning the circumstances of their meeting, the respondent ’ s feelings, his most intimate reactions in response to the news of Ms Coste ’ s pregnancy and his attitude towards the child during private encounters in her flat, could not be justified by the concomitant publication of these facts in the magazine Bunte, or by the media impact caused by the content of the article, or by the fact that other publications had subsequently repeated these reports (which had become common knowledge through the fault of the publishing company), or by the alleged legitimacy of such a disclosure, given that the child had no official status which would have rendered his birth and the disclosure of the father ’ s identity a subject which the media and specifically the company Hachette Filipacchi Associés were required as part of their duty to provide information to bring to the public ’ s attention, or by the fact that Albert Grimaldi, faced – against his will – with the media impact of the disclosure of information about his private life that he had intended to keep secret if not confidential, has been obliged to provide a public explanation, or by the tone of the article, which, as Hachette Filipacchi Associés irrelevantly specifies, was intended to show the respondent in a particularly positive light; Although the photographs showing the child with the respondent which accompany the article were taken by Ms Coste with Albert Grimaldi ’ s consent, and although Ms Coste, the only person having parental responsibility for the child, handed them over to Paris Match for publication, it remains the case that Albert Grimaldi did not consent to their being published in support of an article which constitutes an invasion of his privacy, with the result that their publication is wrongful ... ” 28. The Court of Appeal concluded that the publication in question had caused the Prince irreversible damage in that the fact of his paternity, which he had wished to keep secret and which had remained so from the child ’ s birth until publication of the impugned article, had suddenly, and against his will, become public knowledge. It considered that the non-pecuniary damage thus caused justified an order for publication of the court ruling as supplementary compensation, and that, in view of the nature of the breach and the seriousness of its consequences, such a measure was not disproportionate to the competing interests involved and, on the contrary, represented the most adequate redress in the particular circumstances of the case. It therefore upheld the judgment under appeal, except with regard to the conditions of publication of the court ruling, which was no longer to appear under a headline and was to take up only one third of the front cover. Thus, the Court of Appeal ordered that the lower third of the front cover of the first issue of Paris Match to be published in the week following service of the judgment was to display a white box containing the following text, printed in red letters, failing which the applicant company would be fined EUR 15,000 per issue after expiry of that deadline : “By a judgment of the Versailles Court of Appeal upholding the judgment delivered by the Nanterre tribunal de grande instance, the company Hachette Filipacchi Associés has been held liable for infringing the privacy and the right to his own image of Albert II of Monaco in issue no. 2920 of the Paris Match newspaper, dated 5 May 2005, in an article entitled ‘ Albert of Monaco: Alexandre. The secret child ’ .” 29. This statement was published on the front cover of edition no. 2955 of the magazine, dated 5 January 2006, under a photograph of the Prince. The cover bore the headline “ Albert of Monaco. The truth has been punished ”, which was accompanied by the following commentary : “ Paris Match disclosed the existence of his son, Alexandre. The courts have punished freedom to impart information. We have received support from the international press in reaction to this .” 30. In addition, the applicants lodged an appeal on points of law against the Court of Appeal ’ s judgment. In their grounds of appeal, they developed the following arguments : the disclosure of a ruling sovereign prince ’ s paternity was a news event relating to public life, given the functions held by the individual in question and the hereditary nature of the transmission of power in the Principality of Monaco; disclosure of this information was necessary in order to inform the public; the publication of observations and digressions alongside the announcement of a news event such as the fact of a sovereign prince ’ s fatherhood was lawful, provided that these were innocuous and merely served to put the information into perspective; and the publication of photographs taken within the family, illustrating the news event described in the article, was not such as to interfere with respect for privacy and private life. 31. Relying on Article 10 of the Convention and citing the Court ’ s case-law, the applicants also argued that the public had the right to be informed, and that this right extended to information concerning the private life of certain public figures. They considered, in particular, that the Court ’ s decision in Von Hannover v. Germany (no. 59320/00, §§ 62 and 76, ECHR 2004 ‑ VI) would have been the reverse had the relevant member of the royal family been, as in the present case, the Prince himself, Head of the State of Monaco. In support of this argument, they cited Krone Verlag GmbH & Co KG v. Austria (no. 34315/96, 26 February 2002) which, they submitted, showed that the fact of being a politician brought an individual exercising that role into the sphere of public life, with the attendant consequences. They further argued that the Court of Cassation also recognised the public ’ s right to information, including with regard to facts concerning private life, even where the individual concerned held no public office. Lastly, they submitted that the primacy of the right to inform and the right to be informed had been established in similar circumstances, even where a person ’ s right to their own image was in issue. 32. The applicants argued, in particular, that in a hereditary monarchy the Prince ’ s lack of known issue was already a matter of discussion, and that the existence of a child was such as to contribute to that discussion. They also submitted that the child was a potential heir to the Monegasque throne, since his father could legitimise him at any time. They considered that, even if improbable, this scenario remained legally possible, and could therefore become the subject of a general debate regarding the future of the Monegasque monarchy, and that, in addition, the fact that the child was of Togolese origin could contribute to a debate of general interest which had the potential to change the image of a particularly conservative principality. 33. The applicants also pleaded the very strong ties which, they alleged, bound the Principality of Monaco to France. They further submitted that the worldwide impact of the contested material, including in the most serious and most prestigious newspapers, proved that the information disclosed by Paris Match was such as to contribute to a debate of general interest, and that this was not simply an article written to provide entertainment. 34. They further argued that the photographs accompanying the article, showing the Prince with the child or with Ms Coste, illustrated a news event, and that they entailed no breach of respect for human dignity, since the Prince was presented in a positive light. They asserted that these photographs had not been taken without the Prince ’ s knowledge, but by Ms Coste herself, and specified that she had handed them over to Paris Match for publication voluntarily and without charge. 35. Lastly, they emphasised that the magazine Bunte had published an almost identical article in Germany on 4 May 2005, prior to publication of the impugned article, and that the German courts had dismissed the Prince ’ s action against that newspaper. 36. By a judgment of 27 February 2007, the Court of Cassation dismissed the appeal on points of law on, inter alia, the following grounds. “ ... every person, whatever his rank, birth, fortune or present or future functions, is entitled to respect for his private life; ... the judgment notes firstly that, on the date on which the article was published, the child ’ s existence and his descent were unknown to the public, and secondly that the Principality ’ s Constitution rules out the possibility of his accession to the throne, since he was born out of wedlock, a situation that, moreover, the company ’ s pleadings did not claim to be a subject of debate in French or Monegasque society or of examination in the impugned publication, and, lastly, [that] the article contained multiple digressions on the circumstances in which Ms Coste and Prince Albert met and about their relationship, the Prince ’ s reactions to the news of the pregnancy and his subsequent attitude towards the child; ... in the light of these findings and considerations, the Court of Appeal correctly noted the lack of any topical news item or any debate on a matter of public interest which would have justified its being reported at the time of the impugned publication on the grounds of legitimate imparting of information to the public; ... moreover, the publication of photographs of a person to illustrate subsequent content which amounts to an invasion of his privacy necessarily infringes his right to control of his own image ... ” C. The proceedings before the German courts 37. On 12 May 2005, after publication of the initial article on 4 May 2005 ( see paragraph 11 above ), the weekly magazine Bunte published another article about the disclosure of the Prince ’ s paternity, this time accompanied by several photographs showing the Prince and the child. 38. The Prince brought urgent proceedings against the magazine in order to prevent any further publication, but his case was dismissed on 19 July 2005 by a judgment of the Freiburg Regional Court ( Landgericht ), upheld on 18 November 2005 by the Karlsruhe Court of Appeal ( Oberlandesgericht ). 39. The Freiburg Regional Court noted, in particular, that, as a figure of contemporary history par excellence, the Prince had to tolerate the impugned encroachment on his private life, given the information value of the report. It noted that the veracity of the information published by the magazine with regard to the statements by the child ’ s mother and to the claimant ’ s paternity had not been disputed on any specific point. It considered that the publication was not unacceptable in terms of the protection of a person ’ s intimate sphere, since the disclosures did not relate to that sphere but to the sphere of private life, which was less protected. It held that the public ’ s right to information resulted from the claimant ’ s position in society, and that the pressure that he might have experienced as a result of those disclosures, aimed at obliging him to recognise his child, did not prohibit publication but was merely an inevitable consequence of it, which he was required to tolerate. It noted that the published photographs had been taken with the claimant ’ s agreement, in his private sphere, and had been made available to the press by a person who had just as much right to do so as the claimant. It held that the protection of the claimant ’ s private sphere and his right to his own image had to yield to the freedom of the press, on account of the importance of communicating to the public information concerning the claimant ’ s son born out of wedlock and about the child ’ s mother. Lastly, it considered that it was for the mother rather than for the Prince, who had not recognised the child, to decide whether the disclosure of the latter ’ s existence fell within the protected private sphere. 40. Following the appeal by the Prince, the Court of Appeal ordered the magazine not to republish or allow to be published a photograph which had appeared in the 4 May 2005 issue of Bunte, showing the claimant in a moment of intimacy with Ms Coste. However, it considered that the issue of a male heir to the prince of Monaco – a constitutional hereditary monarchy – was of decisive importance, and that the interest taken in this question not only by the citizens of Monaco but also by many persons who lived outside the Principality deserved protection and ought not to be superseded by the claimant ’ s interest in securing protection of his private sphere, on the ground that the current legal situation allowed only legitimate children to accede to the throne. | This case concerned the conviction of the applicants – the publication director and publisher of the weekly magazine Paris Match – following the publication in May 2005 of a ten-page article, announced on the magazine cover under the headline “Albert of Monaco: A., the secret child” and containing several photographs. The applicants alleged that the judgment against them had amounted to unjustified interference with the exercise of their right to freedom of information. |
931 | Concurrent judicial functions in the same case | 7. The applicants are Austrian farmers resident at Obritzberg in Lower Austria. They complain of consolidation proceedings (Zusammenlegungs-verfahren) in respect of their land in July 1973. I. The circumstances of the case 1. The proceedings before the land reform boards 8. On 30 July 1973, the Lower Austrian District Agricultural Authority (Agrarbezirksbehörde - "the District Authority") published a consolidation plan for Obritzberg which included the applicants' land. The applicants lodged an appeal with the Provincial Land Reform Board (Landesagrarsenat - "the Provincial Board"), claiming that they had not received land compensation as provided for in the Lower Austrian Agricultural Land Planning Act (Flurverfassungs-Landesgesetz - see paragraph 15 below). The grounds of appeal differed from one applicant to the other according to the way in which the consolidation plan affected each individual's property. 9. The Provincial Board gave its decisions on 26 and 27 May 1975, after hearing the parties and several other landowners affected by the changes the applicants were seeking. It determined the appeal on the basis of the case-file and after some of the members had inspected the site, and it made a number of variations in the land compensation awarded to the applicants. In accordance with section 5(2) of the Federal Agricultural Authorities Act (Agrarbehördengesetz 1950, as amended in 1974 - see paragraph 15 below), the Provincial Board was composed of three judges - all three from the Court of Appeal on 26 May 1975, two from the Court of Appeal and one from the Regional Court on 27 May 1975 - and five civil servants from the Office of the Lower Austrian Provincial Government (Amt der Landesregierung). The chairman was the head of Division VI 4 of the Office, and the rapporteur was a civil servant in that Division; a third member of the Board belonged to Division VI 11. The remaining two members do not appear in the Office's organisational chart for 1975/76, which was filed by the Government, but do appear in the one for 1976/77 (i.e. of later date than the Provincial Board's decision in the case); at that time, together with the chairman and the rapporteur, they were in Division VI 3, which, according to the Government, was set up in 1976 following a reorganisation of the Office's administrative departments. In its report (paragraph 97) the Commission relied not on the 1975/76 chart but on the 1976/77 one; it noted that at the time the Provincial Board took its decision, four of its ordinary members and their substitutes came from Division VI 3 and the chairman, the rapporteur and two other members worked in Division VI 4. 10. The applicants then appealed to the Supreme Land Reform Board (Oberster Agrarsenat - "the Supreme Board"). On 6 October 1976, the Supreme Board allowed the appeals of the Ettls and the Schalhases to the extent that they were complaining of a danger that some of the parcels of land allotted to them in compensation for their original land might be eroded by water, and it consequently ordered that a number of drainage measures should be taken; for the rest, their appeals were dismissed, as were those of the Gunackers and the Haases in their entirety. The Supreme Board was composed of three judges - members of the Supreme Court (Oberster Gerichthof) - and five civil servants from the Federal Ministry of Agriculture and Forestry (Bundesministerium für Land- und Forstwirtschaft) (section 6(2) of the Federal Agricultural Authorities Act - see paragraph 18 below). Two of the civil servants - the chairman and the rapporteur - belonged to Division I 7, which was responsible among other things for providing the Board's secretariat; the other three belonged to Divisions II C 7, II C 8 and V A 3 respectively. 2. The proceedings in the Constitutional Court and the Administrative Court 11. The applicants then lodged complaints with the Constitutional Court (Verfassungsgerichtshof). In particular they claimed that they had been deprived of their right to a decision by the lawful judge (gesetzlicher Richter - Article 83(2) of the Federal Constitution (Bundes-Verfassungsgesetz)), because under the legislation on the organisation of the agricultural authorities several experts had to sit on the Provincial Board and the Supreme Board. The applicants found it unreasonable that these members should have voting rights in cases where the issue under consideration was outside their field of expertise or where they had themselves prepared the relevant expert opinion. In addition, they claimed that there had been an infringement of their right of property, secured in the Constitution. They also referred in a general way to the relevant provisions of the Human Rights Convention. In judgments on 1 February (in the case of Mr. and Mrs. Haas), 28 February (in the case of Mr. and Mrs. Gunacker) and 19 March 1980 (in the case of Mr. and Mrs. Ettl and Mr. and Mrs. Schalhas), the Constitutional Court rejected the complaints as unfounded. It pointed out inter alia that Article 12(2) of the Federal Constitution expressly provided for the participation of experts. At the applicant's request, the court referred the cases to the Administrative Court (Verwaltungsgerichtshof) for the latter to determine whether any non-constitutional rights had been infringed. 12. In the Administrative Court the applicants challenged the lawfulness of the land compensation awarded them. They claimed that the requirements of the Lower Austrian Agricultural Land Planning Act had not been complied with and also that there had been an infringement of the provisions of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) concerning the impartiality of the administrative authorities and the right to a fair trial - the experts had voted on a matter outside their professional competence; there had been no written expert opinion; and none of the boards had informed the parties of the findings of the investigation (Ermittlungsverfahren). On 11 November (in the case of Mr. and Mrs. Ettl and Mr. and Mrs. Gunacker) and 25 November 1980 (in the case of Mr. and Mrs. Schalhas and Mr. and Mrs. Haas), the Administrative Court held that there had been a breach of the applicants' procedural rights; it dismissed the other complaints. The judgments, which were worded in similar terms, may be summarised as follows (paragraph 52 of the Commission's report): - Inasmuch as the applicants were accusing the expert members of the Supreme Board of bias, their submissions were without foundation, as the composition of the Board had been in accordance with the law. - In so far as they were complaining that there had been no written expert opinion on certain points, they had not indicated what relevant facts had not been brought to the Supreme Board's knowledge for want of such an opinion. Accordingly, there had not been any material procedural irregularity (wesentlicher Verfahrensmangel). - As to the investigation, they should have been informed both of the findings of fact (Befund) and of the expert opinion itself (Gutachten). However, as they did not specify what additional evidence they would have adduced had they known the outcome of the investigation, they again did not succeed in establishing that there had been any material procedural irregularity. - Lastly, the complaints that the Agricultural Land Planning Act had not been complied with were without foundation. The Supreme Board had, however, ordered a number of measures to be taken - drainage of the land allocated to the Ettls, the Schalhases and the Haases, and construction of an access way in the case of the Gunackers - without specifying all the works that were necessary, without giving sufficient reasons for its decisions and without having established all the material facts. In the case of the Ettls, the Board had obtained an opinion (Stellungnahme) from its agronomist member on the problem of the erosion of certain land but had not communicated it to the applicants, who had accordingly not been able to comment on it. The Administrative Court consequently quashed the impugned decisions on these points on grounds of procedural irregularity and remitted the cases to the Supreme Board. 13. The Supreme Board allowed the applicants' appeals on 3 March 1982. The District Authority subsequently published a new consolidation plan, which the applicants challenged before the Provincial Board in the autumn of 1985. The Court has not been informed of the progress of these proceedings. | The applicants were farmers whose land had been the subject of consolidation proceedings. According to them, the agricultural authorities before which the relevant proceedings were held, each of which consisted of three judges and five civil servants, did not constitute independent and impartial tribunals. |
104 | Taking of children into care | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants in application no. 11308/16 (Tlapak) are a mother and father. Their son J. was born on 15 January 2012. The applicants in application no. 11344/16 (Pingen) are also a mother and father. Their two daughters A. and B. were born on 7 October 2009 and their son G. was born on 23 May 2013. All the applicants are members of the Twelve Tribes Church ( Zwölf Stämme ) who lived in a community of around twenty members of the church in Wörnitz, Germany. A second community with around 100 members was located in the nearby village of Klosterzimmern. A. Background to the case 7. In 2012 the press reported about the Twelve Tribes Church and its position on the right of parents to apply corporal punishment, especially caning. Furthermore, statements by a former member of the community were published, confirming that children had been punished with rods. 8. In 2012 and 2013 the local youth offices ( Jugendamt ) visited both communities and its spokespersons were invited to a meeting at the Bavarian Ministry of Education. Corporal punishment and the issue of compulsory schooling were discussed at the meeting. 9. On 16 August 2013 the Klosterzimmern youth office and the Nördlingen Family Court received video footage from a television reporter showing ten different instances of corporal punishment in the community in Klosterzimmern. The footage, filmed with a hidden camera, showed the caning of various children between the ages of three and twelve. According to the television reporter, the person who carried out the punishment was not, in most cases, a parent of the child being punished. 10. On 3 September 2013 the Ansbach Family Court, upon an application by the competent youth office, made an interlocutory order regarding all children in the Twelve Tribes community in Wörnitz, including the applicants ’ children. The court withdrew the applicants ’ rights to decide where their children should live ( Aufenthaltsbestimmungsrecht ), and to take decisions regarding their health ( Gesundheitsfürsorge ), schooling and professional training, and transferred those rights to the youth office. The court based its decision on the above-mentioned video footage and the testimony of the television reporter and six former members of the Twelve Tribes community. It concluded that there was a reasonable likelihood that the children would be subjected to corporal punishment in the form of caning and so-called “ restraining ”, involving holding a child ’ s limbs tight and pressing his or her head down until the child had no strength left to cry and struggle. 11. On 5 September 2013 the youth office took the community ’ s children into care. They were supported by around thirty police officers, who, at the same time, searched the community ’ s premises and found a wooden rod. 12. The applicants ’ children were subsequently examined but no physical signs of abuse or beating were revealed. 13. J. Tlapak was subsequently placed in a foster family. As he was still being breastfed, his mother was permitted daily visits to give him milk. 14. A. and B. Pingen were also placed in a foster family. Their aunt ’ s family was approved as fosterers and they were then placed with them. 15. Since G. Pingen was then only one year and four months old and was also still being breastfed, he and his mother were placed together in a foster family. 1. Application no. 11308/16 (Tlapak) 16. On 13 September 2013 the Ansbach Family Court heard the applicants and on 23 September 2013 it upheld its order of 3 September 2013 in an interim decision. 17. On 2 December 2013 the Nuremberg Court of Appeal dismissed an appeal by the applicants against the interim decision of the Family Court in essence, but set the decision aside to the extent it concerned the parental right to decide on schooling matters. Given the son ’ s age, the court held that there was no need to decide on that issue in the interim proceedings. 18. In 2015 the applicants moved – without their son J. – to the Czech Republic, where they have been living since. 2. Application no. 11344/16 (Pingen) 19. The Ansbach Family Court heard the applicants on 13 September 201 3 and the applicants ’ daughters on 18 September 2013 in the foster family ’ s home. The daughters reported that their parents had hit them on the hand with a rod as a form of corporal punishment. On 23 September 2013 the Family Court upheld its order of 3 September 2013. 20. On 2 December 2013, upon an appeal by the applicants, the Nuremberg Court of Appeal reversed the decision to withdraw the right to decide where G. Pingen should live. The earlier decision on the daughters was upheld, with the proviso that the parents were to retain the right to take decisions on school matters and on their daughters ’ choice of education or training and career. 21. The son was subsequently returned to the applicants, who moved first to Belgium and later to the Czech Republic, where they have been living since. The applicants ’ daughters are still in the care of the foster family (see paragraph 14 above). B. The main proceedings 1. Application no. 11308/16 (Tlapak) 22. Upon an application made by the applicants on 9 September 2013 the Family Court initiated the main proceedings and, on 24 September 2013, it commissioned an expert opinion. 23. After interviewing the applicants and observing a meeting between them and their son, the expert submitted a written opinion on 19 December 2013. He found that even though the applicants had a loving attitude towards their son, they considered corporal punishment with objects as an appropriate and necessary parenting method. Owing to their willingness to apply that method to their son, there was a likelihood bordering on certainty that if he remained with them, they would apply corporal punishment. This, the expert concluded, would significantly jeopardise the son ’ s development and result in psychological problems. Overall, it was in the child ’ s best interests to place him away from his parents to protect him from the applicants ’ parenting methods, which were dangerous for the child. Since their parenting was based on religious convictions, they were unwilling to abandon the parenting method of corporal punishment and lacked the will to cooperate with the authorities or accept help. Consequently, less intrusive measures could not be considered sufficient. 24. Subsequently the applicants submitted a privately commissioned expert opinion, in which the court-appointed expert ’ s approach and methodology was criticised. In addition, the applicants retrospectively withdrew their consent to being assessed by the court-appointed expert and to an assessment of their son. 25. In separate proceedings the Family Court, on 1 August 2014, issued an interim decision in which it withdrew the applicants ’ parental right to decide on the son ’ s assessment by the court-appointed expert and consented to such a measure. 26. On 4 August 2014, the Family Court forwarded the privately commissioned expert opinion to the court-appointed expert, who responded to the criticism and gave details of his methodology in a letter of 15 August 2014. 27. In a hearing on 19 September 2014 the court proposed an agreement between the applicants and the youth office, with the aim of returning their son to them. However, the applicants and the youth office did not agree on a settlement owing in particular to a disagreement about the son attending a state school and play therapy. Moreover, there were concerns about the parents attending a development course and assisting with medical measures. The youth office considered those aspects as essential and declined the partial settlement proposed by the applicants. 28. After hearing the applicants ’ son in the home of the foster family where he had been placed on 21 October 2014, the Family Court decided on 22 October 2014 to withdraw the applicants ’ right to decide where their son should live and to take decisions regarding his health and schooling, and transferred those rights to the youth office, which had been appointed as supplementary guardian. 29. The Family Court stated that it would be very detrimental to the best interests of the child if the son continued to live with the applicants owing to their parenting methods. Based, in particular, on the court ‑ commissioned expert opinion and the statements by the applicants during the court proceedings, the court concluded that there was a high, concrete probability that the son would be subjected to corporal punishment using physical objects over the course of several years. According to the expert, this would give rise to an expectation that the applicants ’ son would suffer from psychological issues. Even though separating the parents and the child constituted a severe interference with their right to a family under Article 6 of the Basic Law ( see paragraph 53 below) and may possibly have negative consequences for the child, that interference was justified in the case at hand. Corporal punishment of the kind at issue was particularly degrading for a child. It was not only banned by Article 1631 § 2 of the Civil Code ( see paragraph 54 below) but also constituted an interference with a child ’ s human dignity, protected under Article 1 of the Basic Law ( see paragraph 50 below), and a child ’ s right to physical integrity, protected under Article 2 of the Basic Law ( see paragraph 51 below). 30. The court also held that the risk to the child could not be averted using less drastic measures. Throughout the course of the proceedings the applicants had unreservedly advocated their parenting style and had refused to accept the opinion that the type of corporal punishment they endorsed was covered by the ban on violence under Article 1631 of the Civil Code. The physical effects of such punishment were only short-lived, which was why it would only be possible for the youth office to observe any such effects if it made unannounced visits and the child had – by chance – been punished immediately prior to such a visit. According to the expert ’ s explanations, the psychological consequences could, by contrast, only be determined after a longer period of time and they were difficult to discern at first glance. Although the applicants had most recently indicated to the court that they were ready to refrain from corporal punishment in the future, the court regarded such statements as not being compelling since they had not provided any grounds. The Family Court, nonetheless, pointed out that the applicants were free to reach an out-of-court settlement with the youth office concerning the conditions under which the son could be returned after the proceedings had been concluded. However, the previous settlement proposal had been refused because the applicants had not been willing to agree to have their son take part in play therapy and attend a state school. 31. In regard to the fact that the applicants had withdrawn their consent to being examined by the court-appointed expert after the expert opinion had already been submitted, both for themselves and their child, the court held that this did not render the expert ’ s report unusable in the proceedings. While the court had given its own consent in place of the parents ’ as far as it concerned the son, the parents ’ actions on that point could not, in light of the state ’ s obligation to protect children under constitutional law, hinder the use of the expert opinion in the proceedings. Allowing parents to reject expert opinions they disagreed with by retrospectively withdrawing consent to an examination would prevent any effective protection of children in family court proceedings. 32. The applicants subsequently appealed against the decision of the Family Court. The Court of Appeal, after hearing the applicants, their son, the son ’ s guardian ad litem, a representative of the youth office, the court ‑ appointed expert and the expert commissioned by the applicants, dismissed the applicants ’ appeal on 26 May 2015. 33. In a decision of thirty-nine pages, the Court of Appeal considered in detail the applicants ’ statements concerning corporal punishment, publications by the Twelve Tribes Church, the expert ’ s opinion and the criticism of the report by the privately commissioned expert. Overall it confirmed the decision and reasoning of the Family Court of 22 October 2014. The court emphasised that not all individual violations of the right to a non-violent upbringing under Article 1631 § 2 of the Civil Code ( see paragraph 54 below) could justify a withdrawal of parental authority. However, there was a fear in the applicants ’ case that systematic caning with a rod would be the reaction whenever the child was deemed to have broken a rule. There was moreover already a threat to the child ’ s best interests as he would live in constant fear of suffering physical pain and experiencing the resulting humiliation as psychological suffering. Beatings as such, the court held, constituted child abuse and misuse of parental authority. It was of no relevance whether or not lasting physical injuries occurred. 34. The court further held that on account of their religious beliefs, the applicants were convinced that their child-rearing methods were legitimate. Accordingly, they were neither willing nor able to avert the danger to their child and the recent contradictory statements they had made could not be considered as credible. 35. On 16 August 2015 the Federal Constitutional Court refused to admit a constitutional complaint by the applicants (1 BvR 1467/15), without providing reasons. 2. Application no. 11344/16 (Pingen) 36. The Family Court, upon an application by the applicants dated 9 September 2013, initiated the main proceedings and on 24 September 2013 commissioned an expert opinion. 37. After interviewing the applicants, their two daughters and the children ’ s foster parents, and observing a meeting between the applicants and their children, the expert submitted a written opinion on 23 December 2013. He stated that the applicants and their daughters had confirmed that the parents had used a rod as corporal punishment on the daughters and that even though the applicants had a loving attitude towards their children, they considered corporal punishment using physical objects as an appropriate and necessary parenting method. Given the past incidents of corporal punishment and the applicants ’ general willingness to use that method on their children, it was virtually certain that they would subject them to corporal punishment again. The expert concluded that the applicants ’ rigid, authoritarian parenting style and their conviction that children should be raised to obey their parents by means of corporal punishment using physical objects from the age of three conflicted significantly with the best interests of the children and was also detrimental to the unimpaired development of their personality. He expected that such methods would likely result in psychological issues. Overall, it was in the best interests of the children to place them away from their parents. Since the applicants ’ parenting style was based on religious convictions, they were unwilling to abandon the parenting method of corporal punishment and were not fully prepared to cooperate with the authorities and accept help. Consequently, measures that infringed on their rights to a lesser degree could not be considered sufficient. 38. Subsequently, the applicants submitted a privately commissioned expert opinion, in which the court-appointed expert ’ s approach and methodology was criticised. In addition, the applicants retrospectively withdrew their consent to being assessed by the court-appointed expert and to the assessment of their three children. 39. In separate proceedings the Family Court, on 1 September 2014, issued an interim decision in which it withdrew the applicants ’ parental right to decide on the children being assessed by the court-appointed expert and consented to the psychological examination. It also forwarded the privately commissioned expert opinion to the court-appointed expert, who responded to the criticism in it and gave details of his methodology in a letter of 1 October 2014. 40. In a hearing of 2 9 September 2014 the parties discussed an agreement between the applicants and the youth office, with the aim of returning the daughters to the applicants and protecting all three children. However, the applicants and the youth office could not agree on a settlement as there was disagreement in particular on the children attending a state school and therapy. Moreover, the applicants were unwilling to remain in Germany under the supervision of the youth office for an extended period of time. 41. After hearing the applicants and their daughters several times, including in parallel proceedings, the Family Court decided on 21 October 2014 to withdraw the applicants ’ right to decide where all three children should live and to take decisions regarding the children ’ s health and schooling, and transferred those rights to the youth office, which had been appointed as supplementary guardian. Additionally, the court ordered the applicants ’ son to be handed over to the youth office. 42. In its reasoning, which was similar to that in application no. 11308/14 (see paragraphs 29-31 above), the Family Court held that the applicants ’ parenting methods meant that it would be very detrimental to the best interests of all three children to continue to live with their parents. The court emphasised that the aim of Article 1666 of the Civil Code ( see paragraph 55 below) was not to penalise past child abuse or views on parenting that were in contradiction to Article 1631 § 2 of the Civil Code ( see paragraph 54 below), but to prevent imminent threats to the best interests of children. Based, in particular, on the opinion by the court ‑ appointed expert and the statements by the applicants and their children, the court concluded that there was a high, concrete probability that the children would be subjected to systematic corporal punishment using physical objects, which would in turn be detrimental to the best interests of the children in physical and psychological terms. The severe interference with the applicants ’ right to a family under Article 6 of the Basic Law (see paragraph 53 below) by separating them from their children was nonetheless not only justified but also proportionate since the risk to the children could not be averted using milder means. Besides the problem of detecting corporal punishment through unannounced visits by the youth office ( see paragraph 30 above ), the court also pointed out that the applicants had consistently, over the course of the proceedings, shown a lack of willingness to cooperate with the youth office and had refused to accept state schools, both of which the court found necessary to prevent degrading corporal punishment and ensure the children ’ s autonomous development. Furthermore, the court held that it could be expected that the applicants would leave Germany if their children were returned to them and thereby elude any orderly monitoring and supervision by the competent youth office. Lastly, the court concluded that the withdrawal of the consent to being examined by the court-appointed expert did not hinder the use of the expert opinion in the proceedings (see paragraph 3 1 above). 43. The applicants subsequently appealed against the decision of the Family Court and applied for an interim measure to suspend the order to hand their son over to the youth office. 44. On 15 December 2014 the Court of Appeal provisionally suspended enforcement of the Family Court ’ s order on the son. The court held that given his age, one year and six months, and the fact that he was still being breastfed, enforcement would constitute an especially serious interference with the applicants ’ rights. In addition, the son ’ s young age meant there was no imminent and sufficient risk of him being subjected to corporal punishment. 45. During the appeal proceedings the applicants proposed a settlement to the Court of Appeal. The applicants would temporarily return to Germany and for two months they would gradually be reunited with their two daughters under the supervision of the youth office. At the end of that period, if the family reunification had been successful, the Family Court ’ s decision would be set aside and the whole family would move to the Czech Republic. 46. On 26 March 2015 the Court of Appeal conducted an oral hearing during which it heard, inter alia, the applicants, their daughters, the court ‑ appointed expert, the expert commissioned by the applicants and the children ’ s guardian ad litem. The applicants ’ daughters stated that, even though they would like to see their parents more often, they would prefer living with their foster parents. Moreover, a representative of the youth office indicated during the hearing that the applicants had not distanced themselves from their previous parenting methods in a credible way and that therefore the youth office was not able to agree to the settlement they had proposed. 47. On 10 June 2015 the Court of Appeal, in a detailed decision of forty ‑ five pages, rejected the applicants ’ appeal and confirmed the reasoning of the Family Court. The court held that corporal punishment with a rod, prohibited by Article 1631 § 2 of the Civil Code ( see paragraph 54 below), constituted the physical abuse of children and if applied regularly and repeatedly the competent authorities were obliged under Article 1666 of the Civil Code ( see paragraph 55 below) to intervene and take the necessary measures in the best interests of the children. The applicants ’ daughters had consistently stated during the proceedings that they had been caned on a daily basis and the applicants themselves had confirmed that they had “ disciplined ” their daughters with a rod. The court was convinced that the applicants would continue to use corporal punishment on their children in the future since that parenting method was already firmly established and was based on religious beliefs from which the applicants had not fundamentally distanced themselves. Their statements had shown that they, in essence, continued to approve of corporal punishment and considered it an appropriate parenting method. The fact that the applicants had recently acknowledged that their children had a right to a non-violent upbringing did not mean they had changed their attitudes to parenting in a permanent way; rather, that had only served a procedural purpose, namely to have their daughters returned to them as soon as possible. In the court ’ s opinion, the applicants were only prepared to refrain temporarily from corporal punishment. The court was therefore unable to find that the applicants had changed their way of parenting and distanced themselves from corporal punishment in a manner which the court could regard as credible. Consequently, there was an imminent danger of systematic corporal punishment if the two daughters were returned to their parents. The danger also existed for the applicants ’ son as there was no fixed age when the applicants started “ disciplining ” their children as they rather considered it a tool to enforce their parental authority. As the two - year - old son was expected to start his “ phase of defiance ” soon, it also had to be expected that the applicants would respond with caning. 48. The Court of Appeal also confirmed that the applicants ’ withdrawal of their consent to being assessed did not prevent the courts from using the expert opinion as evidence and that there were no less severe measures available to avert the imminent detriment to the best interests of the children resulting from their parents ’ use of corporal punishment. In that regard, the court, inter alia, pointed to the fact that the applicants had already left Germany with their son and refused to return to live there permanently. The competent authorities would therefore from the very outset be unable to provide sufficient support to the family or effectively monitor the applicants ’ parenting methods. 49. On 16 August 2015 the Federal Constitutional Court refused to admit a constitutional complaint by the applicants (1 BvR 1589/15), without providing reasons. | These cases concerned the partial withdrawal of parental authority and the taking into care of children belonging to the Twelve Tribes Church (Zwölf Stämme), living in two communities in Bavaria. In 2012 the press reported that church members punished their children by caning. The reports were subsequently corroborated by video footage of caning filmed with a hidden camera in one of the communities. Based on these press reports, as well as statements by former members of the church, the children living in the communities were taken into care in September 2013 by court order. The proceedings before the Court have been brought by four families who are members of the Twelve Tribes Church. They complained about the German courts’ partial withdrawal of their parental authority and the splitting up of their families. |
508 | From the ReesChristine Goodwin | I. THE PARTICULAR CIRCUMSTANCES OF THE CASE 11. The applicant, a British citizen born in 1942, lives at Tunbridge Wells in England. 12. At birth the applicant possessed all the physical and biological characteristics of a child of the female sex, and was consequently recorded in the register of births as a female, under the name Brenda Margaret Rees. However, already from a tender age the child started to exhibit masculine behaviour and was ambiguous in appearance. In 1970, after learning that the transsexual state was a medically recognised condition, she sought treatment. She was prescribed methyl testosterone (a hormonal treatment) and started to develop secondary male characteristics. 13. In September 1971, the applicant - who will henceforth be referred to in the masculine - changed his name to Brendan Mark Rees and subsequently, in September 1977, to Mark Nicholas Alban Rees. He has been living as a male ever since. After the change of name, the applicant requested and received a new passport containing his new names. The prefix "Mr." was, however, at that time denied to him. 14. Surgical treatment for physical sexual conversion began in May 1974 with a bilateral masectomy and led to the removal of feminine external characteristics. The costs of the medical treatment, including the surgical procedures, were borne by the National Health Service. 15. The applicant made several unsuccessful efforts from 1973 onwards to persuade Members of Parliament to introduce a Private Member ’ s Bill to resolve the problems of transsexuals. Representations were also made by him, and by a number of Members of Parliament on his behalf, to the Registrar General to secure the alteration of his birth certificate to show his sex as male, but to no avail. 16. On 10 November 1980 his solicitor wrote to the Registrar General making a formal request under Section 29(3) of the Births and Deaths Registration Act 1953, on the ground that there had been "a mistake in completing the Register". In support of his request, the applicant submitted a medical report by Dr. C.N. Armstrong. The report stated that, in Dr. Armstrong ’ s opinion, of the four criteria of sex - namely chromosomal sex, gonadal sex, apparent sex (external genitalia and body form) and psychological sex, the last was the most important as it determined the individual ’ s social activities and role in adult life, and it was also, in his view, pre-determined at birth, though not evident until later in life. Dr. Armstrong considered that as the applicant ’ s psychological sex was male, he should be assigned male. On 25 November the Registrar General refused the application to alter the Register. He stated that the report on the applicant ’ s psychological sex was not decisive and that, "in the absence of any medical report on the other agreed criteria (chromosomal sex, gonadal sex and apparent sex)", he was "unable to consider whether an error (had been) made at birth registration in that the child was not of the sex recorded". No further evidence in support of the applicant ’ s request was subsequently submitted. 17. The applicant considers himself a man and is socially accepted as such. Except for the birth certificate, all official documents today refer to him by his new name and the prefix "Mr.", where such prefix is used. The prefix was added to his name in his passport in 1984. | In this case a female-to-male transsexual complained that United Kingdom law did not confer on him a legal status corresponding to his actual condition. |
187 | State’s duty to protect physical and psychological integrity of individuals | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1969 and lives in Budapest. A. Background of the case 6. In July 2000 the applicant and her husband bought a flat which was part of an undivided shared property with one lot register number. Two thirds of the flat were registered in the applicant ’ s name and the rest in her husband ’ s name. Upon their subsequent divorce, an agreement was concluded by the applicant and her former husband on the division of the matrimonial property. According to this agreement, the applicant was to acquire the entirety of the property by buying his part of the flat. 7. In April 2005 the applicant entered into an unregistered partnership with Mr. Gy.B. He paid the former husband ’ s share of the apartment, and later officially acquired ownership of this part of the flat by virtue of a sales agreement concluded with the former husband on 17 January 2006. 8. Gy.B. made certain renovations to the property, creating two separate apartments. While the work was being carried out, the applicant moved into Gy.B. ’ s house with her children. She left him several times, after which she always returned to him. 9. In March 2006 the applicant moved back into her apartment. Gy.B. had his own keys to the flat and slept there regularly. Later, on an unspecified date, he moved into the apartment to live with the applicant. Upon his request, the Central Document Bureau registered his place of residence at the applicant ’ s address on 24 November 2006. 10. Barring some short periods of separation, their relationship lasted until about January 2007. Following this date, however, Gy.B. continued to stay in the jointly owned apartment against the applicant ’ s wishes. 11. On 5 April 2007 Gy.B. sold his part of the flat to a third party. However, he later initiated proceedings against the buyer, challenging the validity of the sales agreement. These proceedings are still pending (see paragraph 28 below). B. Alleged assaults by Gy.B. 12. Meanwhile, the relationship between the applicant and Gy.B. deteriorated, resulting in regular disputes involving mutual verbal and physical assaults. 1. Events of 27 October 2005 13. A medical report dated 27 October 2005, the first in the case, notes contusions of the applicant ’ s left ring-finger, left lower arm and left ankle. On 1 February 2008 the Budapest XX/XXI/XXIII District Court established that these injuries had been the result of assaults initiated by the applicant, to which Gy.B. ’ s reaction was considered lawful self- defence. It found the applicant guilty of disorderly conduct and released her on parole. This judgment became final in the absence of an appeal. 14. Between this event and August 2010, twelve more medical reports were delivered, all of which recorded contusions, mostly on the applicant ’ s head, face, chest and neck, with an expected healing time of eight to ten days. 2. Criminal proceedings against Gy.B. for alleged rape 15. On 8 December 2006 the applicant filed a criminal complaint against Gy.B. for rape. On 16 April 2008 he was acquitted by the District Court. It found that the applicant ’ s allegations were not credible and therefore Gy.B. ’ s guilt could not be established with the required certainty. This judgment became final in the absence of an appeal. 3. Events of 25 June 2007 16. A medical report of 25 June 2007 states that the applicant ’ s left little finger had been violently broken, with a healing time of six to eight weeks. In connection with this event, criminal proceedings were initiated against both the applicant and Gy.B. On 19 May 2009 the District Court found Gy.B. guilty of assault, and the applicant guilty of grievous bodily harm. Gy.B. was released on parole for one year, the applicant for three years. No appeal was filed against this judgment. According to the findings of fact, Gy.B. had started verbally insulting the applicant and then assaulted her. The police had intervened and called on Gy.B. to cease the assault. However, as soon as the police had left, he had continued beating the applicant. The following day the dispute had continued with mutual insults. Gy.B. had poured water on the applicant, who had picked up a kitchen knife and lightly stabbed it in the air several times in Gy. B. ’ s direction. In self-defence, Gy.B. had grabbed the blade of the knife. The applicant had nevertheless pulled it out from his hand, cutting his hand and causing him an injury with a healing time of eight to twelve weeks. 4. Criminal proceedings against Gy.B. for alleged assault, request for restraining order 17. On 22 April 2008 the applicant lodged a criminal complaint against Gy.B. for assault before the District Court. On 11 June 2008 the court held a reconciliatory meeting where she further requested the District Court to issue a restraining order against him due to the regular abuse. On 18 December 2008 a hearing was scheduled concerning the request for a restraining order. However, the applicant did not attend due to a public transport strike planned for that day. The first hearing finally took place on 10 April 2009. The following hearing was to be held on 12 October 2009. However, it was postponed upon Gy.B. ’ s request. On 8 January 2010 the District Court finally delivered a decision concerning the request for a restraining order. In its reasoning, the court stated: “ ... There were, or are, five sets of criminal proceedings pending before this court between the accuser and the accused. In the course of the proceedings conducted so far, the court has established that the bad relationship which has developed between the parties can be imputed to both parties. ... The court heard both the accuser and the accused at the preparatory hearing, established that the conditions set down by the law had not been met, and therefore dismissed the accuser ’ s request. ... ” 18. This decision was upheld on appeal by the Budapest Regional Court on 18 February 2010. According to the court: “ ... The reasons for the first-instance court ’ s decision are correct. Section 138/A(2) clearly defines the conditions where restraint, as a coercive measure, may be ordered. These circumstances were examined one by one and quite thoroughly by the first-instance court, which came to the conclusion that the conditions for a restraining order had not been met. The second-instance court agrees with these reasons and therefore upholds the decision. ... ” The criminal proceedings against Gy.B. for assault are still pending before the first-instance court. 5. Criminal proceedings against Gy.B. for alleged harassment 19. On 11 June 2008 the Budapest XX/XXI/XXXIII District Prosecutor ’ s Office discontinued the investigations initiated against Gy.B. for harassment. According to the applicant ’ s criminal complaint, he was jealous and had threatened to kill her and anyone she let into the flat. She also claimed that on several occasions he had tried to suffocate her with a pillow. The Prosecutor ’ s Office established that there was animosity between the parties and that the applicant ’ s allegations alone were not sufficient to prove the commission of any crime. 6. Events of 18 December 2009 20. According to the applicant, on 18 December 2009 Gy.B. inflicted contusions on her back, chest and wrist in the course of a fight. On that day, she lodged a criminal complaint against him with the Budapest XX/ XXIII District Police Department for insult and assault. Criminal proceedings against an unknown individual were initiated for grievous bodily harm. However, on 14 July 2011 the investigation was discontinued, as a forensic medical report established that the injuries were not serious enough. 7. Criminal complaint for alleged assaults in December 2009 and January 2010 21. On 7 January 2010 the applicant lodged another criminal complaint against Gy.B. for several alleged assaults committed in December 2009 and January 2010. Gy. B. ’ s psychiatric examination was ordered. Due to his lack of co-operation, the expert could not form an opinion about his mental state. These investigations are pending. 8. Criminal proceedings against Gy.B. for alleged assault 22. On 12 January 2010 the District Court acquitted Gy.B. of the charges of assault allegedly committed on 3 October 2007, in the absence of sufficient evidence. This judgment was upheld on appeal by the Regional Court on 1 June 2010. 9. Events of 15 and 26 April 2010, second request for a restraining order 23. A medical report of 15 April 2010 records that the applicant suffered brain concussion and lost consciousness following physical abuse resulting in injuries with a healing time of ten to twelve days. She was kept in hospital for two days. Following this event, another dispute arose between the cohabitees, leading to assault on 26 April 2010. 24. On 3 May 2010 the applicant therefore lodged another criminal complaint with the District Police Department against Gy.B. , who also lodged a criminal complaint in connection with the same events. The cases were joined. On the same day the applicant also requested the court to issue a restraining order in respect of Gy.B. based on section 138/A of the Code of Criminal Procedure. The request for a restraining order was dismissed on 10 June 2010. According to the reasoning : “ ... At the preparatory hearing the court heard both the accused and the accuser and established that the conditions set by law – in particular the phrases “ particularly in view of the nature of the criminal act ... and the relationship between the accused and the aggrieved party ” [ sic ] had not been met, therefore the accuser ’ s request was dismissed. ” 25. The Regional Court upheld the first-instance decision on 16 July 2010. It found : “ ... Several criminal proceedings were initiated or are pending against the parties, and the inobservance of cohabitation rules is typical in respect of both parties. No evidence has arisen in the present proceedings that the proceedings would be hampered by [Gy.B.] influencing or intimidating the aggrieved party. The risk of recidivism is supported in respect of both parties by the previous proceedings, but the ordering of a coercive measure only in respect of one party – in the present case against Gy.B. – is not justified due to the involvement of the aggrieved party. ... ” 26. The District Court delivered judgment on 6 July 2011. It found both the applicant and Gy.B. guilty of assault and ordered them to pay a fine. It established that on the first occasion it had been the applicant who had initiated the assault and Gy.B. had acted in legitimate self - defence. On the second occasion, it had been Gy.B. who had initiated the fight and the applicant had acted in legitimate self- defence. 10. Overview of criminal proceedings 27. In sum, the applicant requested the help of the authorities on many occasions, lodging criminal complaints for assault and harassment. Gy.B. also lodged several criminal complaints against the applicant. On four occasions, Gy.B. was acquitted of the charges ( see paragraphs 13, 15, 22 and 26 above). On five occasions the applicant did not wish to continue the proceedings or failed to prosecute privately and the court thus discontinued them. Gy.B. was found guilty of assault on two occasions (see paragraphs 16 and 26 above ), released on parole and ordered to pay a fine. Two other sets of criminal proceedings for assault are pending against him (see paragraphs 18 and 21 above). The applicant was also found guilty on several occasions (see paragraphs 13, 16 and 26 above ) of disorderly conduct, grievous bodily harm and assault, respectively. Three investigations against her – for grievous bodily harm, harassment and theft – were discontinued. Criminal proceedings for trespass are pending against the applicant (see paragraph 3 5 below ). C. Action taken to order Gy.B. to leave the apartment 28. On 3 November 2005 Gy.B. initiated civil proceedings before the Regional Court against the applicant, requesting the court to acknowledge the renovation and building he had carried out in the apartment. Upon his request, the proceedings were suspended on two occasions, from January 2006 until June 2006 and from 30 April 2008 until 19 November 2008, pending the outcome of separate proceedings initiated against third parties for the annulment of the sales agreement. The applicant ’ s appeal against the suspension was dismissed on 19 November 2008. 29. Meanwhile, on 9 August 2006 the applicant initiated civil proceedings against Gy.B. before the District Court, requesting the court to establish the ownership of the apartment. On 2 March 2007 the proceedings were suspended until the termination of the proceedings mentioned in paragraph 28 above. No appeal was submitted against the suspension. 30. Upon a criminal complaint lodged by the applicant on 29 November 2006, regulatory offence proceedings were also initiated before the Budapest XX District Mayor ’ s Office against Gy.B. for trespass. On 2 August 2007 the proceedings were discontinued, as Gy.B. was, at that time, registered as the property ’ s owner in the land register. The applicant ’ s complaint against the decision was dismissed on 23 August 2007. The applicant did not seek to prosecute privately. 31. In March 2007 Gy.B. changed the locks on the apartment but did not provide the applicant with keys. Therefore, the applicant requested the protection of her possession from the Budapest XX District Notary. On 13 August 2007 the Notary found for her and ordered Gy.B. to provide her with keys to the apartment. 32. On 11 May 2007 the applicant changed the locks on her door in an attempt to prevent Gy.B. from re-entering the apartment. On the same day he arrived with police officers who obliged her to provide access to him, as his registered place of residence was the apartment. 33. On 19 March 2008 the applicant requested the District Notary to delete her address as the place of residence of Gy.B. and to order him to leave the apartment. However, as it was not the competent authority to do so, the notary dismissed her request without an examination on the merits, on 2 June 2011. Moreover, as Gy.B. was actually living in the apartment, the deletion of her address as his place of residence was not possible. The applicant did not lodge an appeal against that decision. 34. Further to this, on 9 April 2008 the applicant initiated civil proceedings before the District Court, requesting the court to order Gy.B. to leave the apartment. The proceedings are still pending, the court having suspended them on 5 September 2008 pending the outcome of the property dispute between Gy.B. and the applicant mentioned in paragraph 28 above. 35. On 2 August 2010 the applicant again changed the locks on the doors in order to prevent Gy.B. entering the apartment. The District Police Department initiated criminal proceedings against her for trespass. The applicant lodged a complaint in this connection, which was dismissed on 6 September 2010. | The applicant unwillingly shared her apartment with her violent common-law husband pending numerous civil disputes concerning the ownership of the flat. She alleged in particular that the Hungarian authorities had failed to protect her from constant physical and psychological abuse in her home. |
537 | Police brutality | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant is of Roma ethnic origin and lives in Nea Zoe, in Aspropyrgos (western Attica ), in a Roma settlement. A. Outline of the events 6. On 28 January 2002, between 11 a.m. and 1 p.m., the Police Directorate of western Attica, on the initiative of Aspropyrgos police station, conducted a large-scale police operation in the Roma settlement of Nea Zoe. The operation was aimed at arresting persons who, according to information obtained by the police, were involved in drug trafficking. Thirty-two police officers and one judicial official took part in this operation, in the course of which eleven Roma dwellings were searched and four individuals arrested. 7. The applicant, who was two and a half months pregnant, was in the settlement at the time of the operation. 1. The applicant's version 8. The applicant and other Roma women were rounded up by the police for a body search. According to her statement, whilst the police operation was taking place the applicant waited her turn to be searched by the police who were searching other residents of the settlement. She noticed that certain police officers were taunting a disabled Roma who was a relative of hers. 9. As she moved to approach the police officers, she was forcefully pushed back by one of them while another one kicked her in the back, in spite of the fact that she had shouted that she was pregnant. As a result of the kick, the applicant felt an intense pain in the abdominal area and started bleeding. Although the bleeding was obvious to all the police officers present, the applicant was not taken to hospital. Not having any personal documents – as she was at the time an unregistered stateless person – and being alone, she felt she could not go to the hospital on her own for fear of being refused treatment. 10. The next day she informed members of the Greek Helsinki Monitor that she had been kicked by a police officer and that she was bleeding. One of them then rushed her to Elena Venizelou Maternity Clinic, where she was admitted immediately. She underwent a number of medical tests. 11. On 1 February 2002 the applicant suffered a miscarriage and was kept under medical supervision until 5 February 2002, when she was discharged from the hospital. 2. The Government's version 12. According to the version of events given by the Government, the police officers who participated in the police operation of 28 January 2002 did not use force against civilians. Neither the four persons arrested nor any other individual who was in the settlement during the operation had been assaulted or subjected to racial abuse. The presence of a judicial officer guaranteed the police officers'proper conduct. B. Medical report 13. According to the medical report drawn up at the end of the examination, “the applicant was admitted to the hospital on 29 January 2002, 10 weeks pregnant, with haemorrhaging from her uterus (risk of spontaneous abortion). On 2 February 2002 there was a complete expulsion of the foetus and on 4 February 2002 her uterus was cleaned”. C. Criminal proceedings 14. On 1 February 2002 counsel for the applicant lodged a criminal complaint with the Athens public prosecutor against the police officer who had allegedly used violence against the applicant and whose identity was unknown to her. In the complaint the applicant joined the proceedings as a civil party seeking damages, asked to be examined by a forensic doctor and named three persons who could testify as witnesses. She also included the address and telephone numbers of her lawyers. 15. On 10 February 2002 the Athens public prosecutor sent a letter to the commander of Aspropyrgos police station requesting that a preliminary inquiry ( προανάκριση ) be launched into the allegations contained in the applicant's criminal complaint so as to identify the unknown perpetrators, who would be charged with inflicting serious bodily harm under Articles 308 § 1 (a) - 309 of the Greek Criminal Code. 16. On 11 March 2002 two witnesses named by the applicant submitted a written testimony to the police officer in charge of the preliminary inquiry. On the same date the applicant submitted a written memorandum to the police requesting that the police officers from Aspropyrgos police station be excluded from conducting the preliminary inquiry since officers from that station had participated in the operation in question and it was most likely that one of them had ill-treated her. 17. By a letter dated 12 March 2002 the commander of Aspropyrgos police station informed the Athens public prosecutor of the applicant's request and asked him to make a decision and issue the relevant order as to whether he should continue to conduct the preliminary inquiry. It cannot be ascertained from the case file whether the public prosecutor replied. However, Aspropyrgos police station continued with the preliminary inquiry. 18. On 1 May 2002 two police officers, the head of the security division of Aspropyrgos police station and the head of the anti- crime unit of Elefsina police station respectively, testified before the police officer conducting the preliminary inquiry. Both officers stated that they did not have any knowledge of ill-treatment inflicted upon the applicant. 19. On 28 November 2002 the investigation file was forwarded to the Athens public prosecutor. In the covering letter the Aspropyrgos police station commander repeated the applicant's request that the police officers serving at his police station be prevented from conducting the preliminary inquiry. 20. On 10 September 2003 the Athens public prosecutor requested the Elefsina magistrate ( πταισματοδίκης ), the competent judicial authority, to summon the applicant and any other witnesses she wished to call. 21. On 16 January 2004 a court bailiff visited the settlement where the applicant lived in order to summon her and another woman to testify before the Elefsina magistrate on 26 January 2004. The court bailiff stated that she was unable to find either the applicant or the other witness and that she had been informed by police officers from Aspropyrgos police station that the two women had moved to “an unknown address”. 22. On 26 January 2004 the Elefsina magistrate returned the case file to the Athens public prosecutor. 23. On 3 July 2004 the Athens public prosecutor closed the file with the indication “Perpetrator unknown”. The authorities did not inform the applicant or her legal representatives that the file had been closed. On 28 July 2004, when making an enquiry at the Athens public prosecutor's office, the Greek Helsinki Monitor was informed that the case had been closed. 24. On 1 September 2004 the Greek Helsinki Monitor sent a letter to the Aspropyrgos police station commander, enclosing a copy of the bailiff's statement and enquiring as to how the police officers could have been aware of the applicant's change of address. 25. In his reply dated 6 September 2004 the Aspropyrgos police station commander commented on the court bailiff's reference to Aspropyrgos police station's having informed her that the applicant had moved to “an unknown address”. According to the station commander, the reference was general and vague and thus could not be confirmed and the records of the police station did not contain any relevant information. D. Administrative investigation into the incident 26. In the meantime, on 5 March 200 2, responding to the publicity that had been generated, the Chief of the Greek Police launched an informal investigation in order to clarify whether the police operation of 28 January 2002 had involved unlawful or excessive use of force by members of the police. The investigation was conducted under the direct supervision of the Deputy Director of Police, A. V. , who had been actively involved in the police operation of 28 January 2002. As he stated in his report : “[T]he general supervision and coordination of the police actions had been orally assigned by the commander of the Police Directorate of western Attica to the undersigned, who prepared the action plan and personally supervised the police officers'action on the operational level.” 27. Police officer A. V. proceeded to question five senior police officers who had participated in the operation in question. According to their statements, they had not witnessed any of their colleagues ill-treating the Roma residents. 28. On 6 March 2002 the police went to the applicant's settlement in order to serve her with a summons for interview, but did not find her. 29. On 7 March 2002 the report on the findings of the informal investigation was issued. According to the report, the presence of a judicial officer during the police operation guaranteed that, in the event of incidents of police brutality, the public prosecutor would be informed. Furthermore, according to officer A. V .'s findings : “the complaints are exaggerated ... It is in fact a common tactic employed by the athinganoi ( Greek word for Roma) to resort to the extreme slandering of police officers with the obvious purpose of weakening any form of police control.” The report concluded that, given that a criminal investigation had already been initiated, it was advisable to suspend the disciplinary proceedings until either a criminal court had ruled on the case or the alleged perpetrator had been identified. In accordance with this recommendation, the disciplinary proceedings were suspended. | The applicant, a Greek national of Roma ethnic origin, alleged that she had been the victim of police brutality, resulting in a miscarriage, and that the Greek authorities had failed to carry out an adequate investigation into her allegation. She further submitted that her Roma ethnic origin had influenced the attitude and behaviour of the police and judicial authorities. |
498 | Employment health-insurance coverage | 2. The applicant was born in 1975 and lives in Rijeka. She was represented by Ms K. Jajaš, a lawyer practising in Rijeka. 3. The Government were represented by their Agent, Ms Š. Stažnik. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant had been employed, with short interruptions, since 1993. Her last relevant employment had lasted from 19 August 2006 until 31 October 2009. Since 1 November 2009 she had been unemployed. 6. On 17 November 2009 the applicant underwent in vitro fertilisation. The doctor in charge recommended that she take rest ( mirovanje ). 7. On 27 November 2009 the applicant entered into an employment contract with company N. (hereinafter “the company”), which had its headquarters near Split, about 360 kilometres away from the applicant’s place of residence. Pursuant to the contract, the applicant was to start full-time work on administrative tasks in Split on that date for a monthly salary of 4,400 Croatian kunas (HRK; approximately 600 euros (EUR)). 8. On 11 December 2009 the applicant’s application to register with the compulsory health insurance scheme was filed with the Croatian Health Insurance Fund ( Hrvatski zavod za zdravstveno osiguranje ) and she was registered as an insured employee. 9. On 14 December 2009 the applicant started feeling nauseous. Her doctor established that the in vitro fertilisation had been successful, and that the applicant needed rest owing to pregnancy-related complications. A period of sick leave was thus prescribed. 10. On 17 December 2009 an ultrasound confirmed that the applicant was pregnant with twins. 11. On 28 December 2009 the applicant filed a request for payment of salary compensation during her sick leave on account of pregnancy-related complications (see paragraph 26 below). 12. On 5 January 2010 the relevant office of the Croatian Health Insurance Fund (hereinafter “the Fund”), of its own motion, initiated a review of the applicant’s health insurance status. 13. On 16 February 2010 the Fund reopened the case concerning the applicant’s health insurance and rejected her application for registration as an insured employee, along with her request for salary compensation due to sick leave on account of pregnancy-related complications. It based its decision on an in-house expert report according to which, when the applicant had taken up her employment with the company on 27 November 2009, she had been medically unfit for employment because she had undergone in vitro fertilisation ten days earlier. It was therefore considered that her employment was fictitious and aimed solely at obtaining pecuniary advantages related to the status of employed persons, including salary compensation during her absence from work due to pregnancy-related complications. 14. The applicant challenged this decision before the Central Office of the Croatian Health Insurance Fund (hereinafter “the Central Office”). She argued that she had felt well after undergoing the in vitro fertilisation and that she had had no way of knowing whether the implantation would be successful. There had therefore been no reason for her to miss out on an opportunity to take up employment on 27 November 2009. 15. According to an expert report by a specialist in gynaecology and obstetrics dated 3 March 2010 and submitted by the applicant, on the date on which the applicant took up employment with the company she had been healthy and awaiting the results of her in vitro fertilisation. The expert also stressed that neither the applicant nor her gynaecologist could have known in advance whether the in vitro fertilisation would be successful and how the pregnancy would develop. 16. Following the applicant’s appeal, the Central Office carried out a further assessment of the circumstances of the applicant’s employment and her medical condition. According to the information obtained from her employer, the applicant was to work at the company headquarters in Split, but a part of her tasks could be performed by teleworking from home. Her employer confirmed that her position in the company required travelling within and outside Croatia. The Central Office also obtained another in-house expert report, the relevant part of which reads as follows: “In the case at hand, [the applicant] had been unfit to work on 27 November 2009 because the gynaecologist recommended that she rest following the implantation of two fertilised ova, that is to say, as of 17 November 2009. In other words, rest was recommended ten days prior to [the applicant’s] employment. We would emphasise that, on the date on which she entered into the employment contract, namely 27 November 2009, [the applicant] might not have known whether she was pregnant but in any event she should have rested until a BHCG test could be performed; this was planned for 3 December 2009. It is standard practice for gynaecologists to recommend rest immediately after in vitro fertilisation and embryo transfer until the outcome of the procedure can be established (via a BHCG test to determine whether pregnancy has occurred). Rest in these cases entails not only avoiding physical and psychological effort, but in particular avoiding travel owing to its negative mechanical effects (shaking) during the sensitive phase following embryo transfer and its potential implantation. Besides, every journey involves a potentially stressful situation and may negatively impact the outcome of the pregnancy because, in the experience of gynaecologists, psychological stability improves the chances of a favourable outcome of in vitro fertilisation.” 17. On the basis of the above evidence, the Central Office of the Croatian Health Insurance Fund dismissed the applicant’s appeal on 30 March 2010, holding that although pregnancy in itself could not be a reason for not taking up employment, the particular circumstances of the applicant’s case suggested that her employment could be considered fictitious and aimed solely at obtaining salary compensation granted to employed persons. 18. The applicant challenged this decision before the High Administrative Court ( Visoki upravni sud Republike Hrvatske ), arguing, in particular, that she had been discriminated against as a woman who had undergone in vitro fertilisation. The applicant expressly relied on the Prevention of Discrimination Act and the Convention. She also explained that she had planned to move close to Split, where her husband had his registered residence and that most other employees of the company had residence elsewhere, since the nature of the company’s work had been compatible with teleworking, which she did. 19. On 5 December 2012 the High Administrative Court dismissed the applicant’s administrative action, upholding the reasoning of the administrative bodies. It stressed that, in view of her in vitro fertilisation, on 27 November 2009 the applicant had not been fit to take up employment that was at a distance from her place of residence and also required travelling. The relevant part of that court’s judgment reads as follows: “The facts established in the proceedings resulting in the impugned decision lead to the conclusion that on the day of entering into the employment contract [the applicant] had been unfit to work and, in that most sensitive phase of a twin pregnancy, had been unfit to fulfil the obligations from her employment within the meaning of section 3(1) of the Labour Act providing that the employee is to personally perform activities for which he concluded an employment contract, in the [applicant’s] case administrative tasks in a city rather far from her place of residence, with the obligation of travel within the country and abroad. These facts lead to the conclusion that the employment was not entered into with a view to fulfilment of mutual obligations of the employer and employee but that the present case concerns conclusion of an employment contract exclusively in order to benefit from obligatory social security benefits. In this court’s view, such a contract cannot be basis for obtaining the status of an insured person. The court finds [the applicant’s] discrimination complaint ill-founded, since she was not denied, on the basis of either her sex or her pregnancy, the right to take up employment or related rights (and specifically the rights stemming from compulsory health insurance). Pregnancy is not an obstacle to taking up employment, and any restriction of an employment-related right in the case of an employee who has actually entered into an employment contract during pregnancy (if that pregnancy does not affect the pregnant woman’s ability to work) would constitute a prohibited interference with her rights. However, in the present case it has been established that [the applicant] had undergone in vitro fertilisation ten days prior to the conclusion of the employment contract, as a consequence of which, according to concurring expert opinions (which are not in contradiction with the medical documentation in the case file), at the time of the conclusion of the employment contract [the applicant] had been unfit for work. Therefore, it is this court’s opinion that the competent bodies did not deprive [the applicant] of her rights under the compulsory health insurance scheme in breach of the Constitution, [the Convention] or [the applicable legislation] ...” 20. The applicant then lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), reiterating her previous arguments and alleging that she had been discriminated against. 21. Meanwhile, the applicant complained to the Gender Equality Ombudsperson ( Pravobraniteljica za ravnopravnost spolova ) alleging discrimination. On 18 December 2010 the Ombudsperson informed the applicant that she had issued a warning to the Fund that its decision in the applicant’s case had violated the prohibition of less favourable treatment on grounds of pregnancy, and that this constituted discrimination based on sex. The Ombudsperson stressed that the relevant authorities’ interpretation of the applicant’s situation had been based on the premise that every woman who had undergone in vitro fertilisation should be considered physically unfit to take up employment, and that a women who was undergoing in vitro fertilisation or pregnant would not in reality be employed by any employer. She also recommended to the Fund that it abandon its interpretation of the relevant guidelines in similar cases, according to which a woman undergoing in vitro fertilisation or otherwise liable to have a high-risk pregnancy was unfit to perform any type of work. 22. On 22 April 2015 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded, upholding the findings of the administrative authorities and the High Administrative Court. This decision, which was served on the applicant’s representative on 29 April 2015, reads, in so far as relevant, as follows: “The Constitutional Court notes that [it has been established in the proceedings that the applicant], who lives in Rijeka, entered into an employment contract on 27 November 2009 with [the company], which has its headquarters in Klis and one employee. The employment contract stipulated that [the applicant was to perform her duties in Split], and it transpires from the statement made by the employer ... that only part of her contractually established duties could be performed at her place of residence in Rijeka. The Constitutional Court points out that the distance between Rijeka and Split is ... 360.82 kilometres by road ... Therefore, the Constitutional Court considers that in the present case the administrative authorities ... were justified in checking whether the employment contract at issue had been entered into solely in order to acquire rights arising out of the compulsory medical insurance scheme, or with a view to establishing an employment relationship.” 23. Meanwhile, according to the information provided by the Fund, the applicant’s employment insurance with the company had been terminated with effect as of 13 December 2009. | This case concerned the denial to the applicant of employment health-insurance coverage during pregnancy. The authorities had claimed that her employment contract, which had been signed shortly before she had learned about her pregnancy, had been fictitious, and that she should not have started work while undergoing in vitro fertilisation. The applicant complained of the revocation of her health-insurance status, stating that it had been a result of discrimination against her as a woman undergoing in vitro fertilisation. |
733 | Noise pollution | A. Background 8. The first applicant, Richard John Powell, is a director of a mining concern and lives with his family at Esher, Surrey, in a house which he bought in 1957. The property is situated several miles from Heathrow Airport, London. Since 1972 it has lain under a flight departure route from Heathrow in operation for about one third of the year, usually during the summer months. Following objections to the level of noise disturbance, the route was divided into two sections in 1975. At least until 1984 Mr Powell ’ s home fell just within the 35 Noise and Number Index (NNI) contour, which is considered to be a low noise-annoyance rating (see paragraph 10 below). About half a million other people live within this contour area. Since 1984 the house has been within a lower NNI contour. 9. The second applicant, Michael Anthony Rayner, farms together with other members of his family lands situated in Colnbrook, Berkshire, which have been in his family for some generations. He lives in a bungalow at Colnbrook acquired by his family as part of its land-holding in 1952. The applicant took up residence there in 1961 on the occasion of his marriage. The bungalow is situated about one and a third miles west of, and in a direct line with, Heathrow ’ s northern runway. It is regularly overflown during the day and to a limited extent at night. It falls within a 60 NNI contour, which is regarded as an area of high noise-annoyance for residents. According to the statistics supplied by the Government, the average height of arriving aircraft over Mr Rayner ’ s property is 450 feet and the average height of departing aircraft varies between 1,235 and 2,365 feet according to aircraft type. About 6,500 people around Heathrow Airport experience a noise exposure equal to or greater than that suffered by Mr Rayner and his family. 10. The NNI is a long-term average measure of noise exposure which is used in the United Kingdom to assess the disturbance from aircraft noise to communities near airports. It takes account of two features of the noise, namely the average noisiness and the number of aircraft heard during an average summer day. The flights which determine the NNI at any point on the ground are those which take place between 06.00 and 18.00 hours Greenwich Mean Time during the three busy summer months of mid-June to mid-September and which make a peak noise level exceeding 80 perceived noise decibels (PNdB) at that point. The purpose of the NNI is to represent community reaction to the level of aircraft noise so as to guide planning, development and noise control. Thus, the NNI is amongst the criteria applied in planning controls, so that land within the 35 to 39 NNI contours may be used for residential development, planning permission not being refused on noise grounds alone. However, land within the 40 to 50 NNI contours (moderate noise-annoyance zone) will not be given over to development, except for the infilling of existing built-up areas on condition that appropriate sound insulation is used. No development whatsoever is permitted within the 60 NNI and over contours (high noise-annoyance zone). It is to be noted that the NNI calculation reflects a logarithmic element in the PNdB scale, which has the result that every increase of 10 in that scale represents approximately a doubling of the loudness. B. The growth of Heathrow Airport 11. Heathrow Airport was formally opened in May 1946. In 1952 the first scheduled air services using jet airliners were inaugurated. Three terminals were opened in 1955, 1961 and 1968. After a public inquiry which lasted for 24 weeks and heard 125 witnesses, a fourth terminal was opened in 1986. As regards future expansion, the Government ’ s policy, as stated in the 1985 "Airports Policy" White Paper, is that they are "not prepared to make any commitments at this stage on the question of a fifth terminal at Heathrow but will keep the matter under review" (Command Paper, Cmnd 9542, paragraph 5.19). 12. Heathrow is one of the busiest international airports in the world. The Airport handled 3 million passengers in 1956, over one million passengers during the one month of July 1963, 22.4 million passengers on international routes and 4.4 million passengers on domestic routes in 1973, and 37.5 million passengers on international routes and 6.8 million passengers on domestic routes in 1988. There has been a corresponding increase in aircraft movements over the years. Over 22% of passengers use the airport as an interchange point. It is currently used by over 70 airlines and serves 200 destinations worldwide. It is the United Kingdom ’ s leading port in terms of visible trade and in 1988 handled cargo valued at £26.3 billion. Heathrow Airport contributes around £200 million to the United Kingdom ’ s balance of payments, provides direct employment for some 48,600 persons, in addition to the substantial number of workers employed locally in servicing the industry, and pays over £16 million in local rates and rents. C. Compensation measures 13. Compensation for the loss of value of houses and land as a result of airport noise is provided for by the Land Compensation Act 1973. However, such compensation is payable only in respect of new or altered public works first brought into use after 16 October 1969. Intensification of an existing use is, for reasons of principle and practice, not compensatable. Mr Powell and Mr Rayner would have no entitlement to compensation under this Act, there being no relevant new or altered development in the case of Heathrow Airport. 14. The British Airports Authority, being a public statutory body, did not have power to acquire property near an airport unless it could show that the acquisition of the property was necessary for the proper performance of its function. In December 1986, after the completion of the fourth terminal (see paragraph 11 above) and privatisation of the Authority, the successor company to the Authority announced a scheme for the purchase of noise-blighted properties close to Heathrow Airport. This scheme provided for purchase by the company of property severely affected by aircraft noise at Heathrow (within the 65 NNI contour) where the owner had acquired the property before 17 October 1969 and wished to sell but could not do so except at a deflated price. Claims had to be made between 1 January 1987 and 31 December 1988. By virtue of the contour limitation the applicants ’ properties were excluded from the scheme. 15. An action will lie at common law for nuisance in respect of an activity which unreasonably interferes with the use and enjoyment of land, for example an activity causing annoyance through noise. If liability is established, damages may be awarded or, in certain circumstances, an injunction granted. However, the Noise Abatement Act 1960 specifically exempts aircraft noise from its protection. The liability of aircraft operators is further limited by section 76(1) of the Civil Aviation Act 1982, which reads: "No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case, is reasonable, or the ordinary incidents of such flights, so long as the provisions of any Air Navigation Order or of any orders under section 62 above have been duly complied with and there has been no breach of section 81 below." Section 76(2) of the 1982 Act in turn provides for strict liability - that is, liability without proof of intention or negligence - where material loss or damage to any person or property on land or water is caused by, inter alia, an aircraft in flight or an object falling from an aircraft. Provisions equivalent to section 76 existed in earlier civil aviation legislation (for example, section 9 of the Air Navigation Act 1920 and section 40 of the Civil Aviation Act 1949). Section 76 is comparable to Article 1 of the Rome Convention of 1952 on Damage Caused by Foreign Aircraft to Third Parties on the Surface, which reads: "Any person who suffers damage on the surface shall, upon proof only that the damage was caused by an aircraft in flight or by any person or thing falling therefrom, be entitled to compensation as provided by this Convention. Nevertheless there shall be no right to compensation if the damage is not a direct consequence of the incident giving rise thereto, or if the damage results from the mere fact of passage of the aircraft through the airspace in conformity with existing air traffic regulations." (United Nations Treaty Series, 1958, vol. 310, no. 4493, p. 182) As at January 1990, this Convention had been ratified by thirty-six States, including four members of the Council of Europe, namely Belgium, Italy, Luxembourg and Spain but not the United Kingdom. 16. Section 76(1) of the 1982 Act does not exclude all liability on the part of aircraft operators for trespass and nuisance caused by aircraft in flight. In the first place, the exemption applies only in respect of aircraft flying at a reasonable height above the ground. What is reasonable is a question of fact depending on all relevant circumstances. Secondly, for the exemption to apply there must be compliance with the statutory provisions referred to in section 76(1). In practice this means the Air Navigation Order 1985 as amended, the Air Navigation (General) Regulations 1981 as amended, the Rules of the Air and Air Traffic Control Regulations 1985 as amended and, of especial importance in this connection, the Air Navigation (Noise Certification) Order 1987 (and the corresponding provisions of earlier orders and regulations applicable from time to time). Thus, if, for example, an aircraft flies in a manner which is not in accordance with the applicable regulations or takes off or lands in contravention of the Air Navigation (Noise Certification) Order, its operator will not be entitled to rely upon section 76 as a defence to any action for trespass or nuisance. D. Noise abatement measures 17. The main forum for international co-operation seeking to make aircraft quieter is the International Civil Aviation Organisation (ICAO). The broad thrust of ICAO ’ s work has been towards the development of a series of standards, leading to the phasing out of aircraft unable to meet them. These standards are not operative within the ICAO member States unless and until they are given effect in national legislation. In the United Kingdom effect is given to them by means of an Air Navigation (Noise Certification) Order. Orders of 1970 and 1979 reflected the first ICAO standards developed concerning subsonic jet aircraft. A 1984 Order gave effect to new ICAO standards and to regulations based upon recommendations of the European Civil Aviation Conference. In doing so, the 1984 Order also implemented the requirements of the European Community Directives of 1979 and 1983 on "Limitation of Noise Emission from Subsonic Aircraft". It was, however, more stringent in its application inasmuch as non-compliant subsonic jets were banned from the domestic register twelve months earlier than required by the 1979 Directive. Orders of 1986 and 1987 introduced further ICAO standards. 18. In structuring its landing charges, Heathrow Airport Limited has taken account of ICAO noise certification standards to encourage the use of quieter aircraft. 19. Since 1971 restrictions have been placed on night movements of jets, with the aim of phasing out night flights of noisier aircraft. These measures have been adopted in the light of research into the relationship between aircraft noise and sleep disturbance and after consultation of all interested parties, including the Federation of Heathrow Anti-Noise Groups to which the applicants belong. 20. Monitoring of aircraft noise on take-off from Heathrow Airport was first carried out in the early 1960 ’ s. Since 1974 automatic equipment, consisting of thirteen noise monitoring terminals linked to a central processing and control unit, has been used. The positioning of these terminals is designed to protect the first built-up area reached after take-off from noise levels in excess of the statutory limits of 110 PNdB by day (07.00-23.00 hours local time) and 102 PNdB by night (23.00-07.00 hours local time). In the event of an infringement of the noise limit, the Airport informs the airline by letter and sends a copy to the Department of Transport. According to the Government, the effect of recent bans on non-noise-certificated aircraft has been to keep the rate of compliance to around 99% by day and 98% by night. The Secretary of State is empowered by section 78 of the Civil Aviation Act to deny Heathrow ’ s facilities to operators who fail to comply with noise abatement measures, but to date it has not been found necessary to invoke this provision. On the other hand, night flight quotas have been reduced for infringing operators. 21. Aircraft taking off from Heathrow Airport are statutorily required to remain on a small number of specified routes, known as noise preferential routes. These routes are designed to avoid as far as possible the major built-up areas. 22. Approach procedures said to result in lower noise levels in comparison with traditional approach procedures are now standard practice. Furthermore, minimum height requirements on approach to land as well as on take-off are laid down in the regulations. In addition, since 1972 a system of regularly alternating the landing runway has been implemented at Heathrow during westerly operations, the main objective being to achieve a fair sharing of periods of relative quiet among the communities of West London affected by noise from landing aircraft. 23. A helicopter link between Gatwick Airport and Heathrow Airport was introduced in 1978. However, after public inquiries in 1978, 1979, 1983 and 1985, the Secretary of State for Transport gave directions in June 1986 for the operator ’ s licence to be revoked for environmental reasons. 24. Following earlier schemes in 1966, 1972, and 1975, a scheme for sound insulation of dwellings was introduced for Heathrow in 1980. Under this scheme, which cost the British Airports Authority approximately £19 million, over 16,000 house owners or occupiers applied for grants. The scheme concentrated on those localities that would still be experiencing comparatively high noise levels in the mid 1980 ’ s and on localities where there is the greatest degree of disturbance due to aircraft noise at night. Within this area the amount of grant provided was intended to cover 100% of the reasonable costs incurred. The boundary was based on the forecast 50 NNI contour for 1985 and the composite of the 95 PNdB noise footprint for quieter aircraft. 95 PNdB is the exterior noise level below which current evidence suggests that the average person in an uninsulated room is unlikely to be awakened. After consultation and in line with a commitment by the Government to review the boundaries once the actual noise climate was known, an extension scheme to include additional areas was brought into operation in April 1989 at an estimated cost of £11.25 million. In common with other persons living within the 60 NNI contour, Mr Rayner qualifies for a full noise-insulation grant. | The applicants, who lived in the vicinity of Heathrow airport, considered the authorised noise level there unacceptable and the measures pursued by the government to minimise the noise to be insufficient. |
973 | Internet | 2. The applicant was born in 1972 and lives in Pescara. He was represented by Mr M. Franceschelli, a lawyer practising in Pescara. 3. The Government were represented by their Agent, Mr Lorenzo D’Ascia. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant was the editor-in-chief of an online newspaper. On 29 March 2008, he published an article concerning a fight, followed by a stabbing, which had taken place in a restaurant. 6. The article was headlined “Fight in the restaurant – the head of the police authority closes the W and Z restaurants [which belonged to the persons involved in the fight]”. The “standfirst paragraph” under the headline read as follows: “Pescara – Reputational damage and financial repercussions sustained by the W and Z restaurants belonging to the X family”. 7. The article noted the head of the police authority’s decision to close the restaurants for twenty days. It mentioned the names of the persons involved (two brothers, V.X. and U.X., and their respective sons, A.X and B.X.), as well as the possible motive for the fight, which probably related to a financial quarrel about the ownership of a building. The article reported on the line taken during part of the police questioning of V.X., U.X., A.X and B.X., and noted that U.X. and A.X. had been placed under house arrest, that B.X. had been taken to a detention facility and that a house arrest order issued in respect of V.X. had been lifted. 8. On 6 September 2010, V.X. and the W restaurant sent a formal notice ( diffida stragiudiziale ) to the applicant asking that the article be removed from the Internet, but to no avail. 9. On 26 October 2010, V.X. and W lodged two claims with the District Court of Chieti against, respectively, Google Italy S.r.l. and the applicant, pursuant to Article 152 of Legislative Decree no. 196 of 30 June 2003 (hereinafter “the Personal Data Protection Code” – see paragraph 15 et seq. below) and Article 702 bis of the Code of Civil Procedure (Formal requirements regarding the bringing of proceedings before a court and the parties thereto). 10. At the hearing of 23 May 2011, the applicant indicated that he had de-indexed the article in question, with a view to settling the case. [1] By a decision of 28 March 2012, the court excluded Google Italy S.r.l. from the proceedings following V.X.’s withdrawal of his claim towards this party. 11. By a decision of 16 January 2013, the District Court of Chieti observed at the outset that, in the light of the information that the applicant had supplied on 23 May 2011, there was no need to examine the part of V.X.’s complaint regarding the request for the article to be removed from the Internet. 12. As for the remainder of the complaint, concerning the breach of the claimants’ right to respect for their reputation, the court awarded to each claimant 5,000 euros (EUR) in compensation for non-pecuniary damage and EUR 2,310 for costs and expenses. 13. The court reiterated the applicable legislation on the matter – namely, Articles 7, 11, 15 and 25 of the Personal Data Protection Code. It noted in particular that the information concerning the claimants had been published on 29 March 2008 and had remained accessible on the Internet until 23 May 2011, notwithstanding V.X.’s formal notice to the applicant asking that the article in question be removed from the Internet (see paragraph 8 above). In the court’s view, the public interest in to the right to provide information had then been satisfied and, at least as from the date of V.X. sending the above-mentioned formal notice, the processing of his personal data had not been in compliance with Articles 11 and 15 of the Personal Data Protection Code. The court then concluded that there had been a breach of the claimants’ reputation and right to respect for their private life. The court also noted that the information at issue was easily accessible (much more than any information published in print newspapers, taking into account the large local dissemination of the online newspaper at issue) by simply inserting the claimants’ names into the search engine, and that the nature of the relevant data, as regards judicial proceedings, was sensitive. 14. The applicant lodged an appeal on points of law; by a judgment of 24 June 2016, the Supreme Court upheld the first-instance decision on all grounds and dismissed the applicant’s appeal. The Supreme Court noted that the processing of the plaintiffs’ personal data had been unlawful inasmuch as that the article, published on 29 March 2008, had remained accessible on the Internet, despite the above-mentioned formal notice sent (to the applicant asking that the article in question be removed from the Internet) by V.X. on 6 September 2010, and that the possibility to access the article had been easy and direct. The Supreme Court excluded the possibility that in this case the unlawfulness of the way in which the personal data had been processed had been linked either to the content of the said article, to its online publication and dissemination, or to its conservation and digital archiving. | This case concerned the “right to be forgotten”. The applicant, a former editor-in-chief of an online newspaper, was found liable in civil proceedings for having kept on his newspaper’s website an article reporting on a fight in a restaurant, giving details on the related criminal proceedings. The courts noted in particular that the applicant had failed to de-index the tags to the article, meaning that anyone could type into a search engine the name of the restaurant or its owner and have access to sensitive information on the criminal proceedings, despite the owner’s request to have the article removed. |
863 | Video surveillance | THE CIRCUMSTANCES OF THE CASEThe applicants’ dismissal The applicants’ dismissal The applicants’ dismissal 10. At the time of the relevant events, the applicants were all working in a supermarket of the M. chain situated in Sant Celoni (Barcelona province). The first three applicants were cashiers, while the fourth and fifth applicants were sales assistants behind a counter. 11. From March 2009 onwards the supermarket’s manager noticed some inconsistencies between the stock level and the sales figures. In the following months he identified losses of 7,780 euros (EUR) in February, EUR 17,971 in March, EUR 13,936 in April, EUR 18,009 in May and EUR 24,614 in June. 12. In the context of an internal investigation to shed light on the losses, on 15 June 2009 the manager installed CCTV cameras, some visible and others hidden. The visible cameras were directed towards the entrances and exits of the supermarket. The hidden cameras were placed at a certain height and directed towards the checkout counters. Three tills were covered by the range of each camera, including the areas in front of and behind the counters. The exact number of tills being monitored was not stated by the parties; the documents in the file show that at least four tills were filmed. 13. During a meeting the supermarket’s staff were informed of the installation of the visible cameras on account of the management’s suspicions about thefts. Neither the staff nor the staff committee were informed of the hidden cameras. Beforehand, in 2007, the company had notified the Spanish Data Protection Agency that it intended to install CCTV cameras in its shops. The Agency had pointed out the obligations to provide information under the legislation on personal data protection. A sign indicating the presence of CCTV cameras had been installed in the shop where the applicants worked but the parties did not indicate its location or precise content. 14. On 25 June 2009 the management of the supermarket informed the union representative that the footage recorded by the hidden cameras had revealed thefts of goods at the tills by a number of employees. The representative watched the recordings. 15. On 25 and 29 June 2009 all the workers suspected of theft were called to individual interviews. Fourteen employees were dismissed, including the five applicants. Prior to each interview, the applicants and other employees concerned had a meeting with the union representative, who told them she had watched the video recordings. During the meeting a number of employees admitted that they had been involved in the thefts with other colleagues. 16. During the individual interviews, which were attended by the manager, the legal representative of the company M. and the union representative, the employees concerned were notified of their dismissal on disciplinary grounds with immediate effect. The dismissal letters given to the applicants indicated that the hidden CCTV cameras had filmed them, on several occasions between 15 and 18 June 2009, helping customers or other supermarket employees to steal goods and stealing goods themselves. Among the facts, the letters stated that the first three applicants, who worked at the tills, had allowed customers and colleagues to go to the cash till and leave the shop with goods they had not paid for. They added that those applicants had scanned items presented at the checkout by customers or colleagues and had then cancelled the purchases, with the result that the goods had not been paid for. They explained that a comparison between the goods actually taken away by customers and the sales receipts had made it possible to prove this. As to the fourth and fifth applicants, the cameras had reportedly caught them stealing goods with the help of their colleagues at the tills. According to the employer, these acts constituted a serious breach of the obligations of good faith and loyalty required in the employment relationship and justified the termination of the contract with immediate effect. 17. In addition, the third, fourth and fifth applicants signed an agreement entitled “settlement agreement” ( acuerdo transaccional ) with the company’s legal representative. These agreements were co-signed by the union representative. Under the agreements, the two parties confirmed the termination of the employment contract by the employer and declared that they had reached an agreement in order to avoid uncertainty as to any future legal dispute. The applicants acknowledged the thefts of the goods, as set out in the dismissal letters, and endorsed the employer’s decision to terminate their employment contracts. The company undertook not to bring criminal proceedings against the employees. A final settlement of outstanding accounts was attached to the agreement and the parties declared that they waived any claims against each other under the employment contract. 18. At no time before their dismissal, either during the meeting with the union representative or during their individual interviews, were the applicants able to view the recordings from the CCTV cameras. Judicial proceedings brought by the applicantsThe proceedings before the Employment Tribunal The proceedings before the Employment Tribunal The proceedings before the Employment Tribunal 19. On 22 July 2009 the first applicant brought proceedings for unfair dismissal before the Granollers Employment Tribunal no. 1 (“the Employment Tribunal”). The same day the other four applicants brought similar proceedings before the Employment Tribunal. 20. The applicants objected in particular to the use of the covert video-surveillance, arguing that it had breached their right to protection of their privacy. They thus requested that any recordings obtained by such means should not be admitted in evidence in the proceedings. 21. As regards the proceedings brought by the third, fourth and fifth applicants, the employer opposed them, relying on the settlement agreements signed by them. Those applicants sought the annulment of the agreements, arguing that they had signed them under the threat of criminal proceedings and that their consent had been vitiated by duress and by the deceitful manipulation of the employer with the complicity of the union representative. 22. A hearing was held in each of the two sets of proceedings, on 3 December 2009 and 23 November 2009 respectively. The CCTV recordings were produced in evidence by the employer. 23. On 20 January 2010 the Employment Tribunal issued two judgments dismissing the applicants’ actions, declaring their dismissals fair. 24. As regards the first and second applicants, who had not signed any settlement agreements, the tribunal took the view that it first had to ascertain whether the recordings obtained by the hidden cameras could constitute lawful evidence, given that, pursuant to section 11 of the Law on the Judiciary and Article 287 of the Code of Civil Procedure, any evidence obtained in breach of a fundamental right had to be excluded. 25. In this connection, the Employment Tribunal found that in accordance with Article 20 § 3 of the Labour Regulations (see paragraph 42 below), any employer was entitled to use monitoring and surveillance measures to verify that employees were fulfilling their employment duties, provided those measures were compatible with their “human dignity” and thus respected their fundamental rights. It referred in this connection to the case-law of the Constitutional Court, in particular judgment no. 186/2000 of 10 July 2000, which concerned a similar case of video-surveillance, using hidden cameras, of employees suspected of serious misconduct. In that judgment, the Constitutional Court had found that an employer’s right to adopt monitoring measures in the exercise of its management power and for the purpose of ensuring the smooth running of the company was limited by the respect due to the employees’ right to their privacy and to the protection of their image. It had explained that the lower court was supposed to strike a balance between the various interests of constitutional value by applying a proportionality test to the employer’s measures. In the case at issue, it had found that the covert video-surveillance measure had been proportionate and had not breached the employee’s fundamental right to privacy guaranteed by Article 18 of the Constitution given that, first, it was justified by reasonable suspicions of serious misconduct; that, secondly, it was appropriate to the aim pursued, namely to verify whether the employee was actually committing misconduct and to adopt sanctions if necessary; that, thirdly, it was necessary, because the recordings would provide evidence of the misconduct in question; and that, fourthly, it was proportionate, because the monitoring was limited in space and in time to what was sufficient to fulfil its aim. The court had, moreover, considered it not to be constitutionally pertinent to examine the question whether the employees or the staff committee had been informed beforehand of the installation of the video-surveillance. It had further taken the view that the right to effective judicial protection under Article 24 of the Constitution had not been breached by the admission in evidence of the recordings thus obtained, especially as the decision had also been based on other evidence. 26. Transposing the principles thus developed by the Constitutional Court in a similar case, the Employment Tribunal found that there had been no breach of the applicants’ right to respect for their private life and that the recordings thus constituted valid evidence. 27. On the merits, the court took the view that the facts set out in the dismissal letters had been established by the evidence in the file and examined as a whole, namely: the video recordings, the witness statements of the supermarket manager, the union representative and other employees dismissed for their involvement in the thefts, and an expert’s report drafted in the context of the criminal proceedings concerning the offences (see paragraph 40 below), which had compared the footage filmed by the cameras with the purchases registered at the tills. 28. In the tribunal’s view, the applicants’ conduct amounted to a breach of the principle of good faith and entailed the employer’s loss of trust, thus rendering their dismissals lawful. 29. As regards the third, fourth and fifth applicants, the Employment Tribunal examined their arguments relating to the invalidity of the settlement agreements with their employer. It took the view that there was no evidence of any form of coercion or fraudulent intent on the part of the employer. It concluded from the union representative’s testimony that the applicants had confessed to the facts during a meeting with her, thus rendering it plausible that they had signed the agreements in order to avoid criminal proceedings. It added that the failure of some employees in the same situation as the applicants (for example, the first and second applicants) to sign such an agreement confirmed the absence of any threat or duress. It also noted that the settlement agreements had no unlawful basis and could be seen as a means of settling a dispute by means of reciprocal concessions. 30. Having accepted the settlement agreements, the tribunal upheld the employer’s objection to the proceedings and, finding that the three applicants in question had no locus standi, dismissed their actions without examining them on the merits. The proceedings before the High Court of Justice 31. The applicants appealed before the High Court of Justice of Catalonia (“the High Court”) on 16 and 22 March 2010 respectively. In her appeal, the first applicant expressly complained of a breach of the obligation of prior notification, as provided for in section 5 of the Personal Data Protection Act. In her view this should have been taken into account in the examination of the proportionality of the video-surveillance measure. 32. In judgments of 28 January and 24 February 2011 the High Court upheld both first-instance judgments. 33. Relying on its own case-law, on that of other courts and on that of the Constitutional Court already cited by the Employment Tribunal, the High Court took the view that the video-surveillance measures taken by the employer on the basis of Article 20 § 3 of the Labour Regulations did not require, in the light of section 6(2) of the Personal Data Protection Act, the prior consent of the employees concerned but had to be subjected to a proportionality test according to the criteria laid down by the Constitutional Court. It took the view that the measure at issue in the present case satisfied those criteria because it was justified by the existence of suspicions of misconduct, appropriate to the aim pursued, necessary for the fulfilment of that aim because a more moderate measure would not have been capable of fulfilling it, and proportionate because the recordings were limited, in time and space, to what was necessary for the purpose of verifying the suspicions. Referring to previous judgments, the High Court found as follows in its judgment of 28 January 2011 in the proceedings concerning the first applicant: “... the monitoring carried out by the employer by means of CCTV cameras (installed on the site where the [first applicant] was working and directed towards the cashiers’ work-stations after the detection of missing goods ...) ‘may be generally regarded as an appropriate and even a necessary means of monitoring the activity and it must therefore be considered that, despite the fact that it may give rise to sanctions ... because of the failure to inform staff representatives about the installation of the camera ..., the monitoring was not carried out in an excessive manner contrary to the test of appropriateness, necessity or proportionality, which would have resulted in an unjustified breach of the right to the protection of the person’s image or in undermining the person’s dignity, since it was an appropriate means and one that would have been difficult to replace for the purpose of proving possible thefts ...’” The High Court further held that the failure to notify employees and staff representatives could probably be explained by the fact that “the company rightly feared that knowledge of the monitoring system would defeat its purpose”. 34. Without expressly mentioning section 5 of the Personal Data Protection Act, the High Court noted that the question of the employer’s compliance with the obligation of prior notification was one of ordinary legality and that the failure to inform employees exposed the employer to an administrative sanction but had no impact on the admissibility of the evidence where, as in the present case, the video-surveillance measure was justified and proportionate: “... The alleged failure to inform the employees could, if appropriate, entail an administrative sanction but will not fall foul of the conditions regarding the lawfulness of evidence laid down by the Constitutional Court, for it is indeed a justified measure (there were reasonable suspicions that the appellant had committed serious misconduct in the workplace), which was appropriate to the aim pursued by the company (to verify whether the employee had actually committed the acts and if so to take relevant disciplinary measures), and was necessary (since the recordings would be used as evidence of the wrongdoing) and proportionate (the cameras were only zoomed in on the checkout counters and solely for a limited period of time, sufficient to verify that it was not a one-off act or a misunderstanding but indeed repeated unlawful conduct).” Using a similar line of reasoning, the High Court arrived at the same conclusion in its judgment of 24 February 2011, in the proceedings concerning the second, third, fourth and fifth applicants. 35. With regard to the third, fourth and fifth applicants, the High Court upheld the Employment Tribunal’s conclusion that the settlement agreements were valid and that no defects in consent could be found, noting in particular that the agreements had been signed in the presence of the union representative and that their wording left no doubt as to the employees’ knowledge of the facts or their willingness to accept the termination of their employment contracts. 36. The High Court noted, however, that it was not procedurally correct to consider, as the Employment Tribunal had done, that the signing of the agreements had deprived the applicants of their right to take legal action. It took the view that it nevertheless appeared from these agreements that they had expressly acknowledged the facts of which they were accused, that they had accepted the employer’s decision to discontinue their employment and that they had thus given their consent to the termination of their contracts. It therefore reached the conclusion, with reference to case-law of the Supreme Court relating to similar agreements entered into by the same employer with other employees, that the employment contracts had been terminated by mutual agreement. In its view, this was sufficient to consider the facts to be established and the termination of the employment contracts to be lawful, regardless of whether the video recordings were lawful and could be admitted in evidence, a question to which the court had in fact responded in the affirmative. 37. Moreover, in response to the ground of appeal raised by all the applicants to the effect that the evidence was insufficient to establish the facts, the High Court noted that the facts were proven by the video recordings, by the testimony of the union representative to whom several employees had admitted the thefts, and by the acknowledgment of the facts in the settlement agreements, in the cases of the three applicants who had signed them. As regards more specifically the first applicant, whose face did not appear in the video footage, the court found that an analysis of the recordings of the cameras directed towards the till at which she worked and the sales receipts sufficiently demonstrated her involvement in the acts of which she was accused. 38. After examining the other grounds of appeal put forward by the applicants in support of their claims, the High Court concluded that the dismissals were lawful and upheld the judgments handed down at first instance. The proceedings before the Supreme Court and the Constitutional Court 39. The applicants brought appeals on points of law, which were declared inadmissible on 5 October 2011 and 7 February 2012 respectively. Ultimately the applicants lodged amparo appeals with the Constitutional Court, which were declared inadmissible on 27 June and 18 July 2012 respectively, owing to the “non-existence of a violation of a fundamental right”. The criminal proceedings against the applicants 40. On 31 July 2009, after the applicants and other employees had appealed against their dismissals before the Employment Tribunal, the employer filed a criminal complaint against fourteen employees, including the five applicants. Criminal proceedings were opened against them. On 15 July 2001, finding that the investigation had not established that there had been any concerted action between the defendants in committing the offences, and that the value of the goods stolen by each defendant had not exceeded EUR 400, the investigating judge decided to reclassify the charges as a minor offence ( falta ). In a decision of 27 September 2011 the judge declared that the prosecution was time-barred on account of the statutory limitation of proceedings for that type of offence. RELEVANT DOMESTIC LAW AND PRACTICEThe Spanish Constitution The Spanish Constitution The Spanish Constitution 41. The relevant provisions of the Spanish Constitution read as follows: Article 18 “1. The right to respect for honour, for private and family life and for one’s own image shall be guaranteed. ... 4. The law shall restrict the use of data processing in order to guarantee respect for the honour and private and family life of citizens and the full exercise of their rights.” Article 24 “1. Everyone has the right to effective protection by judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may defence rights be curtailed. 2. Likewise, everyone has the right to ... a public trial without undue delay and with full guarantees ...” Article 33 “1. The right to private ownership ... shall be recognised.” Article 38 “Free enterprise shall be recognised within the framework of a market economy. ...” Relevant provisions of labour law 42. The Labour Regulations ( Estatuto de los Trabajadores ), approved by Royal Legislative Decree no. 1/1995 of 24 March 1995, as in force at the relevant time, provided in particular as follows: Article 5 – Workers’ duties “Workers have the following basic duties: (a) To fulfil the obligations inherent in their post, in keeping with the principles of good faith and diligence. ...” Article 20 “2. ... In all cases, the worker and the employer shall be bound by the requirement of good faith in the fulfilment of their reciprocal obligations. 3. An employer may use monitoring and surveillance measures which it deems most appropriate to verify that an employee is fulfilling his or her employment duties, taking into account, in their adoption and application, of the consideration due to his or her human dignity ...” 43. The relevant provisions of the Employment Proceedings Act, approved by Royal Legislative Decree no. 2/1995 of 7 April 1995, as in force at the relevant time, read as follows: Article 90 “1. The parties may rely on all the evidence prescribed by law ... save where it has been gathered directly or indirectly in breach of fundamental rights and freedoms. ...” Article 108 “... 2. A dismissal based on any of the grounds of discrimination provided for by the Constitution or the law, or implemented in breach of fundamental rights and freedoms, shall be regarded as null and void.” Relevant procedural provisions 44. Section 11 of Organic Law no. 6/85 of 1 July 1985 on the Judiciary provides as follows: “1. The principle of good faith must be complied with in all proceedings. Evidence obtained, directly or indirectly in violation of fundamental rights or freedoms will be excluded ...” Legislation regarding the protection of personal dataOrganic Law no. 15/1999 Organic Law no. 15/1999 Organic Law no. 15/1999 45. Organic Law no. 15/1999 on the protection of personal data ( Ley Orgánica de protección de datos de carácter personal – the “Personal Data Protection Act”), as in force at the material time, was enacted on 13 December 1999 by transposing Directive 95/46/EC (see paragraph 63 below) and entered into force on 14 January 2000. Its aim was to safeguard the fundamental rights of individuals in connection with the processing of personal data, and more specifically their right to respect for their honour and their personal and family privacy (section 1 of the Act). It applied to the collection of personal data, defined as any information concerning identified or identifiable individuals recorded on a physical medium which may be subject to processing, and also covered the future usage of such data for public or private purposes (sections 2 and 3 of the Act). 46. The Spanish Data Protection Agency, created by the Act, is the authority responsible for the supervision of its application. In that capacity it is entitled to carry out inspections, examine complaints and impose penalties for contraventions of the Act, namely fines of up to EUR 600,000 (sections 35 et seq.). 47. The provisions of the Act concerning information and the consent of those concerned by the collection of their personal data, as applicable in the present case, read as follows: Section 5 – Right to information on the collection of data “1. Data subjects whose personal data are requested must be previously, explicitly, precisely and unambiguously informed of the following: (a) the existence of a personal data file or the fact that the data will be processed, the purpose thereof and the recipients of the information; (b) the obligatory or optional nature of their response to the questions asked; (c) the consequences of providing or refusing to provide the data; (d) the existence of rights of access, rectification, erasure and objection; (e) the identity and address of the controller or, as appropriate, his representative. ... 4. Where personal data have been collected without the data subject being approached, the person must be informed thereof in an express, precise and unequivocal manner by the file manager or his or her representative, within three months from the recording of the data, except where the data subject has already been informed of the content of the processing, the origin of the data, and the information referred to in letters (a), (d) and (e) of subsection 1 of the present section. 5. The provisions of the preceding subsection shall not apply in cases where the law expressly provides otherwise, where the data-processing has historical, statistical or scientific purposes, or where it is impossible to inform the data subject, or where this would involve a disproportionate effort in the opinion of the Data Protection Agency or the corresponding regional body, in view of the number of data subjects, the age of the data and the possible compensation measures. Furthermore, the provisions of the preceding subsection shall also not apply where the data are obtained from sources accessible to the public and are intended for advertising or market research, in which case each communication sent to the data subject shall inform him or her of the origin of the data, the identity of the person/entity responsible for processing the data and the rights of the data subject.” Section 6 – Consent of data subjects “1. Processing of personal data shall require the unambiguous consent of the data subject, unless laid down otherwise by law. 2. Consent shall not be required where the personal data are collected for the exercise of the functions proper to public authorities within the scope of their duties; where they relate to the parties to a contract or preliminary contract for a business, employment or administrative relationship, and are necessary for its maintenance or fulfilment; where the purpose of processing the data is to protect a vital interest of the data subject under the terms of section 7(6) of this Act or where the data are contained in sources accessible to the public and their processing is necessary to satisfy the legitimate interest pursued by the controller or that of the third party to whom the data are communicated, unless the fundamental rights and freedoms of the data subject are jeopardised.” 48. Under sections 13 to 18 of the Act, data subjects had, in particular, a right of access, rectification and deletion in respect of their personal data. Section 19 of the Act provided for a right to compensation as follows: Section 19 – Right to compensation “1. Persons who, as a result of any failure by the data-processing manager or controller, have sustained any damage to their property or to their rights, shall be entitled to compensation. ... 3. If the files are held by private-law entities, any proceedings shall be brought in the ordinary courts.” 49. On that basis a judgment of the Supreme Court ordered an employer to pay compensation to one of its former employees, who had been dismissed two years earlier, for providing potential employers with personal information concerning the employee’s dismissal and thus apparently reducing the employee’s chances of finding a new job (judgment no. 609/2015 of 12 November 2015). Instruction no. 1/2006 50. Instruction no. 1/2006 of 8 November 2006 on the processing of personal data for monitoring purposes using video-surveillance devices, issued by the Spanish Data Protection Agency, contains the following provisions: Article 3 - Information “Everyone who uses video-surveillance devices must fulfil all the obligations prescribed in section 5 of Organic Law no. 15/1999 of 13 December. For that purpose they must: (a) place at least a sufficiently visible information board in the areas monitored ... and (b) make available to the data subjects a document containing the information provided for in section 5.1 of Organic Law no. 15/1999 ...” Article 4 – Principles of quality, proportionality and purpose of data processing “1. In accordance with section 4 of Organic Law no. 15/1999 ..., images may only be processed if they are appropriate, relevant and not excessive in relation to the scope and to the legitimate and explicit aims justifying the installation of video-surveillance. 2. The installation of cameras ... is permitted only where the aim of the monitoring cannot be fulfilled, without disproportionate effort, by other means that would be less intrusive for the privacy of individuals and their right to the protection of personal data. 3. ... In all situations, any data processing should be avoided if it is not necessary for the aim pursued. ” 51. The website of the Data Protection Agency, moreover, provides a factsheet on video-surveillance and a model board indicating the information required by law. Law no. 3/2018 52. Law no. 15/1999 was repealed by a new Organic Law, no. 3/2018, on the protection of personal data and the safeguarding of digital rights, enacted on 5 December 2018, which entered into force on 7 December 2018. Section 22 of the new Law expressly governs the processing of personal data collected by means of video-surveillance. It provides in particular as follows: “4. The obligation to provide information under Article 12 of Regulation (EU) 2016/679 is deemed to be fulfilled by the placing of an information board in a sufficiently visible place, indicating at least the existence of the processing, the identity of the person responsible and the possibility of exercising the rights provided for by Articles 15 to 22 of Regulation (EU) 2016/679. ...” 53. As regards video-surveillance in the workplace, section 89(1) of the Law provides as follows: “1. Employers are entitled to process images obtained by means of video-surveillance devices in the exercise of their authority to monitor employees or officials, as laid down in Article 20 § 3 of the Labour Regulations ... provided that this possibility is used in the statutory framework and within its inherent limits. Employers must inform employees or officials of the introduction of such a measure beforehand and in an explicit, clear and concise manner. In the event that CCTV cameras film employees or officials clearly committing an illegal act, the obligation to provide information shall be deemed fulfilled when at least the mechanism provided for in section 22(4) hereof has been put in place.” Case-law of the Constitutional Court 54. On 10 July 2000 the Constitutional Court delivered a leading judgment on the lawfulness of video-surveillance in the workplace in the light of the protection provided by Article 18 § 1 of the Spanish Constitution (judgment no. 186/2000). In that case the employer had set up a system of hidden CCTV cameras in the ceiling of the clothing and footwear department of a shop, directed towards three tills and the reception desk. The Constitutional Court held that the measure at stake had to pass a threefold test to be considered acceptable: there had to be a legitimate aim (“appropriateness test”), and the measure had to be necessary (“necessity test”) and proportionate (“strict proportionality test”). In other words, the courts had to ascertain whether a fair balance had been struck between the interference with a fundamental right and the importance of the legitimate aim pursued. On the subject of the video-surveillance at issue in that case, it found as follows: “In the present case, the covert video-surveillance ... was a justified measure (since there was a reasonable suspicion that the person investigated had committed some wrongdoing at work); it was suited to the purpose pursued by the company (to verify that the worker was in fact committing the suspected wrongdoing, in which case he would be subjected to an appropriate disciplinary sanction); it was necessary (the recordings were to be used as evidence of the wrongdoing); and it was proportionate (since the cameras were only zoomed in on the checkout counters and solely for a limited period of time) ...; it follows that there has been no interference with the right to [respect for] privacy as enshrined in Article 18.1 of the Spanish Constitution.” 55. As to the alleged failure to inform the employees and the staff committee, the Constitutional Court found that it was a question of ordinary legality that was not pertinent in terms of the constitutional protection of fundamental rights. The facts of the case nevertheless predated the entry into force of the Personal Data Protection Act in January 2000 and, at that time, the applicable law did not lay down any obligation to provide information that was comparable to the obligation subsequently enshrined in section 5(1) of that Act. 56. In a previous judgment of 10 April 2000 (no. 98/2000), applying a similar proportionality test, the Constitutional Court had taken the view that video and audio recording devices placed at the checkout and on a gaming table in a casino, complementing the existing security system, had been a disproportionate measure in view of the resulting major interference with the right of employees and customers to respect for their private life. The court noted that the employer had failed to show how the sound recording, which was particularly intrusive for the right to privacy of those concerned, had been necessary for the protection of its legitimate rights and interests. 57. Subsequently, in judgment no. 29/2013 of 11 February 2013, which concerned events after the Personal Data Protection Act had entered into force, the Constitutional Court held that the permanent installation of a video-surveillance system, initially as a security measure for the purpose of monitoring employees’ activity, required that the workers’ representatives and employees be given prior notification and that a failure to do so would be in breach of Article 18 § 4 of the Constitution. In that case, an employee of Seville University had been suspended from his duties without pay for unjustified late arrivals and absences that had been established by means of video-surveillance installed with the approval of the administration. The Constitutional Court found as follows: “7. ... In conclusion, it must not be overlooked that the [Constitutional Court has] established, in an invariable and continuing manner, that an employer’s power is limited by fundamental rights (among many other [authorities], STC no. 98/2000, of 10 April, legal ground no. 7, or STC no. 308/2000, of 18 December, legal ground no. 4). Consequently, in the same way that the ‘public interest’ behind the punishment linked to an administrative offence is not enough to allow the State to deprive the citizen concerned of his or her rights derived from [sections 5(1) and (2) of the Personal Data Protection Act] (STC 292/2000, of 30 November, legal ground no. 18), the ‘private interest’ of an employer cannot justify using the worker’s personal data to his or her detriment without previously informing him or her of the monitoring measures that have been implemented. There is no reason in the employment sphere ... to restrict the right to be informed, a fundamental right that is protected by Article 18.4 of the Constitution. Accordingly, it is not enough that the data processing itself is lawful, being prescribed by law (section 6(2) of the Personal Data Protection Act), or proves, in a given case, to be proportionate to the aim pursued; monitoring by the employer, while certainly possible, must also guarantee the requisite prior information. 8. In the instant case, the CCTV cameras installed on the campus recorded the appellant’s image and allowed [the employer] to verify the appellant’s compliance with the working time [regulations] ... The owner of the cameras was Seville University and it was this entity that used the recordings, thus becoming the entity responsible for processing the appellant’s data without previously informing him of the use of cameras to monitor his work. This infringed Article 18.4 of the Constitution. The fact that signs were put up indicating the existence of a video-surveillance system on the campus, or that the Data Protection Agency had been informed of the installation of the system, does not detract from this conclusion. The employees, moreover, should have been informed, beforehand and in an express, precise and unambiguous manner, that the system could be used to monitor their work. The information should specify the characteristics and scope of the data processing, indicating the situations in which the images could be examined, together with the time-frame and purpose, specifically stating that the images could be used to impose disciplinary sanctions on the workers for non-compliance with the contract of employment.” 58. In a judgment of 3 March 2016 (no. 39/2016) the Constitutional Court consolidated its case-law concerning the use of hidden surveillance cameras. In this case the manager of a clothing shop had detected some thefts from the till and suspected one of its employees. He had temporarily installed hidden cameras zoomed in on the area where the till was located. The employer had placed a sign indicating in a general manner the presence of CCTV cameras, including the information provided for by section 5 of the Personal Data Protection Act, as required by Article 3 of Instruction no. 1/2006 issued by the Spanish Data Protection Agency. The Constitutional Court explained in the following terms the relevance of the fulfilment of the obligation to provide information under section 5 of that Act: “4. ... as has been emphasised, even though the express consent of the employee is not required to implement a monitoring measure which involves the processing of [personal data], the obligation to provide information under section 5 of the Personal Data Protection Act remains. Without prejudice to any legal sanctions which may be entailed by an employer’s failure to comply with the obligation, for it to constitute a violation of Article 18.4 of the Constitution it is necessary to ascertain whether the proportionality principle has been upheld. The right to data protection should be weighed in the balance against any limitations that may be justified by the employee’s work obligations and the corresponding power of monitoring and supervision granted to the employer by Article 20.3 of the Labour Regulations, in relation to Articles 33 and 38 of the Constitution. The assessment of the constitutional relevance of a total or partial lack of information in cases of video-surveillance in the workplace requires the balancing in each case of the competing constitutional rights and values: on the one hand the employees’ right to the protection of personal data and, on the other, the employer’s management power, which, essential as it is to the proper running of a productive organisation, reflects the constitutional rights recognised in Articles 33 and 38 of the Constitution and ... is enshrined in Article 20.3 of the Labour Regulations, which expressly empower the employer to adopt monitoring and supervision measures in order to verify that the workers comply with their employment duties ... This general monitoring power provided for by law legitimises the supervision carried out by the employer of the employees’ performance of their professional tasks (see ... the judgment of the European Court of Human Rights Bărbulescu v. Romania of 6 [ sic ] January 2016), without prejudging the particular circumstances of each case, which will determine whether or not the monitoring implemented by the employer has entailed a violation of the fundamental right at stake. It is clear that, in order to ascertain whether the proportionality test is satisfied where the provision of information is insufficient or absent, it will be necessary first to determine, in each case, whether there has actually been a failure in the duty to provide information.” 59. In that case the Constitutional Court found that there had been no violation of Article 18 § 4 of the Constitution, in particular on the ground that the employer had placed a board indicating that video-surveillance was in place, in accordance with the regulations. It considered that the board contained sufficient information as to the existence of monitoring and the purpose of the data processing. After examining the proportionality of the interference with the employee’s private life, using the criteria laid down in the case-law (see paragraph 54 above), it further found that there had not been any breach of the right to personal privacy protected by Article 18 § 1 of the Constitution. RELEVANT EUROPEAN AND INTERNATIONAL LAWCouncil of EuropeConvention for the Protection of Individuals with regard to Automatic Processing of Personal Data Council of EuropeConvention for the Protection of Individuals with regard to Automatic Processing of Personal Data Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data Council of EuropeConvention for the Protection of Individuals with regard to Automatic Processing of Personal Data Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 60. This Convention (ETS No. 108) entered into force on 1 October 1985, having been ratified by Spain on 31 January 1984. Under Article 1, its purpose is to secure in the territory of each State Party, for every individual, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him. It provides, inter alia, as follows: Article 5 – Quality of data “Personal data undergoing automatic processing shall be: a. obtained and processed fairly and lawfully; b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes; c. adequate, relevant and not excessive in relation to the purposes for which they are stored; d. accurate and, where necessary, kept up to date; e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. ...” Article 8 – Additional safeguards for the data subject “Any person shall be enabled: a. to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file; b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form; c. to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this Convention; d. to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this article is not complied with.” The Venice Commission 61. In 2007 the Venice Commission, the Council of Europe’s advisory body on constitutional matters, adopted an Opinion on “video surveillance by private operators in the public and private spheres and by public authorities in the private sphere and human rights protection” at its 71 st plenary session (Venice, 1-2 June 2007, CDL-AD(2007)027). The relevant parts read as follows: “18. For the purposes of this study, the private sphere will also include workplaces and the use of video surveillance in workplace premises, which raises legal issues concerning the employees’ privacy rights. ... 52. As regards workplaces, the introduction of video monitoring requires respecting the privacy rights of the employees. 53. Here, video surveillance would, in general, be allowed to prevent or detect fraud or theft by employees in case of a well-founded suspicion. However, except in very specific circumstances, videotaping would not be allowed at places such as toilets, showers, restrooms, changing rooms, or smoking areas and employee lounges where a person may trust to have full privacy. 54. Moreover, secret surveillance should only be allowed, and then only on a temporary basis, if proven necessary because of lack of adequate alternatives. ... 57. As regards shops, camera surveillance may be justified to protect the property, if such a measure has proven to be necessary and proportional. It may also be justified at certain locations in the shop to prevent and prosecute robberies under threat but, again, only if proven necessary, and no longer than necessary. 58. National legislation will have to clearly define the legal basis of the surveillance and the necessity of the infringement in view of the interests protected. ... ” IV. Conclusions and recommendations “ ... 99. The Venice Commission would hence reiterate the Recommendations made in its previous study: - Video surveillance [performed on grounds of security or safety requirements, or for the prevention and control of criminal offences], shall respect the requirements laid down by Article 8 of the ECHR. - With regard to the protection of individuals concerning the collection and processing of personal data, the regulations shall at least follow the requirements laid down by Directive 95/46/EC, especially its Articles 6 and 7 which are based on Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data in its Article 5. 100. Furthermore the Commission recommends, in view of the specificities of video surveillance, that the following measures should also be taken on a systematic basis: - People should be notified of their being surveyed, unless the surveillance system is obvious. This means that the situation has to be such that the person observed may be assumed to be aware of the surveillance, or has unambiguously given his /her consent.” The Committee of Ministers 62. On 1 April 2015, at the 1224th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation CM/Rec(2015)5 on the processing of personal data in the context of employment. The relevant extracts provide as follows: 10. Transparency of processing “10.1. Information concerning personal data held by employers should be made available either to the employee concerned directly or through the intermediary of his or her representatives, or brought to his or her notice through other appropriate means. 10.2. Employers should provide employees with the following information: – the categories of personal data to be processed and a description of the purposes of the processing; – the recipients, or categories of recipients of the personal data; – the means employees have of exercising the rights set out in principle 11 of the present recommendation, without prejudice to more favourable ones provided by domestic law or in their legal system; – any other information necessary to ensure fair and lawful processing. ...” 15. Information systems and technologies for the monitoring of employees, including video surveillance “15.1. The introduction and use of information systems and technologies for the direct and principal purpose of monitoring employees’ activity and behaviour should not be permitted. Where their introduction and use for other legitimate purposes, such as to protect production, health and safety or to ensure the efficient running of an organisation has for indirect consequence the possibility of monitoring employees’ activity, it should be subject to the additional safeguards set out in principle 21, in particular the consultation of employees’ representatives. 15.2. Information systems and technologies that indirectly monitor employees’ activities and behaviour should be specifically designed and located so as not to undermine their fundamental rights. The use of video surveillance for monitoring locations that are part of the most personal area of life of employees is not permitted in any situation.” 21. Additional safeguards “For all particular forms of processing, set out in Part II of the present recommendation, employers should ensure the respect of the following safeguards in particular: a. inform employees before the introduction of information systems and technologies enabling the monitoring of their activities. The information provided should be kept up to date and should take into account principle 10 of the present recommendation. The information should include the purpose of the operation, the preservation or back-up period, as well as the existence or not of the rights of access and rectification and how those rights may be exercised; b. take appropriate internal measures relating to the processing of that data and notify employees in advance; c. consult employees’ representatives in accordance with domestic law or practice, before any monitoring system can be introduced or in circumstances where such monitoring may change. Where the consultation procedure reveals a possibility of infringement of employees’ right to respect for privacy and human dignity, the agreement of employees’ representatives should be obtained; d. consult, in accordance with domestic law, the national supervisory authority on the processing of personal data.” European Union materialDirective 95/46/ EC Directive 95/46/ EC Directive 95/46/ EC 63. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, in its relevant parts, provides: Article 6 “1. Member States shall provide that personal data must be: (a) processed fairly and lawfully; (b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. Further processing of data for historical, statistical or scientific purposes shall not be considered as incompatible provided that Member States provide appropriate safeguards; (c) adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed; (d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that data which are inaccurate or incomplete, having regard to the purposes for which they were collected or for which they are further processed, are erased or rectified; (e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed. ...” Article 7 “Member States shall provide that personal data may be processed only if: (a) the data subject has unambiguously given his consent; or (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or (c) processing is necessary for compliance with a legal obligation to which the controller is subject; or (d) processing is necessary in order to protect the vital interests of the data subject; or (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject ...” Article 10 – Information in cases of collection of data from the data subject “Member States shall provide that the controller or his representative must provide a data subject from whom data relating to himself are collected with at least the following information, except where he already has it: (a) the identity of the controller and of his representative, if any; (b) the purposes of the processing for which the data are intended; (c) any further information such as - the recipients or categories of recipients of the data, ... - the existence of the right of access to and the right to rectify the data concerning him ...” Article 11 – Information where the data have not been obtained from the data subject “1. Where the data have not been obtained from the data subject, Member States shall provide that the controller or his representative must at the time of undertaking the recording of personal data or if a disclosure to a third party is envisaged, no later than the time when the data are first disclosed provide the data subject with at least the following information, except where he already has it: (a) the identity of the controller and of his representative, if any; (b) the purposes of the processing; (c) any further information such as - the categories of data concerned, - the recipients or categories of recipients, - the existence of the right of access to and the right to rectify the data concerning him in so far as such further information is necessary, having regard to the specific circumstances in which the data are processed, to guarantee fair processing in respect of the data subject. ...” Article 13 – Exemptions and restrictions “1. Member States may adopt legislative measures to restrict the scope of the obligations and rights provided for in Articles 6 (1), 10, 11 (1), 12 and 21 when such a restriction constitutes a necessary measures to safeguard: (a) national security; (b) defence; (c) public security; (d) the prevention, investigation, detection and prosecution of criminal offences, or of breaches of ethics for regulated professions; (e) an important economic or financial interest of a Member State or of the European Union, including monetary, budgetary and taxation matters; (f) a monitoring, inspection or regulatory function connected, even occasionally, with the exercise of official authority in cases referred to in (c), (d) and (e); (g) the protection of the data subject or of the rights and freedoms of others.” Article 22 – Remedies “Without prejudice to any administrative remedy for which provision may be made, inter alia before the supervisory authority referred to in Article 28, prior to referral to the judicial authority, Member States shall provide for the right of every person to a judicial remedy for any breach of the rights guaranteed him by the national law applicable to the processing in question.” Article 23 – Liability “1. Member States shall provide that any person who has suffered damage as a result of an unlawful processing operation or of any act incompatible with the national provisions adopted pursuant to this Directive is entitled to receive compensation from the controller for the damage suffered. ...” The Data Protection Working Party 64. A Data Protection Working Party was established under Article 29 of Directive 95/46/EC in order to contribute to the uniform implementation of its provisions. It is an independent EU advisory body. In September 2001 it issued Opinion 8/2001 on the processing of personal data in an employment context, which summarises the fundamental principles of data protection: purpose, transparency, legitimacy, proportionality, accuracy, security and staff awareness. With regard to the monitoring of employees, it recommended as follows: “Any monitoring, especially if it is conducted on the basis of Article 7(f) of Directive 95/46/EC and, in any case, to satisfy Article 6 must be a proportionate response by an employer to the risks it faces taking into account the legitimate privacy and other interests of workers. Any personal data held or used in the course of monitoring must be adequate, relevant and not excessive for the purpose for which the monitoring is justified. Any monitoring must be carried out in the least intrusive way possible. It must be targeted on the area of risk, taking into account that data protection rules and, where applicable, the principle of secrecy of correspondence. Monitoring, including surveillance by camera, must comply with the transparency requirements of Article 10. Workers must be informed of the existence of the surveillance, the purposes for which personal data are to be processed and other information necessary to guarantee fair processing. The Directive does not treat less strictly monitoring of a worker’s use of an Internet and email system if the monitoring takes place by means of a camera located in the office.” 65. Another opinion, issued on 11 February 2004, “on the Processing of Personal Data by means of Video Surveillance” (opinion no. 4/2004), pointed out that Directive 95/46/EC applied to such means and that the proportionality principle had to be upheld both in the decision to use it and for the processing of the personal data thus obtained. As regards video-surveillance in the workplace, it explained as follows: “In addition to the considerations made in the above documents, to the extent that they are actually applicable to video surveillance, it is appropriate to point out that video surveillance systems aimed directly at controlling, from a remote location, quality and amount of working activities, therefore entailing the processing of personal data in this context, should not be permitted as a rule. The case is different as regards video surveillance systems that are deployed, subject to appropriate safeguards, to meet production and/or occupational safety requirements and also entail distance monitoring – albeit indirectly. The implementing experience has shown additionally that surveillance should not include premises that either are reserved for employees’ private use or are not intended for the discharge of employment tasks – such as toilets, shower rooms, lockers and recreation areas; that the images collected exclusively to safeguard property and/or detect, prevent and control serious offences should not be used to charge an employee with minor disciplinary breaches; and that employees should always be allowed to lodge their counterclaims by using the contents of the images collected. Information must be given to employees and every other person working on the premises. This should include the identity of the controller and the purpose of the surveillance and other information necessary to guarantee fair processing in respect of the data subject, for instance in which cases the recordings would be examined by the management of the company, the recording period and when the recording would be disclosed to the law enforcement authorities. The provision of information for instance through a symbol can not be considered as sufficient in the employment context.” The General Data Protection Regulation 66. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, has been applicable since 25 May 2018. It incorporates most of the provisions of Directive 95/46/EC and reinforces some of the safeguards contained therein. COMPARATIVE-LAW MATERIAL 67. The following information was gleaned from the Court’s research into the legislation of the member States of the Council of Europe, and in particular a study covering forty-two States. 68. The twenty-eight member States of the European Union have legislation transposing Directive 95/46/EC. Among them, twenty-one States have adopted instruments specifically regulating video-surveillance in the workplace. The majority of States which have such rules prohibit covert video-surveillance. Some of them (Germany, United Kingdom) allow it, however, in the event of suspicion of a criminal offence or serious misconduct. 69. As regards the States which are not members of the EU, seven of them have specific rules on video-surveillance in the workplace, three States have regulations on video-surveillance in general and five States have only general legislation on the collection and processing of personal data. The States which have specific rules require that such monitoring should have a legitimate purpose and that the employees should be informed. In one State (Switzerland) covert video-surveillance may be used in the case of suspicion of an offence. 70. Almost all States enable any person who has been the subject of video-surveillance to go before the courts to seek compensation for any damage sustained and/or an order to terminate the monitoring or delete the data obtained by that means. In some countries, criminal liability may also be engaged. In all member States of the European Union and in ten of the other States, it is possible to complain to an independent authority for the protection of personal data, which has powers to investigate and impose sanctions. | This case concerned the covert video-surveillance of employees which led to their dismissal. The applicants complained about the covert video-surveillance and the Spanish courts’ use of the data obtained to find that their dismissals had been fair. The applicants who signed settlement agreements also complained that the agreements had been made under duress owing to the video material and should not have been accepted as evidence that their dismissals had been fair. |
186 | Domestic violence | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1979 and lives in Z. 1. Background to the case 5. On 21 April 2001 the applicant married B and on 14 May 2001 a daughter, C, was born of the marriage. On 13 December 2005 the applicant brought a civil action in the Z. Municipal Court ( Općinski sud u Z. ), seeking a divorce from B. On 7 November 2006 the court dissolved the marriage of the applicant and B. 6. For the purposes of criminal proceedings instituted against him in 2003, B, who was still the applicant's husband at the time, underwent a psychiatric examination. The relevant part of the report drawn up by two psychiatrists on 6 December 2004 indicated that B had been captured during the Homeland War and detained in a concentration camp from 3 April to 14 August 1992, where he had been tortured and had sustained serious bodily injuries. It also indicated that since 1992 he had been suffering from mental disorders such as anxiety, paranoia, epilepsy and post-traumatic stress disorder (PTSD). The relevant part of the report reads: “The patient is primarily an emotionally immature person who shows symptoms of chronic PTSD (lowered tolerance of frustration, egocentrism, latent aggressiveness, a tendency towards depressive reactions in stressful situations, as well as a worsening of his condition and impaired social functioning, in particular in family life). ... ” 2. Criminal proceedings against B on charges of violent behaviour within the family 7. On 21 November 2005 B was arrested and detained on suspicion that he had committed the criminal offence of violent behaviour within the family. On 20 December 2005 the Z. State Attorney's Office indicted B in the Z. Municipal Court on charges of violent behaviour within the family. The indictment alleged that from 12 November 2003 to 21 August 2005 B had verbally insulted and threatened the applicant, prevented her from leaving the house and physically assaulted her; on 12 November 2003 he had physically assaulted her by punching her in the belly, throwing her on the floor and continuing to hit and kick her in the body and head; on 7 August 2005 he had hit the applicant in the face, back and hands, causing lacerations; and on 21 August 2005 he had kicked her in the leg. 8. On 20 December 2005 B was released, after his mother gave a statement saying that she would immediately take B to their house in P. However, after having been released, he continued abusing the applicant and therefore on 9 January 2006 the applicant, together with C, moved to a women's shelter in Z. (hereinafter “ the shelter”) run by a non-governmental organisation. 9. The first hearing scheduled before the Z. Municipal Court for 29 March 2006 was adjourned because B did not appear. The second hearing was held on 25 April 2006. 10. On 22 May 2006 the Z. State Attorney's Office extended the indictment to the criminal offence of neglecting and molesting a child or a minor. The extended indictment alleged that between November 2003 and February 2006 B had continually abused the applicant, both verbally and physically, in front of their daughter C, as well as using inappropriate language in respect of C, and had on several occasions punched and kicked C. Consequently, the case was transferred to the juvenile division ( odjel za mladež ) of the Z. Municipal Court. 11. Further hearings scheduled for 7 December 2006 and 20 February 2007 were adjourned because B did not appear. A hearing scheduled for 17 April 2007 was adjourned until 9 May 2007 at the request of B's legal representative. At that hearing the judge ordered a psychiatric examination of B. 12. The psychiatric examination established that B suffered from several mental disorders, including PTSD. The report of 2 January 2008 concluded: “In view of his mental state and the need for continued control and supervision, I would recommend that the court order a security measure of psychiatric treatment. Treatment may be carried out in a day hospital and without detention. This would enable him to follow a regular programme of therapy which would preserve his current relatively stable mental condition and hence diminish the likelihood of his repeating the criminal offences and, in practical terms, remove the risk to his environment.” 13. Another hearing was held on 12 March 2008, at which the expert psychiatrist was questioned. The expert stated that, owing to his difficult war experiences, B suffered from PTSD; he was a neurotic person with a slightly below-average intellectual level, reduced emotional capacity and a passive-aggressive personality. For those reasons his understanding of his own actions and his ability to control his impulses were significantly reduced. The expert repeated his recommendation that a security measure of compulsory psychiatric treatment be applied. 14. A hearing scheduled for 29 April 2008 was adjourned until 4 June 2008 at the request of B's legal representative. That hearing was also adjourned because B did not appear. Hearings scheduled for 14 July and 3 October 2008 were adjourned because one of the witnesses, an employee of the Z. Social Welfare Centre, did not appear. 15. At a hearing held on 19 November 2008 the applicant gave evidence and the court accepted proposals by both parties to call further witnesses. At a hearing held on 10 December 2008 four witnesses gave evidence. Further witnesses were called for the hearing scheduled for 21 January 2009, but the hearing was adjourned until 4 March 2009 since B and one prosecution witness did not appear. The hearing scheduled for 4 March 2009 was also adjourned because B did not appear and the hearing scheduled for 2 April 2009 was adjourned because neither B nor the prosecutor appeared. 16. On 6 April 2009 judge M.B. asked to be allowed to step down from the case, since in March 2009 B had threatened her and she had reported B to the police (see paragraph 2 3 below). The president of the Z. Municipal Court granted her request on 21 April 2009. 17. On 9 March 2009 B was admitted voluntarily to a psychiatric hospital, where he stayed until 6 April 2009. On 18 April he again went to a psychiatric hospital voluntarily. On 13 May 2009 the new judge ordered an additional psychiatric examination of B, in order to establish whether he was fit to stand trial. The expert concluded that, even though B's mental condition had deteriorated somewhat, he was still capable of standing trial. B left the hospital on 28 May 2009. Owing to the change of presiding judge in the proceedings, all the evidence had to be presented again. The first hearing in front of the new judge was held on 11 November 2009. A hearing scheduled for 14 December 2009 was adjourned until 13 January 2010 at the request of B's legal representative. A hearing was held on 1 6 February 2010. The criminal proceedings are still pending. 3. Criminal proceedings against B on charges of making threats against the applicant and a police officer 18. On 1 March 2006 the Z. State Attorney's Office indicted B in the Z. Municipal Court on charges of making death threats against the applicant on 1 March 2006. 19. Further to that, on 30 June 2006 B was arrested and detained on suspicion of the criminal offence of making death threats against the applicant and a police officer, I.G. On 27 July 2006 the Z. State Attorney's Office indicted B on charges of making death threats against the applicant and I.G. 20. On 8 September 2006 the two sets of proceedings were joined. On 16 October 2006 B was found guilty of three counts of making death threats and sentenced to eight months'imprisonment. The relevant extracts from the operative part of the judgment read: “B ... is guilty on the grounds that 1. in the period from 29 May to 12 June 2006 ... on the official premises of the Social Welfare Centre, during meetings with minor child C, in order to incite feelings of fear in his former wife A, he whispered several times in her ear that she was a villain, that he was going to get rid of her, that she knew what he was capable of and that she would be swallowed up by darkness; on 14 June 2006 after the meeting with his minor child, he approached A on the street in front of the building of the Social Welfare Centre and whispered in her ear to beware of him and that he was going to get rid of her, which caused in A feelings of anxiety and fear for her own life ... 2. during November 2005, in Z., on the premises of ... police station during an interview [with the police conducted] following a criminal complaint against him on allegations of having committed the criminal offence of violent behaviour within the family ... told a policewoman ..., in order to incite in her feelings of fear, that she brought shame upon the Croatian police, that she was conspiring against him with his former wife, that he knew the head of the police ... and Minister ... that these were her last days in police service and that he was going to get rid of her; on 19 January 2006 in the Zagreb Minor Offences Court during her testimony, he repeated that she brought shame upon the Croatian police, that she was conspiring against him with his former wife and that he was going to get rid of her, that he was not going to beat her but would have done with her and would remember her, which caused in her feelings of fear and of a risk to her own life ... 3. on 21 November 2005 in Z., on the premises of ... police department, in order to incite in her feelings of fear and fear for her personal safety, called wife A several times on her cellular phone, telling her to withdraw her criminal complaint against him and, when she refused, told her that she would be swallowed up by darkness, to beware of him, that nothing was going to be as before and that he was going to put her in jail, which caused in A feelings of fear and fear for her personal safety ... ” 21. On 24 October 2006 B was released from detention. On the same day the Z. Municipal Court issued a restraining order against B, prohibiting access to the applicant at a distance of less than three hundred metres, and prohibiting contact with the applicant. 22. Both the Z. State Attorney's Office and B lodged appeals against the first - instance judgment. On 22 May 2007 the judgment was upheld by the Z. County Court and thus became final. The judgment has not yet been enforced. 4. Criminal proceedings against B on charges of making death threats against a judge and her minor daughter 23. On an unspecified date the Z. State Attorney's Office indicted B in the Z. Municipal Court on charges of making death threats against judge M.B. and her minor daughter (see paragraph 16 above). In the course of the proceedings B was arrested on 4 September 2009 and placed in pre-trial detention. On 19 October 2009 the Z. Municipal Court found B guilty as charged and sentenced him to three years'imprisonment and also ordered his compulsory psychiatric treatment. It seems that B is still in detention but no information has been provided as to where and whether any psychiatric treatment has been provided. 5. Minor offences proceedings against B (a) The first set of proceedings 24. On 7 January 2004 a police station lodged a request with the Z. Minor Offences Court ( Prekšajni sud u Z. ) for minor offences proceedings to be instituted against B. It was alleged that on 12 November 2003 B had assaulted the applicant and pushed her onto the floor, while kicking her in the body and head. 25. At a hearing held on 8 June 2004 the applicant refused to give evidence and the proceedings were discontinued. (b) The second and third sets of proceedings 26. On 14 November 2005 a police station lodged two requests with the Z. Minor Offences Court for minor offences proceedings to be instituted against B. 27. In the first request, it was alleged that on 21 August 2005 B had verbally abused the applicant in front of C and had kicked the applicant in the leg. In a decision of 20 November 2006 the court found B guilty of domestic violence and imposed a fine in the amount of 2,000 Croatian kuna (HRK). There is no indication that this fine has been enforced. 28. In the second request it was alleged that on 7 August 2005 B had first forcefully stopped the applicant from taking a bath and had hit her in the face, back and hands, causing lacerations. In a decision of 19 July 2007 the court found B guilty of domestic violence and imposed a fine in the amount of HRK 7,000. However, this decision did not become final because the proceedings were discontinued on 28 November 2007, having become time-barred. (c) The fourth set of proceedings 29. On 26 March 2006 the applicant lodged a request with the Z. Minor Offences Court under the Protection against Domestic Violence Act, for minor offences proceedings to be instituted against B. She alleged that since 29 March 2005 B had repeatedly assaulted her in front of C and caused her bodily injuries. These were described in the enclosed medical reports of 29 March and 16 August 2005 as contusions to the upper lip, right calf and right foot. The injuries were classified as minor bodily injuries. He had further threatened to kill her on 1 February 2006. 30. The applicant also requested that protective measures be immediately imposed in the form of prohibiting access to her proximity, a prohibition on harassing or stalking her and compulsory psycho-social treatment. The applicant explained that B had been diagnosed with several mental disorders and had been undergoing treatment for years. She requested that the proceedings be instituted as a matter of urgency. 31. The court held a preliminary hearing ( pripremno ročište ) on 27 June 2006, and subsequent hearings on 19 September 2006 and 26 September 2006. In a decision of 2 October 2006 the court found B guilty of domestic violence and imposed a fine in the amount of HRK 6,000. A protective measure prohibiting access to the applicant at a distance of less than one hundred metres for a period of one year was also ordered, as well as a protective measure of compulsory psycho-social treatment for a period of six months. The relevant extracts from the operative part of the decision read: “B is guilty on the grounds that on 1 February 2006 in their flat ... he threatened his wife with the following words :'I will kill you, you won't walk again ... you will never see your child again'in the presence of their minor child C ... which acts of violence he repeated on several subsequent occasions causing her physical injuries also ... ” 32. On 30 October 2006 the applicant lodged an appeal, arguing that a protective measure in the form of a prohibition on harassing or stalking her and C and a protective measure of prohibition of access to C should have also been applied. She argued further that the measure of prohibition on access to her was not sufficiently precise because the court had failed to specify the date on which the measure was to be implemented. B also lodged an appeal. 33. The appeals of B and the applicant were dismissed on 31 January 2007 by the High Minor Offences Court. 34. B paid HRK 1,000 of the fine. The remaining fine in the amount of HRK 5,000 was supplemented by a prison term which B has not served. The Government explained that this was because Z. Prison was full to capacity. Furthermore, B has not undergone the compulsory psycho-social treatment because of the lack of licensed individuals or agencies able to execute such a protective measure. Execution of the sentence became time-barred on 31 January 2009. 35. On 10 December 2007 the applicant informed the Z. Minor Offences Court that B had violated the restraining order and that in October 2007 he had hired a private detective who had come to her secret address where she had been living after leaving the shelter. The applicant reiterated her request for the application of an additional protective measure in the form of a prohibition on harassing and stalking a victim of violence. Her request was dismissed in a decision of the Z. Minor Offences Court of 12 December 2007 on the ground that she had not shown an immediate risk to her life. On 17 December 2007 the applicant lodged an appeal against that decision. The court dismissed her appeal on 7 January 2008. The applicant lodged a constitutional complaint against that decision on 18 February 2008. On 19 March 2008 the Constitutional Court found that it had no jurisdiction in the matter. 6. Other relevant facts 36. On an unspecified date the applicant and C left the shelter and went to live at a secret address. On 14 October 2007 an unknown man appeared at their door. The applicant's partner opened and the man at the door introduced himself as a private detective hired by B to find out the whereabouts of the applicant and C. 37. The applicant moved out and lived in a nearby village for five months. According to the applicant, she was not able to find new accommodation elsewhere because all the landlords she had approached answered that they had no wish to deal with her violent ex-husband. 38. In the course of the divorce proceedings between the applicant and B, the Z. Municipal Court issued an interim measure on 9 March 2006 and ordered contact between B and C twice a week for one hour on the premises of the Z. Social Welfare Centre, under expert supervision. The applicant did not comply with the decision, so on 23 May 2006 the court threatened her with a fine unless she complied with the order. After that decision the applicant complied with the interim measure until mid-June 2006. 39. On 7 November 2006 the Z. Municipal Court dissolved the marriage of the applicant and B and also ordered B to pay child maintenance for C. It further prohibited B from contacting C. Both parties lodged appeals, and on 11 September 2007 the Z. County Court ( Županijski sud u Z. ) upheld the divorce but quashed the first-instance judgment concerning the amount of maintenance to be paid in respect of C and the ban on contact between B and C, and remitted the case in that part. 40. On 7 October 2008 the Z. Municipal Court gave a fresh judgment on the amount of maintenance and ordered contact between B and C twice a month for two hours in a children's play centre in Z., under the expert supervision of the Z. Social Welfare Centre. Both parties lodged appeals, and on 27 January 2009 the Z. County Court upheld the part of the judgment concerning contact between B and C, quashed the decision on maintenance and remitted the case in that part. The proceedings on the child maintenance are still pending. III. COUNCIL OF EUROPE DOCUMENTS 45. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention. 46. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape and abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising any abuse of position by the perpetrator. The Recommendation also states that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children's rights are protected during proceedings. 47. With regard to violence within the family, the Committee of Ministers recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services. | This case concerned the applicant’s complaint that the authorities had failed to protect her against the domestic violence of her mentally-ill ex-husband despite her having alerted them about his repeated physical and verbal assaults and death threats. She also alleged that the relevant laws in Croatia regarding domestic violence were discriminatory. |
472 | Preliminary ruling | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant is registered under Hungarian law as a cooperative based in Aranyosgadány. 7. The applicant ’ s aim is to support its members in their agricultural activity, in particular by purchasing expensive machines and lending them to its members free of charge. The members pay a regular “contribution fee” to the cooperative. 8. The applicant considered that the lending of machines constituted the very essence of its economic activities. It therefore deducted the value-added tax paid in respect of the machines from the tax which it was liable to pay. 9. In 2008 the Hungarian Tax Authority fined the applicant, having found that the lending of machines to members free of charge was not an “economic activity” within the meaning of Act no. LXXIV of 1992 on Value-Added Tax. As a consequence, the applicant was not entitled to deduct the tax paid on the goods it purchased. A. The first set of proceedings 10. The applicant challenged the decision of the Tax Authority before the administrative courts. Pointing to the special provisions applying to cooperatives and to the fact that its members paid contribution fees, it argued, on the basis of domestic law, that the service in question was to be considered a genuine economic activity. 11. On 17 February 2009 the Baranya County Court upheld the administrative decision. The Supreme Court, in review proceedings, upheld that judgment on 26 November 2009. In response to the applicant ’ s argument to the effect that the contribution fee paid by members should be taken into account as a “consideration” for the lending of machines, rendering the applicant ’ s activity an “economic” one, the Supreme Court referred to the Aardappelenbewaarplaats judgment of the CJEU (C-154/80, EU:C:1981:38), in which that court had held that “a provision of services for which no definite subjective consideration is received does not constitute a provision of services ‘ against payment ’ ”. B. The second set of proceedings 12. On 9 December 2010 the applicant, represented by a different lawyer from the one who had represented it in the previous set of proceedings, introduced a second set of proceedings, seeking damages against the Supreme Court before the Budapest Regional Court. It alleged that the Supreme Court had violated European Union law on account of its failure to apply, of its own motion, Article 17 of the Sixth Council Directive 77/388/EEC (see paragraph 30 below) in its 2009 judgment and on account of the wrongful qualification of the applicant ’ s activity for the purposes of the value-added tax deduction. The applicant argued that the European Union law provision analysed in the Aardappelenbewaarplaats case was Article 8 of the Second Council Directive 67/228 (defining the basis for assessment of value-added tax), rather than Article 17 of the Sixth Council Directive 77/388/EEC (concerning tax deduction). It was the latter that should have been directly applicable in the case before the Supreme Court. In the applicant ’ s view, the Aardappelenbewaarplaats case was about whether turnover tax should be imposed on storage services provided free of charge for members of a cooperative association, whereas the case before the Supreme Court had concerned a different question, namely the deductibility of input VAT. Alleging the Supreme Court ’ s liability for judicial malpractice, the applicant relied on the Köbler judgment of the CJEU (see paragraph 31 below). It requested that the Budapest Regional Court obtain a preliminary ruling from the CJEU as to the conformity of the Supreme Court ’ s judgment with European Union law and the conditions for establishing whether the Supreme Court might be liable for a wrongful judgment. 13. On 31 May 2011 the Budapest Regional Court rejected the applicant ’ s claim against the Supreme Court. It held that in the main proceedings, the Supreme Court had been bound by the applicant company ’ s claim taking issue only with the alleged absence of a “consideration” and the resulting qualification of its service as not being an “economic activity”. The Regional Court was of the view that in that respect the Supreme Court had duly examined the relevant European Union law of its own motion. 14. Without requesting a preliminary ruling, the Budapest Regional Court held that the Köbler judgment was not relevant in the case because the applicant had sought to sue the Supreme Court on the basis of the Hungarian Civil Code, rather than seeking to sue the Hungarian State itself under European Union law. 15. The applicant appealed and requested the second-instance court to obtain a preliminary ruling also on the question of whether the Köbler principles were applicable if the reparation claim was directed against the Supreme Court and not the State. 16. On 28 August 2012 the Budapest Court of Appeal upheld the first-instance judgment, without requesting a preliminary ruling. It accepted the applicant ’ s argument that the reasoning of the first-instance judgment was erroneous with respect to the alleged irrelevance of the Köbler case, but held that, in any event, the applicant ’ s claim was ill-founded on other grounds. Notably, it pointed to the fact that during the first set of proceedings (see paragraph 10 above) the applicant had failed to refer to European Union law, and considered that this fact in itself had rendered the applicant ’ s claim unfounded. 17. Arguing that European Union law was to be applied proprio motu, even without an explicit reference from the plaintiff, the applicant requested a review of the final judgment by the Kúria (the historical appellation by which the Supreme Court was renamed in 2012, see the first sentence of point 36 of the Constitutional Court ’ s decision cited in Baka v. Hungary [GC], no. 20261/12, § 55, ECHR 2016). It also reiterated its request that the case be referred for a preliminary ruling and proposed that the Kúria also ask whether the liability of a State under the Köbler principles may be subjected to the precondition that an explicit reference to the relevant provisions of European Union law must be made by the plaintiff in the main – in the present case first – proceedings. 18. The questions thus proposed by the applicant for the purposes of a preliminary ruling read as follows: “1. Does the reparation claim fall within the scope of European law in civil proceedings, such as actions in damages based on section 349 of the Hungarian Civil Code, brought by an individual against the Supreme Court of the Member State concerned, in which the plaintiff claims that the Supreme Court has violated a right conferred on him by a directly applicable provision of European law in previous administrative proceedings. If so, to what extent? 2. In the common system of value-added tax, with regard to the specificities thereof, may Council Directive 77/388/EEC, especially its Article 17(2)(a), be interpreted as meaning that a national measure (e.g. a judgment) is incompatible with it if it denies the right of a cooperative, otherwise subject to value-added tax in the Member State concerned, to deduct input VAT paid on machines purchased, for the sole reason that the cooperative handed over those machines to its members, a ‘ grouping of growers ’, without consideration? 3. Is the liability of a Member State ’ s Supreme Court excluded, under the rules of European law, by the sole fact that an individual did not allege explicitly the infringement of a specific provision of European law in the judicial proceedings for the review of an administrative decision denying him the right to tax deduction? Or should the domestic court enforce of its own motion the directly applicable provision of European law (in this case, Article 17(2 )( a) of the Sixth Directive)? 4. Is the infringement sufficiently serious if the Supreme Court of a Member State denies, in administrative proceedings, an individual ’ s right to tax deduction without analysing the underlying provision of European law directly or referring the case for a preliminary ruling, in circumstances where the reasoning of the refusal to refer the case [to the CJEU] is based on the Supreme Court ’ s reliance on a judgment of the [CJEU] adopted on a different subject and where this latter court has not yet adopted a ruling on the issue at hand?” 19. On 2 October 2013 the Kúria dismissed in a procedural order ( végzés ) the applicant ’ s request for a preliminary ruling. Firstly, it noted that it was not in dispute between the parties that the case fell within the scope of European Union law; the referral of the first question would therefore have been futile. Secondly, concerning the second, third and fourth questions, the Kúria held that they could have been considered in the first proceedings, but that they fell outside the scope of the action in damages brought against the Supreme Court on account of alleged judicial malpractice. It further held that in the framework of the action in damages, assessment of the consequences of the applicant ’ s failure, in the first set of proceedings, to make explicit allegations of an infringement of European Union law (see question 3 quoted in paragraph 18 above) was the task of the national courts, and that it did not raise any question of interpretation that would fall under the jurisdiction of the CJEU. 20. The applicant complained to the Kúria about the above refusal but in vain; on 4 December 2013 it held, in a procedural order ( végzés ), that no appeal lay against such a decision. 21. On 11 December 2013 the Kúria upheld, in a judgment ( ítélet ), the final decision of the Budapest Court of Appeal. It reiterated that the applicant could have relied on the Sixth Council Directive and put forward its arguments concerning the allegedly correct interpretation of domestic law in the light of European Union law before the Supreme Court in the 2009 proceedings. Since the applicant had failed to do so, the Supreme Court had indeed been prevented, by force of the applicable procedural rules, from examining such arguments as raised in the subsequent proceedings for damages, concerning the compatibility of the final judgment of 2009 with European Union law. Therefore, the Supreme Court could not bear responsibility for the infringement of European Union law alleged by the applicant. The judgment of the Kúria was served on the applicant on 7 February 2014. 22. On 13 March 2014 the applicant lodged a constitutional complaint under section 27 of the Constitutional Court Act (see Mendrei v. Hungary ( dec. ), no. 54927/15, § 13, 19 June 2018), claiming that the proceedings before the Kúria had been unfair on account of the latter ’ s allegedly arbitrary refusal to refer the case for a preliminary ruling. Contending that the Constitutional Court should be considered as a “court or tribunal” for the purposes of Article 267 of the TFEU, the applicant also requested the Constitutional Court to turn to the CJEU in order to enquire whether an “arbitrary” refusal of a last-instance jurisdiction to refer a case for a preliminary ruling may violate the party ’ s right to a fair trial guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (see paragraph 29 below) and, if so, under what conditions such a refusal might be considered arbitrary. The applicant argued, in particular, that the Kúria had failed to recognise an issue of fundamental importance, namely that whether a certain legal issue (the consequences of a plaintiff ’ s failure to put forward explicit allegations as to an infringement of European Union law) fell within the ambit of national law or European Union law was itself a question belonging necessarily to the realm of European law. Ignoring that concept, the Kúria had “solved” the problem in an arbitrary fashion, that is, by refusing the reference and barring the applicant ’ s access to a “lawful judge”, the CJEU in the circumstances. 23. The applicant ’ s constitutional complaint contained the following passages: “The complainant ... does not want to call into question the merits of the Kúria ’ s impugned judgment in the present procedure [but rather complains that] the Kúria acted unfairly in the review proceedings ... The Kúria ’ s procedure was in breach of the claimant ’ s constitutional right to a fair trial, guaranteed by Article XXVIII (1) of the Fundamental Law, in so far as the Kúria acted arbitrarily in omitting to refer the case for a preliminary ruling. ... The Kúria failed to explain, in line with the Cilfit requirements ... why and how it had deemed itself exempt from the obligation to refer a question [on the interpretation of EU law to the CJEU for a preliminary ruling]. ... [I]n the light of the above, the Kúria failed to comply with its obligation to refer [a question to the CJEU for a preliminary ruling] and that in an arbitrary, grossly unprofessional manner ...” 24. On 19 May 2014 the Constitutional Court rejected the constitutional complaint as inadmissible, without putting forward a preliminary ruling request (see decision no. 3165/2014. (V.23.), referred to in Somorjai v. Hungary, no. 60934/13, § 34, 28 August 2018). It held that the question whether a request for reference to the CJEU should be made or not was to be decided by the judges hearing the case in the ordinary courts, and that the Constitutional Court lacked jurisdiction to review such decisions. It further noted that the only claim an applicant might make in constitutional complaint proceedings initiated under section 27 of Act no. CLI of 2011 on the Constitutional Court was that a judgment be quashed. Consequently, no request for a preliminary ruling was possible under that law, and the applicant ’ s request to that effect had to be rejected. 25. The Constitutional Court ’ s decision contained the following passage: “[The applicant] was of the view that the rejection by the Kúria of his request to have the case referred to the [CJEU] had been arbitrary in that the Kúria should have provided professionally appropriate, objective and duly detailed reasons in that respect but, in the applicant ’ s opinion, it had failed to do so. In that connection, the applicant referred to the requirements contained in the [CJEU] ’ s Cilfit and Köbler judgments ...” Apart from that passage, the decision did not address the issue of adequate reasoning by the Kúria. | This case concerned the applicant company’s complaint about the domestic courts failure, particularly that of the Kúria and the Constitutional Court, to refer questions to the Court of Justice of the European Union for a preliminary ruling. |
760 | Right to life and right to respect for private life | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant is a 43-year-old woman. She resides with her husband of twenty-five years, their daughter and granddaughter. The applicant suffers from motor neurone disease (MND). This is a progressive neuro-degenerative disease of motor cells within the central nervous system. The disease is associated with progressive muscle weakness affecting the voluntary muscles of the body. As a result of the progression of the disease, severe weakness of the arms and legs and the muscles involved in the control of breathing are affected. Death usually occurs as a result of weakness of the breathing muscles, in association with weakness of the muscles controlling speaking and swallowing, leading to respiratory failure and pneumonia. No treatment can prevent the progression of the disease. 8. The applicant's condition has deteriorated rapidly since MND was diagnosed in November 1999. The disease is now at an advanced stage. She is essentially paralysed from the neck down, has virtually no decipherable speech and is fed through a tube. Her life expectancy is very poor, measurable only in weeks or months. However, her intellect and capacity to make decisions are unimpaired. The final stages of the disease are exceedingly distressing and undignified. As she is frightened and distressed at the suffering and indignity that she will endure if the disease runs its course, she very strongly wishes to be able to control how and when she dies and thereby be spared that suffering and indignity. 9. Although it is not a crime to commit suicide under English law, the applicant is prevented by her disease from taking such a step without assistance. It is however a crime to assist another to commit suicide (section 2(1) of the Suicide Act 1961). 10. Intending that she might commit suicide with the assistance of her husband, the applicant's solicitor asked the Director of Public Prosecutions (DPP), in a letter dated 27 July 2001 written on her behalf, to give an undertaking not to prosecute the applicant's husband should he assist her to commit suicide in accordance with her wishes. 11. In a letter dated 8 August 2001, the DPP refused to give the undertaking: “Successive Directors – and Attorneys General – have explained that they will not grant immunities that condone, require, or purport to authorise or permit the future commission of any criminal offence, no matter how exceptional the circumstances. ...” 12. On 20 August 2001 the applicant applied for judicial review of the DPP's decision and the following relief: – an order quashing the DPP's decision of 8 August 2001; – a declaration that the decision was unlawful or that the DPP would not be acting unlawfully in giving the undertaking sought; – a mandatory order requiring the DPP to give the undertaking sought; or alternatively – a declaration that section 2 of the Suicide Act 1961 was incompatible with Articles 2, 3, 8, 9 and 14 of the Convention. 13. On 17 October 2001 the Divisional Court refused the application, holding that the DPP did not have the power to give the undertaking not to prosecute and that section 2(1) of the Suicide Act 1961 was not incompatible with the Convention. 14. The applicant appealed to the House of Lords. They dismissed her appeal on 29 November 2001 and upheld the judgment of the Divisional Court. In giving the leading judgment in The Queen on the Application of Mrs Dianne Pretty (Appellant) v. Director of Public Prosecutions (Respondent) and Secretary of State for the Home Department (Interested Party), Lord Bingham of Cornhill held: “1. No one of ordinary sensitivity could be unmoved by the frightening ordeal which faces Mrs Dianne Pretty, the appellant. She suffers from motor neurone disease, a progressive degenerative illness from which she has no hope of recovery. She has only a short time to live and faces the prospect of a humiliating and distressing death. She is mentally alert and would like to be able to take steps to bring her life to a peaceful end at a time of her choosing. But her physical incapacity is now such that she can no longer, without help, take her own life. With the support of her family, she wishes to enlist the help of her husband to that end. He himself is willing to give such help, but only if he can be sure that he will not be prosecuted under section 2(1) of the Suicide Act 1961 for aiding and abetting her suicide. Asked to undertake that he would not under section 2(4) of the Act consent to the prosecution of Mr Pretty under section 2(1) if Mr Pretty were to assist his wife to commit suicide, the Director of Public Prosecutions has refused to give such an undertaking. On Mrs Pretty's application for judicial review of that refusal, the Queen's Bench Divisional Court upheld the Director's decision and refused relief. Mrs Pretty claims that she has a right to her husband's assistance in committing suicide and that section 2 of the 1961 Act, if it prohibits his helping and prevents the Director undertaking not to prosecute if he does, is incompatible with the European Convention on Human Rights. It is on the Convention, brought into force in this country by the Human Rights Act 1998, that Mrs Pretty's claim to relief depends. It is accepted by her counsel on her behalf that under the common law of England she could not have hoped to succeed. 2. In discharging the judicial functions of the House, the appellate committee has the duty of resolving issues of law properly brought before it, as the issues in this case have been. The committee is not a legislative body. Nor is it entitled or fitted to act as a moral or ethical arbiter. It is important to emphasise the nature and limits of the committee's role, since the wider issues raised by this appeal are the subject of profound and fully justified concern to very many people. The questions whether the terminally ill, or others, should be free to seek assistance in taking their own lives, and if so in what circumstances and subject to what safeguards, are of great social, ethical and religious significance and are questions on which widely differing beliefs and views are held, often strongly. Materials laid before the committee (with its leave) express some of those views; many others have been expressed in the news media, professional journals and elsewhere. The task of the committee in this appeal is not to weigh or evaluate or reflect those beliefs and views or give effect to its own but to ascertain and apply the law of the land as it is now understood to be. Article 2 of the Convention 3. Article 2 of the Convention provides: ... The Article is to be read in conjunction with Articles 1 and 2 of the Sixth Protocol, which are among the Convention rights protected by the 1998 Act (see section 1(1)(c)) and which abolished the death penalty in time of peace. 4. On behalf of Mrs Pretty it is submitted that Article 2 protects not life itself but the right to life. The purpose of the Article is to protect individuals from third parties (the State and public authorities). But the Article recognises that it is for the individual to choose whether or not to live and so protects the individual's right to self-determination in relation to issues of life and death. Thus a person may refuse life-saving or life-prolonging medical treatment, and may lawfully choose to commit suicide. The Article acknowledges that right of the individual. While most people want to live, some want to die, and the Article protects both rights. The right to die is not the antithesis of the right to life but the corollary of it, and the State has a positive obligation to protect both. 5. The Secretary of State has advanced a number of unanswerable objections to this argument which were rightly upheld by the Divisional Court. The starting point must be the language of the Article. The thrust of this is to reflect the sanctity which, particularly in western eyes, attaches to life. The Article protects the right to life and prevents the deliberate taking of life save in very narrowly defined circumstances. An Article with that effect cannot be interpreted as conferring a right to die or to enlist the aid of another in bringing about one's own death. In his argument for Mrs Pretty, Mr Havers QC was at pains to limit his argument to assisted suicide, accepting that the right claimed could not extend to cover an intentional consensual killing (usually described in this context as'voluntary euthanasia', but regarded in English law as murder). The right claimed would be sufficient to cover Mrs Pretty's case and counsel's unwillingness to go further is understandable. But there is in logic no justification for drawing a line at this point. If Article 2 does confer a right to self-determination in relation to life and death, and if a person were so gravely disabled as to be unable to perform any act whatever to cause his or her own death, it would necessarily follow in logic that such a person would have a right to be killed at the hands of a third party without giving any help to the third party and the State would be in breach of the Convention if it were to interfere with the exercise of that right. No such right can possibly be derived from an Article having the object already defined. 6. It is true that some of the guaranteed Convention rights have been interpreted as conferring rights not to do that which is the antithesis of what there is an express right to do. Article 11, for example, confers a right not to join an association ( Young, James and Webster v. United Kingdom (1981) 4 EHRR 38), Article 9 embraces a right to freedom from any compulsion to express thoughts or change an opinion or divulge convictions (Clayton and Tomlinson, The Law of Human Rights (2000), p. 974, para. 14.49) and I would for my part be inclined to infer that Article 12 confers a right not to marry (but see Clayton and Tomlinson, ibid., p. 913, para. 13.76). It cannot however be suggested (to take some obvious examples) that Articles 3, 4, 5 and 6 confer an implied right to do or experience the opposite of that which the Articles guarantee. Whatever the benefits which, in the view of many, attach to voluntary euthanasia, suicide, physician-assisted suicide and suicide assisted without the intervention of a physician, these are not benefits which derive protection from an Article framed to protect the sanctity of life. 7. There is no Convention authority to support Mrs Pretty's argument. To the extent that there is any relevant authority it is adverse to her. In Osman v. United Kingdom (1998) 29 EHRR 245 the applicants complained of a failure by the United Kingdom to protect the right to life of the second applicant and his deceased father. At p. 305 the court said: ' 115. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties. 116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.' The context of that case was very different. Neither the second applicant nor his father had had any wish to die. But the court's approach to Article 2 was entirely consistent with the interpretation I have put upon it. 8. X v. Germany (1984) 7 EHRR 152 and Keenan v. United Kingdom (App. No. 27229/95; 3 April 2001, unreported) were also decided in a factual context very different from the present. X, while in prison, had gone on hunger strike and had been forcibly fed by the prison authorities. His complaint was of maltreatment contrary to Article 3 of the Convention, considered below. The complaint was rejected and in the course of its reasoning the commission held (at pp. 153-154): ' In the opinion of the Commission forced feeding of a person does involve degrading elements which in certain circumstances may be regarded as prohibited by Art. 3 of the Convention. Under the Convention the High Contracting Parties are, however, also obliged to secure to everyone the right to life as set out in Art. 2. Such an obligation should in certain circumstances call for positive action on the part of the Contracting Parties, in particular an active measure to save lives when the authorities have taken the person in question into their custody. When, as in the present case, a detained person maintains a hunger strike this may inevitably lead to a conflict between an individual's right to physical integrity and the High Contracting Party's obligation under Art. 2 of the Convention – a conflict which is not solved by the Convention itself. The Commission recalls that under German law this conflict has been solved in that it is possible to force-feed a detained person if this person, due to a hunger strike, would be subject to injuries of a permanent character, and the forced feeding is even obligatory if an obvious danger for the individual's life exists. The assessment of the above-mentioned conditions is left for the doctor in charge but an eventual decision to force-feed may only be carried out after judicial permission has been obtained ... The Commission is satisfied that the authorities acted solely in the best interests of the applicant when choosing between either respect for the applicant's will not to accept nourishment of any kind and thereby incur the risk that he might be subject to lasting injuries or even die, or to take action with a view to securing his survival although such action might infringe the applicant's human dignity.' In Keenan a young prisoner had committed suicide and his mother complained of a failure by the prison authorities to protect his life. In the course of its judgment rejecting the complaint under this Article the court said (at p. 29, para. 90): ' In the context of prisoners, the Court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them. It is incumbent on the State to account for any injuries suffered in custody, which obligation is particularly stringent where that individual dies ... It may be noted that this need for scrutiny is acknowledged in the domestic law of England and Wales, where inquests are automatically held concerning the deaths of persons in prison and where the domestic courts have imposed a duty of care on prison authorities in respect of those detained in their custody.' Both these cases can be distinguished, since the conduct complained of took place when the victim was in the custody of the State, which accordingly had a special responsibility for the victim's welfare. It may readily be accepted that the obligation of the State to safeguard the life of a potential victim is enhanced when the latter is in the custody of the State. To that extent these two cases are different from the present, since Mrs Pretty is not in the custody of the State. Thus the State's positive obligation to protect the life of Mrs Pretty is weaker than in such cases. It would however be a very large, and in my view quite impermissible, step to proceed from acceptance of that proposition to acceptance of the assertion that the State has a duty to recognise a right for Mrs Pretty to be assisted to take her own life. 9. In the Convention field the authority of domestic decisions is necessarily limited and, as already noted, Mrs Pretty bases her case on the Convention. But it is worthy of note that her argument is inconsistent with two principles deeply embedded in English law. The first is a distinction between the taking of one's own life by one's own act and the taking of life through the intervention or with the help of a third party. The former has been permissible since suicide ceased to be a crime in 1961. The latter has continued to be proscribed. The distinction was very clearly expressed by Hoffmann LJ in Airedale NHS Trust v. Bland [1993] AC 789 at 831: ' No one in this case is suggesting that Anthony Bland should be given a lethal injection. But there is concern about ceasing to supply food as against, for example, ceasing to treat an infection with antibiotics. Is there any real distinction? In order to come to terms with our intuitive feelings about whether there is a distinction, I must start by considering why most of us would be appalled if he was given a lethal injection. It is, I think, connected with our view that the sanctity of life entails its inviolability by an outsider. Subject to exceptions like self-defence, human life is inviolate even if the person in question has consented to its violation. That is why although suicide is not a crime, assisting someone to commit suicide is. It follows that, even if we think Anthony Bland would have consented, we would not be entitled to end his life by a lethal injection.' The second distinction is between the cessation of life-saving or life-prolonging treatment on the one hand and the taking of action lacking medical, therapeutic or palliative justification but intended solely to terminate life on the other. This distinction provided the rationale of the decisions in Bland. It was very succinctly expressed in the Court of Appeal in In re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33, in which Lord Donaldson of Lymington MR said, at p. 46: ' What doctors and the court have to decide is whether, in the best interests of the child patient, a particular decision as to medical treatment should be taken which as a side effect will render death more or less likely. This is not a matter of semantics. It is fundamental. At the other end of the age spectrum, the use of drugs to reduce pain will often be fully justified, notwithstanding that this will hasten the moment of death. What can never be justified is the use of drugs or surgical procedures with the primary purpose of doing so.' Similar observations were made by Balcombe LJ at p. 51 and Taylor LJ at p. 53. While these distinctions are in no way binding on the European Court of Human Rights there is nothing to suggest that they are inconsistent with the jurisprudence which has grown up around the Convention. It is not enough for Mrs Pretty to show that the United Kingdom would not be acting inconsistently with the Convention if it were to permit assisted suicide; she must go further and establish that the United Kingdom is in breach of the Convention by failing to permit it or would be in breach of the Convention if it did not permit it. Such a contention is in my opinion untenable, as the Divisional Court rightly held. Article 3 of the Convention 10. Article 3 of the Convention provides: ... This is one of the Articles from which a member State may not derogate even in time of war or other public emergency threatening the life of the nation: see Article 15. I shall for convenience use the expression'proscribed treatment'to mean'inhuman or degrading treatment'as that expression is used in the Convention. 11. In brief summary the argument for Mrs Pretty proceeded by these steps. (1) Member States have an absolute and unqualified obligation not to inflict the proscribed treatment and also to take positive action to prevent the subjection of individuals to such treatment: A. v. United Kingdom (1998) 27 EHRR 611; Z v. United Kingdom [2001] 2 FLR 612 at 631, para. 73. (2) Suffering attributable to the progression of a disease may amount to such treatment if the State can prevent or ameliorate such suffering and does not do so: D. v. United Kingdom (1997) 24 EHRR 423, at pp. 446-449, paras. 46-54. (3) In denying Mrs Pretty the opportunity to bring her suffering to an end the United Kingdom (by the Director) will subject her to the proscribed treatment. The State can spare Mrs Pretty the suffering which she will otherwise endure since, if the Director undertakes not to give his consent to prosecution, Mr Pretty will assist his wife to commit suicide and so she will be spared much suffering. (4) Since, as the Divisional Court held, it is open to the United Kingdom under the Convention to refrain from prohibiting assisted suicide, the Director can give the undertaking sought without breaking the United Kingdom's obligations under the Convention. (5) If the Director may not give the undertaking, section 2 of the 1961 Act is incompatible with the Convention. 12. For the Secretary of State it was submitted that in the present case Article 3 of the Convention is not engaged at all but that if any of the rights protected by that Article are engaged they do not include a right to die. In support of the first of these submissions it was argued that there is in the present case no breach of the prohibition in the Article. The negative prohibition in the Article is absolute and unqualified but the positive obligations which flow from it are not absolute: see Osman v. United Kingdom, above; Rees v. United Kingdom (1986) 9 EHRR 56. While States may be obliged to protect the life and health of a person in custody (as in the case of Keenan, above), and to ensure that individuals are not subjected to proscribed treatment at the hands of private individuals other than State agents (as in A. v. United Kingdom, above), and the State may not take direct action in relation to an individual which would inevitably involve the inflicting of proscribed treatment upon him ( D. v. United Kingdom (1997) 24 EHRR 423), none of these obligations can be invoked by Mrs Pretty in the present case. In support of the second submission it was argued that, far from suggesting that the State is under a duty to provide medical care to ease her condition and prolong her life, Mrs Pretty is arguing that the State is under a legal obligation to sanction a lawful means for terminating her life. There is nothing, either in the wording of the Convention or the Strasbourg jurisprudence, to suggest that any such duty exists by virtue of Article 3. The decision how far the State should go in discharge of its positive obligation to protect individuals from proscribed treatment is one for member States, taking account of all relevant interests and considerations; such a decision, while not immune from review, must be accorded respect. The United Kingdom has reviewed these issues in depth and resolved to maintain the present position. 13. Article 3 enshrines one of the fundamental values of democratic societies and its prohibition of the proscribed treatment is absolute: D. v. United Kingdom (1997) 24 EHRR 423 at p. 447, para. 47. Article 3 is, as I think, complementary to Article 2. As Article 2 requires States to respect and safeguard the lives of individuals within their jurisdiction, so Article 3 obliges them to respect the physical and human integrity of such individuals. There is in my opinion nothing in Article 3 which bears on an individual's right to live or to choose not to live. That is not its sphere of application; indeed, as is clear from X v. Germany above, a State may on occasion be justified in inflicting treatment which would otherwise be in breach of Article 3 in order to serve the ends of Article 2. Moreover, the absolute and unqualified prohibition on a member State inflicting the proscribed treatment requires that'treatment'should not be given an unrestricted or extravagant meaning. It cannot, in my opinion, be plausibly suggested that the Director or any other agent of the United Kingdom is inflicting the proscribed treatment on Mrs Pretty, whose suffering derives from her cruel disease. 14. The authority most helpful to Mrs Pretty is D. v. United Kingdom (1997) 24 EHRR 423, which concerned the removal to St Kitts of a man in the later stages of AIDS. The Convention challenge was to implementation of the removal decision having regard to the applicant's medical condition, the absence of facilities to provide adequate treatment, care or support in St Kitts and the disruption of a regime in the United Kingdom which had afforded him sophisticated treatment and medication in a compassionate environment. It was held that implementation of the decision to remove the applicant to St Kitts would amount in the circumstances to inhuman treatment by the United Kingdom in violation of Article 3. In that case the State was proposing to take direct action against the applicant, the inevitable effect of which would be a severe increase in his suffering and a shortening of his life. The proposed deportation could fairly be regarded as'treatment'. An analogy might be found in the present case if a public official had forbidden the provision to Mrs Pretty of pain-killing or palliative drugs. But here the proscribed treatment is said to be the Director's refusal of proleptic immunity from prosecution to Mr Pretty if he commits a crime. By no legitimate process of interpretation can that refusal be held to fall within the negative prohibition of Article 3. 15. If it be assumed that Article 3 is capable of being applied at all to a case such as the present, and also that on the facts there is no arguable breach of the negative prohibition in the Article, the question arises whether the United Kingdom (by the Director) is in breach of its positive obligation to take action to prevent the subjection of individuals to proscribed treatment. In this context, the obligation of the State is not absolute and unqualified. So much appears from the passage quoted in paragraph 7 above from the judgment of the European Court of Human Rights in Osman v. United Kingdom. The same principle was acknowledged by the court in Rees v. United Kingdom (1986) 9 EHRR 56 where it said in para. 37 of its judgment at pp. 63-64: ' 37. As the Court pointed out in its above-mentioned Abdulaziz, Cabales and Balkandali judgment the notion of “respect” is not clear-cut, especially as far as those positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case. These observations are particularly relevant here. Several States have, through legislation or by means of legal interpretation or by administrative practice, given transsexuals the option of changing their personal status to fit their newly-gained identity. They have, however, made this option subject to conditions of varying strictness and retained a number of express reservations (for example, as to previously incurred obligations). In other States, such an option does not – or does not yet – exist. It would therefore be true to say that there is at present little common ground between the Contracting States in this area and that, generally speaking, the law appears to be in a transitional stage. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention. In striking this balance the aims mentioned in the second paragraph of Article 8 may be of a certain relevance, although this provision refers in terms only to “interferences” with the right protected by the first paragraph – in other words is concerned with the negative obligations flowing therefrom.' That was an Article 8 case, dealing with a very different subject matter from the present, but the court's observations were of more general import. It stands to reason that while States may be absolutely forbidden to inflict the proscribed treatment on individuals within their jurisdictions, the steps appropriate or necessary to discharge a positive obligation will be more judgmental, more prone to variation from State to State, more dependent on the opinions and beliefs of the people and less susceptible to any universal injunction. For reasons more fully given in paragraphs 27 and 28 below, it could not in my view be said that the United Kingdom is under a positive obligation to ensure that a competent, terminally ill, person who wishes but is unable to take his or her own life should be entitled to seek the assistance of another without that other being exposed to the risk of prosecution. Article 8 of the Convention 16. Article 8 of the Convention provides: ... 17. Counsel for Mrs Pretty submitted that this Article conferred a right to self-determination: see X and Y v. Netherlands (1985) 8 EHRR 235; Rodriguez v. Attorney General of Canada [1994] 2 LRC 136; In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147. This right embraces a right to choose when and how to die so that suffering and indignity can be avoided. Section 2(1) of the 1961 Act interferes with this right of self-determination: it is therefore for the United Kingdom to show that the interference meets the Convention tests of legality, necessity, responsiveness to pressing social need and proportionality: see R. v. A. (No. 2) [2001] 2 WLR 1546; Johansen v. Norway (1996) 23 EHRR 33; R. (P) v. Secretary of State for the Home Department [2001] 1 WLR 2002. Where the interference is with an intimate part of an individual's private life, there must be particularly serious reasons to justify the interference: Smith and Grady v. United Kingdom (1999) 29 EHRR 493 at p. 530, para. 89. The court must in this case rule whether it could be other than disproportionate for the Director to refuse to give the undertaking sought and, in the case of the Secretary of State, whether the interference with Mrs Pretty's right to self-determination is proportionate to whatever legitimate aim the prohibition on assisted suicide pursues. Counsel placed particular reliance on certain features of Mrs Pretty's case: her mental competence, the frightening prospect which faces her, her willingness to commit suicide if she were able, the imminence of death, the absence of harm to anyone else, the absence of far-reaching implications if her application were granted. Counsel suggested that the blanket prohibition in section 2(1), applied without taking account of particular cases, is wholly disproportionate, and the materials relied on do not justify it. Reference was made to R. v. United Kingdom (1983) 33 DR 270 and Sanles v. Spain [2001] EHRLR 348. 18. The Secretary of State questioned whether Mrs Pretty's rights under Article 8 were engaged at all, and gave a negative answer. He submitted that the right to private life under Article 8 relates to the manner in which a person conducts his life, not the manner in which he departs from it. Any attempt to base a right to die on Article 8 founders on exactly the same objection as the attempt based on Article 2, namely, that the alleged right would extinguish the very benefit on which it is supposedly based. Article 8 protects the physical, moral and psychological integrity of the individual, including rights over the individual's own body, but there is nothing to suggest that it confers a right to decide when or how to die. The Secretary of State also submitted that, if it were necessary to do so, section 2(1) of the 1961 Act and the current application of it could be fully justified on the merits. He referred to the margin of judgment accorded to member States, the consideration which has been given to these questions in the United Kingdom and the broad consensus among Convention countries. Attention was drawn to Laskey, Jaggard and Brown v. United Kingdom (1997) 24 EHRR 39 in which the criminalisation of consensual acts of injury was held to be justified; it was suggested that the justification for criminalising acts of consensual killing or assisted suicide must be even stronger. 19. The most detailed and erudite discussion known to me of the issues in the present appeal is to be found in the judgments of the Supreme Court of Canada in Rodriguez v. Attorney General of Canada [1994] 2 LRC 136. The appellant in that case suffered from a disease legally indistinguishable from that which afflicts Mrs Pretty; she was similarly disabled; she sought an order which would allow a qualified medical practitioner to set up technological means by which she might, by her own hand but with that assistance from the practitioner, end her life at a time of her choosing. While suicide in Canada was not a crime, section 241(b) of the Criminal Code was in terms effectively identical to section 2(1) of the 1961 Act. The appellant based her claims on the Canadian Charter of Rights and Freedoms which, so far as relevant, included the following sections: ' (1) The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. (7) Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. (12) Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. (15) (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.' The trial judge rejected Ms Rodriguez'claim, because (as his judgment was summarised at p. 144): ' It was the illness from which Ms Rodriguez suffers, not the State or the justice system, which has impeded her ability to act on her wishes with respect to the timing and manner of her death.' He found no breach of section 12 and said: ' To interpret section 7 so as to include a constitutionally guaranteed right to take one's own life as an exercise in freedom of choice is inconsistent, in my opinion, with life, liberty and the security of the person.' He also held that section 241 did not discriminate against the physically disabled. 20. The British Columbia Court of Appeal held by a majority (at p. 148) that whilst the operation of section 241 did deprive Ms Rodriguez of her section 7 right to the security of her person, it did not contravene the principles of fundamental justice. McEachern CJ, dissenting, held (at p. 146) that there was a prima facie violation of section 7 when the State imposed prohibitions that had the effect of prolonging the physical and psychological suffering of a person, and that any provision that imposed an indeterminate period of senseless physical and psychological suffering on someone who was shortly to die anyway could not conform with any principle of fundamental justice. 21. In the Supreme Court opinion was again divided. The judgment of the majority was given by Sopinka J, with La Forest, Gonthier, Iacobucci and Major JJ concurring. In the course of his judgment Sopinka J said (at p. 175): ' As a threshold issue, I do not accept the submission that the appellant's problems are due to her physical disabilities caused by her terminal illness, and not by governmental action. There is no doubt that the prohibition in section 241(b) will contribute to the appellant's distress if she is prevented from managing her death in the circumstances which she fears will occur.' He continued (p. 175): ' I find more merit in the argument that security of the person, by its nature, cannot encompass a right to take action that will end one's life as security of the person is intrinsically concerned with the well-being of the living person.' He then continued (at pp. 177-178): ' There is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one's own body, control over one's physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these. The effect of the prohibition in section 241(b) is to prevent the appellant from having assistance to commit suicide when she is no longer able to do so on her own ... In my view, these considerations lead to the conclusion that the prohibition in section 241(b) deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a manner which impinges on the security of her person. The appellant's security interest (considered in the context of the life and liberty interest) is therefore engaged, and it is necessary to determine whether there has been any deprivation thereof that is not in accordance with the principles of fundamental justice.' He concluded (at p. 189) that: ' Given the concerns about abuse that have been expressed and the great difficulty in creating appropriate safeguards to prevent these, it can not be said that the blanket prohibition on assisted suicide is arbitrary or unfair, or that it is not reflective of fundamental values at play in our society.' With reference to section 1 of the Canadian Charter, Sopinka J said (at pp. 192-193): ' As I have sought to demonstrate in my discussion of section 7, this protection is grounded on a substantial consensus among western countries, medical organisations and our own Law Reform Commission that in order to effectively protect life and those who are vulnerable in society, a prohibition without exception on the giving of assistance to commit suicide is the best approach. Attempts to fine-tune this approach by creating exceptions have been unsatisfactory and have tended to support the theory of the “slippery slope”. The formulation of safeguards to prevent excesses has been unsatisfactory and has failed to allay fears that a relaxation of the clear standard set by the law will undermine the protection of life and will lead to abuse of the exception.' He rejected the appellant's claims under sections 12 and 15. 22. Lamer CJ dissented in favour of the appellant, but on grounds of discrimination under section 15 alone. McLachlin J (with whom L'Heureux-Dubé J concurred) found a violation not of section 15 but of section 7. She saw the case as one about the manner in which the State might limit the right of a person to make decisions about her body under section 7 of the charter (p. 194). At p. 195 she said: ' In the present case, Parliament has put into force a legislative scheme which does not bar suicide but criminalises the act of assisting suicide. The effect of this is to deny to some people the choice of ending their lives solely because they are physically unable to do so. This deprives Sue Rodriguez of her security of the person (the right to make decisions concerning her own body, which affect only her own body) in a way that offends the principles of fundamental justice, thereby violating section 7 of the Charter ... It is part of the persona and dignity of the human being that he or she have the autonomy to decide what is best for his or her body.' She held (p. 197) that ' it does not accord with the principles of fundamental justice that Sue Rodriguez be disallowed what is available to others merely because it is possible that other people, at some other time, may suffer, not what she seeks, but an act of killing without true consent.' Cory J also dissented, agreeing with Lamer CJ and also McLachlin J. 23. It is evident that all save one of the judges of the Canadian Supreme Court were willing to recognise section 7 of the Canadian charter as conferring a right to personal autonomy extending even to decisions on life and death. Mrs Pretty understandably places reliance in particular on the judgment of McLachlin J, in which two other members of the court concurred. But a majority of the court regarded that right as outweighed on the facts by the principles of fundamental justice. The judgments were moreover directed to a provision with no close analogy in the European Convention. In the European Convention the right to liberty and security of the person appears only in Article 5 § 1, on which no reliance is or could be placed in the present case. Article 8 contains no reference to personal liberty or security. It is directed to the protection of privacy, including the protection of physical and psychological integrity: X and Y v. Netherlands, above. But Article 8 is expressed in terms directed to protection of personal autonomy while individuals are living their lives, and there is nothing to suggest that the Article has reference to the choice to live no longer. 24. There is no Strasbourg jurisprudence to support the contention of Mrs Pretty. In R. v. United Kingdom (1983) 33 DR 270 the applicant had been convicted and sentenced to imprisonment for aiding and abetting suicide and conspiring to do so. He complained that his conviction and sentence under section 2 of the 1961 Act constituted a violation of his right to respect for his private life under Article 8 and also his right to free expression under Article 10. In paragraph 13 of its decision the commission observed: ' The Commission does not consider that the activity for which the applicant was convicted, namely aiding and abetting suicide, can be described as falling into the sphere of his private life in the manner elaborated above. While it might be thought to touch directly on the private lives of those who sought to commit suicide, it does not follow that the applicant's rights to privacy are involved. On the contrary, the Commission is of the opinion that the acts of aiding, abetting, counselling or procuring suicide are excluded from the concept of privacy by virtue of their trespass on the public interest of protecting life, as reflected in the criminal provisions of the 1961 Act.' This somewhat tentative expression of view is of some assistance to Mrs Pretty, but with reference to the claim under Article 10 the commission continued (in para. 17 of its decision at p. 272): ' The Commission considers that, in the circumstances of the case, there has been an interference with the applicant's right to impart information. However, the Commission must take account of the State's legitimate interest in this area in taking measures to protect, against criminal behaviour, the life of its citizens particularly those who belong to especially vulnerable categories by reason of their age or infirmity. It recognises the right of the State under the Convention to guard against the inevitable criminal abuses that would occur, in the absence of legislation, against the aiding and abetting of suicide. The fact that in the present case the applicant and his associate appear to have been well intentioned does not, in the Commission's view, alter the justification for the general policy.' That conclusion cannot be reconciled with the suggestion that the prohibition of assisted suicide is inconsistent with the Convention. 25. Sanles v. Spain [2001] EHRLR 348 arose from a factual situation similar to the present save that the victim of disabling disease had died and the case never culminated in a decision on the merits. The applicant was the sister-in-law of the deceased and was held not to be a victim and thus not to be directly affected by the alleged violations. It is of some interest that she based her claims on Articles 2, 3, 5, 9 and 14 of the Convention but not, it seems, on Article 8. 26. I would for my part accept the Secretary of State's submission that Mrs Pretty's rights under Article 8 are not engaged at all. If, however, that conclusion is wrong, and the prohibition of assisted suicide in section 2 of the 1961 Act infringes her Convention right under Article 8, it is necessary to consider whether the infringement is shown by the Secretary of State to be justifiable under the terms of Article 8 § 2. In considering that question I would adopt the test advocated by counsel for Mrs Pretty, which is clearly laid down in the authorities cited. 27. Since suicide ceased to be a crime in 1961, the question whether assisted suicide also should be decriminalised has been reviewed on more than one occasion. The Criminal Law Revision Committee in its Fourteenth Report (1980, Cmnd 7844) reported some divergence of opinion among its distinguished legal membership, and recognised a distinction between assisting a person who had formed a settled intention to kill himself and the more heinous case where one person persuaded another to commit suicide, but a majority was of the clear opinion that aiding and abetting suicide should remain an offence (pp. 60-61, para. 135). 28. Following the decision in Airedale NHS Trust v. Bland [1993] AC 789 a much more broadly constituted House of Lords Select Committee on Medical Ethics received extensive evidence and reported. The Committee in its report (HL 21-1, 1994, p. 11, para. 26) drew a distinction between assisted suicide and physician-assisted suicide but its conclusion was unambiguous (p. 54, para. 262): ' As far as assisted suicide is concerned, we see no reason to recommend any change in the law. We identify no circumstances in which assisted suicide should be permitted, nor do we see any reason to distinguish between the act of a doctor or of any other person in this connection.' The government in its response (May 1994, Cm 2553) accepted this recommendation: ' We agree with this recommendation. As the Government stated in its evidence to the Committee, the decriminalisation of attempted suicide in 1961 was accompanied by an unequivocal restatement of the prohibition of acts calculated to end the life of another person. The Government can see no basis for permitting assisted suicide. Such a change would be open to abuse and put the lives of the weak and vulnerable at risk.' A similar approach is to be found in the Council of Europe's Recommendation 1418 (1999) on the protection of the human rights and dignity of the terminally ill and the dying. This included the following passage (at pp. 2-4): ' 9. The Assembly therefore recommends that the Committee of Ministers encourage the member States of the Council of Europe to respect and protect the dignity of terminally ill or dying persons in all respects: ... (c) by upholding the prohibition against intentionally taking the life of terminally ill or dying persons, while: (i) recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member States, in accordance with Article 2 of the European Convention on Human Rights which states that “no one shall be deprived of his life intentionally”; (ii) recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person; (iii) recognising that a terminally ill or dying person's wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.' It would be by no means fatal to the legal validity of section 2(1) of the 1961 Act if the response of the United Kingdom to this problem of assisted suicide were shown to be unique, but it is shown to be in accordance with a very broad international consensus. Assisted suicide and consensual killing are unlawful in all Convention countries except the Netherlands, but even if the Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2001 and the Dutch Criminal Code were operative in this country it would not relieve Mr Pretty of liability under Article 294 of the Dutch Criminal Code if he were to assist Mrs Pretty to take her own life as he would wish to do. 29. On behalf of Mrs Pretty counsel disclaims any general attack on section 2(1) of the 1961 Act and seeks to restrict his claim to the particular facts of her case: that of a mentally competent adult who knows her own mind, is free from any pressure and has made a fully informed and voluntary decision. Whatever the need, he submits, to afford legal protection to the vulnerable, there is no justification for a blanket refusal to countenance an act of humanity in the case of someone who, like Mrs Pretty, is not vulnerable at all. Beguiling as that submission is, Dr Johnson gave two answers of enduring validity to it. First,'Laws are not made for particular cases but for men in general.'Second,'To permit a law to be modified at discretion is to leave the community without law. It is to withdraw the direction of that public wisdom by which the deficiencies of private understanding are to be supplied'(Boswell, Life of Johnson, Oxford Standard Authors, 3rd ed., 1970, at pp. 735, 496). It is for member States to assess the risk and likely incidence of abuse if the prohibition on assisted suicide were relaxed, as the commission recognised in its decision in R. v. United Kingdom quoted above in paragraph 24. But the risk is one which cannot be lightly discounted. The Criminal Law Revision Committee recognised how fine was the line between counselling and procuring on the one hand and aiding and abetting on the other (report, p. 61, para. 135). The House of Lords Select Committee recognised the undesirability of anything which could appear to encourage suicide (report, p. 49, para. 239): ' We are also concerned that vulnerable people – the elderly, lonely, sick or distressed – would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life.' It is not hard to imagine that an elderly person, in the absence of any pressure, might opt for a premature end to life if that were available, not from a desire to die or a willingness to stop living, but from a desire to stop being a burden to others. 30. If section 2(1) infringes any Convention right of Mrs Pretty, and recognising the heavy burden which lies on a member State seeking to justify such an infringement, I conclude that the Secretary of State has shown ample grounds to justify the existing law and the current application of it. That is not to say that no other law or application would be consistent with the Convention; it is simply to say that the present legislative and practical regime do not offend the Convention. Article 9 of the Convention 31. It is unnecessary to recite the terms of Article 9 of the Convention, to which very little argument was addressed. It is an Article which protects freedom of thought, conscience and religion and the manifestation of religion or belief in worship, teaching, practice or observance. One may accept that Mrs Pretty has a sincere belief in the virtue of assisted suicide. She is free to hold and express that belief. But her belief cannot found a requirement that her husband should be absolved from the consequences of conduct which, although it would be consistent with her belief, is proscribed by the criminal law. And if she were able to establish an infringement of her right, the justification shown by the State in relation to Article 8 would still defeat it. Article 14 of the Convention 32. Article 14 of the Convention provides: ... Mrs Pretty claims that section 2(1) of the 1961 Act discriminates against those who, like herself, cannot because of incapacity take their own lives without assistance. She relies on the judgment of the European Court of Human Rights in Thlimmenos v. Greece (2000) 31 EHRR 411 where the court said (at p. 424, para. 44): ' The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.' 33. The European Court of Human Rights has repeatedly held that Article 14 is not autonomous but has effect only in relation to Convention rights. As it was put in Van Raalte v. Netherlands (1997) 24 EHRR 503 at p. 516, para. 33: ' As the Court has consistently held, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter.' See also Botta v. Italy (1998) 26 EHRR 241 at p. 259, para. 39. 34. If, as I have concluded, none of the Articles on which Mrs Pretty relies gives her the right which she has claimed, it follows that Article 14 would not avail her even if she could establish that the operation of section 2(1) is discriminatory. A claim under this Article must fail on this ground. 35. If, contrary to my opinion, Mrs Pretty's rights under one or other of the Articles are engaged, it would be necessary to examine whether section 2(1) of the 1961 Act is discriminatory. She contends that the section is discriminatory because it prevents the disabled, but not the able-bodied, exercising their right to commit suicide. This argument is in my opinion based on a misconception. The law confers no right to commit suicide. Suicide was always, as a crime, anomalous, since it was the only crime with which no defendant could ever be charged. The main effect of the criminalisation of suicide was to penalise those who attempted to take their own lives and failed, and secondary parties. Suicide itself (and with it attempted suicide) was decriminalised because recognition of the common law offence was not thought to act as a deterrent, because it cast an unwarranted stigma on innocent members of the suicide's family and because it led to the distasteful result that patients recovering in hospital from a failed suicide attempt were prosecuted, in effect, for their lack of success. But while the 1961 Act abrogated the rule of law whereby it was a crime for a person to commit (or attempt to commit) suicide, it conferred no right on anyone to do so. Had that been its object there would have been no justification for penalising by a potentially very long term of imprisonment one who aided, abetted, counselled or procured the exercise or attempted exercise by another of that right. The policy of the law remained firmly adverse to suicide, as section 2(1) makes clear. 36. The criminal law cannot in any event be criticised as objectionably discriminatory because it applies to all. Although in some instances criminal statutes recognise exceptions based on youth, the broad policy of the criminal law is to apply offence-creating provisions to all and to give weight to personal circumstances either at the stage of considering whether or not to prosecute or, in the event of conviction, when penalty is to be considered. The criminal law does not ordinarily distinguish between willing victims and others: Laskey Jaggard and Brown v. United Kingdom (1997) 24 EHRR 39. Provisions criminalising drunkenness or misuse of drugs or theft do not exempt those addicted to alcohol or drugs, or the poor and hungry.'Mercy killing', as it is often called, is in law killing. If the criminal law sought to proscribe the conduct of those who assisted the suicide of the vulnerable, but exonerated those who assisted the suicide of the non-vulnerable, it could not be administered fairly and in a way which would command respect. 37. For these reasons, which are in all essentials those of the Divisional Court, and in agreement with my noble and learned friends Lord Steyn and Lord Hope of Craighead, I would hold that Mrs Pretty cannot establish any breach of any Convention right. The claim against the Director 38. That conclusion makes it strictly unnecessary to review the main ground on which the Director resisted the claim made against him: that he had no power to grant the undertaking which Mrs Pretty sought. 39. I would for my part question whether, as suggested on his behalf, the Director might not if so advised make a public statement on his prosecuting policy other than in the Code for Crown Prosecutors which he is obliged to issue by section 10 of the Prosecution of Offences Act 1985. Plainly such a step would call for careful consultation and extreme circumspection, and could be taken only under the superintendence of the Attorney General (by virtue of section 3 of the 1985 Act). The Lord Advocate has on occasion made such a statement in Scotland, and I am not persuaded that the Director has no such power. It is, however, unnecessary to explore or resolve that question, since whether or not the Director has the power to make such a statement he has no duty to do so, and in any event what was asked of the Director in this case was not a statement of prosecuting policy but a proleptic grant of immunity from prosecution. That, I am quite satisfied, the Director had no power to give. The power to dispense with and suspend laws and the execution of laws without the consent of Parliament was denied to the crown and its servants by the Bill of Rights 1688. Even if, contrary to my opinion, the Director had power to give the undertaking sought, he would have been very wrong to do so in this case. If he had no reason for doubting, equally he had no means of investigating, the assertions made on behalf of Mrs Pretty. He received no information at all concerning the means proposed for ending Mrs Pretty's life. No medical supervision was proposed. The obvious risk existed that her condition might worsen to the point where she could herself do nothing to bring about her death. It would have been a gross dereliction of the Director's duty and a gross abuse of his power had he ventured to undertake that a crime yet to be committed would not lead to prosecution. The claim against him must fail on this ground alone. 40. I would dismiss this appeal.” 15. The other judges concurred with his conclusions. Lord Hope stated as regarded Article 8 of the Convention: “100. ... Respect for a person's'private life', which is the only part of Article 8 which is in play here, relates to the way a person lives. The way she chooses to pass the closing moments of her life is part of the act of living, and she has a right to ask that this too must be respected. In that respect Mrs Pretty has the right of self-determination. In that sense, her private life is engaged even where in the face of terminal illness she seeks to choose death rather than life. But it is an entirely different thing to imply into these words a positive obligation to give effect to her wish to end her own life by means of an assisted suicide. I think that to do so would be to stretch the meaning of the words too far.” i. recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member States, in accordance with Article 2 of the European Convention on Human Rights which states that'no one shall be deprived of his life intentionally'; ii. recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person; iii. recognising that a terminally ill or dying person's wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.” IV. THIRD-PARTY INTERVENTIONS A. Voluntary Euthanasia Society 25. The Voluntary Euthanasia Society, established in 1935 and being a leading research organisation in the United Kingdom on issues related to assisted dying, submitted that as a general proposition individuals should have the opportunity to die with dignity and that an inflexible legal regime that had the effect of forcing an individual, who was suffering unbearably from a terminal illness, to die a painful protracted death with indignity, contrary to his or her express wishes, was in breach of Article 3 of the Convention. They referred to the reasons why persons requested assisted deaths (for example unrelieved and severe pain, weariness of the dying process, loss of autonomy). Palliative care could not meet the needs of all patients and did not address concerns of loss of autonomy and loss of control of bodily functions. 26. They submitted that in comparison with other countries in Europe the regime in England and Wales, which prohibited assisted dying in absolute terms, was the most restrictive and inflexible in Europe. Only Ireland compared. Other countries (for example Belgium, Switzerland, Germany, France, Finland, Sweden and the Netherlands, where assistance must be sought from a medical practitioner) had abolished the specific offence of assisting suicide. In other countries, the penalties for such offences had been downgraded – in no country, save Spain, did the maximum penalty exceed five years'imprisonment – and criminal proceedings were rarely brought. 27. As regarded public-policy issues, they submitted that whatever the legal position, voluntary euthanasia and assisted dying took place. It was well known in England and Wales that patients asked for assistance to die and that members of the medical profession and relatives provided that assistance, notwithstanding that it might be against the criminal law and in the absence of any regulation. As recognised by the Netherlands government, therefore, the criminal law did not prevent voluntary euthanasia or assisted dying. The situation in the Netherlands indicated that in the absence of regulation slightly less than 1% of deaths were due to doctors having ended the life of a patient without the latter explicitly requesting this (non-voluntary euthanasia). Similar studies indicated a figure of 3.1% in Belgium and 3.5% in Australia. It might therefore be the case that less attention was given to the requirements of a careful end-of-life practice in a society with a restrictive legal approach than in one with an open approach that tolerated and regulated euthanasia. The data did not support the assertion that, in institutionalising voluntary euthanasia/physician-assisted suicide, society put the vulnerable at risk. At least with a regulated system, there was the possibility of far greater consultation and a reporting mechanism to prevent abuse, along with other safeguards, such as waiting periods. B. Catholic Bishops'Conference of England and Wales 28. This organisation put forward principles and arguments which it stated were consonant with those expressed by other Catholic bishops'conferences in other member States. 29. They emphasised that it was a fundamental tenet of the Catholic faith that human life was a gift from God received in trust. Actions with the purpose of killing oneself or another, even with consent, reflected a damaging misunderstanding of the human worth. Suicide and euthanasia were therefore outside the range of morally acceptable options in dealing with human suffering and dying. These fundamental truths were also recognised by other faiths and by modern pluralist and secular societies, as shown by Article 1 of the Universal Declaration of Human Rights (December 1948) and the provisions of the European Convention on Human Rights, in particular in Articles 2 and 3 thereof. 30. They pointed out that those who attempted suicide often suffered from depression or other psychiatric illness. The 1994 report of the New York State Task Force on Life and Law concluded on that basis that the legalising of any form of assisted suicide or any form of euthanasia would be a mistake of historic proportions, with catastrophic consequences for the vulnerable and an intolerable corruption of the medical profession. Other research indicated that many people who requested physician-assisted suicide withdrew that request if their depression and pain were treated. In their experience, palliative care could in virtually every case succeed in substantially relieving a patient of physical and psychosomatic suffering. 31. The House of Lords Select Committee on Medical Ethics (1993-94) had solid reasons for concluding, after consideration of the evidence (on a scale vastly exceeding that available in these proceedings), that any legal permission for assistance in suicide would result in massive erosion of the rights of the vulnerable, flowing from the pressure of legal principle and consistency and the psychological and financial conditions of medical practice and health-care provision in general. There was compelling evidence to suggest that once a limited form of euthanasia was permitted under the law it was virtually impossible to confine its practice within the necessary limits to protect the vulnerable (see, for example, the Netherlands government's study of deaths in 1990, recording cases of euthanasia without the patients'explicit request). | The applicant was dying of motor neurone disease, a degenerative disease affecting the muscles for which there is no cure. Given that the final stages of the disease are distressing and undignified, she wished to be able to control how and when she died. Because of her disease, the applicant could not commit suicide alone and wanted her husband to help her. But, although it was not a crime in English law to commit suicide, assisting a suicide was. As the authorities refused her request, the applicant complained that her husband had not been guaranteed freedom from prosecution if he helped her die. |
884 | Public or political figures | I. THE CIRCUMSTANCES OF THE CASE 10. The applicants, who are the elder daughter of the late Prince Rainier III of Monaco and her husband, were born in 1957 and 1954 respectively and live in Monaco. A. Background to the cases 11. Since the early 1990s the first applicant has been trying – often through the courts – to prevent the publication of photos about her private life in the press. 12. Two series of photos, published in 1993 and 1997 respectively in three German magazines and showing the first applicant with the actor Vincent Lindon or her husband, had been the subject of three sets of proceedings in the German courts and, in particular, leading judgments of the Federal Court of Justice of 19 December 1995 and of the Federal Constitutional Court of 15 December 1999 dismissing the first applicant’s claims. 13. Those proceedings were the subject of the Von Hannover v. Germany judgment of 24 June 2004 (no. 59320/00, ECHR 2004 ‑ VI) in which the Court held that the court decisions had infringed the first applicant’s right to respect for her private life, a right guaranteed by Article 8 of the Convention. 14. Regarding the reasoning of the domestic courts, the Court made the following findings in particular: “72. The Court finds it hard to agree with the domestic courts’ interpretation of section 23(1) of the Copyright (Arts Domain) Act, which consists in describing a person as such as a figure of contemporary society ‘ par excellence ’. Since that definition affords the person very limited protection of their private life or the right to control the use of their image, it could conceivably be appropriate for politicians exercising official functions. However, it cannot be justified for a ‘private’ individual, such as the applicant, in whom the interest of the general public and the press is based solely on her membership of a reigning family, whereas she herself does not exercise any official functions. In any event the Court considers that, in these conditions, the Act has to be interpreted narrowly to ensure that the State complies with its positive obligation under the Convention to protect private life and the right to control the use of one’s image. 73. Lastly, the distinction drawn between figures of contemporary society ‘ par excellence ’ and ‘relatively’ public figures has to be clear and obvious so that, in a State governed by the rule of law, the individual has precise indications as to the behaviour he or she should adopt. Above all, they need to know exactly when and where they are in a protected sphere or, on the contrary, in a sphere in which they must expect interference from others, especially the tabloid press. 74. The Court therefore considers that the criteria on which the domestic courts based their decisions were not sufficient to protect the applicant’s private life effectively. As a figure of contemporary society ‘ par excellence ’ she cannot – in the name of freedom of the press and the public interest – rely on protection of her private life unless she is in a secluded place out of the public eye and, moreover, succeeds in proving it (which can be difficult). Where that is not the case, she has to accept that she might be photographed at almost any time, systematically, and that the photos are then very widely disseminated even if, as was the case here, the photos and accompanying articles relate exclusively to details of her private life. 75. In the Court’s view, the criterion of spatial isolation, although apposite in theory, is in reality too vague and difficult for the person concerned to determine in advance. In the present case, merely classifying the applicant as a figure of contemporary society ‘ par excellence ’ does not suffice to justify such an intrusion into her private life.” B. The photos in issue 15. Relying on the Court’s judgment in the first applicant’s case, the applicants subsequently brought several sets of proceedings in the civil courts seeking an injunction against any further publication of photos that had appeared in German magazines. 1. The photos published in the magazine Frau im Spiegel 16. The first three photos were published by the publishing company Ehrlich & Sohn GmbH & Co. KG in the magazine Frau im Spiegel. (a) The first photo 17. The first photo, which appeared in issue no. 9/02 of 20 February 2002, shows the applicants out for a walk during their skiing holiday in St Moritz. It is accompanied by an article with the heading: “Prince Rainier – not home alone” (“ Fürst Rainier – Nicht allein zu Haus ”). The article reads as follows. “The first magnolia buds are flowering in the grounds of Monaco Palace – but Prince Rainier (78) appears to have no interest in the burgeoning spring. He goes for a walk outside with his daughter Stéphanie (37). She supports him as he walks along slowly. He is cold despite the sunshine. The old gentleman is weary. The Monegasques saw their prince for the last time three weeks ago at a circus festival. He had appeared bright and cheerful, walking along beside his daughter who was laughing. But since then he has not left the palace. Not even for the St Devota celebration held in honour of the national Patron Saint. The Principality is worried, as are Prince Rainier’s children. Prince Albert (who is currently taking part in the Olympic Games in Salt Lake City), Princess Caroline (on holiday in St Moritz with Prince Ernst August von Hannover) and Princess Stéphanie take it in turns to look after their father. He must not be left home alone when he is not well. Not without his children’s love.” A photo of Prince Rainier with his daughter Princess Stéphanie and a photo of Prince Albert of Monaco taken during the Olympic Games in Salt Lake City appeared on the same page. (b) The second photo 18. The second photo, which appeared in issue no. 9/03 of 20 February 2003, shows the applicants out for a walk in St Moritz. The caption says: “Ernst August von Hannover and his wife, Princess Caroline of Monaco, enjoy the sun and snow in St Moritz.” A small photo of Prince Albert and two photos of members of a European royal family appeared on the same page. The article accompanying the photos, bearing the heading “Royal fun in the snow”, is about how happy the persons photographed are to meet up in St Moritz. (c) The third photo 19. The third photo, which appeared in issue no. 12/04 of 11 March 2004, shows the applicants in a chair lift in Zürs am Arlberg during their skiing holiday. On the same page there is a small photo of Prince Rainier, the first applicant and Prince Albert, taken during the national holiday on 19 November and bearing the heading “The princess’s last appearance”. Another photo, taking up half the page, shows the first applicant at the Rose Ball. The three photos illustrate an article bearing the heading “Princess Caroline. The whole of Monaco awaits her”, of which the passages relevant to the present case read as follows. “Tickets for the Rose Ball, which will be held on 20 March in Monaco, have been selling for weeks. And the guests will be coming only for her: Princess Caroline von Hannover (47). She has not attended any official engagements since the national holiday ... She was not at the circus festival or the St Devota celebration held in honour of the patron saint of Monaco. By tradition, the eldest daughter of Prince Rainier (80) opens the annual ball. She has inherited this role from her mother, who died in an accident, and this ball is Caroline’s favourite ... The prince, who is seriously ill, has just come out of hospital after a heart operation and is still too weak to attend the ball. The welcome speech which he will be making in honour of the guests will be retransmitted via television cameras and projected onto a big screen. Princess Caroline and her husband [Prince] Ernst August von Hannover will open the Rose Ball with a waltz. They celebrated their fifth wedding anniversary together in January. And there was more cause for celebration in the von Hannover household: the prince turned 50 on 26 February. He celebrated his birthday with Caroline and some friends at the fashionable resort of St Moritz, glistening white in the snow. The couple were actually spending their holiday in Zürs am Arlberg, but for the birthday party they went down to the Palace Hotel in St Moritz for a few days.” 2. The photo published in the magazine Frau Aktuell 20. The publishing company WZV Westdeutsche Zeitschriftenverlag GmbH & Co. KG published in issue no. 9/02 of 20 February 2002 of the magazine Frau Aktuell the same photo (or a virtually identical one) as the one that had appeared the same day in the magazine Frau im Spiegel no. 9/02 (see paragraph 17 above). The article accompanying the photo in Frau Aktuell bears the heading: “That is genuine love. Princess Stéphanie. She is the only one looking after the sick prince.” The relevant passages of the article are worded as follows. “Her love life may appear unbridled. One thing is certain, though: as far as her father is concerned, Princess Stéphanie knows where her heart lies. While the rest of the family are travelling around the world, she has run to be at the side of Prince Rainier (78), who appears to be seriously ailing. She is the only one who takes care of the sick monarch. Stéphanie’s sister, Caroline (45), has taken a few days’ holiday with her husband Ernst August (48) and their daughter Alexandra (2) at the fashionable St Moritz ski resort in Switzerland. Prince Albert, for his part, has been at the Olympic Games in Salt Lake City taking part in the four-man bobsleigh race. ‘For the fifth and last time,’ he said. From time to time he would disappear for a number of days. It is said that the prince has seen his heart-throb, Alicia Warlick (24), an American pole vaulter who is rumoured to become his future wife. [Prince Rainier], who hates being alone now, was very glad to see his younger daughter. Stéphanie has devoted a lot of time to him. She has been out on long walks with him and they have greatly confided in each other. ‘Rainier has relished the company of his younger daughter. When she is at his side he truly flourishes. During those moments he forgets that he is old and sick,’ say the Monegasques. ‘Stéphanie should come much more often.’” On the same page there is the photo of Princess Stéphanie with her father that had appeared the same day in the magazine Frau im Spiegel no. 9/02 (see paragraph 17 above), a headshot of her and two other photos, one of Prince Albert alone and the other of the prince with Alicia Warlick. C. The proceedings in issue 1. The proceedings instituted by the first applicant (a) The first set of proceedings (i) Judgment of the Regional Court of 29 April 2005 21. On an unspecified date in 2004, the first applicant sought an injunction in the Hamburg Regional Court against any further publication of the three photos by the Ehrlich & Sohn publishing company. 22. In a judgment of 29 April 2005, the Regional Court granted the injunction on the ground that the first applicant had not consented to publication of the photos, which was a precondition under section 22 of the Copyright (Arts Domain) Act (hereafter “the Copyright Act” – see paragraph 70 below). The court stated, however, that even if consent were deemed unnecessary in the case of the first photo on the ground that it was an image from contemporary society ( Bildnis aus dem Bereich der Zeitgeschichte ) within the meaning of section 23(1)(1) of the same Act, publication of the photo was not justified. Under subsection 2 of that provision, publication of such an image was only lawful if it did not interfere with a legitimate interest of the person photographed. According to the court, the question as to whether there was such a legitimate interest had to be determined by balancing the interests of the person photographed against those of the public in being informed. 23. The Regional Court found that in the present case it was the first applicant’s right to the protection of her personality rights that prevailed. In reaching that conclusion the Regional Court referred extensively to the Court’s judgment in Von Hannover. It found that the first applicant’s relationship with her father, regardless of the fact that he was ill, did not contribute to a debate of general interest to society especially as the first applicant was connected to the prince of a State of minor importance in international politics merely through a family tie and did not exercise any official function. 24. The Regional Court stated that, whilst that reasoning was not entirely in keeping with the principles established by the Federal Constitutional Court, which did not recognise a legitimate interest unless the person photographed had retired to a secluded place away from the public eye, it was not bound by that precedent to the extent that it could not take into consideration the Court’s case-law on the subject. (ii) Judgment of the Court of Appeal of 31 January 2006 25. The publishing company appealed against that judgment. 26. In a judgment of 31 January 2006, the Hamburg Court of Appeal set aside the judgment on the ground that the applicant’s right under Article 8 of the Convention had to yield to the fundamental rights of the press. It found that, whilst the articles were primarily of entertainment value, publication of the photos was nonetheless lawful in terms of the judgment of the Federal Constitutional Court of 15 December 1999 whose main legal reasoning ( tragende Erwägungen ) was binding on the Court of Appeal. It pointed out that public figures should certainly be protected from the risk of being photographed at any time and anywhere and seeing the photos subsequently published. However, in the Court of Appeal’s opinion, the legitimate interest of such figures, within the meaning of section 23(2) of the Copyright Act, should not result in the prohibition of any reporting on well ‑ known people outside their official appearances. In any event, the right to respect for private life did not require the banning of publication of photos taken in public places accessible to all and where the individual concerned was amongst many other people. (iii) Judgment of the Federal Court of Justice of 6 March 2007 27. The first applicant appealed on points of law against that judgment. 28. In a judgment of 6 March 2007 (no. VI ZR 51/06), the Federal Court of Justice dismissed her appeal in respect of the first photo. With regard to the second and third photos, it upheld her appeal, quashed the judgment of the Court of Appeal and reinstated the injunction imposed by the Regional Court. 29. The Federal Court of Justice found that the opinion of the Court of Appeal did not correspond to the concept of graduated protection ( abgestuftes Schutzkonzept ) that had been developed in the case-law on the basis of sections 22 and 23 of the Copyright Act and which it had clarified in a number of recent decisions delivered following the Von Hannover judgment and in response to the reservations of principle which the Court had expressed in that judgment. According to that new concept of protection, section 23(1) of the Copyright Act, which provided for an exception to the rule according to which a photo could not be published without the prior consent of the person concerned, took account of the public’s interest in being informed and of the freedom of the press. Accordingly, when assessing whether or not the impugned publication portrayed an aspect of contemporary society within the meaning of section 23(1)(1) of the Copyright Act, a balancing exercise had to be undertaken between the rights under Articles 1 § 1 and 2 § 1 of the Basic Law and Article 8 of the Convention on the one hand, and those under Article 5 § 1, second sentence, of the Basic Law and Article 10 of the Convention on the other hand. 30. The Federal Court of Justice added that the Court’s criticism of the expression “figure of contemporary society par excellence ” ultimately concerned the determination of the conditions in which the media could report on well-known people such as these. It considered that, irrespective of the issue whether the first applicant should be regarded as a figure of contemporary society par excellence, she was in any case a well-known person who particularly attracted public attention. In the court’s view, that fact, combined with the fact that she had not been in a secluded place out of the public eye when the photos had been taken, was nonetheless insufficient to deprive her of protection of her private sphere. That conclusion was not only appropriate in the light of the Court’s ruling but also reflected a proper understanding of the concept of protection thus developed. 31. Accordingly, the Federal Court of Justice found that the publication of images of persons who – on account of their importance in contemporary society – were in theory required, under section 23(1)(1) of the Copyright Act, to tolerate the publication of photos of themselves was nevertheless unlawful if the legitimate interests of the person concerned were infringed (section 23(2)). There could be no exception to the obligation to obtain the consent of the person in question unless the report in question concerned an important event of contemporary society. The expression “contemporary society” – and indeed the term “information value” – had to be interpreted in a broad sense and according to whether there was a public interest. It comprised any matter of general interest to society and included reports for entertainment purposes, which could also play a role in the formation of opinions, or even stimulate or influence these to a greater degree than purely factual information. 32. Whilst the freedom of the press and the prohibition of censorship required the press to be able to decide for itself which subjects it intended to report on and what it intended to publish, the press was not exempt from the duty to weigh its interest in publishing the information against the protection of the privacy of the person concerned. The greater the information value for the general public, the more the right to protection had to yield. Conversely, where the interest in informing the public decreased, the importance of protecting the person concerned carried correspondingly greater weight. The reader’s interest in being entertained generally carried less weight than that of protecting privacy, in which case the reader’s interest did not merit protection. 33. The Federal Court of Justice stated that, accordingly, even where persons who had hitherto been regarded as figures of contemporary society were concerned, consideration must be given to the question whether the report contributed to a factual debate ( mit Sachgehalt ) and whether the content went beyond a mere intention to satisfy public curiosity. In determining that question, there was nothing to prevent regard being had to how well the person concerned was known to the public. 34. The Federal Court of Justice stressed that that manner of balancing the various interests at stake corresponded to the requirements of the Court regarding effective protection of the private sphere and the requirements of the freedom of the press, and that it did not conflict with the binding force of the judgment of the Federal Constitutional Court of 15 December 1999. Admittedly, that court had limited the protection afforded to the private sphere against the publication of unwanted photos to cases of spatial seclusion. That did not, however, prevent the courts – when balancing the various interests – from having more regard to the value of the information for the public. Furthermore, the Federal Constitutional Court had [recently] endorsed the balancing exercise undertaken by the Federal Court of Justice according to those criteria in a judgment concerning the second applicant (decision of 13 June 2006, no. 1 BvR 565/06). 35. The Federal Court of Justice specified that as the determining criterion for the balancing exercise was the information value of the photo in question and as it had been published in the context of a written article, the content of the text accompanying the photo could not be ignored. 36. Applying the criteria thus established to the case submitted to it, the Federal Court of Justice, beginning with the second and third photos, observed that the second photo showed the applicants in a busy street in St Moritz during their skiing holiday. Whilst the press could, as a matter of principle, make its own decision regarding the content of its publications and the applicants had indeed been in a public place amongst other people, neither the article nor the photo related to an event of general interest or contemporary society. A celebrity’s holidays fell within the core area ( Kernbereich ) of his or her private sphere. The publication of the article and photo had been for entertainment purposes only and was not in any way relevant to matters of public interest, so could only be done with the first applicant’s consent. 37. The Federal Court of Justice noted that the third photo showed the applicants in a chair lift in Zürs during their skiing holiday. Whilst the Rose Ball shortly to be held in Monaco, which was the subject of the article accompanying the photo, could possibly be regarded as an event of contemporary society that was a matter of general interest to society, there was no link between the photo and that event. The purpose of the photo had been to supplement the part of the article about the second applicant’s birthday party in St Moritz and the applicants’ skiing holiday in Zürs. Thus the information centred exclusively on the first applicant’s private life and served merely entertainment purposes. Accordingly, the third photo could not be published without the first applicant’s consent either. 38. Regarding the first photo, the Federal Court of Justice observed that whilst it contained no information having any connection with an event of contemporary society or contributing to a debate of general interest, the same was not true of the accompanying text. Admittedly, the part about the first applicant’s skiing holiday did not concern an event of contemporary society or general interest, even interpreting those terms broadly. However, with regard to the prince’s health, the Federal Court of Justice found as follows: “The information also concerned the ill-health of the reigning Prince of Monaco. His ill-health was thus an event of contemporary society on which the press was entitled to report. The journalistic quality and the conception of the article are not decisive because the principle of the freedom of the press does not allow the applicability of a fundamental right to depend upon the quality of the press coverage or how the article is drafted. This also applies to the comments in the article on the conduct of members of the family during the prince’s illness, and, moreover, the applicant has not complained about the article in that respect. The photo in question supports and illustrates the information being conveyed.” 39. The Federal Court of Justice concluded that, in those circumstances and having regard to the context of the report as a whole, the first applicant had no legitimate interest that could have opposed publication of the photo of the applicants out in the street. There had, in particular, been nothing about the photo itself that constituted a violation ( eigenständiger Verletzungseffekt ) and thus justified a different conclusion; nor was there anything to suggest that the photo had been taken surreptitiously or by using secret technical devices that rendered its publication unlawful. (iv) Judgment of the Federal Constitutional Court of 26 February 2008 40. In a judgment of 26 February 2008, the First Division ( Senat ) of the Federal Constitutional Court dismissed constitutional appeals lodged by the first applicant (no. 1 BvR 1626/07) and by the Ehrlich & Sohn GmbH & Co. KG publishing company (no. 1 BvR 1602/07) against the judgment of the Federal Court of Justice (no. VI ZR 51/06). In the same judgment it allowed a constitutional appeal (no. 1 BvR 1606/07) lodged by the Klambt-Verlag GmbH & Co. publishing company against an injunction, imposed by the Federal Court of Justice (judgment of 6 March 2007, no. VI ZR 52/06), on any further publication of a photo that had appeared in 7 Tage magazine showing the applicants on holiday in an unspecified location and accompanying a written and photographic report on the possibility of renting a holiday villa owned by the von Hannover family in Kenya. Those proceedings are the subject of a separate application by the first applicant to the Court (no. 8772/10). 41. The Federal Constitutional Court observed, firstly, that the court decisions constituted an interference with the first applicant’s right to the protection of her personality rights guaranteed by Articles 1 § 1 and 2 § 1 of the Basic Law. There were limits on the protection afforded to that right and on the freedom of the press, however. The freedom of the press was subject to the restrictions laid down in sections 22 et seq. of the Copyright Act and Article 8 of the Convention, whilst the provisions of the Copyright Act and Article 10 of the Convention limited the right to the protection of personality rights. In the German legal order the Convention had the status of an ordinary federal law. At constitutional-law level, the rights and freedoms guaranteed by the Convention and the Court’s case-law served as guides to interpretation when determining the content and scope of a fundamental right. 42. The Federal Constitutional Court reiterated the case-law of the Court regarding Articles 8 and 10 of the Convention and its own case-law on the different fundamental rights at stake by referring to the principles established in its leading judgment of 15 December 1999 ( Von Hannover, cited above, § 25). It added that in so far as an image did not itself make any contribution to the formation of public opinion, its information value had to be assessed in the context of the accompanying article. However, if that article was merely a pretext for publishing a photo of a well-known person, no contribution was made to the formation of public opinion and there were therefore no grounds for allowing the interest in publication to prevail over the protection of personality rights. 43. The Federal Constitutional Court went on to say that, in order to determine the weight to be attached to the protection of personality rights, regard had to be had not only to the circumstances in which the photo had been taken, for example whether it had been taken surreptitiously or as a result of persistent hounding by photographers, but also to the situation in which the person concerned had been photographed and how he or she was portrayed. The right to protection of personality rights thus carried more weight where the photo showed details of the person’s private life that were not normally the subject of public discussion. The same was true where the person concerned could legitimately expect, having regard to the circumstances, that no photo would be published because he or she was in a private place ( räumliche Privatheit ), such as in a specially protected location. The right to protection of personality rights could also prevail over the interest in publication in cases other than those of spatial isolation, notably where the person concerned was pictured enjoying a moment of relaxation or letting go, freed from the constraints of professional or everyday life. 44. The Federal Constitutional Court stated that importance had to be attached in that connection to the allocation of procedural obligations regarding the presentation of the facts and the burden of proof. It had to be ensured that neither the press nor the person being photographed was prevented from adducing proof of circumstances relevant for the balancing of the competing interests. Where the press intended to publish a photo without the consent of the person concerned, it could be required to substantiate the circumstances in which the photo had been taken in order to allow the courts to examine the question whether publication of the photo could be opposed on grounds of the legitimate expectations of the person photographed. 45. The Federal Constitutional Court observed that it was the task of the civil courts to apply and interpret the provisions of civil law in the light of the fundamental rights at stake while having regard to the Convention. It added that its own role was limited to examining whether the lower courts had had sufficient regard to the impact of fundamental rights when interpreting and applying the law and when balancing the competing rights. Such was also the scope of the scrutiny of the Constitutional Court regarding the question whether the courts had fulfilled their obligation to incorporate the Court’s relevant case-law into the national legal order ( Teilrechtsordnung ). The fact that the court’s balancing exercise of the various rights in multi-polar disputes – that is, disputes involving the interests of several different persons – and complex ones could also result in a different outcome was not sufficient reason for requiring the Federal Constitutional Court to correct a court decision. However, there would be a violation of the Constitution if the protective scope ( Schutzbereich ) or extent of a fundamental right had been wrongly determined and the balancing exercise were accordingly flawed, or if the requirements under constitutional law or the Convention had not been duly taken into account. 46. Applying those principles to the case submitted to it, the Federal Constitutional Court observed that the Federal Court of Justice and the criteria it had established were constitutionally unobjectionable. It considered in particular that nothing, from a constitutional-law perspective, had prevented the Federal Court of Justice from departing from its own established case-law in the field and developing a new concept of protection. The fact that it had not itself called into question, in its leading judgment of 15 December 1999, the former concept of protection established by the Federal Court of Justice merely meant that this had been in conformity with constitutional-law criteria. It did not mean, by extension, that a different concept could not meet those criteria. The Federal Court of Justice had not been prevented, in particular, from dispensing with the legal concept of “figure of contemporary society” and instead balancing the competing interests when examining the question whether a photo was an aspect of contemporary society and could accordingly be published without the consent of the person concerned (unless it interfered with a legitimate interest of the latter). 47. Applying the criteria thus established to the photos in question, starting with the second and third ones on which an injunction had been imposed by the courts and then challenged by the publishing company Ehrlich & Sohn (see paragraph 40 above), the Federal Constitutional Court noted that the Federal Court of Justice had had regard to the fact that the second photo showed the applicant in a public place which was neither isolated nor out of public view. It had attached decisive weight, however, to the fact that the article concerned only the applicant’s skiing holiday, that is, a situation falling within the core area of private life and concerning the applicant’s need for peace and quiet, and the consequent lack of public interest other than satisfying public curiosity. Contrary to the submissions of the publishing company, the readers’ interest in the applicant’s fashionable ski suit did not amount to a public interest. Moreover, that aspect had not been mentioned anywhere in the article. 48. In the opinion of the Federal Constitutional Court, the same conclusion had to be drawn with regard to the third photo whose publication had been challenged by the first applicant. There had been no public interest, beyond merely satisfying public curiosity, in the information contained in either the article commenting on the first applicant and her husband’s trip to St Moritz to celebrate the latter’s birthday or the photo showing them both in a chairlift. Whilst the article had also mentioned the Rose Ball – an event which, according to the Federal Court of Justice, could possibly be regarded as an aspect of contemporary society – no link had been made between that event and the photo. 49. With regard to the first photo, the Federal Constitutional Court found that the Federal Court of Justice had had valid grounds for considering that the reigning Prince of Monaco’s ill-health was a matter of general interest and that the press had accordingly been entitled to report on the manner in which the prince’s children reconciled their obligations of family solidarity with the legitimate needs of their private life, among which was the desire to go on holiday. The conclusion reached by the Federal Court of Justice, according to which the photo that had been published had a sufficiently close link with the event described in the article, was constitutionally unobjectionable. 50. The Federal Constitutional Court pointed out that the Federal Court of Justice had indicated that the protection of personality rights could prevail in cases where the photo in question had been taken in conditions that were particularly unfavourable for the person concerned, for example where it had been taken surreptitiously or following continual harassment by photographers. However, the publishing company had given details about how the photo had been taken and the first applicant had not complained before the lower civil courts or the Federal Court of Justice that those details were insufficient. In particular, she had not alleged that the photo had been taken in conditions that were unfavourable to her. 51. The Federal Constitutional Court also dismissed the first applicant’s allegation that the Federal Court of Justice had disregarded or taken insufficient account of the Court’s case-law. Pointing out that a complaint of that nature could be raised in constitutional proceedings if it was based on a fundamental right guaranteed by the Basic Law, it observed that the Federal Court of Justice had taken account of the judgments delivered in Von Hannover, cited above, and Karhuvaara and Iltalehti v. Finland (no. 53678/00, ECHR 2004 ‑ X) and had not failed to comply with its obligation to satisfy the criteria established by the Convention. The Federal Constitutional Court had undertaken an analysis of the Court’s relevant case-law and observed that the Court’s decisive criterion when balancing the competing rights was the question whether the report in its entirety (article and photo) contributed to the free formation of public opinion. Furthermore, a distinction had to be drawn between political figures, public figures and ordinary individuals. Whilst the latter enjoyed the greatest protection of the three groups, political figures could expect only a small degree of protection from media reports about themselves. 52. According to the Court’s case-law ( Gurgenidze v. Georgia, no. 71678/01, § 57, 17 October 2006, and Sciacca v. Italy, no. 50774/99, § 27, ECHR 2005-I), the first applicant was a public figure, which allowed the press – where there was an interest in informing the public – to publish photos, even of the person going about his or her daily business in public. Publication of that sort, which, moreover, attracted the protection of Article 10 of the Convention, could serve to exercise public scrutiny over the private conduct of persons who were influential in the economic, cultural or media sectors. The Federal Constitutional Court pointed out that the Court had previously criticised the approach taken by domestic courts which had applied over-restrictive criteria to the question whether the media were or were not reporting matters of public interest when they reported on circumstances relating to the private life of a person who was not part of political life ( Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 87, 1 March 2007). It was sufficient that the report concerned, at least to some degree, important matters relating to politics or another sphere ( Karhuvaara and Iltalehti, cited above, § 45). 53. The Federal Constitutional Court concluded that the Federal Court of Justice had found in the present case that the report in question concerned important subjects in a democratic society. In its Von Hannover judgment, cited above, the Court had not categorically excluded the possibility that a report contributing to a debate about questions of interest to the public could be illustrated by photos showing a scene from the daily life of a political or public figure. Even though the Court had concluded in Von Hannover that the photos in question had not been of information value, the decision reached by the Federal Court of Justice – after assessing the circumstances of the case submitted to it and having regard to the Court’s case-law – that the photo in question was of information value was constitutionally unobjectionable. (b) The second set of proceedings 54. On an unspecified date, the first applicant sought an injunction in the Hamburg Regional Court against any further publication of the photo that had appeared in the magazine Frau Aktuell, issue no. 9/02 of 20 February 2002. 55. In a judgement of 1 July 2005, the Regional Court granted the applicant’s request. 56. In a judgment of 13 December 2005, the Hamburg Court of Appeal allowed an appeal lodged by the publishing company and set aside the Regional Court’s judgment. 57. In a judgment of 6 March 2007 (no. VI ZR 14/06), the Federal Court of Justice dismissed an appeal by the first applicant on the same grounds as those set out in its judgment of the same date (no. VI ZR 51/06 – see paragraphs 28-39 above). It stated that the first applicant had not argued before it – and nor was there anything to suggest – that the photo had been taken surreptitiously or with equivalent secret technical devices such as to render its publication unlawful. 58. In a decision of 16 June 2008 (no. 1 BvR 1625/07), a three-judge panel of the Federal Constitutional Court declined, without giving reasons, to entertain a constitutional appeal lodged by the first applicant. 2. The proceedings brought by the second applicant (a) The first set of proceedings 59. On 30 November 2004 the second applicant sought an injunction in the Hamburg Regional Court against any further publication by the Ehrlich & Sohn GmbH & Co. KG publishing company of the three photos that had appeared in the magazine Frau im Spiegel. 60. In a judgment of 1 July 2005, the Regional Court granted the injunction. 61. In a judgment of 31 January 2006, the Hamburg Court of Appeal allowed an appeal by the publishing company. 62. In a judgment of 6 March 2007 (no. VI ZR 50/06), the Federal Court of Justice dismissed an appeal on points of law by the second applicant in respect of the first photo. With regard to the second and third photos, it allowed the appeal, quashed the judgment of the Court of Appeal and reinstated the injunction imposed by the Regional Court. It based its conclusions on the same grounds as those set out in its judgment no. VI ZR 51/06 of the same day (see paragraphs 28-39 above). With regard to the second applicant’s high profile, it upheld the opinion of the Court of Appeal that he was well known to the public, in particular as the husband of the first applicant who was especially the subject of public attention. 63. In a decision of 16 June 2008 (no. 1 BvR 1624/07), a three-judge panel of the Federal Constitutional Court declined, without giving reasons, to entertain a constitutional appeal lodged by the second applicant. (b) The second set of proceedings 64. On 29 November 2004 the second applicant sought an injunction in the Hamburg Regional Court against any further publication by the WZV Westdeutsche Zeitschriftenverlag GmbH & Co KG publishing company of the photo that had appeared in the magazine Frau Aktuell. 65. In a judgment of 24 June 2005, the Regional Court granted the injunction. 66. In a judgment of 13 December 2005, the Hamburg Court of Appeal allowed an appeal by the publishing company. 67. In a judgment of 6 March 2007 (no. VI ZR 13/06), the Federal Court of Justice dismissed an appeal on points of law lodged by the second applicant on the same grounds as those set out in its judgment of the same date (no. VI ZR 14/06 – see paragraph 57 above). 68. In a decision of 16 June 2008 (no. 1 BvR 1622/07), a three-judge panel of the Federal Constitutional Court declined, without giving reasons, to entertain a constitutional appeal lodged by the second applicant. I. Payment of just satisfaction and individual measures ... b) Individual measures Although it is possible under German law, the applicant did not take action to prevent further publication of the photographs in question after the European Court’s judgment, but took action against a similar photograph (see under “General Measures”, No. 4) below. According to information available to the Secretariat, the photographs at issue in the European Court’s judgment have not been reprinted by the German press. II. General measures – Publication and dissemination of the judgment of the European Court: The judgment has been widely published and discussed by the German legal community. As is the case with all judgments of the European Court against Germany it is publicly available via the website of the Federal Ministry of Justice (www.bmj.de, Themen: Menschenrechte, EGMR) which provides a direct link to the Court’s website for judgments in German (www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf _Deutsch/). Furthermore, the judgment was disseminated by letter of the Government Agent to the courts and justice authorities concerned. – Change of domestic case-law: When deciding upon similar cases, domestic courts have taken into account the judgment of the European Court, thus giving it direct effect in German law: 1) The partner of a famous singer successfully sued at the Berlin Court of Appeal (KG Urt. v. 29.10.2004, 9 W 128/04, Neue Juristische Wochenschrift, NJW, 2005, pp. 605-07). 2) The Convention’s principles as set out in the European Court’s judgments were also acknowledged, even though they were not directly relevant to the case, in a judgment of the Hamburg District Court forbidding commercial exploitation of the popularity of former Chancellor Schröder (AG Hamburg, Urt. v. 2.11.2004, 36A C 184/04, NJW-RR 2005, pp. 196-98). 3) On the basis of the judgment of the European Court, the German Federal Civil Court upheld a judgment allowing the publication of an article about fining the applicant’s husband for speeding on a French motorway. The Court stated that the public had a justified interest in this information as it constitutes an offence, making this behaviour the topic of a public discussion (BGH, Urt. v. 15.11.2005, VI ZR 286/04, available via www.bundesgerichtshof.de). 4) Concerning the applicant herself, in July 2005, the regional court of Hamburg ( Landgericht ), referring to the judgment of the European Court, decided in favour of the applicant, prohibiting the publication of a photograph showing her together with her husband in a St Moritz street during a skiing holiday. However, in December 2005, the second instance (Appeal Court of Hamburg, Oberlandesgericht ) reversed this decision, basing its judgment rather on the case-law of the German Federal Constitutional Court ( Bundesverfassungsgericht ). Upon revision to the Federal Civil Court ( Bundesgerichtshof ) sought by the applicant, the Federal Civil Court on 6 March 2007 decided that the photograph in question may be published. In its reasoning the domestic court, balancing the different interests at stake, explicitly took into account the Convention’s requirements as set out in the European Court’s judgment (BGH, Urt. v. 6.3.2007, VI ZR 14/06 available via www.bundesgerichtshof.de). ...” | The applicants, Princess Caroline von Hannover and her husband Prince Ernst August von Hannover, complained of the German courts’ refusal to prohibit any further publication of two photographs which had been taken during their holiday without their knowledge and which had appeared in two German magazines. They alleged in particular that the domestic courts had not taken sufficient account of the European Court’s 2004 judgment in von Hannover v. Germany (see above). |
767 | Complaint about amount of damages awarded for harm caused to one’s health | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1963 and lives in Călărași. 6. On 26 October 2005 the applicant and her daughter drank water from taps in their apartment and shortly thereafter they felt unwell. On 29 October 2005 the applicant ’ s daughter, who was twelve at the time, was admitted to hospital with a diagnosis of “serious acute dysentery”. The applicant was admitted to hospital with the same diagnosis on 31 October 2005. She was released from hospital on 13 November 2005, a day later than her daughter. 7. The applicant lodged a court action against the local utilities provider (“the provider”), a State-owned company, claiming 100,000 Moldovan lei (“MDL”, approximately 6,700 euros (EUR) at the time) in compensation for the harm caused to her health and for the related inconveniences, including subsequent investigations and disinfection. 8. On 1 March 2006 the Călăraşi District Court found in her favour. It found that various sanitary, medical and technical reports had established that in the vicinity of the applicant ’ s apartment block the sewage pipe was situated above the drinking water pipe and was leaking. The water pipe had cracked on 26 October 2005 and sewage water had infiltrated the drinking water pipe. The court also established that the pipes had been used since 1977 and that their expected lifespan was fifteen years. A total of five people, all of whom had drunk water from taps connected to the same water pipe, had been admitted to hospital with the same diagnosis at approximately the same time as the applicant. Taking into consideration such elements as the amount of physical and mental suffering caused to the applicant and her daughter, the court awarded her MDL 10,000 ( approximately EUR 648 at the time ). 9. The parties appealed. On 26 April 2006 the Chişinău Court of Appeal rejected the applicant ’ s appeal and partly accepted the provider ’ s appeal. It reduced the award to MDL 5,000 (EUR 310) because it found exaggerated “both the sum claimed by [the applicant] and that awarded to [her]”. 10. The parties appealed. On 25 October 2006 the Supreme Court of Justice upheld the judgment of 26 April 2006. It found that the lower court had taken into consideration the nature and seriousness of the mental suffering caused to the applicant, as well as the degree of guilt of the defendant. That judgment was final. | This case concerned the applicant’s complaint about the amount of damages (the equivalent of 648 euros) awarded to her by the courts after she drank infested tap water. As a result, she had spent two weeks in hospital with dysentery. |
455 | Treatment of prisoners with drug addiction | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1955. At the time of lodging his application, he was detained in Kaisheim Prison. He was released subsequently. A. The applicant ’ s medical condition and treatment received in detention 6. The applicant has been continuously addicted to heroin since 1973, when he was aged 17. He has also been suffering from hepatitis C since 1975 and has been HIV - positive since 1988. He has been considered 100% disabled and has been receiving an employment disability pension since 2001. He has tried to overcome his addiction to heroin with various types of treatment (including five courses of in-house drug rehabilitation therapy ), all of which failed. From 1991 to 2008 the applicant ’ s heroin addiction was treated with medically prescribed and supervised drug substitution therapy. Since 2005, the applicant had reduced the dosage of his drug substitution medication ( Polamidon) and consumed heroin in addition to that medication. 7. In 2008 the applicant was arrested on suspicion of drug trafficking and taken in detention on remand in Kaisheim Prison, where his drug substitution treatment was interrupted against his will. On 3 June 2009 the Augsburg Regional Court convicted the applicant of drug trafficking, sentenced him to three years and six months ’ imprisonment and, having regard to a previous conviction, to another two years and six months ’ imprisonment. It further ordered the applicant ’ s placement in a drug detoxification facility, to be executed after a period of six months ’ detention in prison. The applicant was still not provided with substitution treatment for his heroin addiction. On 10 December 2009 he was transferred to a drug rehabilitation centre in Günzburg, Bavaria, where he underwent abstinence ‑ based treatment for his addiction, without additional substitution treatment. 8. On 19 April 2010 the Memmingen Regional Court declared the applicant ’ s detention in the detoxification facility terminated and ordered his retransfer to prison. In a decision dated 25 June 2010 the Munich Court of Appeal dismissed the applicant ’ s appeal. Having regard, in particular, to the views expressed by the applicant ’ s treating doctors, the court considered that it could no longer be expected with sufficient probability that the applicant could be cured from his drug addiction or could be prevented for a considerable time from relapsing into drug abuse. He had secretly consumed methadone at the clinic and lacked motivation to lead a drug-free life. 9. The applicant was transferred back to Kaisheim Prison on 30 April 2010. The prison doctors gave him various painkillers for chronic pain resulting from his polyneuropathy, on a daily basis. During his detention, the pain in his feet, neck and spine became such that, at least during certain periods, he spent most of his time in bed. 10. The applicant was examined by an external doctor for internal medicine, H., on the prison authorities ’ request in October 2010. H. did not consider any changes in the treatment of the applicant ’ s HIV and hepatitis C infections necessary. Having regard to the applicant ’ s chronic pain linked to his long-term drug consumption and polyneuropathy, he suggested that the prison medical service reconsider the possibility of drug substitution treatment. He subsequently confirmed that the applicant should be examined by a doctor specialised in drug addiction therapy to that end. 11. The applicant also obtained, on his request, an opinion drawn up by an external doctor specialised in drug addiction treatment (B.) dated 27 July 2011, on the basis of the written findings of doctor H. and the Kaisheim Prison doctor ’ s and authorities ’ findings and statements, but without having been able to examine the applicant in person. B. considered that from a medical point of view, drug substitution treatment had to be provided to the applicant. He explained that in accordance with the Federal Medical Association ’ s Guidelines for the Substitution Treatment of Opiate Addicts ( Richtlinien der Bundesärztekammer zur Durchführung der substitutionsgestützten Behandlung Opiatabhängiger ) of 19 February 2010 (see paragraph 30 below), drug substitution therapy was internationally recognised as being the best possible therapy for long-standing opioid addicts. Detoxification caused the person concerned serious physical strain and extreme mental stress and should only be attempted in cases of a very short opioid dependence. Drug substitution therapy prevented a deterioration of the patient ’ s state of health and a high risk to life, which arose particularly after forced abstinence in detention. It further prevented the spreading of infectious diseases such as HIV and hepatitis C. It had to be clarified whether, in the applicant ’ s case, further treatment for the hepatitis C from which he suffered was necessary. B. The proceedings at issue 1. The decision of the prison authorities 12. By submissions dated 6 June 2011, which he supplemented subsequently, the applicant made a request to the Kaisheim prison authorities for treatment with Diamorphin, Polamidon or another heroin substitute for his heroin addiction. Alternatively, he requested that the question of whether such substitution treatment was necessary be examined by a drug addiction specialist. 13. The applicant claimed that drug substitution treatment was the only adequate treatment for his medical condition. Under the relevant Guidelines of the Federal Medical Association for the Substitution Treatment of Opiate Addicts, drug substitution treatment, which he had received prior to his detention, was the required standard treatment for his condition and had to be continued during his detention. 14. The applicant claimed that, as confirmed by doctor H., the serious chronic neurological pain from which he was suffering could be considerably alleviated by drug substitution treatment, as had been the case during his previous substitution treatment. Having been addicted to heroin for almost forty years, he stood hardly any chance of leading a totally drug ‑ free life on release from prison. His rehabilitation could therefore better be furthered by providing him drug substitution treatment. While undergoing such treatment previously, he had been able to lead a relatively normal life and to complete training as a software engineer. 15. Furthermore, referring to doctor B. ’ s opinion, the applicant claimed that he was in need of Interferon therapy in order to treat his hepatitis C infection. In view of his poor physical and mental health, it was impossible to carry out such treatment without simultaneous drug substitution therapy. Substitution also helped to protect other prisoners from infection when using the same needles as he did for the consumption of drugs and diminished the trafficking and uncontrolled consumption of illegal drugs in prison. He also considered that the prison doctors did not have specialist knowledge in drug addiction treatment and asked to be examined by an external specialist. 16. After the prison authorities ’ first decision dismissing the applicant ’ s application was quashed by the Augsburg Regional Court on 4 October 2011 for lack of sufficient reasoning, the prison authorities, on 16 January 2012, again dismissed the applicant ’ s request. 17. The prison authorities argued that substitution treatment was neither necessary from a medical point of view nor a suitable measure for the applicant ’ s rehabilitation. With regard to the medical necessity of drug substitution therapy, the prison authorities, relying on prison doctor S. ’ s statement, considered that drug substitution therapy was not a necessary treatment for the purposes of section 60 of the Bavarian Execution of Sentences Act (see paragraph 27 below). They found that the applicant, who was severely addicted to drugs, had not received drug substitution treatment prior to his current detention in Kaisheim Prison. He had been placed in a drug rehabilitation centre for five months before his transfer to Kaisheim Prison, where he had been treated by medical experts with considerable knowledge of drug addiction treatment. The applicant had neither been given substitution treatment in the clinic, nor had the doctors recommended substitution treatment in prison. After three years in detention, he no longer suffered from physical withdrawal symptoms. Moreover, his condition with regard to his HIV and hepatitis C infections was stable and did not require any therapy for which substitution treatment was a necessary precondition. As suggested by the prison doctor, the applicant should use the opportunity to wean himself off opioids, such as heroin and its substitutes, while in prison, as it was very difficult to obtain drugs there. 18. With regard to the applicant ’ s social rehabilitation and treatment (sections 2 and 3 of the Bavarian Execution of Sentences Act, see paragraph 27 below), the prison authorities added that the main reason for which addicts underwent drug substitution therapy was to prevent them from becoming impoverished and from becoming involved in drug-related criminality. In prison, these risks were not present. Furthermore, the applicant had already shown that substitution therapy while he was at liberty had not prevented him from consuming other drugs or committing crimes, which had been caused by his antisocial nature. Moreover, the applicant had also consumed drugs while in detention. Therefore, providing him substitution treatment could lead to a risk to life and limb. 2. The proceedings before the Augsburg Regional Court 19. On 26 January 2012 the applicant, relying on the reasons he had submitted to the prison authorities, appealed against the decision of the prison authorities to the Augsburg Regional Court. He further submitted that the authorities of Kaisheim Prison, where no substitution treatment had ever been provided, had omitted to examine the medical necessity of drug substitution therapy under the relevant criteria laid down, in particular, in the Federal Medical Association ’ s Guidelines for the Substitution Treatment of Opiate Addicts, which were clearly met in his case. He further argued that under the applicable administrative rules for substitution treatment in prison in the Land of Baden-Württemberg, he would be provided with drug substitution therapy, which is carried out in the prisons of the majority of the German Länder. 20. On 28 March 2012 the Augsburg Regional Court, endorsing the reasons given by the prison authorities, dismissed the applicant ’ s appeal. It added that it was not necessary to obtain the opinion of a drug addiction expert. The prison doctors of Kaisheim Prison had sufficient training to decide on the medical necessity of drug substitution therapy, irrespective of the fact that drug substitution therapies might never have been used in that prison. The administrative rules for substitution treatment in prison applicable in the Land of Baden-Württemberg were irrelevant, given that Kaisheim Prison was situated in the Land of Bavaria. 3. The proceedings before the Munich Court of Appeal 21. On 4 May 2012 the applicant lodged an appeal on points of law with the Munich Court of Appeal. He submitted that the Regional Court ’ s failure to investigate sufficiently whether drug substitution treatment was necessary, under the applicable Federal Medical Association ’ s Guidelines and with the help of an independent doctor specialised in drug addiction treatment, had breached section 60 of the Bavarian Execution of Sentences Act and Article 3 of the Convention. Refusing him the alleviation of his intense neurological pain with an existing and medically necessary treatment constituted inhuman treatment. 22. On 9 August 2012 the Court of Appeal dismissed the appeal as ill ‑ founded. In the court ’ s view, the applicant had failed to show why drug substitution therapy was the one specific medical treatment he needed. He had further failed to prove that the prison doctors of Kaisheim Prison were not qualified to decide about the medical necessity of heroin substitution. The applicant ’ s objection against the Court of Appeal ’ s decision was rejected. 4. The proceedings before the Federal Constitutional Court 23. On 10 September 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that his right to respect for his physical integrity under the Basic Law had been breached because he was denied drug substitution therapy, the only suitable therapy to treat his chronic pain, which would make Interferon therapy possible and allow him to reduce his craving for heroin and lead a “normal” everyday prison life without isolation. He further complained that his right to be heard under the Basic Law had been violated as the domestic courts had not taken into consideration the medical opinions he had submitted to show that a substitution treatment was necessary and had failed to consult an independent specialised expert. 24. On 10 April 2013 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint without giving reasons ( file no. 2 BvR 2263/12). C. Subsequent developments 25. On 17 November 201 4 the Kaisheim prison authorities rejected the applicant ’ s fresh request to be provided with substitution treatment in preparation for his release. The applicant ’ s counsel was advised to ensure that the applicant was taken to a drug rehabilitation clinic immediately on his release in order to prevent him from taking an overdose of heroine as soon as he was at liberty. 26. On 3 December 2014 the applicant was released. When examined by a doctor on 5 December 2014 he tested positive for methadone and cocaine. The doctor confirmed that the applicant would receive drug substitution treatment from 8 December 2014 onwards. | This case concerned the complaint by a long-term heroin addict that he had been denied drug substitution therapy in prison. |
273 | (Suspected) terrorists | I. PARTICULAR CIRCUMSTANCES OF THE CASE A. Terence Patrick Brogan 11. The first applicant, Mr Terence Patrick Brogan, was born in 1961. He is a farmer and lives in County Tyrone, Northern Ireland. 12. He was arrested at his home at 6.15 a.m. on 17 September 1984 by police officers under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 ("the 1984 Act"). He was then taken to Gough Barracks, Armagh, where he was detained until his release at 5.20 p.m. on 22 September 1984, that is a period of detention of five days and eleven hours. 13. Within a few hours of his arrest, he was questioned about his suspected involvement in an attack on a police mobile patrol which occurred on 11 August 1984 in County Tyrone and resulted in the death of a police sergeant and serious injuries to another police officer. He was also interrogated concerning his suspected membership of the Provisional Irish Republican Army ("IRA"), a proscribed organisation for the purposes of the 1984 Act. He maintained total silence and refused to answer any questions put to him. In addition, he turned away from his questioners and stared at the floor, ceiling or wall and periodically stood to attention. He was visited by his solicitor on 19 and 21 September 1984. B. Dermot Coyle 14. The second applicant, Mr Dermot Coyle, was born in 1953. He is at present unemployed and lives in County Tyrone, Northern Ireland. 15. He was arrested at his home by police officers at 6.35 a.m. on 1 October 1984 under section 12 of the 1984 Act. He was then taken to Gough Barracks, Armagh, where he was detained until his release at 11.05 p.m. on 7 October 1984, that is a period of detention of six days and sixteen and a half hours. 16. Within a few hours of his arrest, he was questioned about the planting of a land-mine intended to kill members of the security forces on 23 February 1984 and a blast incendiary bomb attack on 13 July 1984, both of which occurred in County Tyrone. He was also interrogated about his suspected provision of firearms and about his suspected membership of the Provisional IRA. He maintained complete silence apart from one occasion when he asked for his cigarettes. In one interview, he spat several times on the floor and across the table in the interview room. He was visited by his solicitor on 3 and 4 October 1984. C. William McFadden 17. The third applicant, Mr William McFadden, was born in 1959. He is at present unemployed and lives in Londonderry, Northern Ireland. 18. He was arrested at his home at 7.00 a.m. on 1 October 1984 by a police officer under section 12 of the 1984 Act. He was then taken to Castlereagh Police Holding Centre, Belfast, where he was detained until his release at 1.00 p.m. on 5 October 1984, that is a period of four days and six hours. 19. Within a few hours of his arrest, he was questioned about the murder of a soldier in a bomb attack in Londonderry on 15 October 1983 and the murder of another soldier during a petrol bomb and gunfire attack in Londonderry on 23 April 1984. He was also interrogated about his suspected membership of the Provisional IRA. Apart from one interview when he answered questions of a general nature, he refused to answer any questions put to him. In addition, he periodically stood up or sat on the floor of the interview room. He was visited by his solicitor on 3 October 1984. D. Michael Tracey 20. The fourth applicant, Mr Michael Tracey, was born in 1962. He is an apprentice joiner and lives in Londonderry, Northern Ireland. 21. He was arrested at his home at 7.04 a.m. on 1 October 1984 by police officers under section 12 of the 1984 Act. He was then taken to Castlereagh Royal Ulster Constabulary ("RUC") Station, Belfast, where he was detained until his release at 6.00 p.m. on 5 October 1984, that is a detention period of four days and eleven hours. 22. Within a few hours of his arrest, he was questioned about the armed robbery of post offices in Londonderry on 3 March 1984 and 29 May 1984 and a conspiracy to murder members of the security forces. He was also interrogated concerning his suspected membership of the Irish National Liberation Army ("INLA"), a proscribed terrorist organisation. He remained silent in response to all questions except certain questions of a general nature and sought to disrupt the interviews by rapping on heating pipes in the interview room, singing, whistling and banging his chair against the walls and on the floor. He was visited by his solicitor on 3 October 1984. E. Facts common to all four applicants 23. All of the applicants were informed by the arresting officer that they were being arrested under section 12 of the 1984 Act and that there were reasonable grounds for suspecting them to have been involved in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland. They were cautioned that they need not say anything, but that anything they did say might be used in evidence. 24. On the day following his arrest, each applicant was informed by police officers that the Secretary of State for Northern Ireland had agreed to extend his detention by a further five days under section 12(4) of the 1984 Act. None of the applicants was brought before a judge or other officer authorised by law to exercise judicial power, nor were any of them charged after their release. | The four applicants, who were suspected of terrorism, were arrested by the police in Northern Ireland and, after being questioned for periods ranging from four days and six hours to six days, sixteen hours and a half, were released without being charged or brought before a magistrate. |
607 | Wearing of religious symbols or clothing at work | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1951 and lives in Paris. 6. The applicant was recruited on a three-month fixed-term contract, from 1 October to 31 December 1999, extended for one year from 1 January to 31 December 2000, as a contracted employee of the hospital civil service, to carry out the duties of a social worker in the psychiatric unit of Nanterre Hospital and Social Care Centre (“the CASH”) a public health establishment administered by the City of Paris. 7. On 11 December 2000 the Director of Human Resources informed the applicant that her contract would not be renewed with effect from 31 December 2000. The reason given for the decision – which had been taken following complaints by certain patients being treated at the CASH – was that the applicant refused to stop wearing her head covering. 8. On 28 December 2000, in response to a letter from the applicant alleging the illegality of the refusal to renew her contract in that it was motivated by her convictions and her affiliation to the Muslim faith, the Director of Human Resources indicated that at the meeting of 30 November 2000 which had preceded the administration ’ s decision, she had not been criticised for her religious beliefs, but merely reminded of the rights and duties of public employees, namely the ban on manifesting such beliefs. He continued as follows. “I emphasised that I had been required to have a meeting with you following complaints made to Ms M., manager of the welfare and education unit, both by patients who were refusing to meet you on account of this display [of your beliefs] and by social workers for whom it was becoming increasingly difficult to operate in this very delicate situation. It should be noted that Ms M. raised these difficulties with you and tried to persuade you not to manifest your religious beliefs, even before the complaints reached HR. Indeed, it was only shortly before the meeting with you on 30 November that the unit managers were officially informed of the problem created by the fact of your head covering. With regard to your head covering at the time of recruitment: as you are aware, the recruitment interview lasts, at the most, one hour. Individuals attend wearing ordinary “street” clothes, and do not necessarily have to remove their coats or scarves. The fact that your head was covered during that interview was not interpreted as a possible sign of [religious] affiliation, but simply as a form of attire. The termination of your contract has a legal basis, and does not result from a discriminatory situation.” The Director of Human Resources further reminded the applicant in this letter of the Opinion issued by the Conseil d ’ État on 3 May 2000. That Opinion stated that the principle of freedom of conscience, the principle of State secularism and the principle that all public services must be neutral prevented employees in the public sector from enjoying the right to manifest their religious beliefs; lastly, it pointed out that the wearing of a symbol intended to indicate their religious affiliation constituted a breach by employees of their obligations (see paragraph 26 below). 9. By an application registered on 7 February 2001, the applicant asked the Paris Administrative Court to set aside the decision of 11 December 2000. 10. By letters of 15 and 28 February 2001, the applicant was informed of the decision of the Director of Human Resources at the CASH to include her on the list of candidates for a recruitment test for social workers and to permit her to take part. This decision was taken on the basis of the decree of 26 March 1993 granting special status to social workers employed by State hospitals. That text stated that the social worker ’ s task was to assist patients and their families who were experiencing difficulties in their dealings with social services, by helping to draw up and implement the relevant programme in the establishment to which they were attached and also other social and educational programmes, in coordination, inter alia, with other institutions or social services. The applicant did not take part in the recruitment test. 11. By a judgment of 17 October 2002, the Administrative Court held that the decision not to renew the contract had been compatible with the principles of secularism and the neutrality of public services. “... In view of Law no. 83-634 of 13 July 1983 [laying down the rights and duties of civil servants, see paragraph 25 below] ... Although civil-service employees, like all citizens, enjoy the freedom of conscience and of religion laid down in the constitutional, legislative and convention texts, which prohibit any discrimination based on their religious beliefs or their atheism, particularly in terms of access to positions, career progress and the disciplinary system, the principles of the secular nature of the State and the bodies to which its powers are delegated and of neutrality in public services preclude those employees, in the exercise of their duties, from being entitled to manifest their religious belief, especially through external sartorial expression; this principle, which is intended to protect the users of the service from any risk of influence or of interference with their own freedom of conscience, concerns all public services and not only the education service; this obligation must be applied with particular stringency in those public services where the users are in a fragile or dependent state;” It dismissed the applicant ’ s action, pointing out that the decision not to renew her contract had been taken on account of her refusal to remove her veil “following complaints submitted by certain patients in the care centre and in spite of repeated warnings by her line managers and friendly advice from her colleagues”. The court considered that on the basis of the above-mentioned principles concerning the expression of religious opinions within the public services, the administrative authorities had not committed an error of assessment in refusing to renew the contract on the implied ground of her wearing of “attire manifesting, in an ostensible manner, allegiance to a religion”. It concluded “thus, even though [the applicant ’ s] employer tolerated the wearing of this veil for several months and [her] conduct cannot be considered as deliberately provocative or proselytising, the hospital has not acted illegally in deciding not to renew the contract following her refusal to stop wearing the veil”. 12. By a judgment of 2 February 2004, the Paris Administrative Court of Appeal held that the contested decision was disciplinary in nature, in that “it transpires from both the letter of 28 December from the CASH ’ s Director of Human Resources and the hospital ’ s defence pleadings that [the decision] was taken on account of [the applicant ’ s] persistence in wearing a veil for religious reasons during her working hours”. It therefore quashed the decision on procedural grounds, given that the applicant had not been informed of the reasons for the envisaged measure prior to its adoption, nor given an opportunity to consult her case file. 13. In execution of the Court of Appeal ’ s judgment, the Director of the CASH invited the applicant to inspect the case file. By a reasoned judgment of 13 May 2005, he confirmed that her contract would not be renewed in the following terms. “As a result of the judgment of the Paris Administrative Court of Appeal dated 2 February 2004, which held that the non-renewal of your fixed-term contract which expired on 31 December 2000 had been disciplinary in nature, we invited you again to inspect your administrative file on 10 May 2005, in order to bring the procedure into line with the regulations. As required in execution of the same judicial decision, we hereby inform you that the disciplinary basis for the non-renewal of your contract is your refusal to remove your veil, in that it ostensibly manifests your religious affiliation. In application of the principles of the secular nature of the State and the neutrality of public services, which underlie the duty of discretion imposed on every State employee, even those employed under contract, your refusal to remove your head covering when carrying out your duties effectively amounts to a breach of your obligations, thus exposing you to a legitimate disciplinary sanction, as the Conseil d ’ État held, with regard to the principle, in its Opinion concerning Ms Marteaux, dated 3 May 2000. Our decision not to renew the contract is all the more justified in the present case in that you were required to be in contact with patients when carrying out your duties.” 14. By a letter of 29 June 2005, the Administrative Court of Appeal informed the applicant that the CASH had taken the measures required by the judgment of 2 February 2004. It advised her that, where a decision was set aside on procedural grounds, the administrative body could legally take new decisions that were identical to those that had been set aside, provided that they complied with the relevant procedure, and that the new decision of 13 May 2005 could be challenged before the administrative court. 15. In January 2006 the applicant asked the Versailles Administrative Court to set aside the decision of 13 May 2005. She argued, in particular, that the Conseil d ’ État ’ s Opinion of 3 May 2000, relied upon by her employer, was intended to apply only to teachers. 16. By a judgment of 26 October 2007, the court dismissed her request, basing its decision on the principles of State secularism and the neutrality of public services. “... However, while the Conseil d ’ État ’ s Opinion of 3 May 2000 specifically concerns the case of an employee in the public education service, it also clearly states that the constitutional and legislative texts show that the principles of freedom of conscience, State secularism and the neutrality of public services apply to the public services in their entirety; although civil-service employees, like all citizens, enjoy the freedom of conscience and of religion laid down in the constitutional, legislative and convention texts, which prohibit any discrimination based on their religious beliefs or their atheism, particularly with regard to access to positions, career progress and also the disciplinary system, the principles of the secular nature of the State and the bodies to which its powers are delegated and of neutrality in public services preclude those employees, in the exercise of their duties, from being entitled to manifest their religious belief, especially through external sartorial expression; this principle is intended to protect the users of the service from any risk of influence being exerted or of interference with their own freedom of conscience. In view of the above-mentioned principles concerning the manifestation of religious opinions within the public service, the administrative body did not act illegally in refusing to renew the [applicant ’ s] contract on the implied ground of her wearing attire manifesting, in an ostensible manner, allegiance to a religion.” 17. The applicant lodged an appeal against that judgment. 18. By a judgment of 26 November 2009, the Versailles Administrative Court of Appeal upheld the judgment, reiterating the reasons given by the lower courts. 19. The applicant appealed on points of law to the Conseil d ’ État. In her submissions, she emphasised that the Administrative Court of Appeal had deprived its judgment of any legal basis in that it had failed to specify the nature of the item of attire worn by her which had justified the sanction. She referred to the disproportionate nature of that sanction, and alleged that it had been incompatible with Article 9 of the Convention. 20. By a judgment of 9 May 2011, the Conseil d ’ État declared the appeal inadmissible. I. Religious freedom, principles of neutrality and non-discrimination As reiterated in the Stasi Report submitted to the President of the Republic on 11 December 2003 (p. 22), the secularism which is enshrined in Article 1 of the 1958 Constitution requires the Republic to ensure ‘ equality of all citizens before the law, without distinction of origin, race or religion ’. For hospitals, this implies that: – all patients are dealt with in the same way, whatever their religious beliefs; – patients must not have grounds to doubt the neutrality of hospital staff. A. Equal treatment for patients ... ... The above-cited Charter of Hospitalised Patients, while reiterating patients ’ freedom of action and of expression in the religious field, points out: ‘ These rights are to be exercised with due respect for the freedom of others. Any proselytism is prohibited, whether by persons being treated in the establishment, volunteers, visitors or members of staff. ’ In this respect, particular care must be taken to ensure that the expression of religious beliefs does not impair: – the quality of care and hygiene regulations (the sick person must accept the clothing imposed in view of the treatment to be administered); – the tranquillity of other hospitalised persons and of their relatives; – the proper functioning of the service. ... B. Neutrality of the public hospital service and of civil servants and public employees The duty of neutrality was laid down in the case-law more than half a century ago ( Conseil d ’ État, 8 December 1948, Ms Pasteau, and 3 May 1950, Ms Jamet ). In a dispute concerning a school, the Conseil d ’ État issued an Opinion dated 3 May 2000 ... [See paragraph 26 above.] ... In a judgment dated 17 October 2002 ( Ms E. ) [see paragraph 11 above], ..., the [Administrative] Court reiterated that the principle of neutrality applied to all public employees, and not only those working in the area of education: ... In a judgment dated 27 November 2003 ( Ms Nadjet Ben Abdallah ), the Lyons Administrative Court of Appeal held that: ‘ The wearing by Ms Ben Abdallah ... of a scarf which she explicitly asserted as being religious in nature, and the repeated refusal to comply with the order to remove it, although she had been alerted to the unambiguous status of the applicable law ... amounted to a serious fault such as to provide legal grounds for the suspension measure imposed on her. ... ’ These principles apply to all civil servants and public employees, with the exception of the ministers of the various religions mentioned in Article R. 1112-46 of the Code of Public Health. It is reiterated that public employees are employees who participate in the execution of a public service: contractual employees, interns ... You will ensure that in application of Article L. 6143-7 of the Code of Public Health the directors of public health establishments observe those principles strictly, by systematically imposing a sanction in the event of any failure to comply with these obligations or by informing the regional directors of Health and Social Affairs of any fault committed by an employee for whom the appointing body is the Prefect or the Minister. II. Free choice of practitioner and discrimination against a public-service employee ... Lastly, this freedom of choice on the part of the patient does not enable the person being treated to object to a member of the care team performing a diagnosis or providing care on the basis of that individual ’ s known or supposed religion. ...” C. Relevant case-law 31. The relevant decisions regarding the wearing of the veil by public-service employees are cited in the above-mentioned circular (see paragraph 30 above). The Administrative Court judgment delivered on 17 October 2002 in the present case is very frequently cited, given that it confirms that the principle of neutrality is valid for all public services, and not only those operating in the area of public education. The judgment delivered on 27 November 2003 by the Lyons Administrative Court of Appeal in the case of Ms Ben Abdallah (see paragraph 30 above), which concerned a female employment inspector who refused to remove her veil, is also a leading judgment. However, no appeal was made to the Conseil d ’ État in that case. The judgment indicates that the decision on whether to suspend an employee pending a sanction was to be made in view of “all of the circumstances of the case and, among other factors, the nature and degree of the conspicuousness of the sign, the nature of the tasks entrusted to the employee, and whether he or she exercised powers conferred by public law, or representative functions”. In that judgment, the Government Commissioner emphasised that “... an individualised assessment of the duty of neutrality in the civil service, such as that recommended by the Strasbourg Court ( Dahlab v. Switzerland (dec.), no. 42393/98, ECHR 2001 ‑ V), would be fully compatible with the approach adopted by the case-law of the ordinary courts for private-sector employees. With regard to the specific case of wearing the Islamic veil, the ordinary courts already take account of the nature of the duties performed and of the company image that is transmitted by the fact of an employee wearing this symbol. Under this approach, assessment criteria would then be identified which, without reneging on the principle of neutrality, would lead to an arguably more pragmatic application of them, taking account of the nature of the duties performed (education, management functions) and the circumstances in which they are carried out (contact with the public, whether or not a uniform or regulation clothing is worn, the degree of vulnerability or sensitivity of users such as pupils or patients).” However, he suggested that the authorities refrained from going down that path, indicating that, ultimately, it did not appear possible to compromise on civil servants ’ duty of neutrality. “First of all, it is a question of principle. Irrespective of their wishes, and also because they have to a certain extent chosen [this employment], civil servants belong primarily to the public sphere, the rationale for which is service in the general interest and the equal treatment of all users. As the Government Commissioner Rémy Schwartz has pointed out, the neutrality of the service is ‘ designed above all for the users; it is with the aim of respecting their convictions that the State is neutral, in order to allow for their full expression ’; it is this social role which justifies the fact that the individual who continues to exist within the public employee effaces himself or herself behind the depository of public authority, behind the persona of a civil servant who is entrusted with a public-service mission. While the concept of public service may indeed narrow in the future, it does not ultimately seem possible to compromise on the immutable principles which constitute its exceptionality, particularly the fact of its employees being subject, on account of their status, to a code of conduct and an ethical line. Equally, we will not dwell further on the fears already expressed concerning the gradual erosion, under the impetus of identity politics, of the essential coherence of the social fabric, characterised by adhesion to the universal values guaranteed by the State. Moreover, Rémy Schwartz ’ s conclusions also emphasise the impracticality of an individualised solution that would depend on the nature of the tasks and the degree of maturity of the public in question, given the variety and even the variability over time of the conceivable situations; in addition, it is not clear why an employee ’ s freedom of conscience, by dint of excessive demands in respect of religious convictions, would justify an infringement of the freedom of conscience which is also enjoyed by his or her colleagues: the interests of the service may thus also justify that, even in the absence of direct contact with the users, an employee ’ s freedom to express his or her convictions may be restricted. ... This reaffirmation of the principle of the absolute neutrality of the public service leads to the necessity of issuing a warning in respect of any deviation from the rules that in itself amounts to a disciplinary fault: on the basis of that finding, there would be nothing to prevent the disciplinary body, in the same wording as the Ms Marteaux Opinion, from assessing particular cases on an individual basis and from taking account of specific circumstances so that, having put an end to the culpable conduct, it can evaluate the consequences, necessarily including in its assessment the degree of compliance or, on the contrary, intransigence, on the part of the civil servant once he or she has been invited to adhere to the neutrality of the service. ...” | This case concerned the decision not to renew the contract of employment of a hospital social worker because of her refusal to stop wearing the Muslim veil. The applicant complained that the decision not to renew her contract as a social worker had been in breach of her right to freedom to manifest her religion. |
372 | Conditions of detention and domestic remedies | I. THE CIRCUMSTANCES OF THE CASE A. Outline of events 8. On 19 August 1994 the applicant, who had been treated for heroin addiction in the United Kingdom, was arrested at Athens Airport for drug offences. He was transferred to the central police headquarters of Athens in Alexandras Avenue, where he was detained until 24 August 1994. 9. On 24 August 1994 the applicant was transferred to Koridallos Prison and was admitted in a comatose state to the prisoners’ psychiatric hospital. 10. On 30 August 1994 he was discharged from the psychiatric hospital. The certificate of discharge described him as a drug user. He was immediately taken to Koridallos Prison proper. 11. The applicant was placed in the segregation unit of the “Delta” wing of the prison. Subsequently, he was transferred to the “Alpha” wing. 12. On 28 July 1995 the applicant was found guilty of drug offences by the three-member Court of Appeal ( Τριμελές Εφετείο ) of Athens, which, due to the nature of the charges, sat as a first-instance court. The court acknowledged that the applicant was a drug addict and sentenced him to thirteen years’ imprisonment and a fine of 5,000,000 drachmas. The applicant appealed. 13. In November 1995 there was a riot in Koridallos Prison. 14. On 30 August 1996 Ms Vasiliki Fragathula, a social worker of Koridallos Prison, reported to the prison governor, inter alia, the following facts. The applicant, after his conviction, shared a cell with one other convict. Letters sent by the applicant were not opened. Letters sent to the applicant by the European Commission of Human Rights were opened by a prison officer in front of the applicant. Foreigners who did not speak Greek could not participate in the vocational training courses organised in Koridallos Prison. A programme for learning Greek had once been available in the prison library but was destroyed during the riot. However, it was the intention of the welfare office to replace it in due course. According to the Penitentiary Code, remand prisoners did not have the right to work. However, the applicant, after his conviction, started working as a cleaner. Almost immediately after his arrival at Koridallos Prison the applicant started being treated by Dr P., a psychiatrist. He continued to participate in the awareness and self-help therapeutic programmes for the foreign prisoners of two organisations, Drug Addicts Anonymous and Over 18. He was also individually treated by a psychologist who was a member of Drug Addicts Anonymous. After the applicant’s arrival at Koridallos Prison, his case was followed by the prison’s welfare office. It was true that no distinctions were made between remand prisoners and convicts. 15. In September 1996 the applicant was transferred from Koridallos to Tirintha Prison. According to a letter by the governor of Tirintha Prison dated 20 November 1996, this was done “to ensure better conditions of detention for the applicant”. From Tirintha Prison the applicant was transferred at his request to Agias Prison in Canea. 16. In November 1997 a court of appeal upheld the applicant’s conviction but reduced his sentence to nine years’ imprisonment and ordered his expulsion from Greece. 17. On 2 June 1998 the applicant applied for release on probation. On 10 June 1998 a Chamber of the Canea First-Instance Criminal Court granted his application. The applicant was released from prison and was transferred to the Canea deportation centre. From there he was taken to Piraeus and expelled from Greece immediately after his appearance before the Commission’s delegates at Koridallos Prison on 22 June 1998. B. Oral evidence before the Commission’s delegates 18. The evidence of the applicant and the three witnesses who appeared before the delegates at Koridallos Prison on 22 June 1998 may be summarised as follows. 1. The applicant (a) Conditions of detention in Koridallos prisoners’ psychiatric hospital 19. The applicant was admitted to Koridallos prisoners’ psychiatric hospital on 24 August 1994. Initially, he was detained in a single cell for three days. He slept all the time due to medication. It was another prisoner who told him how long he had been there. When he woke up, he was moved to a cell with eight to ten “very disturbed” persons. They slept on mattresses on the floor. It was hot, but the windows were open. Occasionally, the door would open and they would be allowed out to go to the toilet or have a shower or walk in the yard. Meals were served in plastic containers on the floor. He stayed for four to five days and nights in the second cell. (b) Conditions of detention in the segregation unit of the Delta wing 20. Subsequently the applicant was taken to the prison proper. He asked to be kept somewhere quiet and he was immediately placed in the segregation unit of the Delta wing. At first, the applicant did not know that he was in a segregation unit. 21. The cell was very small and high. It had two doors and there were two beds. One could hardly walk between them. During the entire period of his stay in the segregation unit he was detained with another person, Mr Petros Papadimitriou. There was only one window in the roof which did not open and which was so dirty that no light could pass through. There was just one electric bulb which did not provide sufficient light for reading. There were no other windows apart from a peephole in one of the two doors, which could be opened. There was an Asian-type toilet in the cell. There was no screen or curtain separating the toilet from the rest of the cell. Sometimes the toilet would flush and sometimes not. There was only one shower in the unit, which contained nine cells with up to three prisoners in each. There was no sink in the cell. 22. It was August when the applicant was placed in the segregation unit. It was very hot. During the day the door of his cell would be open. The segregation unit was unsupervised and “anything could happen”. However, the applicant had not been ill-treated by any particular person. There were two small high-walled yards, “ten steps forward, ten steps back”. At night the door of his cell would be locked. As there was no ventilation the cell became so hot that the applicant would wake up drenched. In order to have water in his cell, the applicant would fill a bottle from the tap near the shower and sometimes from the toilet flush. 23. After maybe two weeks in the segregation unit, the applicant was offered the possibility of going to the ordinary cells in the Delta wing. However, he had to turn this offer down because the Delta wing was for drug addicts and “he wanted to stay away from drugs”. There were no drug addicts in the segregation unit. (c) Conditions of detention in the Alpha wing 24. The applicant did not remember exactly when he left the segregation unit – perhaps two or two and a half months later, at the end of October or the beginning of November. He was moved to the Alpha wing where mainly economic offenders were kept. Mr Papadimitriou was moved with him and they continued to share the same cell. 25. Alpha was the best wing in the prison. However, it was still dirty and overcrowded. There were three beds in each cell: two bunk beds, one on top of the other, and a third bed. Usually, there were three prisoners in each cell. There was a sink and an Asian-type toilet. There was a plastic screen on one side of the toilet, part of which was broken. Although one could not see the inmate using the toilet, one could smell and hear him. The cell had a window. Sometimes there was a table and a chair in the cell. 26. The doors of the cells were locked between 1 p.m. and 3 p.m. and between 8.30 p.m. and 8 a.m. This schedule differed by one hour between summer and winter. The cells were very noisy due to fellow inmates’ television and radio sets. The prisoners had no control over the light switches. In winter, the cells were very cold as they were heated for only two hours a day. Sometimes the applicant had to stay in bed under his blankets to keep warm. After the riot, several windows were broken and it was freezing in the prison. In the summer, the cells were unbearably hot, as there was no through-draught when the doors were shut. Sometimes the applicant had to wait until three or four o’clock in the morning before he could fall asleep. When the door of the cell was open, the situation improved but there was no ventilation in the wing in general. Occasionally, there were problems with the plumbing and the toilet would not always flush. 27. At one point, when the applicant was sharing his cell with only one other prisoner, three Chinese inmates were brought in for one night. They slept on two mattresses on the floor. (d) Complaints concerning the entire period of the applicant’s detention in Koridallos Prison 28. The only thing the applicant was ever given were blankets. He was not given any clothes, sheets, pillows, toiletries (including soap) or toilet paper. He had to buy toiletries and toilet paper from the canteen. Occasionally he did not have any money and had to ask other prisoners. The social services and certain charitable organisations would also help. However, there were times when he was left with no toilet paper, in particular when he had to use the toilet often, due to problems with his stomach. On these occasions, in order to keep clean, he had to use water from the Asian-type toilet. Despite all that, he managed “to keep himself clean”. Eventually, he managed to get hold of sheets and a pillow, which he inherited from other prisoners. However, it took him a long time, perhaps a year. 29. There were ten showers – described by the applicant as pipes – in the basement for the 250 to 360 prisoners held in the wing. There was hot water for two hours a day or perhaps longer. There were no curtains and no windows. After the riot there was no hot water. In winter, the showers were used by the cats as toilets. 30. He had to wash his clothes himself and this was made difficult because of the shortage of hot water. He would dry his clothes by hanging them on the bars of his cell window. 31. Food was served in such a manner that the cats could play around with it. Before entering prison he had been a vegetarian but he had to change his eating habits as there were no vegetarian menus in Koridallos. 32. The applicant “lived in a vacuum”. He could not communicate with the prison staff, who did not speak English. The social worker knew English. In order to see her, he had to make a request. He would see the social worker three times a week, usually for between two and five minutes. Ten minutes was the maximum. 33. There were no vocational activities, courses or library. 34. At first, the applicant was allowed only one telephone call a week, in the evening. However, the social worker subsequently arranged for him to be able to use the telephone in the morning. 2. Spiros Athanassopoulos 35. The witness was the governor of Koridallos Prison between 14 December 1994 and 15 September 1997. 36. The witness did not know of any improvements that had been made in the Alpha wing since the applicant’s transfer from Koridallos Prison. There had been some improvements made to the segregation unit. Now, there were screens separating the toilets from the rest of the cell in the segregation unit, but he did not want to contradict the applicant in this regard. It was possible that there had been no screen in his cell. There were sinks in the cells of the segregation unit. 37. It was as hot in the segregation unit as in the rest of the prison. In summer it could be hot. During the winter, there was central heating. 38. The prison administration provided inmates with pillows. However, it was possible that the applicant did not receive any because at times there were shortages. There was a problem with sheets, especially for foreign prisoners. The latter could get sheets from the welfare office, which had a stock built up from donations or acquisitions through grants from the Ministry of Justice. The prison administration did not provide prisoners with toiletries. Such items were provided by charitable organisations via the welfare office. Toilet paper could be obtained from the welfare office or another prisoner or the chief warden. It was more difficult to find sheets than toilet paper. 39. Food was not served in an unhygienic manner. While it was being transported, the pan was 60 to 70 cm from the floor, although the witness was not 100% sure about that. 40. It was possible that the applicant had slept in the cell with four other prisoners. Usually, each prisoner had his own bed. It was very rare that he did not. However, accommodating four prisoners in a cell had been known to happen. 41. There was no problem with the showers. However, those who had to wash their clothes in prison were faced with problems. 42. Prisoners communicated with the social workers whom they could see upon request either on the same day or the day after. Those who did not speak Greek could face problems. However, in the witness’s experience, they managed to adapt. There was always somebody, a member of staff or another prisoner, who could speak English. 43. All announcements and notices were in Greek. Foreign prisoners were informed of their rights orally upon arrival. However, this was not done systematically. An information pamphlet in English entitled “Everyday life in the prison establishment” was distributed to newcomers in 1996 but the witness did not remember whether this was before or after the applicant had left Koridallos Prison. 3. Vasiliki Fragathula 44. The witness was the social worker of the Delta wing of Koridallos Prison. She met the applicant there and followed his case throughout his stay in prison. 45. On his arrival in Koridallos Prison proper (after his detention in the prisoners’ psychiatric hospital), the applicant was placed in the segregation unit. This had been decided by the prison governor and the chief warden as a result of his condition – he had withdrawal symptoms. The applicant did not have advance knowledge of the conditions in the segregation unit. Shortly afterwards, the applicant complained of the conditions there and the witness arranged for him to meet the governor, Mr Costaras. The latter gave instructions for the applicant to be moved to another wing. However, this would have been the Delta wing, which was for drug addicts. The applicant was aware of this. He had found out through his contacts with other inmates. He refused to go there. He considered that staying in the segregation unit would help him stay away from drugs. The witness would not confirm that there were drugs in the Delta wing. However, she accepted that “the Delta wing was problematic for someone who wanted to free himself from drugs”. In her view, the segregation unit was not appropriate for prisoners. However, the applicant, who was suffering from withdrawal symptoms, could not be moved to the Alpha wing immediately. This wing was reserved for persons convicted of economic offences and other prisoners whose conduct had been good. So the applicant had a choice between the segregation unit and the Delta wing. The witness did not advise the applicant to choose one or the other because she did not want to influence what she regarded as a purely personal choice. The applicant chose to remain in the segregation unit. He was subsequently moved to the Alpha wing, together with all the inmates of the segregation unit, when it was decided to accommodate in the segregation unit prisoners who were serving disciplinary terms. 46. The witness would communicate with the applicant in English. The applicant did not speak Greek and this exacerbated his adaptation problems at the beginning, since most of the prison staff did not speak English. However, several of the Greek prisoners spoke some elementary English. Gradually, the applicant managed, through his personal efforts, to establish a rudimentary level of communication with the prison staff in Greek. There were no information notices in English. The pamphlet to which Mr Athanassopoulos referred was distributed in Koridallos in 1997. 47. The welfare office had a storage room in the prison with toilet paper, razors, detergent, soap, etc. These were funded by the Ministry of Justice and charitable organisations. Destitute prisoners could get supplies from this storage room once a week. However, during the summer there were often shortages. The welfare office did not provide prisoners with sheets and blankets. These were provided to newcomers by the prison administration, but it was impossible to replace them. The witness did not know whether the applicant had received any sheets. The applicant would receive clothes, toiletries and toilet paper from the welfare office in so far as this was possible, given the restrictions with which it was faced. In the witness’s view, given the extended period of the applicant’s detention in Koridallos, it was possible that he had been confronted with shortages of toiletries and toilet paper. The applicant had also been given assistance by charitable organisations with which the witness had put him in touch. 4. Petros Papadimitriou 48. The witness was an inmate of Koridallos Prison. He spent one year in the same cell as the applicant, four months in the segregation unit of the Delta wing and eight months in the Alpha wing. The witness was in the segregation unit of his own free will because he was a new prisoner and wanted some peace and quiet. They were both moved to the Alpha wing, probably when the prison administration decided to accommodate in the segregation unit prisoners who were serving disciplinary terms. 49. The segregation unit of the Delta wing contained nine cells, each occupied by two or three prisoners. While in the segregation unit, the witness shared his cell with the applicant and nobody else. There were two beds with mattresses and blankets. They were not given sheets or pillows. The toilet had no curtain. 50. While he was in the segregation unit the applicant would often complain. As it was very hot and he had respiratory problems, he would wake up at two o’clock in the morning coughing. He would bang on the door because he could not breathe. 51. There were usually three prisoners in the cells in the Alpha wing. The witness could not remember more than three prisoners in his cell. He remembered one Chinese inmate sleeping in their cell but not three. He did not remember anybody sleeping on the floor. The toilet screen was always there and was not broken. The witness kept a cat in the cell. 52. As regards the conditions of detention in Koridallos Prison in general the witness stated the following. The food was bad and risked being contaminated by cats. It was easy to take a shower and one did not have to queue. However, there was not enough water and no curtains. He spoke to the applicant in English and sometimes in Greek. He would also act as a mediator for him. The prison administration would only provide soap. The welfare office would sometimes hand out certain things, but it was difficult. The witness would buy toiletries and toilet paper himself. The applicant would buy them whenever he had money. He would also ask the witness for toothpaste and toilet paper, which the witness would give him. Sometimes it was possible to find a pillow. C. Inspection of Koridallos Prison 53. The delegates of the Commission visited the segregation unit of the Delta wing where the applicant had been detained in cell no. 9. The description given by the applicant was on the whole accurate. All the cells were approximately the same size. Cell no. 9 measured 2.27 by 3 m. Given that there was practically no window, the cell was claustrophobic. At the time of the delegates’ visit, the prisoners were locked in their cells. Cells where two persons were held were very cramped. Prisoners were virtually confined to their beds. There was no screen separating the toilet from the rest of the cell. The toilet was adjacent to the beds. Some prisoners had put up curtains themselves. The entire unit was very hot. Due to the lack of ventilation, the cells were unbearably hot, “like ovens”. The air was stale and a stench came out of the cells. The cells were all in a state of disrepair and they were very dirty. Some prisoners complained about rats in the cells. There was no sink in cell no. 9. There was a tap. According to the applicant, who accompanied the delegates during their inspection, the tap had recently been installed. On the doors of some cells there were signs saying “WC”. When asked, the prisoners said that the signs would be put up during the day when the cell doors were not locked to ensure that the cell-mate did not enter the cell while the toilet was being used. The applicant’s cell could be compared to a medieval oubliette. The general atmosphere was repulsive. 54. The delegates also visited a cell on the third floor of the Alpha wing where the applicant had been detained. According to the chief warden of Koridallos Prison, who accompanied the delegates during their inspection, Mr Papadimitriou was still detained in this cell. The cell measured approximately 4.5 by 2.5 m. The description by the applicant was again accurate, except that the toilet screen was not in disrepair. The cell had windows of an adequate size. 55. The delegates saw the shower area in the basement. It was reasonably clean, although the applicant claimed that during his time it had been much dirtier. Most shower cubicles had curtains. However, some did not. 56. In the prison storage room, there were small bags containing toilet paper and toiletries that were given to new prisoners. However, the delegates were told that these bags had arrived only very recently. There were no sheets. The inmate in charge claimed that they had all been distributed or that they were at the laundry. There was a cupboard which contained mainly soap. 57. The welfare office storage room was closed at the time. There was a sign indicating that each wing was served once a week. It was opened at the delegates’ request. It contained a lot of used clothes. The delegates were shown toilet paper and one sheet. There was a book showing that prisoners came to the room and were provided with various items, such as toiletries, shoes, etc. 58. The kitchen was quite spacious and clean. The trolleys on which food was transported, however, did not correspond to Mr Athanassopoulos’s description. They were rather low. 59. In one corner of a corridor outside the kitchen a cat had defecated. The delegates also had the opportunity of seeing the inmates queuing to use the telephones. The queues were rather long. 60. According to the chief warden, no prisoners’ location charts dating from the applicant’s detention in Koridallos Prison had been kept. Nor were there books showing the movement of prisoners from one cell to another. The only books that had been kept indicated the last cell in which each prisoner had been kept before leaving Koridallos Prison. D. Findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 61. On 29 November 1994 the CPT published a report following its visit to Greece in March 1993 [ Koridallos Prison was also visited by the CPT in May 1997] which contains the following findings and recommendations concerning Koridallos Prison. “... 91 ... Koridallos Prison for men was built to accommodate 480 prisoners in four separate blocks, each having 120 cells on three floors. On the first day of the delegation’s visit, the establishment was holding 1410 prisoners, approximately 800 on remand and the remainder sentenced. The total prison staff complement was 170, of which some 110 were prison officers. Perimeter security was the responsibility of armed police. ... 95. In the following paragraphs, the CPT shall make a number of specific recommendations concerning the prison establishments visited by its delegation. However, it wishes to emphasise at the outset that the act of depriving someone of his liberty brings with it the responsibility for the State to detain him under conditions which respect the inherent dignity of the human person. The facts found during the course of the CPT’s visit demonstrate that as a consequence of the present level of overcrowding in prisons, the Greek authorities are not in a position to fulfil that responsibility vis-à-vis many prisoners. The CPT therefore recommends that a very high priority be given to measures to reduce overcrowding in the Greek prison system. ... 105. As already indicated (cf. paragraph 91), at the time of the delegation’s visit to the Koridallos Prison for men the number of inmates amounted to almost three times the establishment’s official capacity. A standard cell measured 9.5 m 2 and was equipped inter alia with a screened Asian-type toilet and a hand-basin. Originally designed for individual occupancy, the cells are just about large enough for two prisoners; with more than two, conditions become very cramped. In practice, only a handful of prisoners had their own cells; the majority of the cells were accommodating two or three prisoners, and a number were accommodating four. The level of overcrowding was somewhat lower in A wing (approximately 300 prisoners) than in B, C and D wings (each of which were accommodating 350 or more inmates). The prisoner distribution chart indicated that three cells (one in C wing and two in D wing) were holding five prisoners. The delegation visited the relevant cell in C wing, in which it found five prisoners of Indian origin; they claimed to have been held under such conditions for some six weeks. 106. Inevitably, the high level of overcrowding had extremely negative repercussions upon the conditions of detention: living space was very poor, ventilation inadequate, and cell cleanliness and hygiene wanting. In many cells prisoners were to all intents and purposes confined to their beds, there being no room for other furniture. In some of the most over crowded cells, there were more prisoners than beds. Further, the toilet and washing facilities in certain cells were in need of repair. Despite the overcrowding, prisoners apparently did have ready access to the shower facilities located in the basement of each wing. However, some of the shower cubicles were in a poor state of repair and decoration. 107. The negative aspects of the overcrowding were mitigated to some extent by reasonable out-of-cell time. Between 8.30 to 11.30 and 14.30 to sunset, inmates were allowed to circulate freely and associate with other prisoners within their detention wing and its courtyard; the wing courtyards were of a good size. It must be stressed, however, that the free circulation of prisoners in their detention wings could have undesirable effects in the absence of proper control by prison staff; with the manning levels at the time of the delegation’s visit (3 to 4 prison staff on duty during the day in a wing accommodating some 350 prisoners), it is difficult to see how such control could be guaranteed (cf. also paragraph 96). 108. Activities in any meaningful sense of the term were scarce. There were only 236 work places (i.e. 1 work place for 6 prisoners), practically all in the area of general services (kitchen, laundry, cleaning, maintenance, stores, etc.); no workshops were in operation. However, a printing and bookbinding vocational training centre, with places for 30 prisoners, was due to open in 1993. The shortage of work places was particularly resented by many sentenced prisoners, as it prevented them from taking advantage of the system of earning remission through work. No educational classes were available and the prison library was both small and ill-equipped. Further, there was no prison gymnasium and, as far as the delegation could ascertain, no organised sporting activities. However, the exercise yards were sufficiently large for certain games (e.g. volleyball), and arrangements were in hand to provide a separate weight-training area in each of the yards (at the time of the visit, a few prisoners did weight training in the wing basements). To sum up, the vast majority of prisoners at the Koridallos Prison for men (including a majority of the sentenced prisoners) were offered no work or educational activities, and possibilities for sport were very limited. Most prisoners spent their day walking around their detention wing or courtyard, talking with fellow prisoners, or watching television in their cell. Such a monotonous and purposeless existence is quite inconsistent with the objective of social rehabilitation set out in the Greek Code of basic rules for the treatment of prisoners (cf. paragraph 94). 109. As regards material conditions of detention at the Koridallos Prison for men, the CPT recommends: – that immediate steps be taken to ensure that no more than three prisoners are held per cell; – that serious efforts be made to reduce as soon as possible the occupancy rate to two prisoners per cell (Naturally, the long-term objective should be to have one prisoner per cell, save for specific situations when it is not appropriate for a prisoner to be left alone); – that every prisoner be provided with his own bed and mattress; – that shower cubicles, toilets and washing facilities be restored to a good state of repair and maintained in a hygienic condition. As regards out-of-cell activities, the CPT recommends: – that current efforts to augment the number of work and vocational training places be intensified; – that a thorough examination of the means of improving the prison’s activity programmes in general (including education, sport and recreational activities) be undertaken without delay and that fuller programmes be progressively introduced as overcrowding is brought down. ... 133. The segregation unit at Koridallos Men’s Prison consisted of two groups of 10 cells, all of which were apparently used for both disciplinary confinement and other segregation purposes. The cells measured approximately 7 m 2; they were equipped with a bed, but no other furniture (e.g. table or chair). There was adequate ventilation and artificial lighting; however, access to natural light was, at best, mediocre. Each cell possessed an asian toilet, and some cells had a wash basin. The adjacent exercise yards measured approximately 40 m 2. The whole unit required to be – and was being – redecorated. 134. No-one was being confined as a punishment at the time of the delegation’s visit. A number of transvestite prisoners had been held in the unit for several months at their own request. Other prisoners were being held in the unit involuntarily, presumably under Rule 93 or 94 of the Code (the absence of a segregation unit register made it difficult to ascertain the precise grounds); certain of them appeared to have psychological or psychiatric problems. The prisoners were allowed to move freely within the unit and exercise areas during much of the day, and they had TV sets and other personal possessions in their cells (though staff indicated that a prisoner undergoing disciplinary confinement would remain in his cell and would not be allowed personal possessions). 135. The conditions of detention in this segregation unit are on the whole acceptable for prisoners undergoing the disciplinary sanction of confinement in a special cell. However, the CPT considers that it would be desirable for the cells accommodating such prisoners to be fitted with a table and chair, if necessary fixed to the floor. The CPT also recommends that all prisoners, including those confined to a special cell as a punishment, be allowed at least one hour of exercise in the open air everyday. 136. Conditions of detention in the unit are far less suitable for prisoners subject to segregation for non-disciplinary reasons, in particular if that measure is applied for a lengthy period. As regards more particularly prisoners who are segregated because of personality disorders and/or for their own protection, the CPT invites the Greek authorities to explore the possibility of creating special units organised along community lines. The unit is a totally unsuitable place in which to accommodate someone in need of psychiatric care. Neither the material environment nor the staff (ordinary prison officers) are appropriate. The CPT recommends that no such prisoner be placed in the unit. If, exceptionally, prisoners who are emotionally or psychologically disturbed have to be held temporarily in the segregation unit, they should be kept under close observation. Further, the CPT recommends: – that the cells in the unit used to accommodate prisoners segregated for a non-disciplinary reason be equipped in the same way as an ordinary prison cell; – that the respective regimes applicable, on the one hand, to persons undergoing disciplinary confinement and, on the other hand, to persons held in the segregation unit for other reasons, be expressly laid down.” | In August 1994 the applicant, who had been treated for heroin addiction in the United Kingdom, was arrested at Athens Airport on drug-related charges. He was taken to Koridallos prison in Greece as a remand prisoner and was subsequently convicted. He was first detained in the prison’s psychiatric hospital before being moved to the segregation unit of Delta wing and then, Alpha wing. He complained in particular about the conditions of his detention, notably claiming that in Delta wing he had shared a small cell with one other prisoner, with an open toilet, which often failed to work, in hot, cramped conditions with little natural light and no ventilation. |
698 | Online hate speech | 2. The applicant was born in 1983 and lives in Beaucaire (France). He is represented by Mr D. Dassa Le Deist, a lawyer. 3. The Government were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry of Europe and Foreign Affairs. 4. The applicant has been the mayor of the town of Beaucaire since 2014 and president of the Rassemblement national (known as Front national (FN) until 2018) group in the Regional Council of Occitanie. At the relevant time he was the Front national candidate for the Nîmes constituency in the French parliamentary elections. F.P., then a member of the European Parliament (MEP), first deputy to the mayor of Nîmes, was one of his political opponents. 5. On 24 October 2011 the applicant published a post about F.P. on the publicly accessible “wall” of his Facebook account, which was managed by him personally, reading as follows: “While the FN has launched its new national website on schedule, spare a thought for the Nîmes UMP [Union for a Popular Movement] MEP [F.P.], whose site, which was supposed to be launched today, is displaying an ominous triple zero on its home page ...” 6. A third party, S.B., reacted on the same day to that post, adding the following comment to the wall of the applicant’s Facebook account: “This bigwig has turned Nîmes into Algiers, there’s not a street without a kebab shop and mosque; drug dealers and prostitutes reign supreme, no surprise he’s chosen Brussels, capital of the new world order of sharia... Cheers UMPS [amalgam of UMP and PS, Socialist Party], at least we don’t have to pay for the flights and hotel... I love this free version of Club Med... Thanks [F.] and kisses to Leila ([L.])... Finally, a blog that changes our life ...” 7. Another reader, L.R., wrote the following three comments: “Shisha bars all over the town centre and veiled women ... Look what’s become of Nîmes, the so-called Roman city ... The UMP and the PS are Muslim allies.” “Drug trafficking run by muslims rue des lombards, it’s been going on for years ... even with CCTV in the street ... more drug dealing in plain sight on avenue general leclerc where riff-raff sell drugs all day long but police never come and in front of schools too, stones get thrown all the time at ‘white people’s’ cars route d’arles at the lights ... Nîmes is the insecurity capital of Languedoc Roussillon.” “[P.], councillor for economic development lol hallal economic development boulevard gambetta and (islamic) republic street.” 8. In the morning of 25 October 2011, L.T., the partner of F.P., became aware of the comments. Feeling directly and personally insulted by comments that she described as “racist”, associating her forename, which “sounded North African”, with the policy of F.P., she immediately went to the hairdressing salon run by S.B., whom she knew personally. S.B., who was unaware of the public nature of the applicant’s Facebook account, deleted his comment just after L.T. left, as he subsequently confirmed when he was interviewed by the gendarmes. 9. On 26 October 2011 L.T. wrote to the Nîmes public prosecutor to lodge a criminal complaint against the applicant, S.B. and L.R. on account of the offending comments published on the applicant’s Facebook page. With her letter she attached screen shots as evidence of the offending comments. 10. On 27 October 2011 the applicant posted a message on the “wall” of his Facebook account asking users to “be careful with the content of [their] comments”, but did not do anything about the comments already posted. 11. L.T. was interviewed by the gendarmes on 6 December 2011. She stated that she had discovered the comments on 25 October 2011 when she was in the office of her partner, an MEP and first deputy to the Mayor of Nîmes. She explained that their relationship was public knowledge and that the racist comments on the applicant’s publicly accessible Facebook page included one associating her North African-sounding forename with that of her partner and his policies. She stated that after she had discovered the posts she had immediately gone to the hairdressing salon run by S.B. to express her indignation. According to her, S.B. had been very surprised and had clearly not been aware of the public nature of this Facebook page, but he had confirmed he was talking about her when he said “Thanks [F.] and kisses to [L.]”. She added that she had then been accompanied to the town hall by the Prefect’s wife, who was just passing by and who had seen how annoyed she was. On the way there she had logged onto Facebook again to find that S.B’s comment had already been removed. The investigation into the applicant’s Facebook account revealed, on the same day, that the comments by L.R. were still there, while those posted by S.B. had indeed disappeared. 12. For his part, L.R. was identified as being an employee of Nîmes town council. When interviewed by the gendarmes on 23 January 2011 he explained that he worked as an assistant in the applicant’s election campaign and denied that his comments had been racist or an incitement to racial hatred. Explaining that he had never intended to direct his comments against L.T., he explained that in the meantime he had deleted the comments in which F.P. could have recognised himself or have been recognised by others. 13. During his interview of 25 January 2012 S.B. told the gendarmes that he had been unaware that the applicant’s Facebook page was publicly accessible and had deleted his comments immediately after L.T. had come to see him at his hairdressing salon. He added that he had informed the applicant later that day of his altercation with L.T. 14. On 28 January 2012 the applicant was also interviewed by the investigators. Recalling that he had been a candidate in Nîmes standing against F.P., L.T.’s partner, he explained that he had been unable to monitor the large number of comments published each week on the “wall” of his Facebook account. He indicated in particular that he had not written the impugned comments himself; he had not had the time to delete the comment by S.B., who had already done so; he had only become aware of L.R.’s comments when he was summoned to the gendarmerie, and he was prepared to delete them if the courts so requested; he consulted his Facebook “wall” every day, but did not often read the comments, which were too numerous given that he had more than 1,800 “friends” who could post comments 24 hours a day, and that he preferred to post content to inform his readers; L.T., whom he knew only by her partner’s surname, had not been mentioned by name and he had not been aware of her forename until she filed a complaint; L.T. had once personally taken him to task at a polling station; she should have telephoned him to ask him to delete these comments, which would have obviated the need for a criminal complaint, but her aim had clearly been to destabilise his candidature, as he was standing against her partner; instead, L.T. had gone to the hairdressing salon of S.B., whom she knew, to insult and threaten him in front of witnesses; lastly, he knew L.R. and S.B., activists in his party who did not hold any office in it. Referring to his foreign origins, he added that he had never displayed any racism or discrimination against anyone, and that he did not perceive any call to murder or violence in the disputed remarks, which he considered to be within the limits of any citizen’s freedom of expression. He emphasised that he had removed public access to his Facebook “wall” a few days before this interview, in order to limit access only to those who chose to be his friends and to avoid any further incidents that were not of his making. After the interview, the investigators were able to confirm that the applicant’s Facebook page was indeed no longer accessible to the public. 15. The applicant, together with S.B. and L.R., were summoned to appear before Nîmes Criminal Court in connection with the publication of the comments in question on the “wall” of his Facebook account, to answer charges of incitement to hatred or violence against a group, and in particular L.T., on account of their origin or the fact of belonging or not belonging to a specific ethnicity, nation, race or religion. The summons referred to section 23, first paragraph, section 24, eighth paragraph, and section 65-3 of the Law of 29 July 1881, and section 93-3 of Law no. 82-652 of 29 July 1982. 16. In a judgment of 28 February 2013 the Nîmes Criminal Court found the applicant, S.B. and L.R. guilty as charged and ordered each of them to pay a fine of 4,000 euros (EUR). The applicant was convicted under section 23, first paragraph, and section 24, eighth paragraph, of the Law of 29 July 1881, and section 93-3 of Law no. 82-652 of 29 July 1982. S.B. and the applicant were also ordered jointly to pay EUR 1,000 to L.T., as civil party, in compensation for non-pecuniary damage. However, the court did not see fit to order the sanction of electoral disqualification that had been called for by the public prosecutor. 17. In its judgment the court began by finding that the various offending comments had specifically defined the group concerned, namely “Muslims”. To equate that group with “drug dealers and prostitutes” who “reign supreme”, “riff raff who sell drugs all day long” or those responsible for “throwing stones at white people’s cars”, was clearly likely, on account of both the meaning and scope of the comments, to arouse a strong feeling of rejection or hostility towards people who belonged, or were assumed to belong, to the Muslim community. It further took the view that L.T. could be regarded as having been provoked by the impugned comments, in view of the references to her partner and the wording “Thanks [F.] and kisses to [L.]” which had had the effect of portraying them both as being responsible for the alleged transformation of “Nîmes into Algiers” and to arouse hatred or violence against them. 18. As regards the applicant, the court observed that it could be inferred from section 93-3 of the Law of 29 July 1982, as interpreted by the Constitutional Council in its decision of 16 September 2011, that the criminal liability of the producer of a website intended for communication to the general public, including access to messages posted by its users, would only be engaged in respect of such messages if it could be established that the producer had been aware of their content before they were posted or, if not, if he or she failed to act promptly to delete the messages at issue upon becoming aware of them. It dismissed the applicant’s arguments according to which he had not had time to read the comments and that he had not been aware of the comments by S.B. and L.R., on the grounds that: first, comments could only be posted on his wall after he had given access to his “friends” of which there were 1,829 at 25 October 2011, and that he was responsible for checking the content of the posts; second, he must have been aware that his page was likely to attract comments with a political, and thus essential polemical, content, and that he should have been all the more careful to monitor them. The court concluded that, having set up an electronic public communication service on his own initiative for the purpose of exchanging opinions, and having left the offending comments, which had remained visible as of 6 December 2011 according to the investigators, the applicant had failed to act promptly to put an end to their dissemination and was therefore guilty in his capacity as principal. 19. The applicant and S.B. appealed. S.B. subsequently withdrew his appeal. 20. In a judgment of 18 October 2013 the Nîmes Court of Appeal upheld the applicant’s conviction, reducing the fine to EUR 3,000. It further ordered him to pay L.T. EUR 1,000 in costs for the appeal proceedings. 21. In its reasoning the Court of Appeal held that the Criminal Court had been correct in finding that the comments clearly defined the group of people concerned, namely Muslims, and that to associate the Muslim community with crime and insecurity in the city of Nîmes was likely to arouse a strong feeling of rejection or hostility towards that group. Noting that the legislation cited in the proceedings concerned discrimination against a person or group of persons, it found as follows: “... the expression ‘kisses to Leila’, referring to [L.T.], and her connection with [F.P.], deputy mayor of Nîmes, who is described in the posts as having contributed to the abandonment of the town of Nîmes to the Muslims and thus to insecurity, is such as to associate her with the transformation of the town and thus to arouse hatred or violence against her; on the basis of these elements, the two posts in question constitute incitement to hatred or violence against a person, namely [F.P.]’s partner, [L.T.], on account of a presumption, because of her forename, that she belonged to the Muslim community ... ” 22. Referring further to the provisions of section 93-3 of the Law of 29 July 1982 and to the facts of the case, the Court of Appeal noted that there was no evidence that the applicant had been informed of the content of the comments before they were published, but that in his capacity as an elected member of the Front National and a public figure, he had “knowingly made his Facebook wall public and [had] therefore authorised his friends to post comments on it”. The court continued its reasoning as follows: “... by thus acting voluntarily he became responsible for the content of the comments published; his status as a political figure required him to be all the more vigilant; he cannot claim not to have been aware of the comments published on his website on 24 October, especially as he stated during the investigation that he consulted it every day; he did not, however, remove the comments, which were subsequently deleted by [S. B.] himself; alerted by the latter to the reaction of the civil party, he did not delete [L.R.’s] comment either, and the latter was still present on his website when consulted by the investigators on 6 December 2011; he cannot be regarded, as the court below rightly found, as having promptly put an end to the dissemination of the offending comments; he legitimised his position by explaining that such comments appeared to him to be compatible with freedom of expression; the fact they were left on his ‘wall’ was thus deliberate on his part; in the light of these elements, the court below was right to find the defendant guilty as charged and the judgment is upheld in respect of his conviction ...” 23. The applicant appealed to the Court of Cassation, relying in particular on Article 10 of the Convention. In a single ground of appeal, he argued that, for the offence to be made out, the comments had to contain encouragement or incitement to discrimination, hatred or violence, and not merely give rise to a strong feeling of rejection or hostility towards a group or person; that the mere fear of a risk of racism could not deprive citizens of the freedom to express their views on the consequences of immigration in certain towns or neighbourhoods, the comments having specifically deplored the transformation of the town of Nîmes by immigrants of North African origin and of the Muslim faith; that the summons to appear before the court had been unlawful; and, lastly, that the impugned remarks had in no way been directed at L.T. personally and had been distorted by the Court of Appeal. 24. In a judgment of 17 March 2015 the Court of Cassation dismissed his appeal, in particular with regard to Article 10 of the Convention, stating as follows: “... first, the offence of incitement ... is established where, as in the present case, the court finds that, by both their meaning and their scope, the impugned texts may arouse a feeling of rejection or hostility, hatred or violence, towards a group or an individual on account of a particular religion; ... second, since the above-mentioned text falls within the restrictions provided for in paragraph 2 of Article 10 of the European Convention on Human Rights, the principle of freedom of expression enshrined in paragraph 1 of that Article cannot be relied upon; ...” | This case concerns the criminal conviction of the applicant, at the time a local councillor who was standing for election to Parliament, for incitement to hatred or violence against a group of people or an individual on the grounds of their membership of a specific religion, following his failure to take prompt action in deleting comments posted by others on the wall of his Facebook account. |
19 | Right to know one’s origins and actions to establish a legal parent-child relationship | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, who was born on 28 March 1943 in Trieste, was abandoned by her mother at birth. 6. Her birth certificate records the following information: “Today, 28 March 1943, at 7.30 a.m., a woman, who did not consent to being named, gave birth to a baby girl.” 7. The applicant was placed first in an orphanage and subsequently with the Godelli family. When she was six years old she was adopted by Mr and Mrs Godelli under the simple adoption ( affiliazione ) procedure, by a decision of the Trieste Guardianship Judge of 10 October 1949. 8. At the age of ten, after learning that she had been adopted, the applicant asked her adoptive parents to tell her who her birth parents were, but did not receive an answer. On an unspecified date she discovered that a young girl living in her village, who had been born on the same day as her, had been abandoned and subsequently adopted by another family under the simple adoption procedure. The applicant suspected that she was her twin sister. The adoptive parents of the two girls prohibited any contact between them. 9. The applicant stated that she had had a very difficult childhood because she had been unable to find out her origins. 10. In 2006 the applicant requested information about her origins from the Trieste Register Office, in accordance with section 28 of Law no. 184 of 4 May 1983 (Adoption Act: “Law no. 184/1993”), the regulations governing simple adoption having been repealed by that Law. The Register Office gave the applicant her birth certificate, on which her birth mother’s name did not appear because she had not agreed to have her identity disclosed. 11. On 19 March 2007 the applicant lodged an application with the Trieste City Court, under Article 96 of Presidential Decree no. 396/2000, seeking rectification of her birth certificate. On 4 May 2007 the court declined jurisdiction and dismissed the application on the ground that section 28(5) of Law no. 184/1983 provided that where persons aged over twenty-five were seeking access to information about their birth parents the court with the appropriate jurisdiction was the Family Court. 12. On 5 June 2007 the applicant lodged an application with the Trieste Family Court. On 11 June 2008 the court dismissed her application on the ground that, under section 28(7) of Law no. 184/983, she was prohibited from gaining access to information about her origins because her mother, at the time of the applicant’s birth, had not agreed to have her identity disclosed. 13. The applicant appealed to the Court of Appeal, which dismissed her appeal by a decision of 23 December 2008. 14. The court observed, in particular, that the Family Court had stressed the fact that the applicant’s birth mother had requested to keep her identity secret and that it had therefore correctly applied section 28(7) of Law no. 184 of 1983, even though the applicant had been adopted under a simple adoption order, as simple adoption did nevertheless create a family status. The Court of Appeal found that section 28(7) was designed to guarantee respect for the mother’s wishes. The prohibition on allowing the applicant access to information about her origins also served a public interest. 15. The applicant did not lodge an appeal on points of law. | This case concerned the confidentiality of information concerning a child’s birth and the inability of a person abandoned by her mother to find out about her origins. The applicant maintained that she had suffered severe damage as a result of not knowing her personal history, having been unable to trace any of her roots while ensuring the protection of third-party interests. |
4 | Right to respect for family life | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants are Mr Vladimir Popov and Mrs Yekaterina Popov née Yakovenko, nationals of Kazakhstan, born in 1983 and 1982 respectively, and their two minor children, who were born in France on 7 April 2004 and 17 March 2007. A. Applicants’ arrival in France 6. The applicants were born in Kazakhstan. They were married on 18 June 2002. In the applicants’ submission they were repeatedly persecuted in their country on account of their Russian origin and their affiliation to the Russian Orthodox Church. On 9 May 2002 the applicant’s father was beaten up in the street and required treatment in hospital. The family filed a complaint and on 5 June 2002 the applicants received, at their house, a visit from unknown individuals of Kazakh origin who asked them to withdraw their complaint and threatened them with reprisals. On 15 July 2002 an incendiary device was thrown into their home through the window, starting a fire, and they were rescued by a neighbour. Following that incident, the applicant’s father left Kazakhstan on 16 August 2002. 7. On 29 September 2002, when the second applicant was returning home, Kazakh police officers stopped her in the street and questioned her about her father. They took her away and she was beaten up. They tried to shut her in a vehicle and threatened to rape and kill her. She managed to escape. The next day, she went to the casualty department in the town of Taraz to have her injuries recorded and treated. On 2 October 2002 her mother came home having also been beaten up by Kazakh policemen who were looking for her husband. After that incident they moved to the country. 8. On 28 November 2002 the second applicant was again assaulted. She had gone shopping and did not return until the next day, covered in bruises and blood. Several days later she lost the child she was carrying. She then decided to leave the country and entered France on 15 December 2002 on a two-week visa. After her departure, the applicant, who had filed a complaint, was assaulted by policemen on 10 March 2003. He spent several months in hiding but the authorities found him, confiscated his papers, and threatened to kill him if he did not withdraw his complaint. He too decided to leave the country and joined his wife in France on 19 June 2003. B. Asylum applications 9. The applicants each filed an asylum application with the French Office for the Protection of Refugees and Stateless Persons (OFPRA) and obtained residence permits. Their asylum applications were rejected on 20 January 2004 on the ground that their statements were “riddled with inconsistencies”, followed “a stereotyped pattern” and were “unconvincing”. On 31 May 2005 the Refugee Appeals Board dismissed their appeals. 10. On 12 January 2006, having learnt of the murder of the second applicant’s father, after his return to Kazakhstan, the applicants requested a fresh examination of their case by the OFPRA. On 19 January 2006 the OFPRA refused to re-examine the case. On 13 September 2006 the Appeals Board rejected their appeal on the ground that the new fact could not be regarded as established. 11. They subsequently applied for recognition as stateless persons, but the OFPRA rejected their request on 5 April 2007, on the ground, first, that they had not provided evidence that the Kazakh authorities had withdrawn their nationality and they could not lose that nationality purely of their own volition, and, secondly, that they held passports issued by their national authorities that were valid until 2012. On 25 April 2007 the applicants appealed against that rejection before the Nantes Administrative Court. They subsequently dropped their appeal, however, having obtained refugee status in the meantime (see paragraph 27 below). C. Refusal to grant residence permits together with an obligation to leave France and measures of administrative detention 1. First detention measure 12. On 21 June 2005 the Ardennes prefecture notified the applicants of its refusal to issue them with residence permits and directed them to leave the country within one month. 13. On 22 November 2005 Mr Popov was arrested during a vehicle check when he was found to be in the country illegally. On the next day he was issued with a removal order and placed in administrative detention in Charleville-Mézières. On 25 November 2005 the liberties and detention judge of the Charleville-Mézières tribunal de grande instance ordered the extension of his detention for fifteen days. On 9 December 2005 the detention was extended for a further fifteen days in order to “enable the enforcement of the removal measure”. 14. On 28 November 2005 the Châlons-en-Champagne Administrative Court rejected Mr Popov’s application for the annulment of the order for his removal to Kazakhstan. On 23 November 2006 the Nancy Administrative Court of Appeal upheld that judgment, finding that he had not adduced any conclusive evidence in support of his allegations that he had been persecuted in his country of origin. 15. The removal order against the first applicant was not enforced, however, and he was released from the detention centre, as no laissez-passer had been issued. 2. Second detention measure 16. On 11 October 2006 it was decided to place the applicants in administrative detention but the prefect of the Ardennes ordered them to reside at a specific address, pursuant to Article L. 513-4 of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA). Two attempts to remove the applicants failed as a result of the mobilisation of a support group. The family was thus released. 17. On 29 January 2007 the Ardennes prefecture rejected a new request for the issuance of a residence permit to the applicants. On the same day, a further decision was delivered imposing on them an obligation to leave the country. On 31 May 2007 the Châlons-en-Champagne Administrative Court dismissed their appeal against that decision. 18. On 25 June 2008 they again applied for residence permits. As the prefecture failed to respond, the applicants challenged the implicit rejection decision before the Nantes Administrative Court. However, having subsequently obtained refugee status, the applicants withdrew their complaint. 3. Disputed measures of administrative detention (a) First attempt to remove the applicants 19. On 27 August 2007 the applicants and their children, who were then under six months and three years, respectively, were apprehended at the home of the applicant’s mother, who was accommodating them, and taken into police custody. After a long wait, the Maine-et-Loire prefecture ordered their administrative detention in a hotel in Angers. On 28 August 2007 the applicants and their children were transferred to Charles-de-Gaulle airport pending their removal to Kazakhstan. However, the flight scheduled for the early afternoon was cancelled, without the prefecture having been informed, and the removal could not therefore be carried out. It was only in the evening that the applicants and their children were transferred, in a police van, to the administrative detention centre of Rouen ‑ Oissel. 20. That centre, even though it is mentioned on the list of centres that cater for families, does not have any real leisure or learning area. Whilst one wing is reserved for families and single women, the atmosphere there is distressing and stressful, with a lack of privacy and a high level of tension. Announcements via loud-speakers reverberate throughout the centre and exacerbate the feeling of stress. The Oissel centre, at the time of the applicants’ detention, was not equipped with the basic facilities for the detention of young children (it had metal beds with pointed corners, no cots, just a few toys in the corner of a room, etc.). The only outdoor area is a courtyard, concreted over and with wire netting over the top, and the bedroom windows are covered with a tight grill obscuring the view to the outside ... The eldest child refused to eat in the centre and showed signs of anxiety and stress. The parents had to negotiate with the police to recover their personal belongings, including the milk they had brought for the infant. They were only able to receive one short visit during their detention, as it was not easy to gain access to the centre. 21. On 29 August 2007 the liberties and detention judge of the Rouen tribunal de grande instance ordered the extension of the detention measure for fifteen days, after observing that the maintaining of a family in detention was not in breach of the decree of 30 May 2005 on administrative detention and holding areas and that their transfer to Rouen ‑ Oissel was not vitiated by any defect. The decision also mentioned the loss of the second applicant’s Kazakh nationality but it was found that this could not justify release, as the Administrative Court alone had jurisdiction to decide if that situation would have any consequences. On 30 August 2007 the Rouen Court of Appeal upheld the extension decision. (b) Second attempt to remove applicants 22. Having been held in the detention centre since 28 August 2007, the applicants were again transferred to Roissy Charles-de-Gaulle airport pending their removal on 11 September 2007, the flight being scheduled for the early afternoon. It did not go ahead, however. The applicants were not taken back to the Rouen-Oissel centre until the evening, without any measure of placement in a detention facility being decided at Roissy during that period. The prefect then applied to the Rouen liberties and detention judge to have the applicants’ detention extended for a further fifteen days, relying solely on the argument that the non-enforcement of the removal order could be attributed to the applicants themselves (CESEDA, Article L. 552-7). The applicants complained about the conditions of their detention and its length, arguing that the authorities had failed to prove that the length of the measure was strictly necessary. 23. On the same day the applicants submitted to the Court, under Rule 39 of the Rules of Court, a request for the suspension of the removal measure. The Court declined to indicate an interim measure in response to that request. 24. On 12 September 2007 the liberties and detention judge found that there was no evidence to show that the applicants had deliberately impeded their removal, because the documents concerning the circumstances of the attempt expressly stated that “no refusal to board the plane was recorded on 11 September 2007”, and he ordered their release, with the obligation to leave France being maintained. The prefect appealed against that decision but without seeking suspensive effect. The applicants were thus released from the detention centre. 25. On 14 September 2007 the Rouen Court of Appeal set aside the liberties and detention judge’s decision and extended the administrative detention measure for fifteen days, finding that it could be seen from certain documents in the file that the applicants had indeed prevented their removal (an e-mail from one of the border police officers mentioning the need for an escort to carry out the removal the next time, in view of Mrs Popov’s reaction). It had been found that the next flight with an escort for the applicants’ removal would not be available before 18 September 2007, and the prefect had not therefore shown a lack of diligence in organising the departure and limiting the length of the detention. He had thus been justified in seeking an extension of the administrative detention pending the organisation of a fresh removal. That decision was not enforced. D. Obtaining of refugee status 26. Before their arrest the applicants had filed a fresh request to be granted refugee status. In a decision of 6 September 2007 the OFPRA rejected the request on account of the very general nature of the alleged facts, finding that this, together with the unlikely claim of blackmail on the part of the Kazakh authorities, precluded the establishment of their veracity. The OFPRA further stated that as the allegation that the applicants had lost their nationality had not been corroborated, the request for re-examination had to be rejected. The applicants appealed against that decision. 27. On 16 July 2009 the National Asylum Tribunal granted the applicants refugee status, finding that the enquiries made by the Ardennes prefecture vis-à-vis the Kazakh authorities, in breach of the confidentiality of asylum applications, had exposed the applicants to danger in the event of their return to Kazakhstan, and that their loss of Kazakh nationality, in August 2007 and April 2008 respectively, whilst not per se constituting persecution, did not, however, preclude the granting of refugee status. IV. ALTERNATIVES TO DETENTION 64. According to the non-governmental organisation “International Detention Coalition”, the alternative of compulsory residence orders is used in France in only 5% of cases (see the report: “Survey on Alternatives to Detention of Asylum Seekers in EU Member States”). Many organisations, both governmental and non-governmental, advocate alternatives to detention. ... | This case concerned the administrative detention of a couple of asylum-seekers and their two children for two weeks pending their removal. The applicants argued in particular that their placement in detention had not been a necessary measure in relation to the aim pursued and that the conditions and duration of their detention had constituted a disproportionate interference with their right to a private and family life. |
716 | Right to strike | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant is a trade union based in London with a membership of more than 80,000 persons employed in different sectors of the transport industry in the United Kingdom. 7. Noting that in the domestic system industrial disputes are governed by very detailed legislative provisions, the applicant union raised two specific limitations on the statutory protection of strike action that it submitted were inconsistent with Article 11 of the Convention, each of the contested limitations being exposed by a separate set of facts. A. Strike-ballot notice: The EDF situation 8. The relevant set of facts relied on under this head involved the company EDF Energy Powerlink Ltd. (EDF), which was under contract to manage, operate and maintain the electrical power network used by London ’ s underground transport system. The RMT was one of several trade unions recognised by the company for the purposes of collective bargaining. In all, the company employed some 270 staff at three different sites, the biggest one being that at Tufnell Park with 155 employees. According to the applicant union, there were 52 RMT members there at the relevant time. The company would not have known which of its employees were members of a trade union, as it did not operate a system for deducting union subscriptions from staff wages. 9. Between June and September 2009, the applicant union and the company held several rounds of negotiation on pay and conditions of service. Dissatisfied with the company ’ s offer, it decided to embark on industrial action and on 24 September gave the requisite ballot notice to the company (see paragraph 18 below). The notice described the category of workers that would be voting on industrial action as “Engineer/Technician” and stated how many of such were based at each site. The following day the company wrote to the applicant union, stating that it did not recognise the term “Technician” (it categorised its workers in a more precise way: fitters, jointers, test - room inspectors, day testers, shift testers, OLBI fitters). It considered the ballot notice served on it was therefore not compliant with the relevant statutory provisions. The applicant union replied the following week, maintaining that the term it had used was sufficient to allow the company to know which employees were concerned, thereby meeting the purpose of the relevant provisions of law. 10. Following a further exchange of correspondence between the two sides, the company applied to the High Court for an injunction to restrain the applicant union from calling industrial action on the basis of the ballot. The injunction was granted by Blake J on 23 October 2009. 11. The judge did not accept the applicant union ’ s claim that the statutory requirements unduly restricted the exercise of its right to call industrial action, this same argument having been rejected by the Court of Appeal in the case of Metrobus Ltd v. Unite the Union ([2009] EWCA Civ 829). He also rejected the argument that since the procedure was still at an early stage it would be premature to put a stop to it. Instead he considered the risk of unlawful strike action to be sufficiently imminent to justify the injunction. Given the sector involved, the implications of a shutdown would be substantial, with widespread ramifications elsewhere. Addressing the question whether the applicant union had in fact given sufficient indication of the category of staff that would be balloted, the judge found that it had not, since the union ’ s members at Tufnell Park included persons working at different trades. The applicant union was not under an absolute duty, but instead a duty to do its reasonable best to provide sufficient information to the company. The fact that it used its own system of job classification was relevant but not decisive. Similarly, the fact that a union might not record or possess such information could be a highly material consideration, but not necessarily a decisive one. The applicant union had accepted that it was practicable for a union to supply the necessary information in the context of a small place of employment – it was therefore neither onerous nor unreasonable to require it to do so. Finally, the judge observed that while there was as yet no stated intention on the part of the applicant union to call a strike (the ballot not having taken place), there was a clear nexus between the failure to provide the requisite notice and the employer ’ s ability to respond to the situation either by making preparations for a work stoppage or seeking to persuade employees not to vote for industrial action. The applicant union ’ s failure to comply with the statutory requirements was therefore not a mere technical or immaterial breach. 12. Application for permission to appeal was refused on the papers on 24 November 2009. Renewed application for permission to appeal was refused on 26 January 2010, by which point the industrial dispute between the applicant union and EDF had already been resolved. 13. Following the granting of the injunction against the strike, the applicant union set about gathering the precise job descriptions of the workers concerned and included these in a fresh notice of a strike ballot, the result of which supported industrial action. This went ahead on dates in December 2009 and early January 2010. EDF made an improved offer on 7 January 2010 which was accepted by the union ’ s members and took effect as a collective agreement on 1 April of the same year. B. Secondary strike action: The Hydrex situation 14. The set of facts relied on under this head involved some RMT members who were employed in railway maintenance by Fastline Limited, a company that formed part of a group of companies known as Jarvis plc. Another company in the group, Jarvis Rail Limited, was engaged in rail engineering work. At the time, Fastline and Jarvis Rail Limited (“Jarvis”) employed approximately 1,200 persons in total, 569 of whom were members of the RMT. In August 2007, Fastline transferred part of its undertaking, comprising twenty employees, to another company known as Hydrex Equipment (UK) Ltd (“Hydrex”). These employees ’ existing terms and conditions were preserved by Hydrex, as required by law (Transfer of Undertakings (Protection of Employment) Regulations 2006). According to the applicant union, the employees involved were nonetheless concerned for their situation, as Hydrex workers were paid significantly less. It also appeared that trade unions had less influence in that company. 15. In March 2009 Hydrex ’ s management informed the ex-Jarvis employees that because of difficult market conditions it intended to reduce the level of their terms and conditions to that of other Hydrex staff. This meant a reduction in salary of some 36-40%, according to the applicant union. In the months that followed, the applicant union made representations to Hydrex on behalf of the employees concerned but without achieving any agreement. When the company indicated that it intended to proceed with its plan, the applicant union organised a strike ballot of the workers concerned (seventeen by that stage). They voted in favour of a strike, which took place between 6 November and 9 November 2009. During the strike, the participants organised pickets at a number of the sites where they normally carried out their work. This caused Hydrex to write to the applicant union to remind it that by law picketing could take place only at or near the employer ’ s premises and to warn that the union was exposing itself to liability for any economic loss incurred by the company due to this unlawful action (see paragraph 19 below). 16. A second strike was announced for 18-20 November 2009, but this was postponed when Hydrex indicated its willingness to resume discussions with the applicant union. This led to a revised offer which the union submitted to its Hydrex members, recommending that they accept it. The result of the vote was known on 21 December 2009. Nine votes were cast, all of them rejecting the Hydrex offer. According to the applicant union, its position was extremely weak given the very small number of its members in the Hydrex workforce. These were far too few for their strike action to have any appreciable effect on the company, whose activities had not really been disrupted at all. The applicant union considered that it would have been in a position to defend its members ’ interests much more effectively had it been able to mobilise its Jarvis members as well. The simple threat of a strike on this scale, and a fortiori an actual stoppage, would have exerted significantly more pressure on Hydrex to maintain existing terms and conditions. The applicant union stated that Jarvis employees would have been willing to strike in support of their colleagues at Hydrex. Instead, the Hydrex members had had to stand alone, and in the end had no option but to accept the new terms and conditions. They did so under protest. 17. According to the applicant union, neither Jarvis nor Hydrex exist any longer, having been put into administration in March 2010 and November 2011 respectively. The Hydrex undertaking was purchased by another company, which in turn sold it on in November 2012. | The applicant – a trade union with a membership of more than 80,000 persons employed in different sectors of the transport industry in the United Kingdom – complained about statutory restrictions on the right to strike and, in particular, the ban on secondary industrial action (strike action against a different employer aimed at exerting indirect pressure on the employer involved in the industrial dispute). |
272 | (Suspected) terrorists | I. PARTICULAR CIRCUMSTANCES OF THE CASE A. As regards Mr Fox and Mrs Campbell 8. The first and second applicants, Mr Bernard Fox and Ms Maire Campbell, are husband and wife but separated. Both reside in Belfast, Northern Ireland. 9. On 5 February 1986 they were stopped by the police in Belfast and brought to Woodbourne Royal Ulster Constabulary ("RUC") station, where a full search of the vehicle in which they were travelling was carried out. Twenty-five minutes after their arrival at the police station, at 3.40 p.m., they were formally arrested under section 11 (1) of the Northern Ireland (Emergency Provisions) Act 1978 ("the 1978 Act"; see paragraph 16 below). They were informed that they were being arrested under this section and that this was because the arresting officer suspected them of being terrorists. They were also told that they could be detained for up to 72 hours. They were taken to Castlereagh Police Office, where they were separately interviewed by the police on the same day between 8.15 p.m. and 10.00 p.m. 10. During their detention Mr Fox and Ms Campbell were asked about their suspected involvement that day in intelligence gathering and courier work for the Provisional Irish Republican Army ("Provisional IRA"). They were also questioned about their suspected membership of this organisation. According to the Government, the information underlying the suspicion against them was already known to the police when they stopped their car. No charges were brought against either applicant. The first applicant was released at 11.40 a.m. on 7 February 1986 and the second applicant five minutes later. Excluding the time taken to bring them to the police station, the first applicant had thus been detained 44 hours and the second applicant 44 hours and 5 minutes. 11. On being arrested both Mr Fox and Ms Campbell were shown the notice drawn up for persons held in police custody which explained their rights. They were not brought before a judge or given any opportunity to apply for release on bail. On 6 February they both initiated proceedings for habeas corpus but were released before the applications came on for hearing before a judge. 12. Mr Fox had been convicted in 1979 of several explosives offences, for which he received concurrent sentences of 12 years ’ imprisonment, and of belonging to the IRA, for which he received a concurrent sentence of 5 years. Ms Campbell received an 18 months ’ suspended sentence in 1979 after being convicted of involvement in explosives offences. B. As regards Mr Hartley 13. The third applicant, Mr Samuel Hartley, resides in Waterfoot, County Antrim, Northern Ireland. On 18 August 1986 he was arrested at his home, in his parents ’ presence, at 7.55 a.m. He was informed at the time of his arrest that he was being arrested under section 11 (1) of the 1978 Act as he was suspected of being a terrorist. He was taken to Antrim police station where, on arrival, he was shown a copy of the notice for persons held in police custody. He was interviewed there by the police between 11.05 a.m. and 12.15 p.m. 14. Mr Hartley was suspected of involvement in a kidnapping incident which had taken place earlier that month in Ballymena when a young man and woman were forcibly taken away by masked armed men. Those involved in the kidnapping were thought to have connections with the Provisional IRA. The motive behind the kidnapping was believed to have been an attempt to force the young woman to retract an allegation of rape made the previous year as a result of which a person had been convicted and sentenced to 3 years ’ imprisonment. The Government said at the Commission hearing that their record of the first interview with Mr Hartley showed that he was questioned about terrorist activities in a specific small, geographical area, and about his involvement with the Provisional IRA. The record is not more detailed than that, but the area in question was where the kidnapping took place. The applicant Hartley denied any involvement in the kidnapping incident but he has not contradicted the Government ’ s assertion that he was asked about it. No charges were brought against him. He was released on 19 August 1986 at 2.10 p.m. after 30 hours and 15 minutes in detention. He brought no proceedings in connection with his arrest or detention. | The applicants were arrested in Northern Ireland by a constable exercising a statutory power (since abolished) allowing him to arrest for up to 72 hours anyone he suspected of being a terrorist. |
621 | Freedom of expression in the employment context | THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1974 and lives in Budapest. 7. From 2006 the applicant worked as a human resources management expert at Bank O. His tasks included the analysis and calculation of salaries and staffing management. At the material time the applicant ’ s employer initiated a reform of its remuneration policy, in which the applicant was also involved. 8. According to the code of ethics of the bank, the applicant was under an obligation not to publish formally or informally any information relating to the functioning and activities of his employer. 9. In January 2011 the applicant, together with Ms A.N., started a knowledge-sharing website for human resources management-related publications and events. The website also contained a presentation of the applicant with his photograph, describing him as an expert in human resources management and indicating that he worked in the human resources (HR) department of a large domestic bank, without mentioning his employer. 10. In January 2011 two articles were published on the website. The article “ New year, new strategy – Really new? Really a strategy?” was written by Ms A.N. and contained the following passage: “I was called today in connection with a conference and was asked some very exciting and inspiring questions. How does one prepare a HR strategy? What is the role of HR strategy? Do you have to employ HR professionals to create a HR strategy? Do you know how to link business objectives to HR strategy? We could say that this is a boring issue and these are boring questions, particularly at the beginning of the year, when every portal overwhelms us with articles like homework on this topic, in a partly false belief that creating such a strategy is connected to the beginning of the calendar year in every company. The subject is painfully topical, at the same time. This is only my opinion, not the result of a representative survey or international research carried out by British scientists. Simply, I think that some HR professionals should be taught as regards strategy that the connecting of business objectives and HR strategy is not clear in all organisations. (The reasons are various, but discussing them would use up my ‘ character limit ’ by itself, so I will not cover this issue.) We read often about problems regarding ‘ how HR could be a strategic partner ’. This approach is always surprising to me. It is rather like a ‘ learn Japanese in two weeks ’ course. Both learning Japanese and building strategic partnerships are the result of long-term processes. A responsible professional should not give the impression that one article or one blog entry, or concentrating for five minutes a day, is enough. The process itself cannot be done away with. A detailed knowledge of the organisational structure, the education system and recruiting policy is not enough. We have to be able to break away from the interests of our professional field if the interests of the organisation so require. We have to know the business, the market, our competitors, our service and our products. If someone complains that ‘ he is not taken seriously by the management ’, I always think about learning Japanese. None of this should be an aim in itself, but the result of hard professional work .. (I would point out that unfortunately we have met people whose cousins worked in a place where even this was unable to achieve the desired outcome.)” 11. The second article “ Sweet 16%” was written by the applicant and contained the following passage: “How sweet is that big spoonful of jam? – Motivation in the light of tax changes A topic which concerns everybody today, and which led us to take the fresh fruit jar off the shelf too: as of 2011, according to the Personal Income Tax Act, all income payable as salary is subject to the 16% tax rate. The numbers indicate that in reality the only people who will benefit from this are those whose monthly earnings exceed HUF 300,000, excluding family allowances. This amount exceeds the current average income level by far. We can see in the enclosed table how net payments will change from 2011. The majority of companies plan to modify their remuneration policies and the level of wage increases, the latter being expected to fall in those jobs where tax change results in positive net income. The other thing that caused my thoughts to race is that tax is payable after rewards and bonuses, just as it is payable after salary. This may also mean that bonuses will gain in importance. Certainly, I have to say from a professional point of view that rewarding achievements by means other than fixed wages results in achievements and their fluctuation becoming more traceable. On the other hand, this trend runs counter to the professional efforts of recent years aimed at restricting the proportion of bonus payments and fixing remuneration systems in a more responsible manner. Further unanswered questions leave a bitter taste in our mouth after the first sweet mouthful. Following the changes, how will all this follow inflation as regards real net salaries? How committed and motivated will employees remain in the light of the changes? Will it matter to employees whether changes are decided at State or company level? What impact will different rates of salary increase and wage development have? My opinion may be surprising in certain respects and I have some further exciting comments to make as well, which I would like to share with you in the course of our discussions. So I look forward to your opinions and comments.” 12. The applicant ’ s employment was terminated on 11 Februar 2011 for breaching his employer ’ s confidentiality standards. The bank argued that the applicant ’ s conduct in providing educational services in the field of human resources management had infringed its economic interests. Moreover, given the nature of his position, the applicant was in possession of information whose publication would have interfered with the bank ’ s business interests. 13. The applicant instituted proceedings before the Budapest Labour Court challenging his dismissal. 14. On 26 June 2012 the Budapest Labour Court dismissed his action, finding that the website and the content of the articles constituted a breach of the duty of mutual trust. It pointed out that the applicant operated the website and that the question whether he was the author of the impugned articles was irrelevant for the court ’ s assessment. It also found it established that the applicant ’ s conduct had jeopardised Bank O. ’ s business interests, in breach of Article 3 § 5 of the Labour Code (see paragraph 20 below), irrespective of whether actual damage had occurred. The court found that the applicant had revealed information relating to his employment, since the knowledge shared on the website had necessarily been acquired during his employment at Bank O. 15. The applicant appealed, arguing that he could not be held liable for the publication of articles written by others and that he did not operate the website. Furthermore, he had not sought to reveal the business secrets of his employer but to engage in professional discussions. 16. On 26 March 2013 the Budapest High Court upheld the applicant ’ s appeal. The High Court considered that it was irrelevant who had written the impugned articles, since the applicant featured as an expert on the website and was thus necessarily associated with the articles. Nonetheless, the articles had discussed human resources policies in general terms that could not be linked to Bank O. The High Court also found that the knowledge-sharing element of the website did not mean that the applicant had intended to reveal information acquired through his work. It concluded that the applicant ’ s conduct had not jeopardised his employer ’ s business interests and that his dismissal for breach of trust had therefore not been lawful. 17. On 3 September 2014 the Kúria upheld a request for review made by the bank, endorsed the findings of the first-instance court and observed that the applicant ’ s conduct could endanger his employer ’ s business interest (see paragraph 14 above). It concluded that the similarities between the website and the applicant ’ s tasks at his workplace demonstrated that he had provided information about current policies at his workplace and that he had intended to share knowledge acquired there about issues relevant to his tasks, in breach of his employer ’ s code of ethics. 18. The applicant lodged a constitutional complaint, maintaining that his activities concerned the exercise of his right to freedom of expression, which had not been taken into consideration by the courts. 19. The decision of the Constitutional Court, issued on 26 June 2017, contained the following passages: “... Article 8 § 3 of the Labour Code, as currently in force, explicitly mentions the restriction on the right to freedom of expression. Accordingly, ‘ the employee may not exercise his or her right to freedom of expression by gravely infringing or jeopardising the employer ’ s reputation and justified business and organisational interests ’. Furthermore, Article 103 § 3 of the former Labour Code, as well as Article 8 § 4 of the current one, prohibits the publication of any information which the employee acquires through his or her employment and whose publication would have negative consequences for the employer or any third person. These general employment obligations may justify the restriction of employees ’ right to freedom of expression, even if it is exercised outside the workplace and working hours. ... Thus, in employment the right to freedom of expression may be subject to tighter restrictions and it does not protect material published by employees if the sole intention is to convey comments tarnishing their employer ’ s dignity and business reputation or its market and commercial valuation, or to convey injurious comments concerning the employer ’ s private or family life. The freedom does not extend to opinions that are published with the aim of destroying business or causing any other harm. Furthermore, an employee ’ s opinions are not protected by the right to freedom of expression if their aim is to criticise, question or undermine the values and value-based policies of his or her employer. This also flows from the secrecy and duty of loyalty characterising employment relations, according to which the employee contributes effectively to the achievement of the employer ’ s goals. The expression of opinions infringing the duty of loyalty cannot entail the protection of fundamental rights based on the general clauses of labour law. At the same time, freedom of expression is at the core of a democracy based on the rule of law. Therefore, the freedom of those who seek to exercise their right in the context of employment may only be restricted in compliance with and while respecting the values of the Fundamental Law, based on the necessity and proportionality test applicable to the restriction of fundamental rights. ... The right to freedom of expression of employees may be restricted if the restriction is absolutely necessary for a reason related to the person ’ s employment and if it is proportionate to the aim pursued. ... Therefore, when assessing the protection of opinions, it is necessary to consider (1) whether the expression in question relates to a matter of public or professional interest, (2) whether the expression is a statement of fact or a value judgment, (3) whether the expression caused damage or negatively influenced the employer ’ s reputation, (4) whether the person who exercised his or her right to freedom of expression acted in good faith, (5) the gravity of the measure applied by the employer ... Based on the above, in the present constitutional complaint the Constitutional Court will examine whether the conduct and expression in question are protected under Article IX (1) of the Fundamental Law, that is to say, whether in the present case there is an issue concerning fundamental rights. According to the settled practice of the Constitutional Court it is necessary to examine whether the opinion has public characteristics and is linked to a public interest, that is to say, whether it contributes to a debate on public matters. In this context the manner and circumstances of publication, the subject-matter and context of the opinion, the type of medium used, the event underlying the expression, and as further elements the content, style, topicality and aim of the expression, need to be assessed ... Based on the facts as established in the course of the labour proceedings, the Constitutional Court finds that the conduct in question related only to questions concerning human resources management, that is to say questions concerning a specific profession and addressing professionals. The aim of the website and of the articles published was “knowledge-sharing”, targeting a limited circle, namely the human resources experts of competing companies. ... Having regard to the above, the Constitutional Court finds that the conduct complained of in the labour proceedings, the content of the website and the articles are mainly of a professional nature and do not disclose any public link which would enable the conduct to be characterised clearly as a discussion of matters of public interest. Therefore, the conduct complained of in the labour proceedings and the published articles are not protected by the right to freedom of expression enshrined in Article IX (1) of the Fundamental Law. Given that the conduct in question is not protected by the fundamental right to freedom of expression, its restriction is not to be assessed on the basis of the labour-law standards prohibiting the infringement of the employer ’ s legitimate business interests. Accordingly, in the present case the Constitutional Court dismisses the constitutional complaint for lack of any connection between the fundamental right relied on and the standards applicable in labour proceedings. ...” | This case concerned the applicant’s dismissal from his job in human resources in a bank owing to his involvement with a website devoted to HR issues. |
968 | Internet | I. THE CIRCUMSTANCES OF THE CASE 4. The first applicant is the editorial board of Pravoye Delo, a newspaper officially registered in Odessa in May 2000. The second applicant is the editor - in - chief of Pravoye Delo. He lives in Odessa. 5. At the material time Pravoye Delo was a local newspaper published three times a week with a circulation of 3,000 copies. It published reports and material on political and social matters in Ukraine and, in particular, the Odessa Region. Due to lack of funds, the newspaper often reprinted articles and other material obtained from various public sources, including the Internet. 6. On 19 September 2003 Pravoye Delo published an anonymous letter, allegedly written by an employee of the Security Service of Ukraine, which the second applicant ’ s colleague, Ms I., had downloaded from a news website. The letter contained allegations that senior officials of the Odessa Regional Department of the Security Service had been engaging in unlawful and corrupt activities, and in particular that they had connections with members of organised criminal groups. One of the paragraphs of the letter read as follows: “ ... The Deputy Head of [the Odessa Regional Department of the Security Service] [ I. T. ], a close friend and assistant of the Head of the Department P., established ‘ business ’ contacts with [the organised criminal group] of [ A. A. ] ... A member of [the organised criminal group ] G. T., an agent of [ A. A. ], who is in charge of the main areas of activities of the gang [is] a coordinator and sponsor of murders, [he] meets with [ I. T. ] and resolves financial issues for the top officials of the Department of [the Security Service] in the Odessa Region ... ” 7. The letter was followed by these comments, prepared by Ms I. on behalf of the editorial board: “When publishing this letter without the knowledge and consent of the editor - in ‑ chief, I understand that I may not only face trouble ... but I may also create problems for the newspaper. Because, if this letter is [ misinformation], then [the media], in which it appears may be endangered. On the other hand, if this letter is genuine, then its author faces a higher risk. Besides, given that this anonimka [anonymous letter] has already been published on the Odessa website Vlasti.net (to which we refer, in accordance with their requirement), we have the blessing of God [to publish it]. We are proceeding on the understanding that, in accordance with the Act on Democratic Civil Control over the Military Organisation and Law- Enforcement Organs of the State, we are carrying out civil control and, under section 29 of the Act, we would like to receive open information concerning the facts described in this letter from the relevant authorities. Moreover, [it is to be noted] that the Department [ of the Security Service] in the Odessa Region did not react to an analogous publication in the Top Secret [newspaper] ... I remind [you] that the [ Pravoye Delo ] newspaper ... is wide open for letters in reply and comments from all interested agencies.” 8. In October 2003 G. T., who lived in Odessa at the time and was the President of the Ukraine National Thai Boxing Federation, brought defamation proceedings in the Prymorskiy District Court of Odessa against the applicants. G. T. alleged that the information in the 19 September 2003 issue of Pravoye Delo concerned him, and that it was untrue and had damaged his dignity and reputation. He asked the court to order the applicants to publish a retraction and an apology and to pay him compensation for non-pecuniary damage in the amount of 200,000 Ukrainian hryvnias (UAH) [1]. 9. The applicants first argued before the court that they were not responsible for the accuracy of the information contained in the material that they had published, as they had reproduced material published elsewhere without making any modifications. The publication contained a reference to the source of the material and was followed by comments explaining the editors ’ position regarding the material and inviting comments from the persons and bodies concerned. The applicants also submitted that if the court were to award G. T. the amount of compensation he had claimed, the newspaper would become insolvent and would have to close. 10. Subsequently, at a hearing on 24 April 2004, the second applicant stated that the article was not about the claimant and that its wording did not necessarily establish that it was a particular “ G. T. ” who was being referred to. 11. On 7 May 2004 the court ruled against the applicants. It found that the information at issue did concern the claimant, who was a public figure involved in public activities in the Odessa Region and had represented Ukraine at sports events abroad in his capacity as President of the Ukraine National Thai Boxing Federation. In that context, the court noted that this had not been contested by the applicants in their initial submissions and that the publication was about the activities of the Security Service in the Odessa Region. The court further held that the content was defamatory and that the applicants had failed to prove that it was true. It found no grounds on which to exempt the applicants from civil liability under section 42 of the Press Act, as the Internet site to which they had referred was not printed media registered pursuant to section 32 of the Press Act. 12. The court ordered the first applicant to publish a retraction of the following content of the publication: “ ... A member of [the organised criminal group ], G. T., an agent of [ A. A. ], who is in charge of the main areas of activities of the gang [is] a coordinator and sponsor of murders, [he] meets with [ I. T. ] and resolves financial issues for the top officials of the Department [ of the Security Service] in the Odessa Region ... ” 13. The court further ordered the second applicant to publish an official apology in the newspaper. 14. In determining the amount of compensation to be paid to the claimant, the court considered the submissions of the latter and the information concerning the financial situation of the newspaper. It noted that its gross annual income was about UAH 22,000 [2] and found it reasonable to order the applicants jointly to pay G. T. UAH 15,000 [3] for non ‑ pecuniary damage. The applicants were also ordered to pay to the State Budget UAH 750 [4] in court fees. 15. The applicants appealed. They maintained the submissions they had made before the first-instance court and also contended that the editorial board had not been registered as a legal entity pursuant to the relevant regulations on registration of the media and that the second applicant had not been appointed as editor-in-chief in accordance with the law. Thus, in their view, they could not take part in the proceedings. 16. The applicants further argued that invoking their civil liability was contrary to section 41 of the Press Act and section 17 of the Act on State Support of Mass Media and Social Protection of Journalists, stating that they had not intended to defame G. T. and that, by publishing the material, they had wished to promote public discussion of the issues raised in that material which were of significant public interest. According to them, it was their duty to disseminate the material and the public had a right to receive it. 17. The second applicant also submitted that he had not authorised the publication of the material at issue and that the legislation did not provide for an obligation to apologise as a sanction for defamation. 18. On 14 September 2004 and 24 February 2005, respectively, the Odessa Regional Court of Appeal and the Supreme Court rejected the applicants ’ appeals and upheld the judgment of the first-instance court. 19. On 3 July 2006 the applicants and G. T. concluded a friendly-settlement agreement, pursuant to which the latter waived any claim in respect of the amount of compensation awarded in the judgment of 7 May 2004. The applicants, for their part, undertook to cover all the costs and expenses relating to the court proceedings and to publish in Pravoye Delo promotional and informational materials at G. T. ’ s request, the volume of which was limited to the amount of compensation under the judgment. 20. In 2008 the applicants discontinued publishing Pravoye Delo. | This case mainly concerned the lack of adequate safeguards in Ukrainian law for journalists’ use of information obtained from the Internet. In particular, defamation proceedings had been brought against a local newspaper and its editor-in-chief following their publication of a letter downloaded from the Internet alleging that senior local officials were corrupt and involved with the leaders of an organised criminal gang. The domestic courts ruled against the applicants and ordered them to publish an apology and pay 15,000 Ukrainian hryvnias (approximately EUR 2,394), eventually waived via a friendly settlement. |
791 | Conditions of detention | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1957 and lives in Jelgava. 6. It appears that in an unrelated incident on 23 June 2000 the applicant broke his spine. He underwent surgery to have a metal implant inserted into his back for support. It appears that following the operation he could move unaided. He was certified as being Category 2 disabled. 7. On 17 December 2002 a note was made for the first time in the applicant’s medical records that he could not move without a wheelchair. 8. On 23 January 2003 the applicant was certified as being Category 1 disabled (the most severe level of disability). His disability was reassessed on two further occasions, 13 February 2004 and 22 February 2006. A. The applicant’s arrest 9. On 10 September 2001 at approximately 3 p.m., two traffic police officers, E.Š. and O.Ž., attempted to stop the applicant, who had exceeded the speed limit in Rīga and appeared to be driving under the influence of alcohol. He failed to stop on their instructions and continued driving. The police officers set out to follow him out of the city onto the Rīga-Jelgava motorway. They eventually overtook the applicant’s car and pulled it over to the side of the road until it came to a halt. Both vehicles were by then next to an apartment building on a residential street in Jaunolaine. 10. According to the Government, both police officers then saw a firearm in the applicant’s inner left jacket pocket, and proceeded to push him to the ground using unspecified restraint techniques ( speciālie cīņas paņēmieni ) and handcuffed him. They then called the local police to the scene to collect evidence. The applicant was breathalysed on the spot and then taken to a police station in Olaine. 11. The applicant did not agree with the Government’s version of events concerning his possession of a firearm. He submitted that the police officers had kicked him in the back several times, hurting him badly, before finding out that he was disabled. He alleged that when he had invited them to verify his documents, which were in his wallet in his car, the officers had planted a firearm on him in an attempt to evade criminal liability for having assaulted a disabled person. The applicant denied having had the firearm. He maintained that if he had been keeping a firearm, he would have disposed of it during the car chase. B. The applicant’s state of health 1. Public hospital 12. On 11 September 2001 the applicant was taken to a public hospital in Rīga ( Rīgas 1. slimnīca ), where an X-ray of his spine was carried out. His state of health was described as being “post-spinal fixation”. The fixing screws that held the metal implant supporting his spine in place had been broken. He also suffered from a spinal contusion and lower back pain. Lastly, it was noted that a consultation with a specialist was necessary. 2. Specialist hospital 13. On 11 September 2001 at 5.40 p.m., the applicant was transferred to a specialist traumatology and orthopaedics hospital in Rīga ( Traumatoloğijas un ortopēdijas slimnīca ). He told a specialist that the day before he had been fleeing from the police. Some officers had stopped him, had pulled him out of the car and had pushed him to the ground, which had led to his back making a hyperextensive movement, in other words, it had bent too far backwards. The applicant complained of lower back pain on his right side and said that he was unable to move his right leg because of the pain. Following an examination by a specialist, the applicant was diagnosed with the following: i) a hyperextension injury and contusion to the lower back; ii) a transverse process fracture (resulting from rotation or extreme lateral bending) to the L3 vertebra, iii) a compression fracture (flexion fracture pattern) to the L1 vertebra, previously fused by transperpendicular fixation surgery, the metal implant having become dislodged and screws in the Th12 and L3 vertebrae having been broken, and iv) intoxication. An X ‑ ray revealed that the fracture to the applicant’s L1 vertebra had been fused and fixated with rods and eight screws. Four screws in the applicant’s Th12 and L3 vertebrae had been broken. The metal implant had become dislodged. While at the hospital, the applicant received various types of medication. 14. On 12 September 2001 the applicant was discharged from the hospital for outpatient treatment with recommendations to continue taking medication and to wear a fixating belt. 3. Prison Hospital 15. On 12 September 2001 at 7.15 p.m., the applicant was transferred to Rīga Central Prison. Upon admission, he was examined by a doctor, who noted the diagnosis of the specialist hospital and placed the applicant in the surgical ward of the Prison Hospital located within the grounds of the prison. The applicant’s overall state of heath was described as satisfactory. 16. On 14 September 2001 the applicant complained of severe lower back pain and said that he could not lift his right leg or walk. His state of health was described as moderately severe. A procaine blockade (an anaesthetic which affects the peripheral nervous system) was administered to him. 17. On 19 September 2001 a further procaine blockade was administered to the applicant. 18. On 21 September 2001 his pain lessened and he could stand up and walk. On the same day an X-ray was carried out and no injuries other than those noted by the specialist hospital (see paragraph 13 above) were found. An X-ray of his lungs was also carried out, the results of which were clear. 19. On 25 September 2001 the applicant had cold-like symptoms and complained of lower back pain. He also said that he could not feel his right thigh. Treatment was prescribed to him for an acute respiratory illness. 20. On 26 September 2001 an infiltration in the applicant’s right hip was detected. His fever had been caused by the post-injection infiltration. Over the following two days, the applicant was consulted by a neurologist and a psychiatrist. 21. On 28 September 2001 a surgical procedure was carried out to relieve the applicant’s pain, which continued to persist after that date and until 9 October 2001. On the latter date the applicant’s overall state of health was described as satisfactory and he could walk again. 22. On 10 October 2001 the applicant was discharged from the Prison Hospital, but remained in custody. C. Investigation into the events of 10 September 2001 23. On 10 September 2001, after the applicant was taken to the police station in Olaine, both traffic officers were questioned by an inspector of the Olaine police within the criminal proceedings concerning the firearm charge (see paragraph 33 below). 24. E.Š. was the first to make a statement, on 10 September 2001 between 10 and 10.30 p.m. His version of events was as follows. In a residential area in Jaunolaine, he had taken the applicant by the hand and had made him step out of the car. Both he and his colleague had seen a firearm in the applicant’s inner left jacket pocket. They had both proceeded to push him to the ground and to handcuff him. His colleague, O.Ž., had taken the firearm out of the jacket pocket. They had then called the local Olaine police, who had arrived and had confiscated the firearm. The local police had also found a bullet in the car the applicant had been driving. Lastly, the police officers breathalysed the applicant and found that he had been under the influence of alcohol. 25. In addition, in a report to his superior, which was drafted on the same day, E.Š. noted that restraint techniques had been used on the applicant because a firearm and bullets had been found in his inner left jacket pocket. 26. O.Ž. made his statement on 10 September 2001, between 10.40 and 11.15 p.m. His evidence was very similar to that of his colleague. He also stated that they had both seen the firearm in the applicant’s jacket and had pushed the applicant to the ground and had handcuffed him. O.Ž. had then taken the firearm and the local police had confiscated it. He also noted that the applicant had been under the influence of alcohol. He had found out later that the local police had also found a bullet in the car. 27. In addition, in a report to his superior, which was drafted on the same day, O.Ž. noted that when he had seen the firearm, he had taken it out of the applicant’s jacket. He added that the applicant had been handcuffed for around forty minutes as he had been behaving aggressively. Lastly, he mentioned that the applicant had agreed to be breathalysed on the spot. 28. The applicant was first questioned by the inspector of the Olaine police on 11 September 2001 at 9.50 a.m. He submitted that he had been ill ‑ treated upon his arrest and said that he was not in a position to make a statement because he felt severe back pain. He mentioned the fact that he had previously undergone spinal surgery. At 10.15 a.m. the interview was terminated and the applicant was then taken to hospital (see paragraphs 12 et seq.). 29. During his subsequent questioning by prosecutor J.D., on 21 September 2001 (see paragraph 37 below), the applicant maintained his allegation that he had been ill-treated upon arrest. 30. On 9 November 2001 an expert commenced the forensic medical examination, which had been ordered on 10 October 2001 by prosecutor J.D. It appears that it was completed on 15 November 2001, when report no. 46-4528 was issued. The examination was based on the applicant’s medical records from the public and specialist hospitals, as well as his records from the Prison Hospital (see paragraphs 12 to 22 above). It appears that the applicant was not examined in person. The expert concluded that the applicant had not sustained any injuries. In reaching that conclusion, the expert noted that she had not taken into account the first diagnosis made by the specialist hospital that the applicant had “a hyperextension injury and contusion to the lower back” (see paragraph 13 above) because: “[I]t [was] not confirmed by objective clinical symptoms or by visible bodily injuries, but rather was based on the applicant’s complaints relating to the dislodging of the metal implant following osteosynthesis surgery and [the dislodging] cannot be regarded as bodily injuries on the grounds of instructions concerning the forensic medical examination.” 31. She had also not taken into account the second diagnosis made by the specialist hospital that the applicant had “a fracture to the L3 vertebra” (see paragraph 13 above) as it had been an old fracture and had not been connected to the events of 10 September 2001, a fact confirmed by a specialist’s opinion of 15 November 2001. It appears that the results of the opinion were not made available to the applicant. 32. On 27 November 2001 prosecutor J.D. decided to refuse the institution of criminal proceedings. Her decision was worded as follows: “The materials regarding [the applicant’s] complaint that officers O.Ž. and E.Š. had assaulted him during his arrest on 10 September 2001 have been separated from the criminal case file. In their witness statements, O.Ž. and E.Š. categorically denied that they had assaulted the applicant. None of the officers had assaulted him. Furthermore, according to forensic report no. 4528, dated 9 November 2001, no injuries were found on the applicant’s body. The fracture to the applicant’s L3 vertebra was not taken into account for the purposes of the forensic report, because it was old and was not connected to the injuries of 10 September 2001. In the circumstances, the actions of E.Š. and O.Ž. do not contain the elements of a criminal offence and there is no basis on which to institute criminal proceedings. Considering the above, and in accordance with section 5 and section 212 of the Code of Criminal Procedure, it is decided: 1. to refuse to institute criminal proceedings into the applicant’s allegations of assault on 10 September 2001; 2. to notify the applicant of this decision.” D. The criminal proceedings against the applicant 1. Firearm charge 33. On 10 September 2001 the Olaine police instituted criminal proceedings against the applicant in connection with the illegal acquisition and storage of a firearm. It appears that while at the police station, the applicant was breathalysed for a second time. 34. On the same date an initial forensic examination of the firearm took place, which had been ordered by the Olaine police. Three further forensic examinations followed in the same month. The examination reports included a note stating that the firearm and a bullet had been confiscated from the car the applicant had been driving. The examinations revealed that there had been no fingerprints on the firearm and that the applicant’s jacket had not contained any traces of firearm oil, which had been found on the firearm. 35. On 12 September 2001 the Rīga Regional Court ( Rīgas apgabaltiesa ) remanded the applicant in custody. He appealed against the order to no avail. 36. On 18 September 2001 the case file was sent to the relevant prosecutor’s office in Rīga ( Rīgas rajona prokuratūra ). 37. On 21 September 2001 prosecutor J.D. charged the applicant with the illegal acquisition and storage of a firearm. He denied the charge, saying that the police officers had ill-treated him and had then planted the firearm on him. 38. On 8 October 2001 a confrontation took place in which prosecutor J.D. cross-examined the applicant and both traffic police officers; the applicant’s counsel was present. O.Ž maintained statements he had previously made on 10 September 2001 (see paragraph 26 above). The applicant submitted that during his arrest, O.Ž. had pulled him out of the car by his hand, had pulled his hands behind his back and had pushed him to the ground. When he had tried to turn around, an officer had started kicking him in his shoulders and arms. One of the officers had put his feet on his back. He alleged that he had been kicked some five or six times. He had told the officers about his disability and had invited them to verify his documents, which had been in his car. One of the officers had gone to his car and had found his disability certificate. The other officer, who had remained with his feet on his back, had then kicked him again. Afterwards, he had been ordered to stand up and put on his jacket, which had prior to that been in his car. He had been ordered to empty his pockets and had then felt an object similar to a firearm in his inner left pocket, which he had taken out and immediately dropped on the ground. The officers had then asked him if he had found everything, and he had noticed another object of a rectangular shape in the same pocket, which he had also dropped on the ground, which had turned out to be an ammunition clip ( aptvere ). He had then been handcuffed, breathalysed and handed over to the Olaine police. 39. On 8 October 2001 prosecutor J.D. cross-examined the applicant and E.Š, who maintained statements he had made on 10 September 2001 (see paragraph 24 above); the applicant’s counsel was present. The applicant submitted that during his arrest, he had been kicked some five or six times in his back and arms, and that one of the officers had been standing or kneeling on his back while the other officer had handcuffed him. While in this position, he had made them aware of his disability and one of the officers had proceeded to verify his documents. After some time, they had made him stand up and put on his jacket, which had prior to that been in his car. The officers had searched him and he had felt an object similar to a firearm in his inner left pocket, which he had taken out and immediately dropped on the ground. The officers had then asked him if he had found everything and he had noticed another object of a rectangular shape in the same pocket, which he had also dropped on the ground. 40. On 10 October 2001 prosecutor J.D. decided to order a forensic medical examination to determine the injuries sustained by the applicant. In her decision, she noted that the applicant’s statements suggested that the police officers had pulled him out of the car, had pushed him to the ground and had kicked him no less than five times in the back, shoulders and arms. In addition, she noted that the applicant had submitted that one of the officers had been standing on the exact spot where he had had his injury. She also noted that the applicant had been Category 2 disabled and at the time of the arrest had been under the influence of alcohol. The decision to order the forensic examination was received by the competent forensic authority on 8 November 2001. 41. On 22 October 2001 the applicant was released pending trial in connection with the firearm charge, but was remanded in custody in relation to other charges (see paragraph 48 below). 42. On 5 November 2001 prosecutor J.D. decided to separate the applicant’s allegations of ill-treatment from his criminal case file (see, as concerns the investigation, paragraphs 23 et seq. above). In her decision, she noted that the applicant had been arrested on 10 September 2001 for a traffic offence, and that the police officers had found a firearm in his jacket pocket. She also noted the applicant’s submissions about his alleged ill ‑ treatment and the fact that the traffic officers had denied the allegations. Lastly, she noted that although a forensic medical examination had been ordered, it had not yet been carried out. As it was her view that the results of the examination would not affect the qualification of the applicant’s offence, she separated the materials concerning the alleged ill-treatment from the case file and sent them to the Olaine police for additional review. 43. There is no information available as to whether any review was carried out by the Olaine police. 44. On 8 November 2001 prosecutor J.D. sought the advice of an expert to answer the question “Would the driver of a BMW 535 driven on wet tarmac at a speed of 200 to 230 km/h lose control, if a window is opened, either manually or electronically, to throw something out?” The expert concluded that it was possible in both situations, but that it would be more difficult if the window was opened manually, which was less likely to be the case for the model of car mentioned. 45. On 20 November 2001 prosecutor J.D. issued the final bill of indictment concerning the firearm charge against the applicant. 46. On 22 November 2001 and 8 January 2002 prosecutor J.D. examined the applicant’s request for the criminal proceedings against him to be terminated on the grounds that he was innocent, his guilt not having been proven, and because the firearm did not belong to him. She rejected the request on the basis that the applicant’s guilt had been proven by the case materials in their entirety. There were therefore no grounds to terminate the criminal proceedings. 2. Bodily injury and rape charge 47. Meanwhile, on 17 September 2001, the Jelgava police instituted criminal proceedings against the applicant in connection with the bodily injury and rape of a minor girl that had taken place on 9 September 2001. 48. It appears that on 22 October 2001 the applicant was remanded in custody in connection with those charges. 49. On an unspecified date the case was sent to the relevant prosecutor’s office in Jelgava ( Jelgavas pilsētas prokuratūra ). 50. On 28 November 2001 the final bill of indictment was issued concerning the bodily injury and rape charge against the applicant. 3. The applicant’s trial concerning both charges 51. A trial took place from 24 May to 4 June 2002, and on the latter date the Jelgava Court ( Jelgavas tiesa ) found the applicant guilty of both (the firearm and the bodily injury and rape) charges and, taking into account his state of his health, sentenced him to five years and six months’ imprisonment, into which a previous suspended prison sentence was also incorporated. 52. As concerns his arrest on 10 September 2001, the applicant told the court that he had been fleeing from the police. He submitted that two police officers had pulled him out of the car in Jaunolaine, had pushed him to the ground and had handcuffed him. While lying down on the ground, he had been kicked hard several times in his back. He then had felt a sharp pain in his back, had told the officers about his disability and had invited them to verify his documents, which they had done. The officers had then made him stand up and put on his jacket, which until then had been lying on the passenger seat. Afterwards, one of the officers had ordered him to empty his pockets. He had felt a gun in his pocket and had immediately dropped it on the ground. The officers had then requested all the contents of his pockets to be emptied. When he had felt another object in his pocket, which had turned out to be an ammunition clip, he had dropped that on the ground as well. 53. As concerns the firearm, the applicant submitted that it had not been his. It had either been planted on him by the police officers in an attempt to evade criminal liability for having assaulted a disabled person, or by someone who had put it in his pocket the day before (during the events surrounding the bodily injury and rape charge). 54. The trial court did not give credence to the applicant’s allegations of ill-treatment by the police officers on the grounds that the forensic examination had concluded that the applicant had not sustained any bodily injuries (see paragraph 30 above). 55. O.Ž. was the only traffic police officer to give evidence before the trial court and relied on his cross-examination with the applicant (see paragraph 38 above). O.Ž. testified that on pulling the applicant out of the car in Jaunolaine, his jacket had opened and O.Ž. had seen an object similar to a firearm in the applicant’s inner pocket. For that reason he had been pushed to the ground using force and handcuffs had been put on him. O.Ž. had then taken the firearm out of the applicant’s inner pocket and had put it on the bonnet of the car. The local police had then been called. 56. In examining the officer’s evidence, the trial court found it consistent and unvaried throughout the preliminary investigation and the trial. They further relied on evidence given by an officer of the Olaine police during the pre-trial investigation, who stated that when he had arrived at the scene the firearm had been on the bonnet of the car and a bullet had been found inside. 57. On 21 October 2002, following an appeal by the applicant, the Zemgale Regional Court ( Zemgales apgabaltiesa ) upheld the judgment of the trial court. 58. The applicant subsequently lodged an appeal on points of law, but on 2 December 2002 this was dismissed by the Senate of the Supreme Court ( Augstākās tiesas Senāts ) in a preparatory meeting. E. The applicant’s medical care in prison 1. Rīga Central Prison 59. From 12 September to 10 October 2001 the applicant was held in the Prison Hospital located within the grounds of Rīga Central Prison. His medical care during that period is described above (see paragraphs 15 to 22 above). 60. In addition, he was also held in the Prison Hospital during the following periods: ‑ from 15 November to 3 December 2001; ‑ from 19 to 27 December 2001; ‑ from 17 to 25 January 2002; ‑ from 22 December 2002 to 13 January 2003; ‑ from 17 January to 7 February 2004; and ‑ from 17 to 24 January 2006. 61. It appears that between the periods of hospitalisation prior to his conviction, he was detained in the prison itself. 62. In the meantime, on 10 October 2001 the applicant’s lawyer applied to a prosecutor seeking permission for the applicant to be transported from the prison to the Commission for Health and Working Capacity Examination ( Veselības un darbaspēju ekspertīzes komisija ). On 13 November 2001 that prosecutor informed the lawyer that under Regulation of the Cabinet of Ministers no. 358 (1995), transport to the Commission was only permitted for convicted prisoners. Its doctors were not permitted to visit detainees awaiting trial in Rīga Central Prison. 2. Liepāja Prison 63. On 19 August 2002 the applicant was transferred to Liepāja Prison to serve his sentence, where he remained until 13 December 2002. Upon admission, he requested that he be provided with mobility assistance. He immediately received crutches. By the end of August, with the help of a donation by the local Red Cross, he received a wheelchair. 3. Pārlielupe Prison 64. On 13 December 2002 the applicant was transferred to Pārlielupe Prison to continue serving his sentence. He was held in that prison until 27 October 2003, save for a period of twenty-two days when he was in the Prison Hospital (see paragraph 60 above). 65. On 9 April 2003 the local social services in Jelgava ( Jelgavas sociālo lietu pārvalde ) informed the applicant that a wheelchair had been ordered for him and would be delivered accordingly. 4. Valmiera Prison 66. On 27 October 2003 the applicant was transferred to Valmiera Prison to continue serving his sentence. He was held in that prison until 21 April 2006, save for two periods of twenty-one and seven days respectively when he was in the Prison Hospital (see paragraph 60 above). 67. In the prison the applicant was placed in “the open living area” ( atklātā dzīvojamā zona ) in a unit for convicted prisoners with health problems. The applicant shared his cell with another inmate. 68. The facilities in Valmiera Prison were adapted for the applicant’s needs to the following extent: ‑ he was allowed to have his meals delivered to his cell instead of having to go to the canteen; ‑ he was allowed to attend sauna once a week at special times; ‑ every day from 6 a.m. to 10 p.m. he could stay in the open area in his unit and have access to fresh air; ‑ a ramp was installed so that he could access the outdoor yard; ‑ toilets were adapted for his needs; ‑ he was exempted from social work and from every day check ‑ ups; ‑ the staff of the medical unit visited him in his cell so that he did not need to go to the unit himself. 69. On 29 January 2004 a computerised tomography (CT) scan of the applicant’s spine was carried out at a specialist clinic in Rīga. On two further occasions the applicant was examined at a public hospital in Valmiera. 70. On 2 August 2005 the applicant complained to the National Human Rights Office ( Valsts cilvēktiesību birojs ) about the conditions of his detention in Valmiera Prison and the adequacy of his medical support. As he had become paraplegic, he could not access the sanitation facilities (including the toilets and shower), library, shop or meeting and telephone rooms. He was also unable to go outside for walks. The applicant complained that he needed two operations, one so that he could walk again and the other to remove the metal implant supporting his spine. On 12 August 2005 his complaint was forwarded to the Prisons Administration ( Ieslodzījuma vietu pārvalde ). 71. On 2 September 2005 the Prisons Administration replied to the applicant and the National Human Rights Office that his complaints concerning the medical unit of Valmiera Prison were unsubstantiated. The Category 1 disability certificate had been granted to the applicant from 13 February 2005 to 28 February 2006. He had correctly noted himself in his complaint that such surgery could not be performed in Latvia. Furthermore, the medication necessary for acute conditions was available in the medical unit of Valmiera Prison. 72. On 7 September 2005 the National Human Rights Office sent the Prisons Administration a repeated request seeking a comprehensive review of the applicant’s complaints as it had not been done. In particular, answers were required concerning the applicant’s medical and social care and social integration in the prison. 73. On 21 September 2005 the Prisons Administration replied, adding to its previous letter that the applicant had failed to approach the medical staff in Valmiera Prison as concerns the surgery he allegedly needed. It stated that only doctors could ascertain if, where and when the applicant needed surgery and under which circumstances. According to the information in its possession, at that time no real possibility had existed for such surgery to be performed in Latvia. At the same time, it had been aware that the operations requested had not been urgent. The applicant had also been advised to actively engage in therapeutic/remedial gymnastics ( ārstnieciskā fizkultūra ). As concerns his social care, under domestic law there was no such care in prisons for the disabled and, accordingly, the administration of Valmiera Prison could not appoint someone to assist the applicant. The prison staff did not include social workers. Lastly, it was noted that as far as possible the administration of Valmiera Prison had facilitated the applicant’s life in prison, for example, by exempting him from participating in daily check ‑ ups. 74. On 12 October and 7 December 2005 the National Human Rights Office requested further information from the Prisons Administration and the Ministry of Justice concerning social care for disabled prisoners. 75. On 27 January 2006 the National Human Rights Office informed the applicant that, according to the information provided by the Ministry of Justice, domestic law did not contain any provisions for social care for prisoners with disabilities. However, new regulations concerning the issue were in the process of being drafted. 76. On 21 April 2006 the Valmiera District Court ( Valmieras rajona tiesa ) conditionally released the applicant prior to completion of his sentence ( atbrīvot nosacīti pirms termiņa ) ten months and seventeen days early, on the grounds that he had served three-quarters of his sentence, had not breached the prison regime (his disciplinary punishments had been removed), had a Category 1 disability and had received a satisfactory reference from the administration of the prison. 77. It appears that the applicant’s medical records contain information received from the State Probation Service in Jelgava suggesting that after his release, the applicant had been seen walking around the city of Jelgava on his own legs and drinking. III. The organisation of health care in prison with specific reference to the management of certain common problems C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis “50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment. ...” 82. Recommendation CM/Rec (2012) 5 of the Committee of Ministers of 12 April 2012 on the European Code of Ethics for Prison Staff, provides, in particular: IV. Guidelines for prison staff conduct D. Care and assistance “19. Prison staff shall be sensitive to the special needs of individuals, such as juveniles, women, minorities, foreign nationals, elderly and disabled prisoners, and any prisoner who might be vulnerable for other reasons, and make every effort to provide for their needs. 20. Prison staff shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required. 21. Prison staff shall provide for the safety, hygiene and appropriate nourishment of persons in the course of their custody. They shall make every effort to ensure that conditions in prison comply with the requirements of relevant international standards, in particular the European Prison Rules. 22. Prison staff shall work towards facilitating the social reintegration of prisoners through a programme of constructive activities, individual interaction and assistance.” 83. The European Prison Rules, adopted on 11 January 2006, are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates. The relevant parts read as follows: Hygiene “19.1 All parts of every prison shall be properly maintained and kept clean at all times. 19.2 When prisoners are admitted to prison the cells or other accommodation to which they are allocated shall be clean. 19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy. 19.4 Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene. 19.5 Prisoners shall keep their persons, clothing and sleeping accommodation clean and tidy. 19.6 The prison authorities shall provide them with the means for doing so, including toiletries and general cleaning implements and materials.” B. Relevant domestic law 1. In relation to criminal proceedings 84. The relevant provisions of the former Code of Criminal Procedure ( Kriminālprocesa kodekss ), in force until 1 October 2005, read as follows: Section 3(1) (duty to institute criminal proceedings) “A court, prosecutor or investigating authority, in so far as it is within its powers, shall institute criminal proceedings whenever signs of a criminal offence ( noziedzīga nodarījuma pazīmes ) are discovered, using all means laid down in law with a view to discovering any incidence of a criminal offence and the persons responsible for the criminal offence in order to punish them.” Section 5 (circumstances precluding criminal proceedings) “Criminal proceedings may not be instituted, but instituted proceedings shall be terminated: ... 2) if there are no elements of a criminal offence. ...” Section 109(1), (2) and (5) (duty to examine applications and declarations concerning criminal offences) “An investigating authority, prosecutor, judge or court shall accept material, applications and declarations concerning a criminal offence that has been committed or planned, including in cases which do not fall under its jurisdiction. In response to the material, applications or declarations received, one of the following decisions shall be adopted: 1) to institute criminal proceedings, 2) to refuse to institute criminal proceedings, 3) to forward the application or declaration to the competent authority. ... Applications and declarations concerning crimes shall be examined immediately, but at the latest within ten days of their receipt. If an expert or audit report or specialist’s consultation is necessary for such examination, applications and declarations shall be examined at the latest within 30 days. ” Section 112(3) (refusal to institute criminal proceedings) “A copy of the decision to refuse to institute criminal proceedings ... shall be sent to the applicant and those concerned with an explanation of their right to complain about the decision: a decision adopted by an investigating authority to a corresponding prosecutor, by a prosecutor to a higher-ranking prosecutor, by a prosecutor of the Office of the Prosecutor General to the Prosecutor General, and by a judge to a higher-instance court.” Section 212(5) and (6) (decision to terminate criminal proceedings) “An individual, the criminal proceedings against whom have been terminated, a victim and his or her representative, as well as an applicant or an institution upon which application the criminal proceedings had been instituted, shall immediately be informed of the termination of the criminal proceedings by a prosecutor or an investigating authority ( izziņas izdarītājs ), with an explanation of their rights to be acquainted with the decision and with the case materials. ... Those concerned may lodge an appeal to a higher-ranking prosecutor or, if a decision has been taken by a prosecutor of the Office of the Prosecutor General, to the Prosecutor General, within five days of being notified.” Section 220 (procedure for lodging complaints against the actions of an investigating authority) “A suspected or an accused individual and their counsel or legal representatives, witnesses, experts, translators, guarantors, as well as a victim, a civil party, a civil respondent, their representatives and other individuals may lodge complaints with a prosecutor about the actions of an investigating authority. The complaints shall be submitted to a prosecutor directly or through the intermediary of the authority against whom the complaint was brought. Complaints may be made either in writing or verbally. In the latter case, the prosecutor or the investigating authority shall write the complaints down in the minutes to be signed by the complainant. The complaint submitted to the investigating authority shall be forwarded, together with written explanations by the latter to the prosecutor. ...” Section 221 (procedure for a prosecutor’s review of a complaint) “The prosecutor supervising the investigation shall review a complaint within ten days of receipt. A higher-ranking prosecutor shall review a complaint within ten days of receipt, or if further investigation is necessary or additional information has to be requested, within thirty days. The complainant shall be informed of the outcome. If the complaint is rejected as unsubstantiated, the prosecutor shall provide reasons and explain the procedure for appeal. An appeal against the decision made by the prosecutor in reviewing the complaint, may be made by the complainant or the investigating authority to a higher-ranking prosecutor.” Section 222 (complaints about actions of a prosecutor) “Complaints about the actions of a prosecutor shall be submitted to a higher-ranking prosecutor and reviewed in accordance with the procedure laid down in sections 220 and 221 of this Code.” 2. In relation to medical care 85. Regulation of the Cabinet of Ministers no. 358 (1999), in force at the material time and effective until 28 March 2007, provided as follows: “2. Convicted persons shall receive the minimum standard of health care free of charge up to the amount established by the Cabinet of Ministers. In addition, the Prisons Administration, within its budgetary means, shall provide the convicted persons with: 2.1. primary, secondary and tertiary (in part) medical care; 2.2. emergency dental care; 2.3. examination of health conditions; 2.4. preventive and anti-epidemic measures; 2.5. medication and injections prescribed by a doctor of the institution; 2.6. medical accessories. 3. Detained persons shall receive medical care in accordance with Article 2 of these regulations, excluding planned inpatient treatment ... Detained persons shall be sent to receive inpatient treatment only in acute circumstances.” | In June 2002 the applicant, who had a metal insert in his spine after breaking his back two years earlier, was given a five and a half year prison sentence. He complained, inter alia, that the prison facilities were unsuitable for him as he was paraplegic and wheelchair-bound. In 2006 he was conditionally released. |
576 | Expulsion or extradition cases | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant is an Iranian national who was born on 12 October 1977 in Teheran and currently lives in Einsiedeln, Switzerland. A. Background and proceedings before the Swiss authorities 1. The proceedings before the Federal Migration Board 7. The applicant entered Switzerland illegally on 26 June 2011 and applied for asylum the next day. He had two hearings before the Federal Migration Board ( Bundesamt für Migration – hereafter “the Migration Board” ). 8. The first hearing was a summary interview at the Migration Board ’ s “Centre for Reception and Procedure” ( Empfangs- und Verfahrenszentrum ) in Basel on 6 July 2011. The applicant gave an account of the alleged events in Iran leading to his escape from his home country. This account was summarised by the Migration Board ’ s interviewer in official minutes. At the beginning of this summary, the interviewer noted: “ For lack of staff, the facts - summarised under no. 15 of the minutes - were not established in detail .” ( “ Es wird aus Kapazitätsgründen auf eine vertiefte Abklärung zu Pt. 15 verzichtet. ” ). An interpreter was present during the hearing and the minutes were translated for the applicant prior to his signing. 9. During the hearing the applicant stated that, following serious ballot ‑ rigging after the Iranian presidential elections on 12 June 2009, anti-regime demonstrations had started to take place. He had participated in almost all these demonstrations until the beginning of March 2011. He claimed that he and his friends had organised peaceful demonstrations every Tuesday. As the demonstrations had been brutally oppressed by the Iranian regime, he and his friends had documented the demonstrations and had circulated this documentation to people. He further claimed that during the last demonstration he had attended, at the beginning of March 2011, several of his friends had been arrested. He alleged that they had been tortured and that one of them had probably mentioned his name to the Iranian authorities and had told them about his participation in the demonstrations. Consequently, on 10 May 2011, a summons issued by the Revolutionary Court of Teheran had been delivered to his residence, namely his parents ’ house in Karaj, by a court courier. He had not been present at the time of delivery as he had been on a visit to his sister ’ s house in Teheran. The summons had ordered him to appear in court on 12 May 2011. Fearing that he might be arrested upon his appearance, he had not presented himself in court but had hidden at his sister ’ s home and at the homes of various friends in Teheran. As a result of his non-appearance before the court, agents of the secret service had come to his parents ’ house the following day (13 May 2011) in order to arrest him. Because of his absence, his father had been arrested instead. The applicant had been left a message that he should report to the district police, otherwise his father would remain in detention. For fear of arrest and on his family ’ s advice, he had fled the country without legal exit papers in June 2011. 10. In order to support his account during the first hearing, the applicant submitted the allegedly original summons of the Revolutionary Court of Teheran of 10 May 2011. He also submitted documentary material pertaining to the anti-regime demonstrations, which had allegedly been produced by him and his friends. 11. The second, more detailed hearing took place at the Migration Board ’ s office in Berne 21 months after the first hearing, on 5 April 2013. A member of the non-governmental Aid Organisation of the Protestant Church of Switzerland ( Hilfswerk der Evangelischen Kirche Schweiz ) was present as a neutral witness in order to guarantee the fairness of the hearing. He had the opportunity to add comments at the end of the minutes of the hearing in the event that he had witnessed any irregularities, but did not note down any such observations. Again, an interpreter was present during the hearing and the minutes were translated for the applicant prior to his signing. 12. The applicant again gave an account of the alleged events in Iran leading up to his escape. With regard to the events on the day when the summons had allegedly been delivered to his parents ’ house (10 May 2011), the applicant now described that members of the Ettelaad security service had come to his parents ’ house in his absence in order to search for him. They had searched the house, opening chests of drawers and cupboards. As they had been unable to find him, they had issued the summons while at his parents ’ house and had left it behind. Confronted with the fact that he had not mentioned the house search of 10 May 2011 during the first hearing, the applicant responded that he had in fact done so, that he had recounted the same facts during the first hearing and that it was not his fault that this fact had not been recorded in the minutes of the first hearing. 13. Furthermore, asked about his hiding place prior to his escape from Iran, the applicant stated during the second interview that he had stayed at his sister ’ s home the whole time. When confronted with his testimony from the first hearing, the applicant explained that he had been with friends as well and added that these people had been friends from work and not friends he knew from the demonstrations. 14. With regard to the aftermath of the last demonstration he had attended in March 2011, the applicant stated during the second hearing that he did not know that the Ettelaad security forces were planning to arrest him. He again alleged that one of the friends arrested during the demonstrations had told the security forces who had participated in these demonstrations. Asked when this friend who had given his name had been arrested, the applicant responded that he did not know and that it had not necessarily been this arrested friend directly who had given his name to the security forces. Arrests of that kind usually started a whole chain reaction: the arrested person would give some names, then these people would be arrested and questioned and give further names, and so on. 15. Questioned further during the second hearing about any special occurrences with regard to his last demonstration in March 2011, the applicant stated that the demonstrations had all been rather similar. People had been arrested and agents of the government had beaten up people during the last demonstration just as during any other demonstration. Asked whether he knew the people who had been arrested, the applicant responded that he just knew these people from the street. They had not been people from his region. Teheran was a big city and people had come from everywhere. Confronted with his testimony from the first interview, in which he had claimed that friends of his had been arrested, the applicant stated that the people demonstrating together were all friends in a way and that he had used the term “friends” in that sense when giving his account of the events during the demonstrations. 16. On 10 April 2013 the Migration Board dismissed the applicant ’ s request for asylum and ordered him to leave Switzerland by 7 June 2013. The Migration Board reasoned that the applicant ’ s statement of facts was not credible as his descriptions of the events in Iran had not been consistent during the two hearings. The descriptions diverged considerably from each other with regard to decisive points of the applicant ’ s story. During the first hearing, the applicant had neither mentioned the appearance of the Ettelaad security forces at his parents ’ house, nor had he mentioned the house search, nor the fact that it had been the Ettelaad who had issued a summons directly at his parents ’ house on 10 May 2011, but had simply stated that a courier of the court had brought the summons. Furthermore, the accounts of the applicant ’ s hiding prior to his escape from Iran diverged from each other, as the applicant had first stated that he had hidden at his sister ’ s home and at friends ’ homes, whereas he had claimed to have stayed exclusively at his sister ’ s home during the second hearing. Finally, the applicant had only mentioned the arrest of his friends during his last demonstration only in the account he had given during the first hearing and not during the second interview. The Migration Board took into consideration that the applicant had submitted some documentary material including the alleged summons of 1 0 May 2011, but was of the view that these documents could not dispel the doubts about the applicant ’ s account. The documentary material gave only a general account of the demonstrations, but not specifically anything about the applicant ’ s alleged participation, and a summons alone could not prove any public persecution. 2. The proceedings before the Federal Administrative Court 17. On 15 May 2013 the applicant, now represented by counsel, appealed against the decision of the Migration Board to the Federal Administrative Court ( Bundesverwaltungsgericht ). He asked the Federal Administrative Court to quash the decision of the Migration Board, to grant him asylum, to find that the execution of the expulsion order would be an improper and unreasonable measure, and to grant him legal aid. 18. In his appeal the applicant claimed that upon the advice of his counsel he had phoned his family in Iran and had asked whether any further summons had been received. On that occasion he had learnt that he had again been summoned to appear before the Revolutionary Court of Teheran on 5 February 2013. He had also learnt that the Revolutionary Court had convicted him in absentia on 7 May 2013 because he had participated in demonstrations against the Iranian regime and had criticised the regime in slogans. The court had sentenced him to seven years ’ imprisonment and 70 lashes. The applicant claimed to be in possession only of copies of the summons of 5 February 2013 and the judgment of 7 May 2013 because his family suspected state surveillance and feared that the mail would be checked if they tried to send him the originals by post. The applicant submitted the copies of the alleged new summons and of the alleged judgment to the Federal Administrative Court. In his appeal, he also asked the Federal Administrative Court and the Migration Board whether the authenticity of the two documents could be assessed by the Swiss Embassy in Teheran if the originals were handed in or shown there. 19. In his appeal the applicant also argued that the deviations between his two statements of the facts could be explained by the different nature of the two hearings. The first hearing had been only a summary hearing and the applicant had been asked not to go into detail. It was therefore understandable that he had not described the house search of 10 May 2011 until the second hearing. With regard to his hiding prior to his departure from Iran, his two reports were correct and consistent. He had stayed at his sister ’ s home but he had also met friends from work and spent time with them. With regard to the events during the last demonstration, he had in essence stated the same facts during the two hearings, namely that he and his friends had documented the demonstration and had handed out leaflets, that many participants, including his friends, had been arrested, and that he believed that one of the arrested persons had passed on his name to the Iranian authorities. The applicant further argued that when assessing his two statements, it had to be taken into consideration that almost two years had elapsed between the two hearings and that no one was able to describe events in exactly the same way after such a long time. Finally, the applicant claimed that the second hearing had not been fair, as the interviewer had constantly interrupted him and treated him as if he were lying. 20. On 22 May 2013 the Federal Administrative Court delivered an interim decision in which it declined the applicant ’ s request for legal aid, reasoning that his application lacked any prospects of success. In its preliminary assessment of the case, the Federal Administrative Court found that the applicant had not convincingly shown that he was persecuted by the Iranian State. His statements of the facts as given during the two hearings by the Migration Board diverged from each other with regard to essential points and his story was therefore not credible. The summons of 5 February 2013 and the judgment of 7 May 2013 had no probative value as the applicant had submitted only copies of these documents. 21. On 2 July 2013 the Federal Administrative Court dismissed the applicant ’ s appeal as manifestly ill-founded. In accordance with section 111 and section 111a of the Swiss Asylum Act of 26 June 1998 (hereafter “the Asylum Act”, see paragraphs 30ss. below ), the case was decided by a single judge and the judgment contained only a summary reasoning. An oral hearing was not provided for in the rules of procedure. In accordance with section 111a of the Asylum Act, the Federal Administrative Court also abstained from the possibility of exchanging observations between the parties. The Migration Board was hence not given an opportunity to comment on the submission of the copies of the alleged summons of 5 February 2013 and the judgment of 7 May 2013 or on the possibility of having the alleged original documents – which were allegedly in the possession of the applicant ’ s family – checked by the Swiss embassy in Teheran. 22. The Federal Administrative Court decided that the applicant had no right to asylum. It further stated that there was no reason not to execute the expulsion order as the applicant had not been able to prove that he had been subject to state persecution in Iran. His accounts of the events during the two hearings diverged with regard to essential details and the applicant had not managed to explain these discrepancies to the Federal Administrative Court ’ s satisfaction. The time that had passed between the two hearings could not explain the contradictions, since the applicant had not been expected to describe the events in Iran in exactly the same way but rather in a consistent manner. Furthermore, contrary to the applicant ’ s allegation, there was no indication that the second hearing had been unfair. The hearing had been attended by a member of the Aid Organisation of the Protestant Church of Switzerland as a neutral witness. This person had not made any remarks about irregularities witnessed during the hearing, although he could have done so. The minutes had been translated for the applicant and signed by him. He had therefore had the opportunity to correct any statement had he found that it had not been noted down correctly. 23. The court further found that it could not draw any conclusions from the submitted copy of the summons of 5 February 2013 or the copy of the judgment of 7 May 2013 in the applicant ’ s favour, as copies had no probative value. The court did not mention the first summons of 10 May 2011, the authenticity of which had not been questioned in the decision of the Migration Board. 24. On 22 July 2013 the Migration Board issued a new expulsion order requiring the applicant to leave Switzerland before 19 August 2013. B. Proceedings and new submissions before the Court 25. On 15 August 2013 the applicant lodged his application with the Court and asked for Rule 39 of the Rules of Court to be applied in order to stay the enforcement of his expulsion. He stated that he had participated in demonstrations against the Iranian regime following the presidential elections of 2009 up until March 2011 and that he had handed out leaflets on these occasions. He further alleged that the Ettelaad security forces had searched his parents ’ house with the purpose of arresting him. Moreover, he claimed that he had been summoned twice to appear before the Revolutionary Court of Teheran and that the same court had sentenced him in absentia on 7 May 2013 to seven years ’ imprisonment, the payment of a fine, and 70 lashes of the whip because of his participation in the demonstrations. 26. In support of his claims the applicant attached to his application of 15 August 2013 documentary material on the demonstrations in Iran, written in Persian, copies of the alleged summonses of 10 May 2011 and 5 February 2013 and a copy of the alleged judgment of 7 May 2013. 27. On 10 October 2013 the applicant informed the Court that he was now in possession of the original summons of 5 February 2013 and of the judgment of 7 May 2013, as his sister ’ s husband had finally dared to send the documents by special delivery in August 2013. He also provided the Court with English translations of the summons of 5 February 2013 and the judgment of 7 May 2013. A translation of the summons of 10 May 2011 was not submitted. A translation was included in the minutes of the applicant ’ s second hearing, however, and this had been submitted to the Court. 28. According to the translation of the summons of 5 February 2013, the applicant was summoned to appear before the 10 th division of the Islamic Revolutionary Court of Teheran on 5 February 2013 at 9 a.m., because of “ participation in demonstrations against the public safety and the system of the Islamic Republic of Iran ”. The summons was signed by an “ investigating authority ” on 3 February 2013. 29. The translation of the judgment of 7 May 2013 of the Revolutionary Court of Teheran reads in its material part : “Charge: Undertakings and activities against the sacred order of the Islamic Republic of Iran Judgement In the case of the accused Mr. M.A., the court – due to the charge sheet of the 10 th division of the public prosecutor ’ s office for the General and the Revolutionary Court of Teheran, due to the existing exhibits and his file, due to the credible report of the intelligence service and the clarification as well as the investigations of public prosecutor ’ s office mentioned above, due to the testimonies of the persons under arrest as well as due to the especially useful information on file, moreover because of the punishable participation in illegal gatherings, because of the disturbance of the peace and the system of the Islamic Republic of Iran, because of being a troublemaker and the writing of slogans, calling for resistance against the polity by distributing flyers and non-appearance before court despite being summoned, as well as due to the waiver of defence in court – comes to the conclusion that his guilt has been established. For these reasons, in application of Art. 502 of the Islamic law, he is sentenced to 7 years of imprisonment, 70 strokes of the whip and to a fine of 15 Million Rial which is to be paid to the treasury. An appeal against this judgment delivered in absentia is possible within ten days after disclosure. After this period of time, a request for reconsideration can be submitted to the competent courts of the province of Teheran. ” The translation also states that the judgment had been “disclosed on 15 May 2013 ”. | The applicant, an Iranian national, claimed that, if forced to return to Iran, he would face a real and serious risk of being arrested and tortured because of his active participation in demonstrations against the Iranian regime. |
470 | Preliminary ruling | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1939 and lives in Vác. 6. He was awarded a disability pension on 6 May 1995. Since he had accrued service periods in both Hungary and Austria, his pension was established accordingly, both under the Act no. LXXXI of 1997 on Social Security Pension Benefits (“the 1997 Pensions Act”) and the Social Security Agreement between Hungary and Austria. On 1 May 2004 (the date of Hungary ’ s accession to the EU ) his monthly pension was 74,361 Hungarian forints (HUF ) ( approximately 250 euros (EUR) ). 7. On 18 April 2006 he requested a review of his pension rights in accordance with Article 94(5) of Regulation 1408/71/EEC of the Council of the European Communities on the Application of Social Security Schemes to Employed Persons and their Families Moving within the Community (hereinafter “the Regulation”). The provision stipulated that the rights of a person to whom a pension had been awarded prior to the entry into force of the Regulation could, at the request of the person concerned, be reviewed, taking into account the provisions of the Regulation. With regard to the applicant, the date of “entry into force” was Hungary ’ s EU accession. 8. On 1 September 20 0 6 the applicant ’ s monthly pension was reviewed by the Budapest and Pest County Pensions Board ( Fővárosi és Pest Megyei Nyugdíjbiztosítási Igazgatóság ), acting as a first - instance pension authority. The applicant ’ s pension was increased to HUF 13 4, 566 (approximately EUR 4 49 ) per month with effect from 1 May 2004. 9. On 7 September 2006 the applicant appealed against that decision, because the pension authority had calculated an overlap period (during which he had worked in Austria but had also had to pay social security contributions in Hungary) as a mere Hungarian service period with a very low average salary. 10. Despite the appeal, the decision was implemented with immediate effect and the applicant received HUF 1,996,104 (approximately EUR 6,650) in arrears. 11. On 16 January 2007 the Central Hungary Regional Pensions Board ( Közép-Magyarországi Regionális Nyugdíjbiztosítási Igazgatóság ), acting as a second-instance pension authority, increased the applicant ’ s monthly pension to HUF 135,450 (approximately EUR 452) with effect from 1 May 2004. For the period 1 May 2004 to 28 February 2007 he received a total of HUF 42,065 (approximately EUR 140) in arrears and interest. 12. The applicant challenged the final administrative decision in court and requested that a question concerning the correct interpretation of the Regulation be referred to the Court of Justice of the European Union (“ CJEU ”) for a preliminary ruling. 13. On 12 October 2007 the Budapest Labour Court dismissed the applicant ’ s action and upheld the pension authority ’ s decision. 14. The applicant lodged a petition with the Supreme Court for review of the Budapest Labour Court ’ s judgment. On 6 March 2009, in the review proceedings, he submitted written pleadings to the Supreme Court. The pleadings were not submitted to the Court in the present proceedings and the parties ’ submissions differed as to the content of the document containing them. According to the Government, the applicant withdrew his request for a preliminary ruling on that date, whereas the applicant alleged that he had only submitted that the reference to the CJEU was not necessarily inevitable, provided that his interpretation of EU case-law was followed. However, in his view, this did not amount to a withdrawal of the request for a reference for a preliminary ruling. 15. On 3 June 2009 the Supreme Court reversed the Budapest Labour Court ’ s judgment and ordered new proceedings, insisting that the EU law principle concerning the prevention of overlapping of benefits be taken into account. In response to the applicant ’ s request for a reference for a preliminary ruling, the Supreme Court held that the procedure appeared to be unnecessary “because the conditions had not been fulfilled”. 16. In the case remitted to it, the Labour Court quashed the decision of the pension authority and instructed it to recalculate the applicant ’ s pension in accordance with EU rules (without counting the overlap period as a mere Hungarian service period). The judgment became final on 1 9 March 2010. 17. On 7 July 2010 the Central Hungary Regional Pensions Board adopted a new decision in accordance with the instructions of the Budapest Labour Court and increased the applicant ’ s monthly pension to HUF 139,545 (approximately EUR 465) with effect from 1 May 2004. The decision ordered the payment, in arrears, of the difference between the pension due and the amount already paid. The 1997 Pensions Act provides that if a pension authority has made a mistake to the detriment of an applicant, the difference is to be paid for only the last five years preceding the date the mistake was discovered (the duration of the statutory limitation period). Payment of the difference was therefore ordered for the period after 19 March 2005 only ( namely from the date exactly five years before the date on which the Labour Court ’ s judgment became final, see paragraph 16 above). The amount paid to the applicant in arrears and interest was HUF 581,515 (approximately EUR 1,940). 18. On 23 July 2010 the applicant appealed against the decision, claiming the arrears for the whole period following Hungary ’ s EU accession. 19. On 11 November 2010 the Pension Appeals Board ( Nyugdíjbiztosítási Jogorvoslati Igazgatóság ) amended the decision of 7 July 2010 (see paragraph 17 above), reduced the applicant ’ s monthly pension to HUF 138,170 (approximately EUR 460) with effect from 1 May 2004, but limited payment to the period following 19 March 2005. 20. The Appeals Department of the National Pensions Administration ( Országos Nyugdíjbiztosítási Főigazgatóság Jogorvoslati Főosztály ) conducted a repeated second-instance review and, in a decision dated 5 November 2011, amended the decision of 11 November 2010 (see paragraph 19 above). It increased the applicant ’ s monthly pension to HUF 139,605 (approximately EUR 465) with effect from 1 May 2004, retaining however the limitation of payment as regards the period preceding 19 March 2005. 21. The applicant requested a court review of the pension authority ’ s decision of 7 July 2010, as amended by the decisions of 11 November 2010 and 5 November 2011. He relied on Article 94(6) of the Regulation. 22. On 29 February 2012 the Budapest Labour Court upheld the pension authority ’ s decisions (see paragraphs 17, 19 and 20 above). 23. On 22 March 2012 the applicant submitted a petition for review of the Budapest Labour Court ’ s judgment. He argued that domestic law was to be interpreted and applied in conformity with EU law, of which the relevant provision, Article 94(6) of the Regulation, was directly applicable and had direct effect in the case. He contended, in essence, that he had a right, as acknowledged in the decisions of the pension authority, to an adjusted pension for the whole period following 1 May 2004. The national rule restricting the very payment of that pension to a shorter period of time constituted a “limitation of rights” prohibited by the Regulation. He was of the opinion that the Budapest Labour Court ’ s judgment, in giving precedence to the rule of national law over the relevant provision of the Regulation, had violated the principles of primacy and effectiveness of EU law. In his petition for review, the applicant did not request that the case be referred to the CJEU for a preliminary ruling; instead, he requested what he considered to be a correct application of Article 94(6) of the Regulation. Nevertheless, he argued that the Budapest Labour Court ’ s judgment had violated Article 234 of the Treaty Establishing the European Community ( “EC Treaty”, now Article 267 of the Treaty on the Functioning of the European Union (“TFEU”) ), without providing a detailed explanation on this point. 24. On 26 June 2013 the Kúria upheld the judgment of the Budapest Labour Court. Both the Budapest Labour Court and the Kúria reasoned that the Regulation concerned only the acquisition of rights but not the actual payment of allowances. In the courts ’ view, the applicant had indeed acquired a right to an amended pension from 1 May 2004 and his rights in this regard were not subject to any forfeiture or limitation; it was only the actual payment of the increased amount which had been limited. In the courts ’ opinion, therefore, the relevant provisions of the 1997 Pensions Act and those of the Regulation did not conflict. As regards the applicant ’ s argument concerning the alleged violation of Article 234 of the EC Treaty, the Kúria ’ s judgment did not contain any reasoning. 25. In parallel to the litigation described above, on 2 February 2008 the applicant lodged a petition with the Constitutional Court, arguing that the rules of the 1997 Pensions Act were in conflict with EU law. On 4 October 2010 the court rejected the petition, stating that it lacked competence to examine an alleged conflict between Hungarian and EU law (see decision no. 126/E/2008 of the Constitutional Court). | This case concerned the Hungarian Supreme Court’s (Kúria) failure to give reasons for refusing a request for a reference for a preliminary ruling on a pension dispute to the Court of Justice of the European Union (CJEU) and the length of proceedings before domestic courts. The applicant complained in particular that the Hungarian authorities had not taken due account of the applicable EU law provisions which, in particular, placed an obligation on national courts of final instance to provide reasons for not referring a question to the CJEU for a preliminary ruling. |
233 | The definition of idem | I. THE CIRCUMSTANCES OF THE CASE 7. On 6 June 1996, the applicant, whilst driving under the influence of drink, knocked down a cyclist who was fatally injured. After hitting the cyclist, the applicant drove off without stopping to give assistance and only gave himself up to the police later that night. 8. On 13 December 1996, the St. Pölten District Administrative Authority ( Bezirkshauptmannschaft ), finding the applicant guilty of a number of road traffic offences, ordered him to pay a fine of 22,010 Austrian schillings (ATS) with twenty days ’ imprisonment in default. This sentence included a fine of ATS 9,000 with nine days ’ imprisonment in default imposed for driving under the influence of drink, contrary to sections 5 (1) and 99 (1)(a) of the Road Traffic Act 1960 ( Straßenver kehrsordnung ). 9. On 18 March 1997 the St. Pölten Regional Court ( Landesgericht ) convicted the applicant under Article 81 § 2 of the Criminal Code ( Strafgesetzbuch ) of causing death by negligence “after allowing himself ... to become intoxicated ... through the consumption of alcohol, but not to an extent which exclude[d] his responsibility ...”, and sentenced him to six months ’ imprisonment. 10. The applicant ’ s appeal against conviction and sentence was dismissed by the Vienna Court of Appeal ( Oberlandesgericht ) on 24 June 1997. The applicant argued that, in the light of the Court ’ s Gradinger v. Austria judgment (23 October 1995, Series A no. 328-C), the decision of the Regional Court should be quashed. The Court of Appeal recognised that the double conviction violated Article 4 of Protocol No. 7 to the Convention. However, it found that, in spite of the Gradinger case, Austrian law remained unchanged. It distinguished the Gradinger judgment on the ground that in that case the administrative proceedings had been after the criminal proceedings, whereas in the present case, the order was reversed. The Court of Appeal explained that the double punishment was possible because there was no provision of Austrian law which provided for a principle of “subsidiarity” between the administrative and the criminal proceedings in the present circumstances. It concluded that this could not hinder the criminal proceedings which had a much wider scope. The applicant ’ s conviction was therefore upheld. 11. On 19 May 1999 the sentence of six months ’ imprisonment imposed on the applicant was reduced to five months by virtue of the Federal President ’ s prerogative of pardons. | The applicant fatally injured a cyclist while driving under the influence of alcohol. The District Administrative Authority imposed a fine in respect of several road traffic offences, including driving under the influence of alcohol. Subsequently, the Regional Court convicted the applicant of causing death by negligence with the aggravating circumstance of being intoxicated through the consumption of alcohol. It sentenced him to 6 months' imprisonment. |
188 | State’s duty to protect physical and psychological integrity of individuals | 2. The applicant was born in 1982 and lives in Rivne. She is a registered disabled person with a category 3 disability [1] who lives off her disability pension and child support allowances. She was granted legal aid and was represented by Ms N.A. Bukhta, a lawyer practising in Rivne. 3. The Government were represented by their Agent, Mr I. Lishchyna. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In 2002 the applicant had a son. 6. On 26 May 2006 the applicant married O.L. The couple installed themselves in a flat in Rivne co-owned by O.L. and his mother. 7. In January 2007 the applicant and O.L. had triplets (three girls). 8. In view of the multiple birth, in February 2008 the Rivne City Council provided the applicant and O.L. with social housing – a flat which they could occupy as protected tenants, together with their triplets and the applicant ’ s son. 9. According to the applicant, her relationship with O.L. gradually deteriorated because he abused alcohol and, under its influence, started arguments, harassed and threatened her and the children, and sometimes resorted to physical violence against her. On various occasions the applicant was so afraid of his violent outbursts that she fled to stay with relatives or acquaintances for periods of time. 10. On 18 March 2009 the Rivne regional forensic bureau certified that the applicant had a broken nose and haemorrhages around her eyes. According to the applicant, these injuries were the result of one of her arguments with O.L. It appears from the case file that this incident generated no formal follow-up proceedings. 11. On 13 January 2011 an acquaintance of the applicant, S.L., lodged a complaint with the Rivne police, informing them that O.L. had hit the applicant during an argument at home. The police refused to institute criminal proceedings, on the grounds that there was no corpus delicti in O.L. ’ s actions. That decision was not appealed against. 12. In April 2015 the applicant instituted civil proceedings, complaining that O.L. had not been contributing to meet the financial needs of their children. 13. In June 2015 the Rivne Town Court issued a judgment establishing how much O.L. should pay the applicant in child support. 14. On 10 June 2015 the applicant lodged a criminal complaint with the police, informing them that at about 9 p.m. on 31 May 2015 O.L. had kicked her during an argument at home. 15. On 11 June 2015 criminal proceedings were initiated against O.L. under Article 125 of the Criminal Code (“the CC”) in relation to the alleged assault on the applicant. 16. On 16 June 2015 the Rivne regional forensic bureau certified that the applicant had a subcutaneous haemorrhage on her right thigh. 17. On 23 September 2015 the marriage between the applicant and O.L. was dissolved. Custody of all the children was given to the applicant. After the divorce, all the family members and O.L. remained living in the same flat. 18. On 16 October 2015 the Rivne police closed the criminal proceedings initiated against O.L. in June because the applicant had withdrawn her complaint. The relevant decision stated that while it appeared that O.L. ’ s conduct fell within the ambit of Article 125 of the CC, in view of the applicant ’ s decision not to pursue her complaint as the injured party, the case material would be sent to a different police department for a decision on whether O.L. should be charged with an administrative offence. It appears that no further decision was taken in respect of this incident. 19. On 11 November 2015 the applicant complained to the Rivne police that O.L. had not been paying child support. She presented a certificate from the State Bailiffs Service indicating that O.L. was seven months in arrears with regard to these payments. She alleged that although O.L. was officially unemployed, in fact he regularly performed odd jobs and was concealing his income. On the same date criminal proceedings were instituted in relation to this matter. 20. When questioned by the police (in December 2015), O.L. acknowledged that he had not been paying child support. He explained that he was unable to make the payments which were due as he was unemployed and had no income. He assured the police that he would pay the arrears once he found a source of income and obtained the necessary means. It appears that the proceedings against O.L. were subsequently either closed or abandoned. 21. On 23 November 2015 and 2 February 2016 the applicant made further calls to the police complaining that O.L. was harassing and mistreating her at their home. In response, the police authorities visited the applicant ’ s and O.L. ’ s home and carried out pre-emptive conversations. 22. On 23 February 2016 the applicant made a further call to the police, complaining that O.L. was behaving aggressively under the influence of alcohol. 23. On 12 March 2016 the applicant made a further call to the police, complaining that her husband had been harassing her. This call generated another police inspection and another oral warning for O.L., as indicated in a police report of 16 March 2016. 24. On 18 March 2016 the chief of Rivne police decided that O.L. ’ s actions on 23 February 2016 (insulting and threatening the applicant and piercing a blanket with a knife) could be categorised as psychological harassment. He charged O.L. with the administrative offence of domestic violence under Article 173-2 of the Code of Administrative Offences (“the CAO”) and referred the case to the Rivne Town Court. It appears that no further decision was taken in respect of this police report. 25. On 14 March 2016 the applicant complained to the Rivne municipal family, child and youth welfare service (“the family welfare service”) that her husband frequently acted abusively under the influence of alcohol, and she solicited their help in finding a structured solution. 26. Between 14 and 22 March 2016 a group of people from the family welfare service conducted an assessment of the needs of the applicant ’ s family, during which they visited her flat and interviewed the triplets. According to the interview records, one of the girls stated that she loved both her parents, yet she was very distressed when her father came home drunk and became involved in arguments with her mother. Another girl stated that she had no respect for her father and hated it when he came home drunk. The third girl stated that she loved her mother, and she attempted to avoid speaking about her father. According to further records, the social workers were unable to interview O.L., as he was not at home during their visits. Their attempts to set up a separate appointment with him failed, as he either did not pick up the telephone or refused to meet the social workers, saying that he was very busy at work. As a result of the assessment, the welfare service drafted a report indicating that the children had generally been provided with the conditions necessary for their upbringing. However, their father neglected his parental responsibilities and engaged in violent arguments with the mother, which was intimidating and distressing for the children. The applicant was offered counselling support, which she declined at that time. 27. On 24 March 2016 the family welfare service asked the police to follow up on the applicant ’ s family situation, in particular by having a pre-emptive conversation with O.L. and identifying whether there were any grounds for prosecuting him for domestic violence. 28. On 5 April 2016 a police inspector who had been assigned that task reported that he had not been able to reach O.L. to schedule a meeting. 29. In April 2016 staff members from the triplets ’ primary school – the principal, the school psychologist and the girls ’ class teacher – reported to the welfare service that the girls had generally integrated well into their school and social life. However, their home environment was distressing. The girls reported that their parents argued often. They enjoyed a good and trusting relationship with their mother and maternal relatives. As regards their father, they reported difficulties in trusting him, and felt that he often paid little attention to matters relating to them. They regularly saw him under the influence of alcohol, and were scared of his appearance and his unpredictable and sometimes violent conduct. The staff members were unaware of any incidents where the girls had been physically ill-treated by their father. However, they considered that the combination of his disengaged attitude and aggressive outbursts towards the mother had led to the girls being victims of “psychological ill-treatment”. 30. On 13 April 2016 the applicant lodged a fresh complaint with the police, alleging that at about 10 p.m. on that date O.L. had had a new violent outburst: he had sworn at her, and had threatened and pushed her. 31. On 18 April 2016 the Rivne regional forensic bureau certified that the applicant had haemorrhages on her right wrist, arm and leg, and a sprain of the aponeurosis in her right foot. 32. On 5 July 2016, with respect to his conduct on 13 April 2016, the Rivne Town Court found O.L. guilty of an act of domestic violence within the meaning of Article 173-2 of the CAO. O.L., who took part in the hearing, acknowledged that he was guilty of the offence in question. The court also decided that O.L. could be relieved of formal liability for the offence and given only an oral reprimand, in view of the fact that the applicant had asked for this, as the parties had already resolved their differences. 33. In the meantime, on 22 June 2016 the applicant had instituted civil proceedings in the Rivne Town Court, seeking to evict O.L. from their flat. Referring to Article 116 of the Housing Code, she alleged that living with him was impossible, as he was systematically abusing alcohol, mistreating, threatening and harassing her and the children, disrespecting their interests and having violent outbursts. Continuing to live with him would mean that she and her children, who were minors, would be at constant risk of being subjected to psychological harassment and physical violence. The applicant also argued that eviction would not place O.L. in a precarious situation, as he and his mother co-owned a flat in the same town. 34. During the hearings concerning the eviction claim, three witnesses (the applicant ’ s sister and two friends) who were questioned by the court confirmed the applicant ’ s version of events and testified that O.L. had been abusing alcohol and mistreating his former spouse and children. In contrast, three other witnesses (O.L. ’ s brother and two people who were either his friends or relatives) suggested that the arguments had been caused by the applicant, who wanted to get rid of O.L. in order to gain full control of the flat. These witnesses also alleged that O.L. cared about the children and was a thoughtful father. 35. In support of his case, O.L. also submitted two character references. The first one was from the management body of the building in which his and the applicant ’ s flat was located. This reference indicated that no complaints against him had ever been lodged by any building residents. The second was from a limited liability company called R., which indicated that O.L., one of their independent contractors, was highly esteemed as a diligent construction worker and a good team member. 36. The applicant adduced documents concerning all her previous complaints of harassment and violence, and a new certificate from the State Bailiffs Service indicating that O.L. was at the material time eighteen months in arrears with regard to his child support payments. 37. On 4 April 2017 the Rivne Town Court allowed the applicant ’ s claim and ordered O.L. ’ s eviction. In its judgment, the court noted, in particular, as follows: “... The court, having heard the [parties and their representatives], [and] the witnesses ..., [and] having examined the written evidence, has come to the following [conclusions]: ... ... the respondent abuses alcohol, constantly makes scenes and causes arguments, [and] intimidates [the applicant] in the presence of the children. [The respondent] behaves aggressively, [and] threatens the claimant with physical violence. [The claimant], along with her children, who are minors, has sometimes been forced to sleep at her acquaintances ’ homes, as she has been afraid to stay at home with the respondent. The claimant has repeatedly appealed to the law-enforcement bodies for the protection of her rights and those of her minor children. ... The respondent was subjected to ... measures to correct his behaviour in the form of pre-emptive conversations and warnings concerning the unacceptability of domestic violence, and a decision of the Rivne Town Court of 5 July 2016 found [him] guilty of an administrative offence under Article 173-2 [of the CAO]. The respondent was also prosecuted under Article 125 [of the CC] for a criminal offence, for inflicting minor injuries on the claimant. The above measures to correct [the respondent ’ s] behaviour did not bring about the desired result ...” 38. O.L. appealed. He argued that the applicant had been causing arguments in order to separate him from the children and obtain pecuniary benefits from the flat. For the same reason, she had been exaggerating the situation and submitting vexatious complaints containing accusations which were not supported by evidence. Moreover, Article 116 of the Housing Code provided for the eviction of a resident whose misconduct was systematic, where less stringent measures in respect of that resident had proved to be ineffective. In his case, there was no evidence of systematic misconduct and several witnesses had testified in his favour. While some fights had taken place occasionally, all the evidence against him pertained to either 2011 or 2015-16. No fresh evidence of any arguments between him and his former spouse had been provided. As regards the flat which he co-owned, that flat was occupied by his mother and his brother ’ s family, and there was therefore no room for him. 39. On 14 June 2017 the Rivne Regional Court of Appeal quashed the Town Court ’ s judgment and dismissed the applicant ’ s claim, finding that there were no grounds for applying such a radical measure as eviction, and that the conditions required by Article 116 of the Housing Code had not been fulfilled. The relevant part of the court ’ s ruling reads as follows: “It is apparent from the case-file material that on a number of occasions the applicant called the police to her home address and accused the defendant of having committed unlawful acts in respect of her and in respect of her family members; however, it has not been demonstrated that [O.L.] systematically breached the rules on living together and was found liable [on this account]. ... Of and by itself, addressing the competent authorities with complaints concerning a breach of the rules on living together, without those authorities applying measures to correct the behaviour of the [guilty] party concerned, is not grounds for eviction. Having evaluated every piece of evidence separately and jointly, the judicial panel concludes that the evidence provided by the parties demonstrates the existence of hostile, conflictual relations between the former spouses. In such circumstances, the judicial panel considers that the grounds for applying such an extreme measure as eviction in respect of the defendant are insufficient. At the same time, the judicial panel considers it necessary to warn [O.L.] that he needs to change his attitude towards the rules on living together with the members of his family [after the divorce]. ...” 40. The applicant appealed on points of law. In particular, she argued that O.L. had already been found guilty of domestic violence in administrative proceedings, and had been prosecuted under Article 125 of the CC for a criminal offence for having assaulted her. She argued that O.L. had not corrected his conduct or attitude, and that living with him exposed her and the children to a considerable risk of harassment and violence. She also reiterated that he had another dwelling available. 41. On 20 August 2018 the Supreme Court dismissed the applicant ’ s appeal on points of law, endorsing the findings of the Court of Appeal. 42. On 11 October 2018 that decision was sent to the applicant by post. 43. On 28 May 2019 the applicant, O.L., their daughters and the applicant ’ s son were granted ownership of the family flat under the national scheme allowing protected tenants to become the owners of their residences. 44. At present, all of them still share the flat. 45. In December 2019 the applicant filed a fresh criminal complaint against O.L. concerning a further violent outburst. 46. On 26 November 2019 the applicant also initiated proceedings to deprive O.L. of his parental rights over their triplets, alleging that he systematically neglected their needs and avoided paying child support. Those proceedings are currently ongoing. | This case concerned the applicant’s complaint that the dismissal of an eviction claim against her ex-husband had exposed her and her children to the risk of domestic violence and harassment. She alleged that the domestic courts had been excessively formalistic in their decisions and had given her ex-husband a sense of impunity which had exposed her and her children to an even greater risk of psychological harassment and assault. |
308 | Prevention of terrorism | I. THE CIRCUMSTANCES OF THE CASE 1. The prosecution of the newspapers 5. At the material time the applicants were the owners, executive directors, editors -in-chief, news directors and journalists of four daily newspapers published in Turkey : Ülkede Özgür Gündem, Gündem, Güncel and Gerçek Demokrasi. The publication of all four newspapers was regularly suspended, pursuant to section 6 ( 5 ) of Law no. 3713 ( the Prevention of Terrorism Act), by various Chambers of the Istanbul Assize Court, between 16 November 2006 and 25 October 2007, for periods ranging from 15 days to a month in respect of various news reports and articles. The impugned publications were deemed to be propaganda in favour of a terrorist organisation, the PKK/KONGRA-GEL [1], as well as the approval of crimes committed by that organisation and its members. 6. In the first case against Ülkede Özgür Gündem on 16 November 2006, the trial judge considered that the content of certain reports and articles contained elements of propaganda, the approval of terrorist crimes and had identified officials who risked terrorist attack, contrary to section 6(5) of Law no. 3713. Their content thus exceeded the permissible limits of Article 10 of the Convention. Moreover, the offences had not been limited to a single issue of the newspaper, but had been continuous. Consequently, he was authorised by section 6(5) to suspend the publication and distribution of the periodical for a period of fifteen days to a month. 7. In the case against Güncel on 16 July 2007, the newspaper was suspended for 15 days, not by virtue of section 6 ( 5 ) of Law no. 3713, but because its owners, journalists and content were the same as those of Gündem, whose publication and distribution had been suspended for 15 days by a court decision of 12 July 2007. 8. Neither the applicants nor their representative participated in these ex parte procedures, and their written objections to the suspension orders were dismissed. Consequently, the orders were executed. 2. The prosecution of the applicants 9. The applicant Ali Gürbüz, the owner of Ülkede Özgür Gündem, was prosecuted under sections 6( 1 ) and ( 2 ) and 7(2) of Law no. 3713, as well as Article 215 of the Criminal Code, for disseminating propaganda in favour of the aforementioned organisation, approving crimes committed by that organisation and its members, and identifying officials with anti-terrorist duties as targets, in respect of various articles published in their newspaper (case no. 2007/367). Ali Gürbüz was convicted and fined 380,000 new Turkish liras (TRY) (approximately 217,000 euros (EUR)). 10. The applicant Özlem Aktan, the executive director of Ülkede Özgür Gündem and Gündem, was similarly prosecuted. Her first case concerning the former newspaper was disjoined from that of Ali Gürbüz. Her second case (no. 2007/197) involved another applicant, Lütfi Ürper, the owner of Gündem and Güncel. They were charged under sections 5, 6(2) and (4) and 7(2) of Law no. 3713, as well as Articles 215 and 218 of the Criminal Code. Lütfi Ürper was prosecuted on three other occasions on similar charges ( case nos. 2007/419, 2 007/343 and 2007/482). Another applicant, Hüseyin Bektaş, the owner and executive director of Gerçek Demokrasi, was prosecuted for the same offences under sections 6(2) and 7(2) of Law no. 3713 and Article 215 of the Criminal Code. 11. According to the information in the case file, all these prosecutions are still pending at first instance, except for that against Ali Gürbüz, which is apparently still pending before the Court of Cassation. | In this case, the applicants complained about the suspension of the publication and dissemination of their newspapers, considered propaganda in favour of a terrorist organisation. |
673 | Professionals | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1957 and lives in Villavente (León). 6. He worked as a teacher, also acting as head of department, in a public school, the León School of Arts and Crafts ( Escuela de Artes y Oficios de León ). One of his colleagues – a teacher in the same department – filed a complaint against him with the education authorities for psychological harassment in the workplace. The complaint was dismissed on the basis that there had been no harassment but mere disputes at work. 7. On 20 June 2006 the colleague filed an administrative claim with the Department of Education of the Regional Government of Castilla - León aimed at seeking redress for the malfunctioning of the public administration. She requested that the administration be found liable for the alleged psychological harassment in the workplace. The competent authorities did not render a decision within the requisite time-limit. 8. On 25 January 2007 the colleague instituted judicial proceedings ( recurso contencioso-administrativo ) against the implied rejection of her request of 20 June 200 6. She claimed that the applicant had subjected her to workplace harassment, from the academic year 2000/01 onwards in particular, and that the competent authorities had failed to take any measures to prevent it. She described a series of events in which the applicant had allegedly made false accusations against her and subjected her to discriminatory and humiliating treatment, disrespect, insults and death threats at work in the presence of students, parents and other colleagues. The colleague further requested compensation from the Regional Administration of Castilla - León in the amount of 74,434.12 euros (EUR), as well as reinstatement in her position as a teacher at the León School of Arts and Crafts, requesting that all appropriate measures be taken to prevent any possible risks, particularly psychosocial, in the workplace. 9. On 19 December 2007, after notice of the aforementioned application was given, the respondent – the Regional Administration of Castilla - León – contested the claims and requested the dismissal of the application. 10. By a judgment (no. 2491/2011) of 2 November 2011, the High Court of Justice of Castilla - León (Administrative Chamber) ruled against the Regional Administration of Castilla - León, ordering it to pay compensation to the plaintiff in the amount of EUR 14,500. It concluded that the situation suffered by her amounted to workplace harassment and that the education authorities, despite being aware of the situation, had not taken effective measures to bring it to an end. Although the court acknowledged that not all the acts or behaviour attributed to the applicant could be considered psychological harassment, it found that on the basis of the evidence collected a situation of psychological harassment in the workplace had been shown to exist. The High Court of Justice included the following reasoning concerning the applicant, who was frequently identified by name : “ ... from the documentary, witness and expert evidence [in the proceedings] [the court] can find that ... a situation of psychological harassment in the workplace has been shown [to exist] on the basis that the head of department ’ s conduct towards the claimant met the material element – unjustified professional harassment – the temporal element – regular and repeated – and the element of intent – malicious and not by chance – of the so-called bullying ( mobbing ) ... a) Not all the acts or behaviour that the plaintiff attributed to Mr Vicent ... constitute psychological harassment towards her ... b) ... although it should also be considered established that the behaviour ... of Mr Vicent ... was to a certain degree general or collective, ... in the particular case of the plaintiff ... this general behaviour of a lack of respect and manners was translated, more intensively and strongly, into repeated and conscious professional discredit, of underestimation and mockery of her teaching ability, that resulted not only from the documented complaints already described ..., but particularly from the expressive witness evidence ... ” 11. On 15 December 2011 the applicant requested to have access to the file and to become a party to the proceedings. He claimed to have learned of the judgment some days earlier through the publication of information in a León newspaper ( Diario de León ). 12. By a decision of 23 January 2012, the High Court of Justice of Castilla - León granted the applicant access to the file but refused his request to be a party to the proceedings on the basis that he could not be considered to be an interested party in liability proceedings against the public administration. 13. On 1 February 2012 the applicant lodged an appeal against the above - mentioned decision requesting the annulment of the proceedings. The High Court of Justice of Castilla - León dismissed it by a decision of 2 March 2012. On the one hand, the court held that the request for annulment of the proceedings had been made outside the time-limit prescribed by law, since an “appeal for annulment” ( incidente de nulidad ) should have been submitted within twenty days of the date the applicant became aware of a possible breach of his rights. The court took into account that the applicant had claimed that he had learned of the judgment through the publication of information in a newspaper on 9 and 10 December 2011, and that in any case on 15 December 2011 ( the date on which he had requested access to the file and to become a party to the proceedings) he had clearly known the decisive elements for his complaints. The court nevertheless decided on the merits. It stressed that the proceedings were aimed at determining liability for the damage suffered by the claimant as a result of the acts of the authorities and staff working for the public administration. Therefore, in line with section 145 of Law 30/1992 and the relevant subordinate legislation, within such proceedings neither the authorities nor civil servants could be sued nor, accordingly, could they be a party to the proceedings. The national legislature had set up liability proceedings against the public administration excluding the possibility of its authorities or staff becoming interested parties to them even though in all cases the public officials concerned were identifiable; their professional conduct was being judged and hence their honour and moral integrity could eventually be affected; there was a possibility that the administration concerned would institute a “recovery action” against them; and the administrative or judicial decisions were subject to potential media coverage. Despite acknowledging that public officials ’ professional conduct was being judged and that their honour and moral integrity could be affected, the court held : ( i ) that the proceedings involved disputes exclusively between the public administration and alleged victims of the acts of its public officials; (ii) that the authorities and staff allegedly causing the damage could not be considered to be interested parties for the purposes of section 31 of Law 30/1992; and (iii) that both liability and compensation are sought from the public administration, as opposed to the public officials concerned. Lastly, the court stated that the public official concerned would only be considered to be an interested party in a recovery action ( acción de repetición ) under section 145 ( 2 ) of Law 30/1992, in which each and every one of the elements constituting the liability for which recovery was sought could be contested, including the acts attributed to him or her. The court thus concluded that the concept of an “interested party” in liability proceedings brought against the public administration should be understood as referring to those allegedly injured by the acts of public officials. The restriction on public officials being a party to such (administrative or judicial) proceedings was however justified by the special nature, purpose and scope of liability proceedings brought against the public administration. According to the court, such proceedings were set up to facilitate redress and compensation for those affected by the acts of public officials. Otherwise, the proceedings would require each and every public official concerned (including, for example, the school management board and education inspectorate, or doctors, nurses, porters and so forth in cases related to healthcare) to be summoned to appear in proceedings in their own defence and with their own representatives, contrary to the regulatory developments, that essentially simplified the proceedings for the benefit of those injured or affected by the public administration. 14. The applicant then lodged an amparo appeal with the Constitutional Court, invoking a breach of Article 24 of the Spanish Constitution (right to a fair trial). He claimed that, despite his having a direct and personal interest in the proceedings on the basis that his rights and legitimate interests had been affected, he had not been summoned to appear and his request to become a party to the proceedings had been refused. The court declared the appeal inadmissible by a decision of 2 October 2012 (served on the applicant on 9 October 2012) on the grounds that it had not duly justified its special constitutional significance. | This case concerned a domestic judgement which named the applicant as having harassed a work colleague, although the defendant in the case was actually his local authority employer. The applicant complained in particular that the High Court judgment stating that he had committed harassment, in proceedings in which he was not a party, had amounted to an unjustified interference with his right to honour and reputation. |
343 | Rape and sexual abuse | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1971 and lives in Maribor. A. Criminal proceedings concerning the applicant ’ s rape 6. On the night of 13 April 1990 the applicant, then eighteen years old, was raped by a group of seven males. Three other males allegedly participated : one as an aider and abettor and two others by committing a sexual assault on her. Five of the accused had not yet reached the age of majority (eighteen years) at the time of the commission of the criminal acts and were accordingly tried as juveniles. 7. In September 1990 criminal charges of rape, aiding and abetting rape and sexual assault were brought against the accused. All of them submitted in their defence that the applicant had voluntarily engaged in sexual activity with them. 8. The court held a number of hearings and obtained expert reports. An expert in clinical psychology found that the applicant had a learning disability and that she had not been physically or mentally capable of offering serious resistance. 9. On 13 November 1990 the Maribor Basic Court rendered a judgment acquitting the defendants of all charges. The verdict was based on the findings that the applicant had not seriously resisted sexual intercourse, that she had changed her testimony regarding the events surrounding one of the rape charges during the proceedings and that the defendants could not be considered to have employed force or threats which would be objectively capable of breaking the victim ’ s resistance. 10. The Public Prosecutor appealed against the judgment. 11. On 10 April 1991 the Maribor Higher Court quashed the first-instance judgment, finding that the facts had been insufficiently established. It ordered that the case be remitted to the first-instance court for fresh consideration before a different panel, without the participation of the judges who had delivered the impugned judgment. 12. In July 1991 the Maribor Basic Court conducted inquiries in order to establish the place of residence of two of the defendants. However, as the two defendants had allegedly emigrated to Austria, they could not be found. Several more inquiries were made in 1995, 1999, 2000 and 2001, but all attempts at establishing these two defendants ’ whereabouts proved unsuccessful. 13. Between 10 March 1995 and 31 August 2000 the applicant sent at least eight letters urging the Maribor District Court (previously called the Maribor Basic Court) to accelerate the proceedings and/or asking for a case review by the president of the court owing to delays in scheduling the first retrial hearing. 14. In the period from 20 May 1999 to 25 September 2001 the court scheduled five hearings, all of which were, however, adjourned for failure of some of the defendants to appear. 15. On 5 January 2001 the Director of the Department for Judicial Administration at the Ministry of Justice informed the applicant that the court had encountered difficulties identifying some of the defendants ’ residences. He also noted that between 28 May 1990 and 27 September 2000 there had been frequent changes of the presiding judge in her case due to judges being promoted. He mentioned that in the aforementioned period seven different judges had been dealing with the case. 16. Following this information, on 9 March 2001 the applicant suggested that the charges against the two defendants, one charged with rape and the other with aiding and abetting rape, who were allegedly residing in Austria and could not be found, be severed into a separate case and an international arrest warrant be issued against them. 17. On 29 May 2001 the Maribor District Court issued a detention order against the two defendants, which served as a legal basis for the issuing of the international arrest warrant. 18. On 22 November 2001 the court held the first hearing, followed by four more. It also obtained reports from two experts, one in neuropsychiatry and the other in clinical psychology. 19. On 4 June 2002 the court found one defendant guilty of rape under the first paragraph of Article 180 of the Penal Code and five defendants guilty of aggravated rape under the second paragraph of Article 180 of the Criminal Code. Regardless of the fact that they were tried as juveniles, the rules of sentencing applicable to adults applied to them as they had all reached the age of twenty-one before the judgment was given. The defendants were sentenced to prison sentences ranging from eight months to one year on account of, inter alia, the significant passage of time from the commission of the crime until their conviction. However, the court concluded that prison sentences were appropriate in order to make the defendants realise the gravity of their offences, particularly as they had not shown any genuine regret over the criminal acts committed against the applicant who continued to suffer from the consequences thereof. Lastly, the court acquitted the two defendants who had been charged with sexual assault. 20. The convicted defendants appealed; however, their appeals were dismissed by the Maribor Higher Court on 25 January 2006. Their subsequent extraordinary appeals ( requests for the protection of legality ) were also dismissed by the Supreme Court on 12 July 2007. 21. The defendant charged with aiding and abetting the rape of the applicant, whose whereabouts had been unknown and whose case had been separated from the main proceedings, was extradited to Slovenia on 9 March 2004. On 30 March 2004 the court held a hearing and found the defendant guilty. He was sentenced to eight months in prison. The defendant ’ s subsequent appeal was dismissed on 4 August 2004. 22. The other missing defendant was arrested in Slovakia and detained on 21 February 2003. After having been extradited to Slovenia, the court held hearings on 4 and 5 September 2003 and on the latter date convicted him of aggravated rape under the second paragraph of Article 180 of the Penal Code. He, too, was sentenced to eight months in prison. He appealed against the verdict; however, on 9 June 2006 his appeal was dismissed by the Maribor Higher Court. B. The applicant ’ s civil action for damages 23. On 22 September 1995 the applicant lodged a civil claim against all ten defendants and a number of the defendants ’ parents, seeking compensation for non-pecuniary damage she had sustained as a result of the rape. 24. On 17 June 2002 the civil panel of the Maribor District Court stayed the civil proceedings pending a final decision in the criminal proceedings. The civil trial was resumed in November 2007. 25. Subsequently, two hearings were held and on 21 January 2009 the first instance court gave a judgment awarding the applicant 16,691.70 euros (EUR), together with default interest. The applicant and some of the respondent parties appealed. On 10 March 2010 the Maribor Higher Court upheld the applicant ’ s appeal and dismissed the respondents ’ appeal. In the civil retrial, the District Court found that the two respondents who had initially been excluded from liability for damages owing to their acquittal in the criminal proceedings were jointly liable for the damages awarded to the applicant. 26. One of the two respondents appealed against the judgment, but on 9 November 2011 the Maribor Higher Court dismissed his appeal. C. The applicant ’ s claim against the State for non-pecuniary damage owing to the delays in the criminal proceedings 27. Following unsuccessful settlement negotiations with the State Attorney ’ s Office, on 30 November 2009 the applicant lodged a claim with the Celje Local Court seeking compensation in the amount of EUR 5,000, the maximum amount that could be awarded for non-pecuniary damage incurred as a result of the length of the criminal proceedings. She relied on the Protection of the Right to a Trial without Undue Delay Act (hereinafter “the 2006 Act”). She submitted that her interest in the criminal proceedings had not only been of a pecuniary nature but also aimed at safeguarding her rights under Article 3 of the Convention. 28. On 16 November 2010 the court rendered a judgment, finding that the applicant ’ s right to trial within a reasonable time had been breached and that the State was to pay EUR 5,000 to the applicant, together with default interest. The court pointed out that the overall duration of the proceedings had amounted to fifteen years and nine months, noting in particular the lack of any activity between April 1991 and March 2001. Moreover, it observed that the applicant ’ s case had involved two major criminal acts, a gang rape and a sexual assault, which, in addition to posing a considerable threat to society, had caused severe mental distress to the applicant. The court emphasised that due to the nature of these criminal acts committed against her, the criminal proceedings ought to have been conducted in a particularly diligent, determined and prompt manner; however, that had not been the case. It was further noted that the lengthy proceedings had been extremely stressful for the applicant, who had been forced to relive the painful events too many times, in addition to which she had had no effective remedies at her disposal in order to accelerate the proceedings. Thus, having regard to the importance of the case for the applicant and the lengthy period of absence of any procedural acts on the part of the criminal court, the court deviated from the general practice of the domestic authorities to award, within the statutory range of between EUR 300 and 5,000, 45% of the sum that would be awarded for a violation of the right to trial within a reasonable time by the Court. Thus, the applicant was awarded the maximum amount possible under the 2006 Act, although she would have apparently not been entitled to such amount purely on the basis of the excessive length of proceedings. 29. The applicant and the State Attorney lodged appeals. On 4 August 2011 the Celje Higher Court modified the first-instance judgment in so far as it concerned the costs of proceedings. It rejected the remainder of the appeals. 30. On 13 October 2011 the applicant lodged a constitutional appeal and initiative petition for the review of the constitutionality of the 2006 Act in so far as it limited the maximum amount to be awarded for a violation of the “reasonable time” requirement to EUR 5,000. She alleged that the statutory limitation of compensation in this manner was unconstitutional, as the maximum amount did not constitute sufficient redress for particularly arduous cases such as her own. 31. On 10 February 2012 the Constitutional Court rejected the constitutional appeal as inadmissible. Consequently, the applicant ’ s petition for the review of the constitutionality of the 2006 Act ’ s limitation on compensation was also rejected, as the court held that the possible annulment of the challenged statutory provision could not have had any legal effects on the applicant ’ s position. | This case concerned criminal proceedings against a group of men who had raped the applicant in April 1990, when she was 18 years old. The applicant complained in particular that the long delays in the criminal proceedings had been in breach of the State’s obligation to effectively prosecute the criminal offences committed against her. While she was awarded compensation at national level for the distress she suffered as a result of the lengthy proceedings, she considered that the amount of 5,000 euros paid to her could not be regarded as sufficient redress. |
1,047 | Professional services (lawyers, doctors, etc.) | I. PARTICULAR CIRCUMSTANCES OF THE CASE 9. The applicant is a Belgian national born in 1952. He resides in Antwerp where he exercises the profession of avocat (lawyer). After being enrolled as a pupil avocat on 27 September 1976, he at once opened his own chambers without ever working in the chambers of another avocat; his pupil-master, however, entrusted him with a number of cases and gave him some payment for the work done in regard to them. Mr. Van der Mussele terminated his pupillage on 1 October 1979 and has since then been entered on the register of the Ordre des avocats (Bar Association). 10. On 31 July 1979, the Legal Advice and Defence Office of the Antwerp Bar appointed Mr. Van der Mussele, pursuant to Article 455 of the Judicial Code, to defend one Njie Ebrima, a Gambian national. The latter, who had been arrested two days earlier on suspicion of theft and of dealing in, and possession of, narcotics, had applied under Article 184 bis of the Code of Criminal Procedure for the assistance of an officially appointed avocat. 11. On 3 and 28 August 1979, Mr. Ebrima appeared before a Chamber (chambre du conseil) of the Antwerp Court of First Instance (tribunal de première instance), which was supervising the investigation, for the purpose of a decision as to whether the warrant of arrest issued against him by the investigating judge should remain in force. The Chamber confirmed the warrant on both occasions. It also added to the initial charges a further count of publicly using a false name. Mr. Ebrima appealed against these two orders, but the Indictments Chamber of the Antwerp Court of Appeal upheld them on 14 August and 11 September respectively. On 3 October 1979, the Court of First Instance sentenced him to six months ’ and eight days ’ imprisonment for theft, public use of a false name and illegal residence; he was acquitted on the remaining charges. On his appeal, the Court of Appeal on 12 November reduced the length of the sentence to that of the period he had spent in detention on remand. The applicant had acted for Mr. Ebrima throughout these proceedings and estimated that he devoted from seventeen to eighteen hours to the matter. Mr. Ebrima was released on 17 December 1979 following representations made by the applicant to the Minister of Justice; he had in the meantime been placed at the disposal of the immigration police with a view to deportation. 12. The following day, the Legal Advice and Defence Office notified Mr. Van der Mussele - whose pupillage had finished more than two and a half months earlier (see paragraph 9 above) - that it was releasing him from the case and that because of Mr. Ebrima ’ s lack of resources no assessment of fees and disbursements could be made against him. The latter amounted on this occasion to 3,400 BF, made up of 250 BF for preparation of the case-file, 1,800 BF for correspondence, 1,300 BF for travel to and from the prison, the Court of First Instance and the Court of Appeal, and 50 BF in respect of court costs for the copy of a document. 13. The applicant stated that during his pupillage he had dealt with approximately 250 cases, including about 50 cases - representing some 750 hours of work - on which he had acted as officially appointed avocat. He also said that his net monthly income before tax was only 15,800 BF in his first and second years, increasing to 20,800 BF in the third. | The applicant, a pupil advocate, was called upon to provide free lawyer’s services to assist indigent defendants. He complained that that represented forced labour. |
13 | Compulsory childhood vaccination | Background 11. In the Czech Republic, section 46(1) and (4) of the Public Health Protection Act ( Zákon o ochraně veřejného zdraví ) (Law no. 258/2000 Coll., as amended – “the PHP Act”) requires all permanent residents and all foreigners authorised to reside in the country on a long-term basis to undergo a set of routine vaccinations in accordance with the detailed conditions set out in secondary legislation. For children under the age of fifteen, it is their statutory representatives ( zákonný zástupce ) who are responsible for compliance with this duty. 12. In the Czech constitutional order duties may be imposed only on the basis and within the bounds of the law ( zákon ) and limitations on fundamental rights and freedoms may likewise only be imposed by the law, this term commonly being understood as an Act of Parliament. 13. The PHP Act is an Act of Parliament. Sections 46(6) and 80(1) provide for the adoption by the Ministry of Health (“the Ministry”) of implementing legislation in relation to vaccination. 14. The Ministry issued the above-mentioned implementing measures in the form of the Decree on Vaccination against Infectious Diseases ( Vyhláška o očkování proti infekčním nemocem ) (Decree no. 439/2000 Coll., as amended – “the 2000 Ministerial Decree”, in force from l January 2001 to 31 December 2006, and Decree no. 537/2006 Coll., as amended, – “the 2006 Ministerial Decree”, in force as from 1 January 2007, jointly referred to hereafter as “the Ministerial Decree”). 15. Section 50 of the PHP Act provides that preschool facilities such as those concerned in the present case may only accept children who have received the required vaccinations, or who have been certified as having acquired immunity by other means or as being unable to undergo vaccination on health grounds. A similar provision appears in section 34(5) of the Education Act ( Zákon o předškolním, základním, středním, vyšším odborném a jiném vzdělávání (školský zákon) ) (Law no. 561/2004 Coll., as amended). 16. The cost of vaccination is covered by public health insurance. The vaccines included in the list of specific vaccine variants for regular immunisation, which is published annually by the Ministry, are free of charge. Other vaccines can be used instead so long as they have been approved by the competent authority, but the cost is not covered by the State. 17. Under section 29(1)(f) and (2) of the Minor Offences Act ( Zákon o přestupcích ) (Law no. 200/1990 Coll., as applicable at the relevant time – “the MO Act”), a person who violates a prohibition or fails to comply with a duty provided for or imposed in order to prevent infectious diseases commits a minor offence punishable by a fine of up to 10,000 Czech korunas (CZK) (currently equivalent to nearly 400 euros (EUR)). 18. In the event of malpractice in administering a compulsory vaccination resulting in damage to the health of an individual who has been vaccinated, the person responsible may be held liable under the general law of tort to pay compensation in respect of the damage caused. 19. As regards damage to health resulting from a compulsory vaccine administered in compliance with the applicable rules and procedures ( lege artis ), until 31 December 2013 compensation could be claimed from the health professional who had performed the vaccination, on the basis of strict liability with no exonerating grounds under Article 421a of the then applicable Civil Code (Law no. 40/1964 Coll., as amended). In the context of a recodification of the civil law, this form of action was abolished with effect from 1 January 2014. However, under new special legislation that took effect on 8 April 2020, the State may be held liable for such damage. 20. Aside from the issue of compensation in such circumstances, a person suffering from any side-effects of the vaccines in question will be eligible for medical treatment, covered by public health insurance. 21. For further information on the relevant domestic law and practice, see paragraphs 65 to 93 below. application of Mr Vavřička, no. 47621/13 22. The applicant was born in 1965 and lives in Kutná Hora. 23. On 18 December 2003 the competent Disease Prevention and Control Centre ( hygienická stanice ) found him guilty of an offence under section 29(1)(f) of the MO Act for failure to comply with an order to bring his two children, then aged fourteen and thirteen, to a specified health-care establishment with a view to having them vaccinated against poliomyelitis, hepatitis B and tetanus. He was fined CZK 3,000 and ordered to pay CZK 500 in respect of costs (i.e. the equivalent of some EUR 110 in total at the relevant time). 24. The applicant challenged the decision at the administrative level, before the courts and ultimately before the Constitutional Court. He argued that the regulations in question were contrary to his fundamental rights and freedoms, in particular the right to refuse a medical intervention (referring to Articles 5 and 6 of the Convention on Human Rights and Biomedicine, which forms part of the legal order of the Czech Republic and takes precedence over statute in case of conflict (see paragraph 141 below) – the “Oviedo Convention”) and the right to hold and manifest his religious and philosophical beliefs. He opposed what he described as irresponsible experimentation with human health, emphasised the actual and potential side-effects of vaccines and argued that no risk to public health arose in his case, given that the last occurrence of poliomyelitis dated back to 1960, hepatitis B concerned only high-risk groups and tetanus was not transmissible among humans. 25. The applicant’s cassation appeal was first dismissed by the Supreme Administrative Court (“the SAC”) in a judgment of 28 February 2006. That judgment was however quashed by the Constitutional Court in a constitutional judgment ( nález ) of 3 February 2011. 26. The Constitutional Court found that the SAC had failed to provide an adequate response to the applicant’s claim that the impugned decision was contrary to his right to manifest freely religion or belief under Article 16 of the Charter of Fundamental Rights and Freedoms ( Listina základních práv a svobod ) (Constitutional Law no. 2/1993 Coll.). It observed that the vaccination duty as such (imposed on the applicant by the decision of 3 June 2003 implementing the 2000 Ministerial Decree) was not at stake in the case, since his constitutional appeal concerned the penalty for non-compliance with this duty, imposed on him under the MO Act by the decision of 18 December 2003. Accordingly, the Constitutional Court could not exercise its jurisdiction to review the constitutionality of the vaccination duty. In any event, it had no power to substitute the assessment by the legislature or the executive as to the infectious diseases against which compulsory vaccination was needed. That assessment was for the legislature to make having regard to Article 26 of the Oviedo Convention. It was of a political and expert nature and subject to a relatively wide margin of appreciation. 27. The Constitutional Court distinguished between making provision in law for compulsory vaccination and securing compliance with that duty. Compulsory vaccination amounted in principle to an admissible limitation on the fundamental right to manifest freely one’s religion or beliefs, since it was obviously a measure necessary in a democratic society for the protection of public safety, health and the rights and freedoms of others. However, for an interpretation of that limitation to be in conformity with the constitutional requirements, it could not entail unconditional enforcement of the vaccination duty in respect of any person, irrespective of the individual aspects of or motivations for that person’s resistance. 28. More specifically, the Constitutional Court held that: “A public authority deciding on the enforcement of the vaccination duty or on the penalty for non-compliance with it must take into account the exceptional reasons advanced by the claimant for refusing to undergo vaccination. If there are such circumstances which call, in a fundamental manner, for that person’s autonomy to be preserved, while nevertheless maintaining an opposite public interest ..., and therefore for an exceptional waiver of the penalty for [non-compliance with] the vaccination duty, the public authority must not penalise or otherwise enforce the [said] duty. ... The public authority, and then the administrative court in proceedings on an administrative-law action, must take into account all the relevant circumstances of the case in its decision-making, in particular the urgency of the reasons claimed by the person concerned, their constitutional relevance, and the risk to society that may be caused by the conduct of the person concerned. The consistency and credibility of the claims of the person concerned will also be an important aspect. In a situation where a specific person does not communicate with the competent public authority from the outset, and only seeks to justify his or her attitude in respect of vaccination at later stages in the proceedings, as a general rule the conditions that the person’s attitude be consistent and that the constitutional interest in the protection of his or her autonomy be urgent would usually not be satisfied.” 29. The Constitutional Court further held that if these criteria were to be applied to the specific facts of the applicant’s case, the fulfilment of the criterion of consistency in his attitude appeared problematic. In that regard, it noted that he had given the reasons for his refusal to allow vaccination only at a late stage of the proceedings and that even at a hearing before the Constitutional Court, he had submitted that his reasons were primarily health-related as, in his view, vaccination was harmful to children, with any philosophical or religious aspects being secondary. However, the criteria were primarily for the SAC to apply, and the applicant’s case was remitted to it for re ‑ examination. 30. In a judgment of 30 September 2011, the SAC dismissed the applicant’s case. In response to the Constitutional Court’s directions, the SAC established that it had not been until a late stage in the proceedings that the applicant had relied, without further explanation, on the protection of his religious and philosophical convictions. He had subsequently explained his belief that he had the right to refuse compulsory vaccination for himself and his children on account of such convictions. However, he had not advanced any concrete argument concerning his religion and the degree of the potential interference caused by vaccination. The interest in protecting public health thus outweighed the applicant’s right to manifest his religion or beliefs. 31. The final decision was given by the Constitutional Court on 24 January 2013, dismissing the applicant’s complaint against the judgment of 30 September 2011 as manifestly ill-founded. application of ms Novotná, no. 3867/14 32. The applicant was born on 12 October 2002. She was granted admission to a Montessori nursery school by a decision of 4 April 2006, when she was some three and a half years old. 33. On 10 April 2008 the principal of the establishment decided to reopen the admission procedure, having been informed by the applicant’s paediatrician that – contrary to a previously submitted medical certificate of 15 March 2006 to the effect that she “had received the basic vaccination” – the applicant had not actually received the MMR (measles, mumps and rubella) vaccine. The reopened proceedings resulted in a decision of 14 July 2008 reversing, for lack of a required vaccination, the previous decision to admit the applicant to the establishment. 34. In her subsequent unsuccessful appeals at the administrative level and before the courts, as well as to the Constitutional Court, the applicant argued that an exception to the right protected under Article 5 of the Oviedo Convention (that any intervention in the health field be subject to free and informed consent) could not be provided for by secondary legislation, i.e. the 2006 Ministerial Decree. That Decree did not set an age limit for the MMR vaccination. With reference to “statistical information” and the “opinion of experts”, she contended that vaccination presented a risk to health and was not necessary in a democratic society. The decision of 14 July 2008 was contrary to her interests and her right to education. She was prevented from continuing in the Montessori educational system unless she submitted to a medical procedure to which she did not consent. 35. The applicant’s arguments were dismissed at all levels, the final decision being given by the Constitutional Court on 9 July 2013. Its conclusion can be summarised as follows. 36. To the extent that the applicant was challenging the legal basis for the vaccination duty, limitations to the guarantees under Articles 5 and 6 of the Oviedo Convention were provided for by an Act of Parliament (the PHP Act) setting out the duty to submit to routine vaccination, in respect of which only particular aspects such as the vaccine types and the conditions for administering them were set out in the 2006 Ministerial Decree adopted in application of that law. This arrangement satisfied the constitutional requirements that duties be imposed on the basis and within the bounds of the law (Article 4 § 1 of the Charter) and that limitations on fundamental rights and freedoms be imposed only by the law (Article 4 § 2 of the Charter). Any case-law inconsistencies in that regard had been resolved (see, in particular, paragraphs 85 et seq. below). 37. In so far as the applicant contested the need to protect public health by means of the vaccination at stake in her case, the objection was dismissed as unfounded. It was noted that she had raised no arguments whatsoever as regards any “circumstances which require in a fundamental manner that the individual’s autonomy be preserved” within the meaning of the Constitutional Court’s judgment in the Vavřička case (see paragraph 28 above). 38. In that regard, the Constitutional Court specifically pointed out that effective protection of those fundamental rights that were in conflict with the public interest in the protection of health could be ensured through a rigorous assessment of the individual circumstances of each case, rather than by calling into question the vaccination duty as such. In the applicant’s case, the courts had duly examined and responded to her objections. She had failed to show that on the facts of her case the duty to undergo the MMR vaccination amounted to a disproportionate interference with her fundamental rights. Nor had she established any circumstance that would have enabled her, in accordance with section 50 of the PHP Act, to be admitted to a nursery school without being vaccinated. 39. Leaving open the question whether attendance at a nursery school fell within the ambit of the right to education, the Constitutional Court nevertheless held that in a situation where the applicant’s continued attendance was likely to put at risk the health of others, the public’s subjective right to the protection of health took priority. Her non-admission to the nursery school was accordingly free from any error. 40. In addition, the applicant had prevented herself from being able to attend preschool by refusing to meet conditions which were identical for everyone, and had probably not acted in good faith when submitting an inaccurate medical certificate with her initial application for admission. application of mr Hornych, no. 73094/14 41. The applicant was born on 26 September 2008. At a young age, he suffered from various ailments and did not receive any vaccinations. He claimed that his parents had never actually refused to have him vaccinated and that the failure to vaccinate him was due to the lack of an individualised vaccination recommendation from his paediatrician. 42. When applying for admission to nursery school, his paediatrician certified in the relevant form that the applicant had not been vaccinated. The form also contained the following handwritten text: “[the applicant] is not lacking any routine vaccination required under the law”. It was later established by the authorities, and not disputed by the applicant, that the handwritten text had been added by someone other than the paediatrician. 43. By a decision of 27 June 2011, the applicant was refused admission to the nursery school pursuant to section 50 of the PHP Act because he had failed to prove that he had been vaccinated. His administrative appeal was dismissed, the authority having established through telephone contact with the paediatrician that there had been no relevant change in the situation since the above-mentioned certificate had been issued. 44. The applicant further pursued his case through an administrative-law action and a cassation appeal, arguing principally that he had fulfilled all the statutory admission requirements, since – given that he had not received any individualised vaccination recommendations – he could not be regarded as missing any vaccination required by law. The authorities had failed to establish the opposite. It had been arbitrary and contrary to his right to protection of personal information for them to have obtained further information from his paediatrician by telephone. He had been deprived of the opportunity to comment. It was apparent that no minor offence had been committed in connection with his vaccination status, as no proceedings had been brought in that respect. 45. His appeals were dismissed, inter alia on the grounds that although the administrative appeal authority had obtained information from the paediatrician by an extraordinary channel, the applicant had had access to the case-file and the contested decision was based solely on facts of which he had been aware. Moreover, under section 50 of the PHP Act the relevant criterion for being admitted to nursery school was whether or not the vaccination duty had been complied with, and not the reasons for possible non-compliance. Finally, the applicant had not even argued that there were any “circumstances which require in a fundamental manner that the individual’s autonomy be preserved”, within the meaning of the Vavřička jurisprudence (see paragraph 28 above), nor had he relied on any of his fundamental rights. 46. In his ensuing constitutional appeal, the applicant alleged a violation of his rights under Articles 6 § 1 (fairness) and 8 (private and family life, in particular the right to personal development) of the Convention, essentially on the same grounds as before the lower courts. He argued that these courts had failed to assess the medical necessity of the vaccinations he had been required to undergo. In addition, “for the sake of completeness” he submitted specifically that since his parents had not refused to have him vaccinated, they could not be blamed for failing to justify their refusal on the grounds of their beliefs or convictions. 47. On 7 May 2014 the Constitutional Court rejected the appeal as manifestly ill-founded, noting that the courts had duly examined all the relevant elements and endorsing their conclusions. applications of mr Brožík and mr Dubský, nos. 19298/15 and 19306/15 48. The applicants were born on 11 and 16 May 2011 respectively. Their parents refused to have them vaccinated. It was later noted by the authorities that in their application for admission to nursery school they had submitted a certificate issued by their paediatrician to the effect that they had not been vaccinated on account of their parents’ beliefs and convictions. 49. On 2 May 2014 they were refused admission to nursery school with reference to the Vavřička jurisprudence (see paragraph 28 above) and on the grounds that compulsory vaccination amounted to an acceptable restriction on the right to manifest one’s religion or beliefs freely, since it was necessary for the protection of public health and of the rights and freedoms of others. 50. The applicants challenged that decision through an administrative appeal and through an administrative-law action against the subsequent dismissal of that appeal. 51. Together with their administrative-law action, on 18 July 2014 the applicants requested the Hradec Králové Regional Court to adopt an interim measure authorising them to attend a given nursery school from 1 September 2014 pending the outcome of the proceedings on the merits of that action. They argued that they would otherwise be liable to serious harm, consisting in discrimination against them and a limitation of their personal development and access to preschool education. They asserted furthermore that their admission could not pose any risk to the other children who had been vaccinated, and that many adults were not, or were no longer, immunised against the illnesses in question. 52. On 13 August 2014 the Regional Court dismissed the request for an interim measure. It noted that there was no right, as such, of admission to preschool and that such admission was subject to conditions, including that set out in section 50 of the PHP Act. Non-admission was thus envisaged by law and was not a rare occurrence, especially on account of the lack of available places. Accordingly, the impugned decision could not have entailed a serious type of harm justifying the adoption of an interim measure. 53. Relying on Article 6 of the Convention, the applicants challenged this judgment by way of a constitutional appeal. At the same time, they requested the Constitutional Court itself to adopt an interim measure similar to that previously requested from the Regional Court. 54. On 23 October 2014 the Constitutional Court dismissed both the applicants’ constitutional appeal and their request for an interim measure as manifestly ill-founded. Emphasising that the proceedings on the merits were still ongoing at the relevant time, it considered that the dismissal of the requests for interim measures had not entailed constitutionally unacceptable consequences. Moreover, the applicants had not demonstrated that it was necessary to adopt interim measures, and the Regional Court’s reasoning in that respect was logical, understandable and relevant. 55. Once the Constitutional Court had resolved the matter of the interim measure, it remained to determine the merits of the applicants’ administrative-law action. This was dismissed in a judgment of the Regional Court of 10 May 2016. Although further appeals were available, the applicants did not pursue the matter any further. application of mr Roleček, no. 43883/15 56. The applicant was born on 9 April 2008. His parents, who are biologists, decided to draw up an individual vaccination plan for him. As a result, he was vaccinated later than provided for by the applicable rules and was not vaccinated against tuberculosis, poliomyelitis or hepatitis B, and did not receive the MMR vaccine. 57. On 22 and 30 April 2010 the principals of two nursery schools refused him admission under section 50 of the PHP Act. 58. In his subsequent unsuccessful appeals at the administrative level and before the courts, including the Constitutional Court, the applicant argued, inter alia, that there had been a violation of his right to respect for private and family life, his right to education and his right not to be subjected to discrimination. No account had been taken of his parents’ convictions in pursuing his best interests, or of the principle of proportionality. Section 50 of the PHP Act should be set aside. The interference with his rights had been disproportionate, and less radical measures had been available to allow for the protection of public health. His non-admission had had repercussions for the entire family, in that his mother had been obliged to stay at home to look after him. 59. The applicant’s arguments were dismissed on grounds that can be summarised as follows, the key decisions being given by the Constitutional Court on 27 January 2015 (validity of section 50 of the PHP Act) and 25 March 2015 (merits of the applicant’s individual case). 60. Section 50 of the PHP Act did not breach in any way the rule that some matters were to be regulated solely by an Act of Parliament. It laid down a condition for being admitted to day-care or preschool facilities, with reference to section 46 of the PHP Act. The latter provision defined the scope and content of the underlying duty. To the extent that the applicant might be understood as wishing to challenge the vaccination duty as such, this was beyond the scope of his challenge to section 50 of the PHP Act and should have been raised separately. As this had not been done, the Constitutional Court was prevented from reviewing the vaccination duty in the present proceedings. Nevertheless, its constitutionality had already been examined and upheld in another judgment in an unrelated case, namely no. Pl. ÚS 19/14, concerning a different consequence (a fine) of a breach of the vaccination duty (see paragraphs 90 et seq. below). 61. Having an individual vaccination plan did not fall within any of the discrimination grounds provided for by law. Contrary to the applicant’s suggestion, non-admission to nursery school was not a penalty. As regards proportionality, the applicant had not referred to any exceptional circumstances to outweigh the interest of the protection of public health, within the meaning of the Vavřička case-law (see paragraph 28 above). 62. The detailed content of the right to education under Article 33 of the Charter was set out in the Education Act (see paragraphs 80 seq. below) and pertained to all types and levels of education. In the Constitutional Court’s view, this included preschool education, as this involved a process of acquiring skills, attitudes and knowledge, rather than just childcare or child ‑ minding. A limitation on that right, consisting in a requirement of compliance with the vaccination duty, did not suppress the very essence of the right and clearly pursued the legitimate aim of protecting public health. Moreover, the means provided for achieving this aim were rational and free from any arbitrariness. Vaccination represented an act of social solidarity on the part of those accepting a minimum risk in order to protect the health of society as a whole. This was all the more valid as the number of vaccinated children attending preschool establishments grew. 63. Lastly, with reference to the considerations mentioned in the preceding paragraph as well as in the other constitutional judgment mentioned above (case no. Pl. ÚS 19/14), the Constitutional Court found that the lower courts’ conclusions in the proceedings brought by the applicant had an adequate basis in findings of fact and were supported by cogent reasoning. There had accordingly been no breach of the applicant’s fundamental rights. 64. The judgment of 27 January 2015 concerning the validity of section 50 of the PHP Act was adopted by a majority. A dissenting judge attached a separate opinion, in which she considered, inter alia, that the scope of the vaccination duty extending to nine diseases as a requirement for admission to the preschool system was excessive and that the existing regulations infringed the applicant’s basic rights. In her view, linked as it was to the public debate on the possible harmful effects of vaccination, the judgment of the plenary formation had limited itself to general statements about solidarity. | This case concerned the Czech legislation on compulsory vaccination3 and its consequences for the applicants who refused to comply with it. The first applicant had been fined for failure to comply with the vaccination duty in relation to his two children. The other applicants had all been denied admission to nursery school for the same reason. The applicants all alleged, in particular, that the various consequences for them of non-compliance with the statutory duty of vaccination had been incompatible with their right to respect for their private life. |
264 | (Suspected) terrorists | I. THE CIRCUMSTANCES OF THE CASE A. The applicants 12. The four applicants are members of the same family and are Sikhs. The first applicant, Karamjit Singh Chahal, is an Indian citizen who was born in 1948. He entered the United Kingdom illegally in 1971 in search of employment. In 1974 he applied to the Home Office to regularise his stay and on 10 December 1974 was granted indefinite leave to remain under the terms of an amnesty for illegal entrants who arrived before 1 January 1973. Since 16 August 1990 he has been detained for the purposes of deportation in Bedford Prison. The second applicant, Darshan Kaur Chahal, is also an Indian citizen who was born in 1956. She came to England on 12 September 1975 following her marriage to the first applicant in India, and currently lives in Luton with the two children of the family, Kiranpreet Kaur Chahal (born in 1977) and Bikaramjit Singh Chahal (born in 1978), who are the third and fourth applicants. By virtue of their birth in the United Kingdom the two children have British nationality. 13. The first and second applicants applied for British citizenship in December 1987. Mr Chahal's request was refused on 4 April 1989 but that of Mrs Chahal is yet to be determined. B. Background: the conflict in Punjab 14. Since the partition of India in 1947 many Sikhs have been engaged in a political campaign for an independent homeland, Khalistan, which would approximate to the Indian province of Punjab. In the late 1970s, a prominent group emerged under the leadership of Sant Jarnail Singh Bhindranwale, based at the Golden Temple in Amritsar, the holiest Sikh shrine. The Government submit that Sant Bhindranwale, as well as preaching the tenets of orthodox Sikhism, used the Golden Temple for the accumulation of arms and advocated the use of violence for the establishment of an independent Khalistan. 15. The situation in Punjab deteriorated following the killing of a senior police officer in the Golden Temple in 1983. On 6 June 1984 the Indian army stormed the temple during a religious festival, killing Sant Bhindranwale and approximately 1,000 other Sikhs. Four months later the Indian Prime Minister, Mrs Indira Gandhi, was shot dead by two Sikh members of her bodyguard. The ensuing Hindu backlash included the killing of over 2,000 Sikhs in riots in Delhi. 16. Since 1984, the conflict in Punjab has reportedly claimed over 20,000 lives, peaking in 1992 when, according to Indian press reports collated by the United Kingdom Foreign and Commonwealth Office, approximately 4,000 people were killed in related incidents in Punjab and elsewhere. There is evidence of violence and human rights abuses perpetrated by both Sikh separatists and the security forces (see paragraphs 45-56 below). C. Mr Chahal's visit to India in 1984 17. On 1 January 1984 Mr Chahal travelled to Punjab with his wife and children to visit relatives. He submits that during this visit he attended at the Golden Temple on many occasions, and saw Sant Bhindranwale preach there approximately ten times. On one occasion he, his wife and son were afforded a personal audience with him. At around this time Mr Chahal was baptised and began to adhere to the tenets of orthodox Sikhism. He also became involved in organising passive resistance in support of autonomy for Punjab. 18. On 30 March 1984 he was arrested by the Punjab police. He was taken into detention and held for twenty-one days, during which time he was, he contended, kept handcuffed in insanitary conditions, beaten to unconsciousness, electrocuted on various parts of his body and subjected to a mock execution. He was subsequently released without charge. He was able to return to the United Kingdom on 27 May 1984, and has not visited India since. D. Mr Chahal's political and religious activities in the United Kingdom 19. On his return to the United Kingdom, Mr Chahal became a leading figure in the Sikh community, which reacted with horror to the storming of the Golden Temple. He helped organise a demonstration in London to protest at the Indian Government's actions, became a full-time member of the committee of the" gurdwara" (temple) in Belvedere ( Erith, Kent ) and travelled around London persuading young Sikhs to be baptised. 20. In August 1984 Mr Jasbir Singh Rode entered the United Kingdom. He was Sant Bhindranwale's nephew, and recognised by Sikhs as his successor as spiritual leader. Mr Chahal contacted him on his arrival and toured the United Kingdom with him, assisting at baptisms performed by him. Mr Rode was instrumental in setting up branches of the International Sikh Youth Federation ("ISYF") in the United Kingdom, and the applicant played an important organisational role in this endeavour. The ISYF was established to be the overseas branch of the All India Sikh Students' Federation. This latter organisation was proscribed by the Indian Government until mid-1985, and is reportedly still perceived as militant by the Indian authorities. 21. In December 1984 Mr Rode was excluded from the United Kingdom on the ground that he publicly advocated violent methods in pursuance of the separatist campaign. On his return to India he was imprisoned without trial until late 1988. Shortly after his release it became apparent that he had changed his political views; he now argued that Sikhs should pursue their cause using constitutional methods, a view which, according to the applicants, was unacceptable to many Sikhs. The former followers of Mr Rode therefore became divided. 22. In the United Kingdom, according to the Government, this led to a split in the ISYF along broadly north/south lines. In the north of England most branches followed Mr Rode, whereas in the south the ISYF became linked with another Punjab political activist, Dr Sohan Singh, who continued to support the campaign for an independent homeland. Mr Chahal and, according to him, all major figures of spiritual and intellectual standing within the United Kingdom Sikh community were in the southern faction. E. Mr Chahal's alleged criminal activities 23. In October 1985 Mr Chahal was detained under the Prevention of Terrorism (Temporary Provisions) Act 1984 ("PTA") on suspicion of involvement in a conspiracy to assassinate the Indian Prime Minister, Mr Rajiv Gandhi, during an official visit to the United Kingdom. He was released for lack of evidence. In 1986 he was arrested and questioned twice (once under the PTA), because he was believed to be involved in an ISYF conspiracy to murder moderate Sikhs in the United Kingdom. On both occasions he was released without charge. Mr Chahal denied involvement in any of these conspiracies. 24. In March 1986 he was charged with assault and affray following disturbances at the East Ham gurdwara in London. During the course of his trial on these charges in May 1987 there was a disturbance at the Belvedere gurdwara, which was widely reported in the national press. Mr Chahal was arrested in connection with this incident, and was brought to court in handcuffs on the final day of his trial. He was convicted on both charges arising out of the East Ham incident, and served concurrent sentences of six and nine months. He was subsequently acquitted of charges arising out of the Belvedere disturbance. On 27 July 1992 the Court of Appeal quashed the two convictions on the grounds that Mr Chahal's appearance in court in handcuffs had been seriously prejudicial to him. F. The deportation and asylum proceedings 1. The notice of intention to deport 25. On 14 August 1990 the Home Secretary (Mr Hurd ) decided that Mr Chahal ought to be deported because his continued presence in the United Kingdom was unconducive to the public good for reasons of national security and other reasons of a political nature, namely the international fight against terrorism. A notice of intention to deport was served on the latter on 16 August 1990. He was then detained for deportation purposes pursuant to paragraph 2 (2) of Schedule III of the Immigration Act 1971 (see paragraph 64 below) and has remained in custody ever since. 2. Mr Chahal's application for asylum 26. Mr Chahal claimed that if returned to India he had a well-founded fear of persecution within the terms of the United Nations 1951 Convention on the Status of Refugees ("the 1951 Convention" - see paragraph 61 below) and applied for political asylum on 16 August 1990. He was interviewed by officials from the Asylum Division of the Home Office on 11 September 1990 and his solicitors submitted written representations on his behalf. He claimed that he would be subjected to torture and persecution if returned to India, and relied upon the following matters, inter alia: (a) his detention and torture in Punjab in 1984 (see paragraph 18 above); (b) his political activities in the United Kingdom and his identification with the regeneration of the Sikh religion and the campaign for a separate Sikh State (see paragraphs 19-22 above); (c) his links with Sant Bhindranwale and Jasbir Singh Rode; (see paragraphs 17 and 20 above); (d) evidence that his parents, other relatives and contacts had been detained, tortured and questioned in October 1989 about Mr Chahal's activities in the United Kingdom and that others connected to him had died in police custody; (e) the interest shown by the Indian national press in his alleged Sikh militancy and proposed expulsion from the United Kingdom; (f) consistent evidence, including that contained in the reports of Amnesty International, of the torture and murder of those perceived to be Sikh militants by the Indian authorities, particularly the Punjab police (see paragraphs 55-56 below). 27. On 27 March 1991 the Home Secretary refused the request for asylum. In a letter to the applicant, he expressed the view that the latter's known support of Sikh separatism would be unlikely to attract the interest of the Indian authorities unless that support were to include acts of violence against India. He continued that he was "not aware of any outstanding charges either in India or elsewhere against [Mr Chahal ] and on the account [Mr Chahal ] has given of his political activities, the Secretary of State does not accept that there is a reasonable likelihood that he would be persecuted if he were to return to India. The media interest in his case may be known by the Indian authorities and, given his admitted involvement in an extremist faction of the ISYF, it is accepted that the Indian Government may have some current and legitimate interest in his activities". The Home Secretary did not consider that Mr Chahal's experiences in India in 1984 had any continued relevance, since that had been a time of particularly high tension in Punjab. 28. Mr Chahal's solicitors informed the Home Secretary that he intended to make an application for judicial review of the refusal of asylum, but would wait until the advisory panel had considered the national security case against him. 3. The advisory panel 29. Because of the national security elements of the case, there was no right of appeal against the deportation order (see paragraphs 58 and 60 below). However, on 10 June 1991, the matter was considered by an advisory panel, chaired by a Court of Appeal judge, Lord Justice Lloyd, and including a former president of the Immigration Appeal Tribunal. 30. The Home Office had prepared statements on 5 April and 23 May 1991 containing an outline of the grounds for the notice of intention to deport, which were sent to the applicant. The principal points were as follows: (a) Mr Chahal had been the central figure in directing the support for terrorism organised by the London-based faction of the ISYF which had close links with Sikh terrorists in the Punjab; (b) he had played a leading role in the faction's programme of intimidation directed against the members of other groups within the United Kingdom Sikh community; (c) he had been involved in supplying funds and equipment to terrorists in Punjab since 1985; (d) he had a public history of violent involvement in Sikh terrorism, as evidenced by his 1986 convictions and involvement in disturbances at the Belvedere gurdwara (see paragraph 24 above). These disturbances were related to the aim of gaining control of gurdwara funds in order to finance support and assistance for terrorist activity in Punjab; (e) he had been involved in planning and directing terrorist attacks in India, the United Kingdom and elsewhere. Mr Chahal was not informed of the sources of and the evidence for these views, which were put to the advisory panel. 31. In a letter dated 7 June 1991, Mr Chahal's solicitors set out a written case to be put before the advisory panel, including the following points: (a) the southern branch of the ISYF had a membership of less than 200 and was non-violent both in terms of its aims and history; (b) the ISYF did not attempt to gain control of gurdwaras in order to channel funds into terrorism; this was a purely ideological struggle on the part of young Sikhs to have gurdwaras run according to Sikh religious values; (c) Mr Chahal denied any involvement in the disturbances at the East Ham and Belvedere gurdwaras (see paragraph 24 above) or in any other violent or terrorist activity in the United Kingdom or elsewhere. 32. He appeared before the panel in person, and was allowed to call witnesses on his behalf, but was not allowed to be represented by a lawyer or to be informed of the advice which the panel gave to the Home Secretary (see paragraph 60 below). 33. On 25 July 1991 the Home Secretary (Mr Baker) signed an order for Mr Chahal's deportation, which was served on 29 July. 4. Judicial review 34. On 9 August 1991 Mr Chahal applied for judicial review of the Home Secretaries' decisions to refuse asylum and to make the deportation order. Leave was granted by the High Court on 2 September 1991. The asylum refusal was quashed on 2 December 1991 and referred back to the Home Secretary. The court found that the reasoning behind it was inadequate, principally because the Home Secretary had neglected to explain whether he believed the evidence of Amnesty International relating to the situation in Punjab and, if not, the reasons for such disbelief. The court did not decide on the validity of the deportation order. Mr Justice Popplewell expressed "enormous anxiety" about the case. 35. After further consideration, on 1 June 1992 the Home Secretary (Mr Clarke) took a fresh decision to refuse asylum. He considered that the breakdown of law and order in Punjab was due to the activities of Sikh terrorists and was not evidence of persecution within the terms of the 1951 Convention. Furthermore, relying upon Articles 32 and 33 of that Convention (see paragraph 61 below), he expressed the view that, even if Mr Chahal were at risk of persecution, he would not be entitled to the protection of the 1951 Convention because of the threat he posed to national security. 36. Mr Chahal applied for judicial review of this decision, but then requested a postponement on 4 June 1992, which was granted. 37. In a letter dated 2 July 1992, the Home Secretary informed the applicant that he declined to withdraw the deportation proceedings, that Mr Chahal could be deported to any international airport of his choice within India and that the Home Secretary had sought and received an assurance from the Indian Government (which was subsequently repeated in December 1995) in the following terms: "We have noted your request to have a formal assurance to the effect that, if Mr Karamjit Singh Chahal were to be deported to India, he would enjoy the same legal protection as any other Indian citizen, and that he would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities. I have the honour to confirm the above." 38. On 16 July 1992 the High Court granted leave to apply for judicial review of the decisions of 1 June 1992 to maintain the refusal of asylum and of 2 July 1992 to proceed with the deportation. An application for bail was rejected on 23 July (the European Court of Human Rights was not provided with details of this ruling). 39. The Court of Appeal (Criminal Division) quashed Mr Chahal's 1987 convictions on 27 July 1992 (see paragraph 24 above). The Home Secretary reviewed the case in the light of this development, but concluded that it was right to proceed with the deportation. 40. The hearing of the application for judicial review took place between 18 and 21 January 1993. It was refused on 12 February 1993 by Mr Justice Potts in the High Court, as was a further application for bail (the European Court of Human Rights was not provided with details of this ruling either). 41. Mr Chahal appealed to the Court of Appeal. The appeal was heard on 28 July 1993 and dismissed on 22 October 1993 (R. v. Secretary of State for the Home Department, ex parte Chahal [1994] Immigration Appeal Reports, p. 107). The court held that the combined effect of the 1951 Convention and the Immigration Rules (see paragraphs 61-62 below) was to require the Home Secretary to weigh the threat to Mr Chahal's life or freedom if he were deported against the danger to national security if he were permitted to stay. In the words of Lord Justice Nolan: "The proposition that, in deciding whether the deportation of an individual would be in the public good, the Secretary of State should wholly ignore the fact that the individual has established a well-founded fear of persecution in the country to which he is to be sent seems to me to be surprising and unacceptable. Of course there may very well be occasions when the individual poses such a threat to this country and its inhabitants that considerations of his personal safety and well-being become virtually irrelevant. Nonetheless one would expect that the Secretary of State would balance the risks to this country against the risks to the individual, albeit that the scales might properly be weighted in favour of the former." The Home Secretary appeared to have taken into account the evidence that the applicant might be persecuted and it was not possible for the court to judge whether his decision to deport was irrational or perverse because it did not have access to the evidence relating to the national security risk posed by Mr Chahal. As Lord Justice Neill remarked: "The court has the right to scrutinise a claim that a person should be deported in the interests of national security but in practice this scrutiny may be defective or incomplete if all the relevant facts are not before the court." In the absence of evidence of irrationality or perversity, it was impossible under English law to set aside the Home Secretary's decision (see paragraph 66 below). 42. The Court of Appeal refused leave to appeal to the House of Lords, and this was also refused by the House of Lords on 3 March 1994. 43. Following the report of the Commission, the applicant applied for temporary release pending the decision of the European Court of Human Rights, by way of habeas corpus and judicial review proceedings in the Divisional Court (see paragraph 65 below). The Secretary of State opposed the application on the following grounds: "The applicant was detained in August 1990 and served with notice of intention to deport because the then Secretary of State was satisfied that he represented a substantial threat to national security. The Secretary of State remains satisfied that such a threat persists ... Given the reasons for the applicant's deportation, the Secretary of State remains satisfied that his temporary release from detention would not be justified. He has concluded the applicant could not be safely released, subject to restrictions, in view of the nature of the threat posed by him." Judgment was given on 10 November 1995 (R. v. Secretary of State for the Home Department, ex parte Chahal, unreported). Mr Justice MacPherson in the Divisional Court rejected the application for habeas corpus, on the ground that "the detention per se was plainly lawful because the Secretary of State [had] the power to detain an individual who [was] the subject of a decision to make a deportation order". In connection with the application for judicial review of the Secretary of State's decision to detain Mr Chahal, the Judge remarked: "I have to look at the decision of the Secretary of State and judge whether, in all the circumstances, upon the information available, he has acted unlawfully, or with procedural impropriety, or perversely to the point of irrationality. I am wholly unable to say that there is a case for such a decision, particularly bearing in mind that I do not know the full material on which the decisions have been made ... [I]t is obvious and right that in certain circumstances the Executive must be able to keep secret matters which they deem to be necessary to keep secret ... There are no grounds, in my judgment, for saying or even suspecting that there are not matters which are present in the Secretary of State's mind of that kind upon which he was entitled to act ..." G. Current conditions in India and in Punjab 44. The current position with regard to the protection of human rights in India generally and in Punjab more specifically was a matter of dispute between the parties. A substantial amount of evidence was presented to the Court on this issue, some of which is summarised below. 1. Material submitted by the Government 45. The Government submitted that it appeared from Indian press reports collated by the Foreign and Commonwealth Office that the number of lives lost in Punjab from terrorism had decreased dramatically. In 1992 the figure was 4,000, in 1993 it was 394, and in 1994 it was 51. The former Chief Minister of Punjab, Mr Beant Singh, was assassinated in August 1995; that aside, there was little terrorist activity and only four terrorist-related deaths in the region in 1995. 46. Furthermore, democracy had returned to the State: almost all factions of the Akali Dal, the main Sikh political party, had united and were set to contest the next general election as one entity and the Gidderbaha by-election passed off peacefully, with a turn-out of 88%. 47. The United Kingdom High Commission continued to receive complaints about the Punjab police. However, in recent months these had related mainly to extortion rather than to politically-motivated abuses and they were consistently told that there was now little or no politically-motivated police action in Punjab. 48. Steps had been taken by the Indian authorities to deal with the remaining corruption and misuse of power in Punjab; for example, there had been a number of court judgments against police officers, a" Lok Pal" (ombudsman) had been appointed and the new Chief Minister had promised to "ensure transparency and accountability". The Indian National Human Rights Commission ("NHRC"), which had reported on Punjab (see below) continued to strengthen and develop. 2. The Indian National Human Rights Commission reports 49. The NHRC visited Punjab in April 1994 and reported as follows: "The complaints of human rights violations made to the Commission fall broadly into three categories. Firstly, there were complaints against the police, of arbitrary arrests, disappearances, custodial deaths and fake encounters resulting in killings ... There was near unanimity in the views expressed by the public at large that terrorism has been contained ... [A] feeling was now growing that it was time for the police to cease operating under the cover of special laws. There were very strong demands for normalising the role and functioning of the police and for re-establishing the authority of the District Magistrates over the police. The impression that the Commission has gathered is that ... the Magistracy at District level is not at present in a position to inquire into complaints of human rights violations by the police. In the public mind there is a prevailing feeling of the police being above the law, working on its own steam and answerable to none ... The Commission recommends that the Government examine this matter seriously and ensure that normalcy is restored ..." 50. In addition, in its annual report for 1994/1995, the NHRC recommended, as a matter of priority, a systematic reform, retraining and reorganisation of the police throughout India, having commented: "The issue of custodial death and rape, already high in the priorities of the Commission, was set in the wider context of the widespread mistreatment of prisoners resulting from practices that can only be described as cruel, inhuman or degrading." 3. Reports to the United Nations 51. The reports to the United Nations in 1994 and 1995 of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment and in 1994 of the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Working Group on enforced and involuntary disappearances recounted that human rights violations on the part of the security forces were widespread in India. For example, in his 1995 report, the Special Rapporteur on torture commented on the practice of torture in police custody: "It is apparent that few incidents, in what is credibly alleged to be a widespread, if not endemic, phenomenon are prosecuted and even fewer lead to conviction of the perpetrators. It is to be noted that very many cases that come to the attention of the Special Rapporteur are those that result in death, in other words, those where torture may have been applied with the most extreme results. This must be a minority of cases of torture in the country [ India ]." 4. The United States'Department of State reports 52. The 1995 United States'Department of State report on India told of human rights abuses perpetrated by the Punjab police acting outside their home State: "Punjab police hit teams again in 1994 pursued Sikh militants into other parts of India. On June 24, Punjab police shot and killed Karnail Singh Kaili, a man they identified as a Sikh terrorist ... in West Bengal. The Government of West Bengal claimed that it had not been informed of the presence of Punjab police in West Bengal, seized Kaili's body and weapons and barred the departure of the police team until the Punjab Chief Minister apologised." 53. In contrast, the most recent Department of State report (March 1996) declared that insurgent violence had largely disappeared in Punjab and that there was visible progress in correcting patterns of abuse by the police. It continued: "Killings of Sikh militants by police in armed encounters appear to be virtually at an end. During the first eight months of [1995], only two persons were killed in police encounters. Attention was focused on past abuses in Punjab by press reports that hundreds of bodies, many allegedly those of persons who died in unacknowledged police custody, were cremated as 'unclaimed' during 1991-1993 or discovered at the bottom of recently drained canals." 5. The Immigration Appeal Tribunal 54. The United Kingdom Immigration Appeal Tribunal took account of allegations of the extra-territorial activities of the Punjab police in the case of Charan Singh Gill v. Secretary of State for the Home Department (14 November 1994, unreported), which related to an appeal by a politically active Sikh against the Secretary of State's refusal to grant him political asylum. The appellant drew the attention of the tribunal to a story in the Punjab Times of 10 May 1994, which reported the killing by the Punjab police of two Sikh fighters in West Bengal. The chairman of the tribunal remarked: "We should say that we do not accept [the representative of the Home Office's] view of this document, that it was more probably based on imaginative journalism than on fact. In our view, it affords valuable retrospective corroboration of the material set out above, demonstrating that the Punjab police are very much a law unto themselves, and are ready to track down anyone they regard as subversive, as and when the mood takes them, anywhere in India ." 6. The reports of Amnesty International 55. In its report of May 1995, "Punjab police: beyond the bounds of the law", Amnesty International similarly alleged that the Punjab police were known to have carried out abductions and executions of suspected Sikh militants in other Indian States outside their jurisdiction. The Supreme Court in New Delhi had reportedly taken serious note of the illegal conduct of the Punjab police, publicly accusing them of "highhandedness and tyranny" and had on several occasions between 1993 and 1994 ordered investigations into their activities. Following the killing of a Sikh in Calcutta in May 1994, which provoked an angry reaction from the West Bengal State Government, the Union Home Secretary had convened a meeting of all director generals of police on 5 July 1994 to discuss concerns expressed by certain States following the intrusion by the Punjab police into their territories. One of the stated aims of the meeting was to try to work out a formula whereby the Punjab police would conduct their operations in cooperation with the respective State governments. 56. In its October 1995 report," India : Determining the fate of the 'disappeared' in Punjab ", Amnesty International claimed that high-profile individuals continued to "disappear" in police custody. Among the examples cited were the general secretary of the human rights wing of the Sikh political party, the Akali Dal, who was reportedly arrested on 6 September 1995 and had not been seen since. | The applicant, an advocate of the Sikh separatist cause who was served with a deportation order on grounds of national security, alleged that he faced a real risk of ill-treatment if he were to be deported to India. |
26 | Affiliation- and inheritance-related rights | I. THE CIRCUMSTANCES OF THE CASE 8. On 24 September 1992 Ms Camp's partner, Mr Abbie Bourimi, died without having recognised ( erkenning ) the child she was carrying at that time and without leaving a will. Ms Camp and Mr A. Bourimi had been living together in a house owned by the latter. They had been intending to marry, but a wedding scheduled for April 1992 had been postponed due to the death of Ms Camp's mother. 9. The parents of Mr A. Bourimi believed neither that the child Ms Camp was carrying had been fathered by their son nor that their son had intended to marry Ms Camp. Consequently, they considered themselves and their other children to be their son's heirs. On 22 October 1992, contrary to the wishes of Ms Camp, Mr A. Bourimi's parents, together with five other relatives, moved into the house which had belonged to their son. Thereupon, Ms Camp moved out of the house. 10. On 2 November 1992 Ms Camp requested the President of the Roermond Regional Court ( Arrondissementsrechtbank ) in summary proceedings ( kort geding ) to grant an injunction ordering the parents to vacate the house pending the winding up of Mr A. Bourimi's estate. Furthermore, on 3 November 1992, she requested the Queen to grant letters of legitimation ( brieven van wettiging – see paragraphs 16-18 below) in respect of the child she was carrying. 11. The President of the Regional Court refused to grant the injunction on 19 November 1992 but this decision was quashed by the 's ‑ Hertogenbosch Court of Appeal ( Gerechtshof ) on 2 June 1993. The Court of Appeal considered that Ms Camp had adduced sufficient evidence to corroborate her claim that she had been living with Mr A. Bourimi in his house for a considerable time, that they had intended to get married and that Mr A. Bourimi was Sofian's father. In view of the fact that it therefore seemed likely that letters of legitimation would be granted and Sofian would thus emerge as Mr A. Bourimi's sole heir, the Court of Appeal found that it was Ms Camp's right and in her interest in her capacity of mother and guardian to be given possession of the house. The Court of Appeal accordingly ordered the parents of Mr A. Bourimi to vacate the house. The parents subsequently filed an appeal on points of law ( beroep in cassatie ) to the Supreme Court ( Hoge Raad ). 12. Meanwhile, on 20 November 1992, Sofian Bourimi was born. Since he was illegitimate and had not been recognised by his father, he was initially given the family name of his mother. On 21 October 1994 the Supreme Court issued advice in favour of the granting of letters of legitimation. Such letters were granted on 4 November 1994 and Sofian took on the family name of his father. 13. On 24 February 1995 the Supreme Court quashed the decision of the Court of Appeal of 2 June 1993. It considered that the letters of legitimation did not have retroactive force from the time of Mr A. Bourimi's death and that therefore Sofian could not inherit from him. As regards Ms Camp's argument that this outcome was contrary to Article 8 of the Convention and Article 14 taken in conjunction with Article 8, the Supreme Court held that the establishment of the consequences of an incompatibility of Netherlands law with these provisions of the Convention went beyond the task of the judiciary. 14. The Supreme Court referred the case back to the Court of Appeal, which was to examine whether other circumstances existed justifying a judicial order to the effect that Mr A. Bourimi's parents vacate the house – such as the fact that Ms Camp had been living in the house for a considerable time. On 4 June 1996 the Court of Appeal struck the case out in view of the fact that the parties to the proceedings had reached an agreement to the effect that Ms Camp and Sofian would vacate the house. 15. The estate of Mr A. Bourimi was distributed amongst the heirs (that is, his parents and siblings) on 9 February 2000 by a notary ( notaris ). | The first applicant and her baby son (the second applicant) had to move out of their family home after the first applicant’s partner died intestate, before marrying her and recognising the child (as had been his stated intention). Under Dutch law at the time the deceased’s parents and siblings inherited his estate. They then moved into his house. The child was later declared legitimate, but as the decision was not retroactive, he was not made his father’s heir. |
409 | Cases in which the Court found no violation of Article 4 of Protocol No. 4 | I. THE CIRCUMSTANCES OF THE CASE 10. The applicants were born in 1983, 1987 and 1988 respectively. Mr Khlaifia (“the first applicant”) lives in Om Laarass (Tunisia); Mr Tabal and Mr Sfar (“the second and third applicants”) live in El Mahdia (Tunisia). A. The applicants’ arrival on the Italian coast and their removal to Tunisia 11. On 16 September 2011 in the case of the first applicant, then the next day, 17 September, in the case of the second and third applicants, the applicants left Tunisia with others on board rudimentary vessels heading for the Italian coast. After several hours at sea, their vessels were intercepted by the Italian coastguard, which escorted them to a port on the island of Lampedusa. The applicants arrived on the island on 17 and 18 September 2011 respectively. 12. The applicants were transferred to an Early Reception and Aid Centre ( Centro di Soccorso e Prima Accoglienza – “CSPA”) on the island of Lampedusa at Contrada Imbriacola where, after giving them first aid, the authorities proceeded with their identification. According to the Government, on this occasion individual “information sheets” were filled in for each of the migrants concerned (see paragraph 224 below); this is disputed by the applicants (see paragraph 222 below). 13. They were accommodated in a part of the centre reserved for adult Tunisians. According to the applicants, they were held in an overcrowded and dirty area and were obliged to sleep on the floor because of the shortage of available beds and the poor quality of the mattresses. They had to eat their meals outside, sitting on the ground. The centre was kept permanently under police surveillance, making any contact with the outside world impossible. 14. The applicants remained in the CSPA until 20 September, when a violent revolt broke out among the migrants. The premises were gutted by fire and the applicants were taken to a sports complex on Lampedusa for the night. At dawn on 21 September they managed, together with other migrants, to evade the police surveillance and walk to the village of Lampedusa. From there, with about 1,800 other migrants, they started a demonstration through the streets of the island. After being stopped by the police, the applicants were taken first back to the reception centre and then to Lampedusa airport. 15. On the morning of 22 September 2011 the applicants were flown to Palermo. After disembarking they were transferred to ships that were moored in the harbour there. The first applicant was placed on the Vincent, with some 190 other people, while the second and third applicants were put on board the Audace, with about 150 others. 16. The applicants described the conditions as follows. All the migrants on each vessel were confined to the restaurant areas, access to the cabins being prohibited. They slept on the floor and had to wait several hours to use the toilets. They could go outside onto the decks twice a day for only a few minutes at a time. They were allegedly insulted and ill-treated by the police, who kept them under permanent surveillance, and they claimed not to have received any information from the authorities. 17. The applicants remained on the ships for a few days. On 27 September 2011 the second and third applicants were taken to Palermo airport pending their removal to Tunisia; the first applicant followed suit on 29 September. 18. Before boarding the planes, the migrants were received by the Tunisian Consul. In their submission, the Consul merely recorded their identities in accordance with the agreement between Italy and Tunisia of April 2011 (see paragraphs 36-40 below). 19. In their application the applicants asserted that at no time during their stay in Italy had they been issued with any document. Annexed to their observations, the Government, however, produced three refusal-of-entry orders dated 27 and 29 September 2011 that had been issued in respect of the applicants. Those orders, which were virtually identical and drafted in Italian with a translation into Arabic, read as follows: “The Chief of Police ( questore ) for the Province of Agrigento Having regard to the documents in the file, showing that (1) on ‘17 [18] September 2011’ members of the police force found in the province of ‘Agrigento’, near the border of: ‘island of Lampedusa’, Mr [surname and forename] born ... on [date] ... ‘Tunisian’ national ... not fully identified, ‘undocumented’ ( sedicente ); (2) the alien entered the territory of the country by evading the border controls; (3) the identification ( rintraccio ) of the alien took place on/immediately after his arrival on national territory, and precisely at: ‘island of Lampedusa’; WHEREAS none of the situations [provided for in] Article 10 § 4 of Legislative Decree no. 286 of 1998 is present; CONSIDERING that it is appropriate to proceed in accordance with Article 10 § 2 of Legislative Decree no. 286 of 1998; ORDERS that the above-mentioned person be REFUSED LEAVE TO ENTER AND RETURNED – An appeal may be lodged against the present order within a period of sixty days from the date of its service, with the Justice of the Peace of Agrigento. – The lodging of an appeal will not, in any event, suspend the enforcement ( efficacia ) of the present order. – The director of the Migration Office will proceed, for the enforcement of the present order, with its notification, together with a summary translation into a language spoken by the alien or into English, French or Spanish; and with its transmission to the diplomatic or consular delegation of the State of origin, as provided for by Article 2 § 7 of Legislative Decree no. 286 of 1998; and with its registration under Article 10 § 6 of the said Legislative Decree. To be escorted to the border at: ‘Rome Fiumicino’ [Issued at] Agrigento [on] 27[29]/09/2011 on behalf of the Chief of Police [Signature]” 20. These orders were each accompanied by a record of notification bearing the same date, also drafted in Italian with an Arabic translation. In the space reserved for the applicants’ signatures, both records contain the handwritten indication “[the person] refused to sign or to receive a copy” ( si rifiuta di firmare e ricevere copia ). 21. On their arrival at Tunis airport, the applicants were released. B. Decision of the Palermo preliminary investigations judge 22. A number of anti-racism associations filed a complaint about the treatment to which the migrants had been subjected, after 20 September 2011, on board the ships Audace, Vincent and Fantasy. 23. Criminal proceedings for abuse of power and unlawful arrest (Articles 323 and 606 of the Criminal Code) were opened against a person or persons unknown. On 3 April 2012 the public prosecutor sought to have the charges dropped. 24. In a decision of 1 June 2012 the Palermo preliminary investigations judge ( giudice per le indagini preliminari ) granted the public prosecutor’s request. 25. In his reasoning the judge emphasised that the purpose of placing the migrants in the CSPA was to accommodate them, to assist them and to cater for their hygiene-related needs for as long as was strictly necessary, before sending them to an Identification and Removal Centre ( Centro di Identificazione ed Espulsione – “CIE”) or taking any measures in their favour. At the CSPA the migrants could, according to him, obtain legal assistance and information about asylum application procedures. The judge shared the public prosecutor’s view that the interpretation of the conditions concerning the grounds for and duration of the confinement of migrants in a CSPA was sometimes vague. He also agreed with the public prosecutor that a range of factors were to be taken into consideration, leading to the conclusion that the facts of the case could not be characterised as a criminal offence. The judge noted that the Agrigento police authority ( questura ) had merely registered the presence of the migrants at the CSPA without taking any decisions ordering their confinement. 26. According to the judge, the unstable balance on the island of Lampedusa had been upset on 20 September 2011, when a group of Tunisians had carried out an arson attack, seriously damaging the CSPA at Contrada Imbriacola and rendering it incapable of fulfilling its purpose of accommodating and assisting migrants. The authorities had then organised transfer by air and sea to evacuate migrants from Lampedusa. The following day, clashes had taken place in the island’s port between the local population and a group of foreigners who had threatened to explode gas canisters. The judge explained that there had thus been a situation which was likely to degenerate, and which was covered by the notion of “state of necessity” ( stato di necessità ) as provided for in Article 54 of the Criminal Code (see paragraph 34 below). It was thus an imperative to arrange for the immediate transfer of some of the migrants by using, among other means, the ships. As to the fact that, in the emergency situation, no formal decision had been taken to place the migrants on board the ships, the judge found that this could not be regarded as an unlawful arrest and that the conditions for the migrants’ transfer to CIEs were not satisfied. Firstly, the CIEs were overcrowded, and secondly, the agreements with the Tunisian authorities suggested that their return was supposed to be prompt. The fact that a refusal-of-entry measure ( respingimento ) had been ordered in respect of the migrants, without judicial scrutiny, a few days after their arrival, was not unlawful in the judge’s view. The calculation of a “reasonable time” for the adoption of that measure and for the migrants’ stay in the CSPA had to take account of logistical difficulties (state of the sea, distance between Lampedusa and Sicily) and of the number of migrants concerned. In those circumstances, the judge concluded that there had been no infringement of the law. Moreover, the judge was of the view that no malicious intent could be attributed to the authorities, whose conduct had been prompted first and foremost by the public interest. The migrants had not sustained any unfair harm ( danno ingiusto ). 27. In so far as the complainants had alleged that the way in which the migrants had been treated had been detrimental to their health, the judge noted that the investigations had found that nobody on the ships had applied for asylum. Those who, at the Lampedusa CSPA, had expressed an intention to do so, together with any vulnerable individuals, had been transferred to the centres of Trapani, Caltanissetta and Foggia. Unaccompanied minors had been placed in temporary accommodation and no pregnant women had been transferred to the ships. The migrants on board had been able to receive medical assistance, hot water, electricity, meals and hot drinks. Moreover, as recorded in a press agency note of 25 September 2011, T.R., a member of parliament (MP) had boarded the ships in the port of Palermo, and had observed that the migrants were in good health, that they were receiving assistance and were sleeping in cabins containing bed linen or reclining seats ( poltrone reclinabili ). Some of the Tunisians had been taken to hospital, while others had been treated on board by medical staff. Accompanied by the deputy chief of police ( vice questore ) and by police officers, the MP in question had talked with some of the migrants. He had thus been able to observe that they had access to prayer rooms, that the food was satisfactory (pasta, chicken, vegetables, fruit and water) and that the Civil Protection Authority ( Protezione civile ) had provided them with clothing. Some of the migrants had complained of a lack of razors, but the MP had observed that this could be explained by a measure taken to prevent self-harm. 28. The judge noted that, even though the migrants had not been in custody or under arrest, a photograph published in a newspaper had shown one of them with his hands bound by black ribbons and in the company of a police officer. He had been part of a small group of individuals who, fearing immediate removal, had engaged in acts of self-harm and had caused damage to buses. In the judge’s view, the restraint in question had been necessary to guarantee the physical well-being of the persons concerned and to avoid aggressive acts against police officers who were neither armed nor equipped with any means of coercion. In any event, the conduct of the police officers had been justified by a “state of necessity”, within the meaning of Article 54 of the Criminal Code (see paragraph 34 below). 29. In the light of the foregoing, the preliminary investigations judge concluded that the case file contained no evidence of the physical and mental elements of the offences provided for in Articles 323 and 606 of the Criminal Code. C. Decisions of the Agrigento Justice of the Peace 30. Two other migrants in respect of whom a refusal-of-entry order had been issued challenged those orders before the Agrigento Justice of the Peace. 31. In two decisions ( decreti ) of 4 July and 30 October 2011, respectively, the Justice of the Peace annulled those orders. In his reasoning the judge observed that the complainants had been found on Italian territory on 6 May and 18 September 2011 respectively and that the orders at issue had been adopted only on 16 May and 24 September 2011. While acknowledging that Article 10 of Legislative Decree no. 286 of 1998 (see paragraph 33 below) did not indicate any time-frame for the adoption of such orders, the judge took the view that a measure which by its very nature restricted the freedom of the person concerned had to be taken within a reasonably short time after the identification ( fermo ) of the unlawful migrant. To find otherwise amounted to allowing de facto detention of the migrant in the absence of any reasoned decision of the authority, which would contravene the Constitution. III. BILATERAL AGREEMENTS WITH TUNISIA 36. On 5 April 2011 the Italian Government entered into an agreement with Tunisia on measures to control the flow of irregular migrants from that country. 37. The text of the agreement had not been made public. However, appended in an annex to their request for referral to the Grand Chamber, the Government produced extracts from the minutes of a meeting held in Tunis on 4 and 5 April 2011 between the Ministries of the Interior of Tunisia and Italy. According to a press release dated 6 April 2011 on the website of the Italian Ministry of the Interior [1], Tunisia undertook to strengthen its border controls with the aim of avoiding fresh departures of irregular migrants, using logistical resources made available to it by the Italian authorities. 38. In addition, Tunisia undertook to accept the immediate return of Tunisians who had unlawfully reached the Italian shore after the date of the agreement. Tunisian nationals could be returned by means of simplified procedures, involving the mere identification of the person concerned by the Tunisian consular authorities. 39. According to the indications given by the Government in their written observations of 25 April 2016 before the Grand Chamber, there had been an initial agreement with Tunisia in 1998; it had been announced on the Interior Ministry’s website, added to the treaty archive of the Ministry of Foreign Affairs and International Cooperation and published in Official Gazette no. 11 of 15 January 2000. 40. The Government produced a note verbale concerning the bilateral agreement that Italy concluded with Tunisia in 1998, appending it in an annex to their request for referral to the Grand Chamber. The document in question, emanating from the Italian Government and dated 6 August 1998, and which does not seem to be the text applied in the applicants’ case (see paragraph 103 below), contains provisions on bilateral cooperation for the prevention and repression of illegal immigration, the readmission of the two countries’ nationals, the return of nationals of third countries outside the Arab Maghreb Union to their countries of last departure, and the taking-back of migrants after readmission in error. The text of the note verbale shows that the Italian Government agreed to support Tunisia’s efforts to combat illegal immigration by providing technical and operational material assistance and by making a financial contribution. Each Party undertook, at the request of the other Party and without further formality, to readmit into its territory any person who did not meet the conditions of entry or residence applicable in the requesting State, in so far as it had been established that the person concerned was a national of the requested State. The text refers to the documents required for the identification of those concerned and provides (part II, point 5) that if the consular authority of the requested State considers it necessary to hear the person concerned, a representative of the authority of that State may go to the court office, or to the reception centre or medical facility where the migrant is legally residing, in order to interview him or her. The note verbale also describes the procedure for issuing a laissez ‑ passer and for the removal of migrants, while indicating the Italian Government’s undertaking “not to resort to mass or special removals” of the persons concerned. IV. THE RETURN DIRECTIVE 41. In the European Union (EU) context, the return of irregular migrants is governed by Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 (the “Return Directive”) “on common standards and procedures in Member States for returning illegally staying third-country nationals”. The Directive contains the following provisions in particular: Article 1 Subject matter “This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.” Article 2 Scope “1. This Directive applies to third-country nationals staying illegally on the territory of a Member State. 2. Member States may decide not to apply this Directive to third-country nationals who: (a) are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State; (b) are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures. ...” Article 8 Removal “1. Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7. 2. If a Member State has granted a period for voluntary departure in accordance with Article 7, the return decision may be enforced only after the period has expired, unless a risk as referred to in Article 7(4) arises during that period. 3. Member States may adopt a separate administrative or judicial decision or act ordering the removal. 4. Where Member States use — as a last resort — coercive measures to carry out the removal of a third-country national who resists removal, such measures shall be proportionate and shall not exceed reasonable force. They shall be implemented as provided for in national legislation in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third-country national concerned. 5. In carrying out removals by air, Member States shall take into account the Common Guidelines on security provisions for joint removals by air annexed to Decision 2004/573/EC. 6. Member States shall provide for an effective forced-return monitoring system.” Article 12 Form “1. Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies. The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences. 2. Member States shall provide, upon request, a written or oral translation of the main elements of decisions related to return, as referred to in paragraph 1, including information on the available legal remedies in a language the third-country national understands or may reasonably be presumed to understand. 3. Member States may decide not to apply paragraph 2 to third country nationals who have illegally entered the territory of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State. In such cases decisions related to return, as referred to in paragraph 1, shall be given by means of a standard form as set out under national legislation. Member States shall make available generalised information sheets explaining the main elements of the standard form in at least five of those languages which are most frequently used or understood by illegal migrants entering the Member State concerned.” Article 13 Remedies “1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. 2. The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12(1), including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation. 3. The third-country national concerned shall have the possibility to obtain legal advice, representation and, where necessary, linguistic assistance. 4. Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with relevant national legislation or rules regarding legal aid, and may provide that such free legal assistance and/or representation is subject to conditions as set out in Article 15(3) to (6) of Directive 2005/85/EC.” Article 15 Detention “1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. 2. Detention shall be ordered by administrative or judicial authorities. Detention shall be ordered in writing with reasons being given in fact and in law. When detention has been ordered by administrative authorities, Member States shall: (a) either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention; (b) or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings. The third-country national concerned shall be released immediately if the detention is not lawful. 3. In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority. 4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately. 5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months. 6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a) a lack of cooperation by the third-country national concerned, or (b) delays in obtaining the necessary documentation from third countries.” Article 16 Conditions of detention “1. Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners. 2. Third-country nationals in detention shall be allowed — on request — to establish in due time contact with legal representatives, family members and competent consular authorities. 3. Particular attention shall be paid to the situation of vulnerable persons. Emergency health care and essential treatment of illness shall be provided. 4. Relevant and competent national, international and non-governmental organisations and bodies shall have the possibility to visit detention facilities, as referred to in paragraph 1, to the extent that they are being used for detaining third-country nationals in accordance with this Chapter. Such visits may be subject to authorisation. 5. Third-country nationals kept in detention shall be systematically provided with information which explains the rules applied in the facility and sets out their rights and obligations. Such information shall include information on their entitlement under national law to contact the organisations and bodies referred to in paragraph 4.” Article 18 Emergency situations “1. In situations where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff, such a Member State may, as long as the exceptional situation persists, decide to allow for periods for judicial review longer than those provided for under the third subparagraph of Article 15(2) and to take urgent measures in respect of the conditions of detention derogating from those set out in Articles 16(1) and 17(2). 2. When resorting to such exceptional measures, the Member State concerned shall inform the Commission. It shall also inform the Commission as soon as the reasons for applying these exceptional measures have ceased to exist. 3. Nothing in this Article shall be interpreted as allowing Member States to derogate from their general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under this Directive.” 42. When interpreting the Return Directive, the Court of Justice of the European Union (CJEU) held that an alien was entitled, before a decision to return him or her was adopted, to express his or her view on the legality of his or her stay (see, in particular, Khaled Boudjlida v. Préfet des Pyrénées ‑ Atlantiques, case C-249/13, judgment of 11 December 2014, §§ 28-35). 43. It can be seen from the CJEU’s case-law that, in spite of the lack of express provision for the right to be heard in the Return Directive, that right applies as a fundamental principle of EU law (see, in particular, Articles 41, 47 and 48 of the EU’s Charter of Fundamental Rights; also the judgments M.G. and N.R v. Staatssecretaris van Veiligheid en Justitie, C-383/13 PPU, 10 September 2013, § 32, and Sophie Mukarubega v. Préfet de police et Préfet de la Seine-Saint-Denis, C-166/13, judgment of 5 November 2014, §§ 42-45). The CJEU clarified that the right to be heard: (a) guaranteed to every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely ( Khaled Boudjlida, cited above, § 36, and Sophie Mukarubega, cited above, § 46); and (b) enabled the competent authority effectively to take into account all relevant information, to pay due attention to the observations submitted by the person concerned, and thus to give a detailed statement of reasons for its decision ( Khaled Boudjlida, cited above, §§ 37-38). In the Khaled Boudjlida judgment (cited above, §§ 55, 64-65 and 67), the CJEU added: (a) that the alien need not necessarily be heard in respect of all the information on which the authority intends to rely to justify its return decision, but must simply have an opportunity to present any arguments against his removal; (b) that the right to be heard in a return procedure does not entitle the person to free legal assistance; and (c) that the duration of the interview is not decisive in ascertaining whether the person concerned has actually been heard (in the case at issue it had lasted about thirty minutes). 44. In the CJEU’s view, a decision taken following an administrative procedure in which the right to be heard has been infringed will result in annulment only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see M.G. and N.R, cited above, §§ 38 and 44, concerning decisions to extend detention pending removal; in §§ 41-43 of that judgment it is stated that the Directive’s effectiveness would otherwise be undermined and the objective of removal called into question). 45. Lastly, the CJEU has held that the right to be heard can be subjected to restrictions, provided they correspond to objectives of general interest and do not involve, with regard to the objective pursued, a disproportionate and intolerable interference which infringes upon the very substance of the right guaranteed (see M.G. and N.R., cited above, § 33, and Sophie Mukarubega, cited above, §§ 53 and 82, where it is stated that the person concerned does not have to be heard by the national authorities twice, both on his or her application to stay and on a return decision, but only on one of those questions). V. The players on the ground and their responsibilities 26. The Prefecture of the province of Agrigento is responsible for all questions relating to the reception of persons arriving on the island until they are transferred elsewhere. The prefecture also oversees the Accoglienza private co-operative which manages the island’s two reception centres. The immigration police office of the province of Agrigento is responsible for identifying new arrivals, transferring them and repatriating them if necessary. Since 13 April 2011, the Italian civil protection department has been co-ordinating the management of migration flows from North Africa. 27. The international community is also active on the ground. The Office of the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration (IOM), the Red Cross, the Order of Malta and the NGO Save the Children have teams on the spot. 28. UNHCR, the IOM, the Red Cross and Save the Children are part of the ‘Praesidium Project’ and are helping to manage the arrivals of mixed migration flows by sea on Lampedusa. These organisations are authorised to maintain a permanent presence inside the Lampedusa reception centres and have interpreters and cultural mediators available. They dispatched teams to Lampedusa straight away in February 2011 (as noted earlier, their operation had been suspended when the arrivals decreased). The Praesidium Project, which has since been extended to other centres in Italy, stands as an example of good practice in Europe and the organisations involved have jointly published a handbook on management of mixed migration flows arriving by sea (for the time being in Italian only, but soon to be translated into English). 29. The members of the Ad Hoc Sub-Committee found that all these players are working on good terms and are endeavouring to co-ordinate their efforts, with the shared priority of saving lives in sea rescue operations, doing everything possible to receive new arrivals in decent conditions and then assisting in rapidly transferring them to centres elsewhere in Italy. VI. Lampedusa’s reception facilities 30. It is essential for transfers to centres elsewhere in Italy to be effected as quickly as possible because the island’s reception facilities are both insufficient to house the number of people arriving and unsuitable for stays of several days. 31. Lampedusa has two reception centres: the main centre at Contrada Imbriacola and the Loran base. 32. The main centre is an initial reception and accommodation centre (CSPA). The Ad Hoc Sub-Committee was informed by the director of the centre that its capacity varies from 400 to 1 000 places. At the time of the visit, 804 people were housed there. Reception conditions were decent although very basic. The rooms were full of mattresses placed side by side directly on the ground. The buildings, which are prefabricated units, are well ventilated because the rooms have windows and the sanitary facilities seem sufficient when the centre is operating at its normal capacity. 33. At the time of the Ad Hoc Sub-Committee’s visit, the centre was divided in two. One part was reserved for persons arriving from Libya and unaccompanied minors (including unaccompanied Tunisian minors). The other part, a closed centre within the centre (itself closed), was reserved for Tunisian adults. ... VIII. Health checks 41. The many health teams of the various organisations present (Red Cross, MSF, Order of Malta) and the numerous regional teams are co-ordinate[d] by the Head of the Palermo Health Unit. 42. As soon as coastguards become aware of a boat arriving, they advise the medical co-ordinator and inform him of the number of people on board. All the persons concerned are then immediately informed and put on alert whatever the time of day or night. 43. Initial checks on the state of health of persons arriving are carried out in the port, as soon as they have disembarked. Prior to that, Order of Malta members/doctors accompany the coastguard or customs services on interception and rescue operations at sea. They inform the medical teams on hand at the port of any cases possibly requiring specific and immediate medical treatment. 44. On reaching the port, the new arrivals are quickly classified according to their needs using a clear colour-coding system. People requiring hospital treatment are transferred by helicopter to Palermo or elsewhere. The hospitals are obliged to accept these patients, even if their capacity is exceeded. 45. Sometimes there is not enough time to carry out initial checks on all those arriving at the port, and checks therefore have to be continued at the reception centres. Emphasis has been placed on the need also to achieve maximum standardisation of the procedures used at the centres. 46. The most common problems are: sea sickness, disorders of the upper respiratory tract, burns (fuel, sea water, sun or a combination of the three), dehydration, generalised pain (due to posture in the boat), psychological disorders or acute stress (because of the high risk of losing one’s life during the crossing). Some people arriving from Libya were suffering from acute stress even before starting the crossing. New arrivals are extremely vulnerable people who may have suffered physical and/or psychological violence and their trauma is sometimes due to the way they have been treated in Libya. There are also many pregnant women who require closer examination. Some cases of tuberculosis have been detected. The persons concerned are immediately placed in quarantine in a hospital. 47. Only a general evaluation is made of the state of health of new arrivals in Lampedusa. An individual assessment is not possible on the island and is carried out elsewhere after transfer. Anyone wishing to be examined can be, and no request to this effect is refused. A regular inspection of the sanitary facilities and food at the centres is carried out by the Head of the Palermo Health Unit. 48. MSF and the Red Cross voiced concerns regarding health conditions in the centres when they are overcrowded. It was also pointed out that the Tunisians were separated from the other new arrivals by a closed barrier and did not have direct access to the reception centre’s medical teams. IX. Information about asylum procedures 49. The UNHCR team provides new arrivals with basic information about existing asylum procedures, but it was stressed that Lampedusa was not the place to provide potential refugees and asylum seekers with exhaustive information on this subject. Relevant information and help with asylum application procedures are provided once the new arrivals have been transferred to other, less provisional reception centres elsewhere in Italy. If people express the wish to seek asylum, UNHCR passes on the information to the Italian police. 50. However, when large numbers of people arrive at the same time (which is increasingly the case) and transfers are carried out very quickly, the new arrivals are sometimes not informed about their right to request asylum. They receive this information at the centre to which they are transferred. This shortcoming in the provision of information about access to international protection may present a problem insofar as people of some nationalities are liable to be sent straight back to their countries of origin. As a rule, however, new arrivals are not in a position to be provided immediately with detailed information about access to the asylum procedure. They have other priorities: they are exhausted and disoriented and want to wash, eat and sleep. X. Tunisians 51. In the recent spate of arrivals, they were the first to arrive in Lampedusa in February 2011. These arrivals were problematical for several reasons. As stated above, this was because arrivals by sea had decreased significantly in 2009 and 2010, and the island’s reception centres had been closed. Tunisian migrants therefore found themselves on the streets, in appalling conditions. When the centres re-opened, they were immediately saturated. The Tunisians were subsequently transferred to holding centres elsewhere in Italy, then, once these were saturated, to open reception centres designed for asylum-seekers. 52. The fact that the vast majority of Tunisians are economic migrants and the difficulty of organising immediate returns to Tunisia, prompted the Italian authorities to issue a decree on 5 April 2011 granting them temporary residence permits valid for 6 months. Although 25 000 Tunisians had already arrived in Italy on that date, only 12 000 took advantage of this measure (the other 13 000 having already disappeared from the centres). The consequences of this measure are well-known: tensions with France and a serious re-assessment of freedom of movement in the Schengen area. 53. On 5 April 2011, Italy signed an agreement with Tunisia providing for a certain number of daily returns of Tunisian migrants arriving in Italy after that date. The text of the agreement has never been made public, but quotas of between 30 and 60 returns per day have been mentioned. At the time of the Ad Hoc Sub-Committee’s visit, returns to Tunisia were suspended. 54. As a result of this suspension of returns, some 190 Tunisians were being held on the island at the time of the Ad Hoc Sub-Committee’s visit. Some of them had been there for more than 20 days, in a closed centre inside the closed Contrada Imbriacola centre. Despite the authorities’ claim that the Tunisians were not detainees because they were not in cells, the members of the Sub-Committee found that the conditions to which they were subjected were similar to detention and deprivation of freedom. 55. While the members of the Ad Hoc Sub-Committee appreciate the Italian authorities’ concern to contain this wave of irregular immigration from Tunisia, some rules have to be observed where detention is concerned. The Contrada Imbriacola centre is not a suitable holding facility for irregular migrants. In practice, they are imprisoned there without access to a judge. As already pointed out by the Parliamentary Assembly in its Resolution 1707 (2010), ‘ detention shall be carried out by a procedure prescribed by law, authorised by a judicial authority and subject to periodic judicial review ’. These criteria are not met in Lampedusa and the Italian authorities should transfer irregular migrants immediately to appropriate holding facilities, with the necessary legal safeguards, elsewhere in Italy. 56. Another key point made in this resolution is access to information. All detainees must be informed promptly, in a language that they can understand, ‘ of the essential legal and factual grounds for detention, their rights and the rules and complaints procedure in detention ’. While it is true that the Tunisians interviewed by the Ad Hoc Sub-Committee were perfectly aware that they had entered Italian territory illegally (in fact, it was not the first attempt for some of them and a number had already been sent back to Tunisia on previous occasions), the same is not true of information about their rights and procedures. The Italian authorities themselves were unable to tell the Ad Hoc Sub-Committee when returns to Tunisia would resume. As well as being a significant stress factor, this uncertainty highlights the inappropriateness of holding Tunisians on Lampedusa for long periods without access to a judge. 57. As mentioned earlier, on 20 September a fire severely damaged the main reception centre. It is reported that Tunisian migrants carried out the arson in protest to their detention conditions and their forthcoming forced return to Tunisia. It should be noted that on 20 September, more than 1 000 Tunisians were kept in detention on the island, 5 times more than at the time of the visit of the ad-hoc Sub-Committee. 58. With less than 200 Tunisians on the island, the ad hoc Sub-Committee was already not allowed to visit the closed part of the reception centre in which the Tunisians were kept. The authorities informed the members of the ad hoc Sub ‑ Committee that for security reasons such a visit was not possible. They reported tensions inside this part of the Centre, as well as attempt of self harm by some of the Tunisians. 59. Considering that the authorities were already worried by a tense situation with less than 200 Tunisians in the Centre, the question occurs as to why more than 1 000 were kept in this very Centre on 20 September. As a matter of fact, this centre is neither designed nor legally designated as a detention centre for irregular migrants. ... XIV. A disproportionate burden for the island of Lampedusa 77. The inadequate and belated management of the crisis early 2011 as well as the recent events will unquestionably have irreparable consequences for the inhabitants of Lampedusa. The 2011 tourist season will be a disaster. Whereas 2010 had seen a 25% increase in the number of visitors, from February 2011 onwards all advance bookings were cancelled. At the end of May 2011, none of the island’s hotels had a single booking. Tourism industry professionals conveyed their feeling of helplessness to the Ad Hoc Sub-Committee. They had incurred expenditure on renovating or improving tourist facilities using the money paid for advance bookings. They had had to repay these sums when the bookings were cancelled and now find themselves in a precarious position, in debt and with no prospect of little money coming in for the 2011 season. 78. The members of the Ad Hoc Sub-Committee also saw the work involved in cleaning and in removal of the boats (or what remains of them, which is clogging up the harbour) and the potential danger that these boats or wrecks pose to water quality around the island, which has to meet strict environmental standards. These operations are also very costly (half a million euros for the 42 boats still afloat at the time of the visit, not to mention the 270 wrecks littering the island). Steps have been taken by the civil protection department to ensure that the boats are dismantled and any liquid pollutants are pumped out. 79. The dilapidated state of these boats reflects the degree of despair felt by people who are prepared to risk their lives crossing the Mediterranean on such vessels. The coastguards told the Ad Hoc Sub-Committee that only 10% of the boats arriving were in a good state of repair. 80. During the delegation’s visit, representatives of the island’s inhabitants (in particular people representing the hotel and restaurant trade) and the Mayor of Lampedusa put forward their ideas for remedying this disaster for the local economy. At no time did they say that they no longer intended to take in people arriving by boat - on the contrary. They did however ask for fair compensation for the losses entailed by their island’s role as a sanctuary. 81. They therefore drew up a document containing several proposals, which they forwarded to the delegation. The key proposal is for the island to be recognised as a free zone. The delegation took due note of this proposal and of that concerning a one-year extension of the deadline for the inhabitants’ tax payments. While recognising that these matters fall outside its mandate, the Ad Hoc Sub-Committee calls on the relevant Italian authorities to consider these requests in view of the heavy burden borne by the island and its inhabitants in the face of the influx of irregular migrants, refugees and asylum-seekers arriving by sea. XV. Conclusions and recommendations ... 92. On the basis of its observations, the Ad Hoc Sub-Committee calls on the Italian authorities: i. to continue to comply immediately and without exception with their obligation to rescue persons in distress at sea and to guarantee international protection, including the right of asylum and nonrefoulement; ii. to introduce flexible measures for increasing reception capacities on Lampedusa; iii. to improve conditions at the existing centres, and in particular the Loran base, while ensuring as a matter of priority that health and safety conditions meet existing standards – even when the centres are overcrowded – and carrying out strict and frequent checks to ensure that the private company responsible for running the centres is complying with its obligations; iv. to ensure that new arrivals are able to contact their families as quickly as possible, even during their stay on Lampedusa, particularly at the Loran base, where there are problems in this regard; v. to provide appropriate reception facilities for unaccompanied minors, ensuring that they are not detained and are kept separate from adults; vi. to clarify the legal basis for the de facto detention in the reception centres in Lampedusa; vii. where Tunisians in particular are concerned, only to keep irregular migrants in administrative detention under a procedure prescribed by law, authorised by a judicial authority and subject to periodic judicial review; viii. to continue to guarantee the rapid transfer of new arrivals to reception centres elsewhere in Italy, even if their number were to increase; ix. to consider the requests by the population of Lampedusa for support commensurate with the burden it has to bear, particularly in economic terms; x. not to conclude bilateral agreements with the authorities of countries which are not safe and where the fundamental rights of the persons intercepted are not properly guaranteed, as in Libya.” C. Amnesty International 50. On 21 April 2011 Amnesty International published a report under the title “Amnesty International findings and recommendations to the Italian authorities following the research visit to Lampedusa and Mineo”. The relevant passages of the report read as follows: “ A humanitarian crisis of the Italian authorities’ own making ... Since January 2011, there has been an increasing number of arrivals on Lampedusa from North Africa. As of 19 April, over 27,000 people had arrived in Italy, mostly on the small island. Despite the significant increase in arrivals, and the predictability of ongoing arrivals in light of unfolding events in North Africa, the Italian authorities allowed the large number of arrivals on Lampedusa to accumulate until the situation on the island became unmanageable. Lampedusa is dependent on the mainland for provision of almost all basic goods and services and is not equipped to be a large reception and accommodation centre, albeit it does have the basics to function as a transit centre for smaller numbers of people. ... Lack of information about or access to asylum procedures Given that, at the time of Amnesty International’s visit on the island, UNHCR estimated that there were around 6,000 foreign nationals on Lampedusa, the number of people tasked with providing information regarding asylum was totally inadequate. As far as Amnesty International could determine, only a handful of individuals were providing basic information regarding asylum procedures, which was totally inadequate given the number of arrivals. Further, those arriving were provided with only a very brief medical assessment and a very basic screening. Moreover, there appeared to be an assumption that all Tunisian arrivals were economic migrants. The fact that, at the time of Amnesty International’s visit, foreign nationals had not been given proper information about access to asylum procedures, and were not being properly identified or screened, is a particular concern. The delegation spoke with people who had been given no, or very inadequate, information about asylum processes; in many cases they had been given no information about their situation at all. They had not been told how long they would have to stay on the island or what their eventual destination would be once moved off the island. Given that many of those arriving on Lampedusa had already endured extremely dangerous sea voyages, including some whose fellow travellers had drowned at sea, the appalling conditions on the island and the almost total absence of information were clearly leading to considerable anxiety and mental stress. In Amnesty International’s view the asylum and reception systems had completely broken down due to the severe overcrowding caused by the total failure to organize timely and orderly transfers off the island. Conditions in the ‘Centres’ of the island In Lampedusa, the Amnesty International delegation visited both the main centre at Contrada Imbriacola, registering and accommodating male adults, mainly from Tunisia, and the Base Loran Centre, accommodating children and new arrivals from Libya. The main centre at Contrada Imbriacola is equipped to function as a transit centre for relatively small numbers of people; its full capacity is just over 800 individuals. On 30 March, Amnesty International delegates spoke with people being accommodated at the centre, as they entered and exited. The delegation was not able to access the centre itself at that time, but was given access the following day when the centre had just been emptied, as all individuals were being moved off the island. Those who had been living at the centre described appalling conditions, including severe overcrowding and filthy, unusable sanitary facilities. Some people told Amnesty International delegates that they had chosen to sleep on the streets rather than in the centre because they considered it so dirty as to make it uninhabitable. Amnesty International subsequently spoke to the centre’s Director who confirmed the overcrowding stating that, on 29 March, it accommodated 1,980 people, more than double its maximum capacity. Although Amnesty International was only able to visit the centre after it had been emptied, the conditions that the delegation witnessed corroborated the reports of former inhabitants. Notwithstanding an ongoing clean-up operation at the time of the visit, there was an overwhelming smell of raw sewage. The remains of makeshift tents were observed in the centre. Piles of refuse were still evident around the centre. ... COLLECTIVE SUMMARY REMOVALS, REPORTEDLY OF TUNISIAN NATIONALS, FROM LAMPEDUSA, FROM 7 APRIL 2011 ONWARDS, FOLLOWING THE SIGNING OF AN AGREEMENT BETWEEN THE ITALIAN AND TUNISIAN AUTHORITIES Amnesty International is extremely concerned by the enforced removal that began on 7 April from Lampedusa, following the recent signing of an agreement between the Tunisian and Italian authorities. At the time of writing these forcible returns were ongoing and had reportedly been carried out twice a day by air since 11 April. On 6 April, the Italian Ministry of Interior announced that Italy had signed an agreement with Tunisia pursuant to which the latter committed itself to strengthening border controls with a view to preventing departures, and to accepting the speedy readmission of people who had recently arrived and who will be arriving in Italy. Amnesty International is particularly concerned that, according to the above ‑ mentioned announcement, Tunisian migrants arriving onto Italian shores may be ‘repatriated directly’ and with ‘simplified procedures’. In the light of this announcement, and given, in particular, Amnesty International’s findings in relation to the total inadequacy of asylum procedures on Lampedusa, the organization believes that those people who have been subjected to ‘direct repatriations’ following ‘simplified procedures’ have been victims of collective summary removals. As far as Amnesty International could ascertain, people have been removed from the island within one or two days of arrival. Thus, it appears highly unlikely that they would have had access to any meaningful or adequate opportunity to assert that they should not be returned to Tunisia on international protection or other grounds. In the circumstances those removals would amount to summary expulsions (cf. the judgments of the European Court of Human Rights in the case of Hassanpour-Omrani v Sweden and Jabari v Turkey ). Such practices are strictly prohibited under international, regional and domestic human rights and refugee law and standards. Additionally human rights and refugee law and standards require that the removing State must provide an effective remedy against removal. Removing people without giving them the chance of exercising their right to challenge their removal through an effective procedure gives rise per se to a human rights violation. This is independent of whether removal would place the individuals concerned at a real risk of serious human rights violations, which, in turn, would constitute a breach of the non ‑ refoulement principle. ...” | This case concerned the detention in a reception centre on Lampedusa and subsequently on ships moored in Palermo harbour, as well as the repatriation to Tunisia, of clandestine migrants who had landed on the Italian coast in 2011 during the events linked to the “Arab Spring”. The applicants submitted in particular that they had been subjected to collective expulsion. |
232 | The definition of idem | I. the CIRCUMSTANCES OF THE CASE 6. Mrs Oliveira, a Portuguese citizen, was born in 1967 and currently lives in Zürich (Switzerland). 7. On 15 December 1990, while she was driving on a road covered with ice and snow in Zürich, her car veered onto the other side of the road hitting one car and then colliding with a second driven by M., who sustained serious injuries. 8. On 19 March 1991 the Zürich police magistrate’s office ( Polizeirichteramt ) sent the file to the district attorney’s office ( Bezirksanwaltschaft ) for further investigation as to whether the applicant had negligently inflicted serious physical injury contrary to Article 125 § 2 of the Swiss Criminal Code (see paragraph 16 below). 9. On 5 April 1991 the Zürich District Office ( Statthalteramt ) sent the file to the district attorney’s office for further investigations as to whether any offences had been committed under the Federal Road Traffic Act (see paragraph 17 below). 10. On 3 June 1991 the district attorney’s office returned the case file concerning the party injured in the accident to the police magistrate’s office. It contained a medical certificate stating that the injuries were serious. On 12 August 1991 the police magistrate found that there was no case for the injured party to answer ( Einstellungs-Verfügung ). On 13 August 1991 he convicted the applicant of an offence under sections 31 and 32 of the Federal Road Traffic Act of failing to control her vehicle, as she had not adapted her speed to the road conditions ( Nichtbeherrschen des Fahrzeuges infolge Nichtanpassens der Geschwindigkeit an die Strassenverhältnisse ) and sentenced her to a fine of 200 Swiss francs (CHF). He found in particular that on 15 December 1990 the road had been covered with ice and snow and that the applicant's car had veered onto the other side of the road hitting one car before colliding with a second. 11. On 25 January 1993 the district attorney’s office issued a penal order ( Strafbefehl ) fining Mrs Oliveira CHF 2,000 for negligently causing physical injury contrary to Article 125 of the Swiss Criminal Code in respect of the injuries sustained by M. as a result of the collision between his vehicle and the applicant’s. 12. The applicant challenged that order in the Zürich District Court ( Bezirksgericht ), which on 11 March 1993 reduced the fine to CHF 1,500. It held in particular: “The police magistrate who imposed the fine ( Bussenverfügung ) referred to by the applicant had to examine the situation within the context of proceedings concerning a minor criminal offence ( Übertretungsstrafverfahren ), so that by virtue of the non bis in idem principle there is no doubt that no further prosecution for a minor criminal offence can be brought on the basis of the same incident. However, the fact that investigations in this type of proceedings are summary and limited in scope means that offenders on whom only a fine has been imposed may, if a more thorough investigation is needed in view of legal or factual considerations, also be prosecuted on the same facts for a serious crime or other major offence. In such cases, the original decision and sentence are quashed.” The court went on to quash the CHF 200 fine imposed on 13 August 1991 and said that any part of that fine that had already been paid was to be deducted from the fine it was imposing, the latter fine thus being reduced to CHF 1,300. 13. The applicant appealed to the Zürich Court of Appeal ( Obergericht ), which on 7 October 1993 dismissed the appeal holding, inter alia : “It is necessary to consider what conclusions are to be drawn from the police magistrate’s error regarding the question in issue. It is clear that in his decision of 13 August 1991 he made a finding only in respect of the applicant’s failure to control the vehicle, but not in respect of the resulting physical injuries suffered by the victim… However, in determining whether the Highway Code had been followed, the police magistrate had the power and duty to consider all the facts before him and to rule on them exhaustively under the criminal law; his failure to remit the case file, even though possibly serious physical injuries had been caused by negligence, does not necessarily mean that the decision of the police magistrate is invalid – that decision stands. It has not been submitted, and does not appear from the file, that the decision in issue contains serious defects requiring that it be quashed in its entirety in any event.” The Court of Appeal subsequently upheld the decision to deduct CHF 200 from the CHF 1,500 fine, considering that the applicant ought not to be punished more severely than she would have been if both offences had been dealt with together in a single set of proceedings. 14. Mrs Oliveira appealed against that decision on grounds of nullity ( Nichtigkeitsbeschwerden ) to the Court of Cassation ( Kassationsgericht ) of the Canton of Zürich and to the Federal Court. On 27 April 1994 the Court of Cassation declined to consider her appeal. 15. The applicant then filed a public-law appeal with the Federal Court against that decision. On 17 August 1994, the Federal Court dismissed both the applicant's public-law appeal and her appeal on grounds of nullity. In its latter decision the Federal Court held that it had to be assumed that when on 13 August 1991 the police magistrate had imposed a fine on Mrs Oliveira, he had been unaware that M. had sustained serious injuries, as otherwise he would have had no jurisdiction to impose a fine and would have had to return the file to the district attorney’s office. The Federal Court concluded that the District Court had nevertheless avoided the effects of punishing an offender twice for the same offence by taking into account the CHF 200 fine imposed by the police magistrate when “determining the amount of the new fine” ( bei der Bemessung der neuen Busse ). | The applicant in this case was successively convicted by a police magistrate for failing to control her vehicle and by a District Court for negligently causing physical injury in respect of a road-traffic accident. In her submission, the fact that the same incident had led to her conviction firstly for failing to control her vehicle and subsequently for negligently causing physical injury had constituted a breach of Article 4 of Protocol No. 7. |
784 | Medical negligence and liability of health professionals | I. THE CIRCUMSTANCES OF THE CASE 10. The applicant was born in 1969 and lives in Vila Nova de Gaia. The applicant ’ s husband, Mr António Rui Calisto Fernandes, was born in 1957. He died on 8 March 1998 following a series of medical problems that occurred after he had undergone minor surgery for the removal of nasal polyps. A. The sequence of events leading to the death of the applicant ’ s husband 1. Treatment in Vila Nova de Gaia Hospital 11. On 26 November 1997 Mr Fernandes was admitted to the ear, nose and throat (ENT) department of Vila Nova de Gaia Hospital (“the CHVNG”) for a nasal polypectomy. He underwent the operation on 27 November 1997 and was discharged from hospital on 28 November 1997 at 10 a.m. 12. On 29 November 1997, at 1 a.m., the applicant took her husband to the emergency department of the CHVNG because he was suffering from violent headaches and was in an agitated state. There he was examined by the doctors on duty, in particular by a neurologist. The doctors considered that Mr Fernandes was suffering from psychological problems and prescribed tranquilisers. The applicant claims that they recommended her husband ’ s discharge but that she objected. 13. In the morning Mr Fernandes was examined by the new medical team on duty. At 10 a.m. he underwent a lumbar puncture which revealed that he had bacterial meningitis. He was transferred to the hospital ’ s intensive care unit. 14. On 30 November 1997 a scan revealed a cerebral oedema. On 2 December 1997 another scan revealed that the cerebral oedema had diminished. 15. On 5 December 1997, following an improvement in his clinical condition, Mr Fernandes was transferred to the hospital ’ s general D. ward, where he was under the care of Dr J.V. He was diagnosed with two duodenal ulcers on 10 December 1997. 16. Mr Fernandes was discharged from hospital on 13 December 1997 as his condition was considered to be stable. A follow-up scan as an outpatient was recommended. 17. On 18 December 1997 Mr Fernandes, who was suffering from vertigo and headaches, was admitted to the emergency department of the CHVNG. He was examined by Dr J.V., who kept him under observation because he had acute diarrhoea, abdominal pain and severe anaemia. Mr Fernandes received blood transfusions. 18. On 19 December 1997 an endoscopy was performed on Mr Fernandes, confirming that he had a gastroduodenal ulcer. 19. On 23 December 1997 Mr Fernandes was discharged from hospital. He was prescribed a special diet and medication. A medical appointment was fixed for 9 February 1998. 20. The applicant ’ s husband continued to suffer from severe abdominal pain and diarrhoea. On 9 January 1998 he returned to the emergency department of the CHVNG. He was examined by Dr J.V., who did not consider it necessary to admit him. Mr Fernandes therefore returned home the same day. 21. On 25 January 1998 Mr Fernandes was readmitted to the CHVNG. A colonoscopy revealed infectious ulcerative colitis. Bacteriological tests showed the presence of the Clostridium difficile bacterium. Mr Fernandes was placed on a drip and treated with antibiotics. 22. At the request of the applicant and her husband, Dr J.V. discharged the latter on 3 February 1998. Dr J.V. prescribed oral treatment and referred Mr Fernandes for further treatment in the hospital ’ s outpatient department. 2. Treatment in Santo António General Hospital in Oporto 23. On 17 February 1998 Mr Fernandes was admitted to Santo António General Hospital in Oporto after he was found to be suffering from chronic diarrhoea and microcytic anaemia. He underwent various examinations including a colonoscopy, an endoscopy and blood tests. The medical team considered several possible causes, including an infection with the Clostridium difficile bacterium, but all these possibilities were subsequently ruled out. However, a cytomegalovirus was detected and treatment was given. 24. On 5 March 1998 Mr Fernandes was examined by a doctor who judged the situation to be under control. 25. On 6 March 1998 Mr Fernandes ’ s condition deteriorated. He was examined by a doctor who suspected a possible perforated viscus. An X ‑ ray and an abdominal ultrasound were carried out. The latter showed ascites in the abdomen but did not confirm the initial diagnosis. At 5.30 p.m. the applicant ’ s husband was examined by another doctor who detected some resistance to abdominal palpation. A gas analysis showed metabolic alkalosis, but there were no signs of hypocalcaemia. A sigmoidoscopy was performed which showed that the applicant ’ s husband had rectocolitis. 26. On 7 March 1998 at 1 p.m. the applicant ’ s husband was placed on oxygen because he had difficulty breathing. At 3 p.m. Mr Fernandes was examined by a general physician and subsequently by a surgeon. The latter decided that urgent surgery was needed as there was widespread peritonitis. Mr Fernandes was taken to the operating theatre at 4 p.m. and was brought out again a few minutes later in order to be prepared for surgery, in particular by being given a blood transfusion. He re-entered the operating theatre at 8 p.m. He died the following day at 2.55 a.m. 27. According to the death certificate issued by Santo António Hospital, the applicant ’ s husband died from septicaemia caused by peritonitis and a perforated viscus. B. Proceedings brought by the applicant 28. On 13 August 1998 the applicant wrote a joint letter to the Ministry of Health, the regional health authority for the North region and the Medical Association, stating that she had received no response from the hospitals to explain the sudden deterioration in her husband ’ s health and his death. 1. Proceedings before the Inspectorate General for Health 29. On 30 October and 23 December 1998 the regional health authority for the North region sent the applicant copies of the reports drawn up by the CHVNG and Santo António Hospital on the basis of her husband ’ s medical records. 30. On 30 May 2000 the applicant requested an update on progress in the proceedings from the regional health authority, stating that she had still received no clear explanations concerning the events preceding her husband ’ s death. In a letter of 5 July 2000 the authority informed her that the file had been sent to the Inspectorate General for Health ( Inspeção ‑ Geral da Saúde – “the IGS”) with a view to the opening of an investigation. 31. By an order of 20 September 2000 the Inspector General for Health ordered an investigation ( processo de averiguações ). 32. On 6 November 2001 an inspector was appointed to head the investigation. 33. On 7 February 2002 the IGS informed the applicant that evidence would be taken from the members of the medical team which had treated her husband and that an expert medical report would be prepared. 34. The applicant gave evidence on 3 April 2002. 35. On 23 September 2002 expert medical reports were requested. Reports prepared by experts in the fields of internal medicine, gastroenterology and general surgery were submitted in November 2002. According to the reports, in view of the deterioration in his state of health after the nasal polypectomy, it would not have been possible to save the applicant ’ s husband ’ s life. 36. The report of the investigation was submitted on 28 November 2002. It found, on the basis of the expert medical reports received, that the treatment administered to the applicant ’ s husband had been appropriate. 37. In an order of 12 December 2002 the Inspector General for Health declared the investigation closed, finding that there had been no medical negligence and that there were no grounds for instituting disciplinary proceedings against the doctors who had treated the applicant ’ s husband. 38. In a letter of 17 February 2003 the applicant appealed against the order. She argued that the final report had not answered her questions, complaining about areas of uncertainty and about the duration of the investigation and its findings. 39. On 28 March 2003 the Inspector General for Health informed the applicant that he had set aside the order of 12 December 2002 and ordered the reopening of the investigation. 40. On 26 September 2005, in view of the questions raised by the applicant, the medical experts were requested to provide additional information. 41. A new investigation report was submitted on 23 November 2005, clarifying the facts and taking account of the answers provided by the three medical experts. The report stated that there were no grounds for criticising the health-care personnel who had been involved in the care of the applicant ’ s husband in the CHVNG and Santo António Hospital, as the patient had received proper and appropriate medical assistance in terms of his diagnosis, supervision and treatment. The report further noted that his discharge had been justified on each occasion in view of the improvement in his state of health. The report concluded as follows: “The results of the investigation ... following the reopening of the proceedings and the fresh inquiries and medical reports do not indicate that there was any negligent or careless conduct in breach of good medical practice. There is therefore no need to take legal or disciplinary action against any persons involved in the [patient ’ s] care ...” 42. Taking this report into account, the Inspector General for Health made a fresh order discontinuing the proceedings on 27 December 2005. 43. In a letter of 1 February 2006 the applicant appealed against that order, complaining of unclear points and omissions. She also raised the possibility that the sudden deterioration in her husband ’ s health and his eventual death might have been caused by bacteria present in the operating theatre on the day of the nasal polypectomy, that the diagnoses may have been made in haste and that there may have been negligence and carelessness in the medical treatment administered to her husband. She further complained that the internal medicine and gastroenterology reports had been prepared each time by the same experts. The applicant therefore requested the reopening of the investigation and the preparation of a fresh expert medical report. 44. The Inspector General for Health wrote to the applicant on 2 March 2006 informing her that he had set aside his previous order and ordered fresh expert assessments to be carried out by different experts in the fields of internal medicine and gastroenterology. 45. The applicant gave evidence again on 27 April 2006. 46. The medical experts submitted their reports on 20 May and 10 July 2006. The expert in gastroenterology stated that it was possible, albeit rare, for a nasal polypectomy to cause meningitis. He further considered that the applicant ’ s husband had received appropriate treatment but that his discharge on 3 February 1998 may not have been wise in view of his clinical condition. The expert concluded that the applicant ’ s husband had suffered a series of complications which were uncommon but could occur, and that he had received proper medical care at the CHVNG. As to the care in Santo António Hospital, the expert considered that the condition of the applicant ’ s husband had been extremely complicated and had given rise to doubts as to the best way to proceed. In his report, the expert in internal medicine rejected the idea of a hospital-acquired infection on the grounds that, had that been the case, the antibiotics administered to the patient would have had no effect. In his view, the meningitis had developed unexpectedly. He further took the view that the applicant ’ s husband ’ s discharge on 3 February 1998 had been appropriate but that he should have continued to be monitored as an outpatient. 47. On 25 July 2006 a report was drawn up on completion of the investigation, which concluded as follows: “... The content of the most recent expert medical reports shows ... that there are no grounds for a finding of disciplinary liability for negligence against any of the health ‑ care professionals involved in A. ’ s medical treatment... ... the decision by the assistant doctor [J.V.] to refer the patient for outpatient treatment was not appropriate and sufficient from a clinical viewpoint in so far as, in order to prevent a recurrence of the colitis caused by Clostridium difficile ..., the patient should have remained in hospital under close medical supervision ... ... Hence, the doctor in question did not act with the necessary care and diligence, thereby incurring disciplinary liability on account of his negligent conduct in the medical assistance provided ... in D. ward of the CHVNG ’ s medical department between 25 January and 3 February 1998. The medical opinions make no criticisms of the assistance provided in the gastroenterology department of Santo António General Hospital in Oporto ...” 48. In the light of this report the Inspector General made an order on 26 July 2006 for the opening of disciplinary proceedings against Dr J.V. 49. By a letter dated 31 July 2006 the applicant was informed that the disciplinary proceedings initiated against Dr J.V. would be stayed pending the outcome of the criminal proceedings (see paragraphs 59-68 below). 2. Proceedings before the Medical Association 50. In the meantime, on 31 August 1998, the Medical Association acknowledged receipt of the applicant ’ s letter of 13 August 1998, informing her that steps would be taken in response to it. 51. The case was referred to the Medical Association ’ s regional disciplinary council for the North region. The latter obtained the patient ’ s medical records and sought the opinions of four specialist panels: gastroenterology, infectious diseases, general surgery and ear, nose and throat (ENT). 52. In its report of 14 July 1999, the gastroenterology panel issued the following conclusions: “... A simple X-ray of the abdomen performed the day before the patient ’ s death did not detect any dilatation or perforation of the colon. The patient ’ s death was caused by peritonitis as a result of the perforation of the duodenal ulcer. The difficulties in diagnosing the condition were understandable in view of the patient ’ s serious clinical condition and the fact that his abdominal pains were explained by the inflammatory disease in the colon. The role of the corticosteroids in aggravating or reactivating the peptic ulcer ... is not currently considered a risk factor ... However, given that the patient had already experienced one episode of intestinal bleeding, there would have been grounds for weighing up the use of these drugs. ... The decisions to discharge the patient [from hospital] may have delayed the diagnosis or the commencement of treatment. Nevertheless, after examining the documents submitted to me, I am unable to confirm whether these discharge decisions adversely affected his diagnosis or programme of treatment. ...” 53. The conclusions of the report of 17 April 2000 by the infectious-diseases panel read as follows: “1. In our opinion the diagnosis of meningitis, most likely resulting from the nasal polypectomy, was inexplicably delayed. The fact that there was no one on the medical team trained in this type of diagnosis (for example, a specialist in infectious diseases) may be regarded as the only explanation for such an incident. However, this was not the immediate cause of the patient ’ s death. 2. In our view, too long a period elapsed between the diagnosis of the perforation in the duodenal ulcer and surgery. 3. The procedure has been undermined to an incalculable extent by the fact that no autopsy was performed, although an autopsy is mandatory ( mandatória ) in cases of this type in order to shed light on the chain of events.” In its report the panel further held as follows: “The inhuman conditions described in this process, as regards how the patient was treated, are another example of the situation encountered on a daily basis in our hospitals; a reflection of the appalling structural and operational conditions which require urgent analysis and change. This board of the Infectious-Diseases Panel of the Medical Association must have a fundamental role in advocating the rights of patients and doctors in order to create better conditions of care for the former and better working conditions for the latter. We reiterate, once more, the need to consider the creation of infectious-diseases departments/units in hospitals of the same type as Vila Nova de Gaia Hospital, in order to improve the quality of care in this regard.” 54. In a report of 24 April 2001 the general-surgery panel found that there had been no negligence or medical malpractice in the hospitals concerned. The report read as follows: “1. A perforated duodenal ulcer requires immediate surgery. In the present situation the perforated ulcer ... was difficult, if not impossible, to diagnose given the clinical context in which it occurred. Furthermore, in view of the seriousness of the patient ’ s clinical condition, the approach to surgery had to be given careful consideration and the patient had to be prepared by means of various measures. ...” 55. In a report dated 1 August 2001 the ENT panel concluded as follows: “1. Meningitis following micro-endoscopic surgery for nasal polyps is described as one of the (major) complications of this type of surgery, estimated in the literature to occur in between 0.6% and 1% of cases. These figures will be higher in the event of a repeat operation, as in the present case (surgery was performed in 1993 as stated on page 314 of the file concerning the operation). 2. The post-operative CT scan of the brain carried out on 29 November 1997 does not show any discontinuity in the bones at the base of the skull ... which suggests that no invasive endocranial surgery was carried out. 3. The description of the surgery performed on the patient on 26 November 1997 (page 310 of the file) does not give any indication of clinical malpractice or negligence. 4. No ENT procedures were performed during any of the patient ’ s subsequent stays in Vila Nova de Gaia Hospital or in Santo António Hospital.” 56. In an order of 28 December 2001 the regional disciplinary council for the North region decided, after having examined the conclusions of the different specialist panels, to take no further action on the applicant ’ s complaint, on the ground that there was no evidence of misconduct or medical negligence. 57. The disciplinary council observed the following: ( i ) meningitis was a complication that could arise in between 0.6% and 1% of cases following a nasal polypectomy; the figures were liable to be higher for a repeat operation, as in the case in question; (ii) the applicant ’ s husband had received appropriate treatment during his various hospital stays; (iii) the patient ’ s bacterial meningitis ( Pseudomonas ) had been treated properly; (iv) although the infectious-diseases panel had suggested that the presence of a specialist in that discipline might have enabled a diagnosis to be made sooner, this had not been a decisive factor in the development of the clinical situation; (v) the perforation of the duodenal ulcer had been the cause of the peritonitis. This had been difficult to diagnose in view of the patient ’ s serious clinical condition, a fact acknowledged by the gastroenterology and general-surgery panels; (vi) although the infectious-diseases panel had considered that too long a period had elapsed between the diagnosis of the perforated duodenal ulcer and surgery, the time taken to prepare for the operation had been justified since the patient had been suffering from intestinal disease and had severe anaemia, sepsis and a fluid and electrolyte imbalance, as noted by the general-surgery panel. 58. On 29 April 2002 the applicant lodged an appeal against that order with the Medical Association ’ s National Disciplinary Council. On 18 March 2003 the appeal was declared inadmissible as being out of time. 3. Criminal proceedings before the Vila Nova de Gaia District Court 59. On 29 April 2002 the applicant lodged a complaint for negligent homicide with the Oporto criminal investigation and prosecution department. 60. She gave evidence on 7 June 2002. 61. By order of the Criminal Investigation Court of 27 September 2002 the applicant was given leave to intervene in the proceedings as an assistant to the public prosecutor ( assistente ). 62. On 7 December 2007 the public prosecutor ’ s office made its submissions, charging Dr J.V. with homicide by gross ( grosseira ) negligence. In support of their decision the prosecuting authorities referred to the report appended to the IGS order of 25 July 2006. They considered that Dr J.V. should not have discharged the applicant ’ s husband on 3 February 1998 in so far as the patient ’ s clinical condition had been problematic and he had been infected with the Clostridium difficile bacterium. 63. The case was referred to the Vila Nova de Gaia District Court. During the trial the court heard evidence from the applicant, the accused, eight doctors who had been involved in treating the applicant ’ s husband in the CHVNG and in Santo António Hospital, and the five medical experts appointed in the context of the proceedings before the IGS. The court also sought the opinion of the Medical Association ’ s Disciplinary Council. 64. On 15 January 2009 the District Court acquitted Dr J.V. of the charges against him. In particular, it took the view that the findings made by the IGS in its order of 26 July 2006 could not be taken into consideration as they had not been confirmed by the five medical experts who had given evidence during the trial. 65. As to the facts, the District Court considered, inter alia, the following to be established : “The patient ’ s hospitalisation on 18 December 1997 ... was not the result of a lack of medical supervision of his clinical condition ... since it was unconnected to the complications arising out of the meningitis. In fact, it resulted from acute anaemia caused by intestinal bleeding from a duodenal ulcer; ... The decisions to discharge the patient on 13 and 23 December 1997 were appropriate, given that, in the former case, the problem of bacterial meningitis had been resolved, [the patient] had completed the course of antibiotics, he no longer had any symptoms or fever, had a slightly increased white-blood cell count, a falling neutrophil count and normal sedimentation rate, and was not complaining ... and, in the latter case, that is to say, the patient ’ s hospitalisation from 18 to 23 December 1997, the patient was not complaining of abdominal pain, diarrhoea or bleeding ... with the result that it was possible to continue treating his ulcer with a dietary regime while monitoring him on an outpatient basis ... When the patient was admitted to Santo António Hospital, laboratory tests were carried out for Clostridium difficile. The results were negative on two occasions.” 66. On the subject of the surgery preceding the death of the applicant ’ s husband, the District Court observed as follows: “... the patient was in a very serious clinical state, with septic shock and multiple organ dysfunction. For that reason, he was placed on artificial ventilation and vasoactive drugs and fluids were administered ..., together with hydrocortisone to deal with possible acute adrenal insufficiency ( falência supra-renal aguda ), and broad-spectrum antibiotics; ... in this medical context the patient ’ s prospects of survival were very uncertain, in view of the septic shock and multiple organ dysfunction; ... a simple abdominal X-ray and an abdominal and pelvic ultrasound scan were therefore requested, which did not reveal a perforation of the intestine.” 67. In the District Court ’ s view, it had not been demonstrated that the care provided to the applicant ’ s husband during his stay in hospital from 25 January to 3 February 1998 had not been in accordance with good medical practice, or that he should have been kept in hospital for longer. The court therefore concluded that there was no causal link between the treatment administered by Dr J.V. to the applicant ’ s husband in the CHVNG and his death, which had been caused by a perforated viscus that was unconnected to the colonic disease treated by the accused. It held: “...there was no evidence to show that the treatment administered by the accused for the Clostridium difficile infection was incomplete, that the patient was discharged prematurely on 3 February 1998 or, in sum, that the accused was responsible for the death of the patient on 8 March 1998.” 68. The applicant did not appeal against that judgment. 4. Proceedings before the Oporto Administrative and Fiscal Court 69. On 6 March 2003 the applicant brought an action in the Oporto Administrative and Fiscal Court against the CHVNG, Santo António Hospital and the eight doctors who had been involved in treating her husband while he was in hospital, claiming compensation for the damage she had suffered on account of her husband ’ s death. She alleged, inter alia, ( i ) that her husband ’ s meningitis had been caused by Pseudomonas cepacia bacteria which, she alleged, had been present in the operating theatre during the nasal polypectomy; (ii) that the meningitis had been diagnosed too late, allowing the illness to become serious; (iii) that the administering of excessive doses of medication and the lack of a suitable prophylactic had caused the duodenal ulcer which had led to her husband ’ s death. 70. In the context of these proceedings the applicant was granted legal aid in the form of exemption from payment of the court fees and the fees of a lawyer of her own choosing. 71. Between 4 and 24 April 2003 the eight doctors contested their standing to be sued ( ilegitimidade passiva ), relying on Article 2 of Legislative Decree no. 48051 of 21 November 1967. 72. On 16 April 2007 the court gave a preparatory decision ( despacho saneador ) specifying which facts were considered to be established and which remained to be established. In accordance with Article 2 of Legislative Decree no. 48051 of 21 November 1967 it further held that the doctors among the defendants did not have standing in so far as they had been sued only for negligent conduct. Accordingly, it declared the claim admissible only in respect of the hospitals. 73. On 17 January 2011 the applicant gave evidence. 74. During the three hearings the court heard evidence from the following witnesses: ( i ) eleven doctors who had been involved in treating the applicant ’ s husband during his various stays in the CHVNG and Santo António Hospital; (ii) the general practitioner of the applicant ’ s husband; (iii) two doctors who were friends of the family; (iv) the inspector who had written the final report on completion of the investigation within the IGS; and (v) the medical experts in gastroenterology and internal medicine whose reports had formed the basis for the last IGS decision. 75. On 24 May 2011 the court made an order concerning the facts. Taking into account the medical records of the applicant ’ s husband and the various statements made by the witnesses who had given evidence, the court considered it established, inter alia, ( i ) that a polypectomy was a straightforward surgical operation which posed minimal risk and that the patient had been informed accordingly; (ii) that the operating theatre had been aseptic and sterilised at the time of the polypectomy; (iii) that the origin of the bacterium linked to the patient ’ s meningitis had not been proven. The court dismissed the possibility of a hospital-acquired infection, pointing out that in that case the prescribed treatment would have had no effect; (iv) that the medication prescribed in the CHVNG and Santo António Hospital could cause intestinal problems and hence could give rise to colitis; (v) that the applicant ’ s husband had been treated with drugs to protect his stomach in the CHVNG; (vi) that the gastroduodenal perforation had not been detected until the operation was being performed; and (vii) that the applicant ’ s husband had died from septicaemia caused by peritonitis resulting from a perforated viscus. 76. On 23 January 2012 the Oporto Administrative and Fiscal Court delivered a judgment in which it dismissed the applicant ’ s claims. On the facts, the judgment stated, inter alia, as follows: “The Pseudomonas bacterium was resistant to the various antibiotics that were tried ... When the patient attended Vila Nova de Gaia Hospital on 18 December 1997 he had completely recovered from his bacterial meningitis. ... On 25 January 1998 the patient again attended Vila Nova de Gaia Hospital, where he was diagnosed with pseudomembranous colitis caused by Clostridium difficile ... The colitis was successfully treated in that hospital ...; Throughout his stay in Vila Nova de Gaia Hospital he was given treatment to protect his stomach. ... When he was admitted (to Santo António Hospital on 17 February 1998) he had chronic diarrhoea ... and was diagnosed with suspected inflammatory bowel disease. Medication was prescribed in keeping with that diagnosis. ... While in Santo António Hospital he was kept under observation, received daily medication and underwent various tests. ... On 6 March 1998 ... nothing had made it possible to predict the gastroduodenal perforation ... the tests carried out that day ... did not confirm the existence of any duodenal perforation such that the situation had to be kept under review; ... It was not until 7 March 1998 that the patient ’ s acute abdominal syndrome was diagnosed, calling for urgent surgery ... it was only during the operation that the patient was found to be suffering from a duodenal perforation; ... The perforation had occurred 24 hours before surgery.” 77. The judgment concluded as follows: “ ... in view of the facts that have been established, it is not possible to determine at what point the defendants, by their actions or omissions, breached the rules of good medical practice ... It is considered established that [Mr Fernandes ’ s ] death was caused by sepsis due to peritonitis resulting from the perforation of his duodenal ulcer... No doubts persisted regarding the diagnosis of meningitis, the procedure adopted, the sequence of treatment and the resolution of the problem, as all the various after ‑ effects were duly explained. Hence there were no differences of opinion regarding the need to prescribe and use antibiotics in the context of [Mr Fernandes ’ s ] meningitis and other conditions, although it was explained that colitis is a bacterial imbalance caused by antibiotics (the very ones which have undesirable effects on intestinal flora). Nevertheless, it was not possible to determine the agent or identify the cause of the bacterium linked to the meningitis and it could therefore not be established with certainty whether the sinus surgery was the source of the problem or was simply one factor causing the infection. The other factors and circumstances preceding the operation ... thus cease to be relevant. It is nonetheless surprising that the death of the claimant ’ s husband should have occurred ... given that he had been strong and in good health and that the microsurgery on his sinuses was a straightforward operation. However, it has not been demonstrated that the therapy or medication administered to [Mr Fernandes ] at any point was unsuited to his clinical condition. There was therefore no breach of the rules of good medical practice (either by action or omission). Accordingly, one of the cumulative conditions for establishing civil liability, namely an unlawful act, is absent.” 78. The applicant appealed against the judgment to the Supreme Administrative Court. She contested the facts deemed to be established, arguing that only by studying the circumstances before, during and after the operation would it be possible to understand what type of bacterium her husband had contracted. She further reiterated that her husband had contracted a hospital-acquired infection and had not received adequate treatment either in the CHVNG or in Santo António Hospital. 79. On 26 February 2013 the Supreme Administrative Court dismissed the applicant ’ s claims, upholding the judgment of the Oporto Administrative and Fiscal Court. It first of all declined to review the facts considered by the lower court to have been established, on the grounds that the hearings had not been recorded and that no new documents had been submitted which could cast doubt on the evidence forming the basis for the court ’ s decision. The Supreme Administrative Court summed up its judgment as follows: “The lower court considered, in sum, that it had not been possible to identify the nature and origin of the bacterium that caused the meningitis and that it had not been demonstrated that the illnesses subsequent to [the patient ’ s] treatment and recovery from that illness ... had been the consequence of incorrect diagnosis or treatment. For that reason it found that no breach of the rules of good medical practice had been demonstrated that might have caused the patient ’ s death. The claimant takes a different view of the matter. However, she bases her arguments mainly on allegations that have not been proven, and in particular the allegation that the meningitis was caused by the Pseudomonas bacterium, allegedly acquired in hospital ... and that the patient did not receive appropriate prophylactic treatment to protect his stomach during his treatment with antibiotics. Accordingly, these claims can be summed up as allegations of medical negligence which are unsupported by the established facts.” | This case concerned the death of the applicant’s husband following nasal polyp surgery and the subsequent procedures opened for various instances of medical negligence. The applicant alleged that her husband’s death had been caused by negligence and carelessness on the part of the medical staff, and that the authorities had not elucidated the precise cause of the deterioration in her husband’s health. |
950 | Impossibility for certain groups or individuals to vote in parliamentary elections | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1938 and lives in Nicosia. 10. On 30 January 2001 the applicant applied to the Ministry of the Interior, requesting to be registered on the electoral roll in order to exercise his voting rights in the parliamentary election of 27 May 2001. 11. On 8 February 2001 the Ministry of the Interior refused to enrol the applicant. The Ministry specified that, by virtue of Article 63 of the Constitution, members of the Turkish-Cypriot community could not be registered on the Greek-Cypriot electoral roll. Furthermore, the Ministry informed the applicant that the matter was under consideration by the Attorney-General of the Republic and that he would be informed of any developments. 12. On 27 April 2001 the applicant lodged an application with the Supreme Court against the decision of the Ministry of the Interior. He relied on Article 3 of Protocol No. 1 and submitted that, following the dissolution of the Communal Chambers, the Cypriot government had failed to set up two electoral lists in order to protect the electoral rights of members of both communities. 13. On 23 May 2001 the Supreme Court dismissed the application on the following grounds: “... The right to vote is directly linked to the communal checks and balances which provide for the compilation of separate electoral lists and for separate elections of the representatives of each community. The ideal of democracy – one person, one vote in the person's place of residence – does not provide any grounds for the Court to assume the power to reform the Constitution. Such competence is not vested in us, nor can the judicial authorities claim such power. This would be against the principle of the separation of powers on which the Constitution is based ... Article 63 is contained in Part IV of the Constitution, which governs the matters pertaining to the House of Representatives and provides for the compilation of separate electoral lists in which the members of each community are included. The applicant belongs to the Turkish community and is one of the small number of Turkish Cypriots residing in the part of the territory of Cyprus under the control of the Republic of Cyprus. The denunciation by the applicant of the Turkish invasion and his loyalty to the law do not alter what the Constitution provides with respect to the election of the members of the legislative body. Article 5 of the [Election of Members of the House of Representatives] Law makes the right to vote conditional on the provisions of Article 63 of the Constitution. The applicant admits, as it transpires from his counsel's address, that the proviso to which the right to vote is subject under Article 5, if construed literally, excludes the inclusion in the electoral list of any person other than members of the Greek community in Cyprus. Nevertheless, he suggested that this reservation must be interpreted in the light of the current situation in Cyprus, which renders the compilation of an electoral list of the members of the Turkish community impossible. Given this fact, it had to be surmised that when the House of Representatives enacted Article 5 of the Law it had this situation in mind and the impossibility of compiling an electoral list of the members of the Turkish community. Hence, this justified the interpretation of the reservation contained in Article 5 as referring only to those provisions of Article 63 of the Constitution which were rendered inactive. Adopting the interpretation of Article 5 proposed by the applicant would amount to it being reworded. The fact that the legislator was apprised of all the facts relating to the situation in Cyprus and chose to place the right safeguarded by Article 5 under the reservation of Article 63, supports the opposite of what the applicant is suggesting; it indicates an intention by the legislature to subject the compilation of the electoral list to the statutory provisions of Article 63. From the wording of Article 5 we conclude that the legislature's intention was to place the right to vote under the reservation of all provisions of Article 63. This conclusion refutes the allegation of the illegality of the administrative decision under appeal. The second ground on which the applicant's appeal is based is the law of necessity. The necessity of his inclusion in the electoral list ... is derived from the impossibility of compiling an electoral list of the members of the Turkish community. Given this state of affairs, Mr Drakos submitted that the inclusion of the applicant in the electoral list of electors of the Greek community was justified and gave him the right to participate as an elector in the forthcoming parliamentary election. This was justified by the fact that the applicant resided in the areas controlled by the Republic of Cyprus where he operates, having the same rights and obligations as every other citizen. ... Assessment of the necessity relied on by the applicant and the establishment of measures to deal with it ... is a duty that falls upon the legislature. The competence of the judiciary is limited, provided the matter is submitted to it or arises in a case brought before it, to determining the constitutionality of the law ... It is not for the judiciary to assess the need to fill in gaps in the function of the constitutional statutes nor to establish measures to tackle them, which is basically what the applicant pursues with his application.” | The applicant complained that he was refused permission to be registered on the electoral roll, in order to vote in the parliamentary elections of 27 May 2001, because he was a member of the Turkish-Cypriot community. His request was refused on the ground that, under Article 63 of the Constitution, members of the Turkish-Cypriot community could not be registered in the Greek-Cypriot electoral roll. |
1,080 | Dismissal | 2. The applicant was born in 1978 and lives in Riga. The applicant was represented by Mr R. Arthur, a lawyer practising in Bristol, UK. 3. The Government were represented by their Agent, Ms K. Līce. 4. The facts of the case, as submitted by the parties, may be summarised as follows. THE CIRCUMSTANCES OF THE CASE The applicant’s employment and employment record 5. In 2005 the applicant started working as an air traffic control officer (hereinafter “ATCO”) for a State-owned joint stock company, Latvijas Gaisa Satiksme (hereinafter “LGS”), which is overseen by the Ministry of Transport. In 2010 she also undertook ATCO instructor duties. 6. On 3 May 2011 the applicant was presented with a revised job description, which she signed, adding a note that read: “I have acquainted myself [with the job description] but do not agree” ( Iepazinos, bet nepiekrītu ). The subject of the disagreement concerned the regulation of the allocation of seniority grades following longer periods of absence, such as maternity leave. The matter was discussed with the applicant’s manager. The applicant signed the revised job description on 29 June 2012, after the matter had resurfaced during the internal investigation (see paragraph 21 below). Trade Union activities and the letter of 2 March 2012 7. On 27 October 2011 the Latvian Air Traffic Controllers’ Trade Union (hereinafter “the Trade Union”), was established and the applicant became the chairperson of its board. According to the Trade Union’s Statute and the information entered in the Enterprise Register, the chairperson of the Trade Union board had the right to represent the Trade Union individually. 8. On 7 November 2011 the Trade Union sought clarification from the LGS board about a recent order concerning the ATCO instructors’ work schedules with respect to their training duties. LGS responded that ATCO training was supposed to be carried out outside normal work shifts – it would be regarded as additional work and would be paid separately. In subsequent correspondence the Trade Union insisted that ATCO instructors’ training work was not being recorded and that those ATCO instructors were hence not being paid for such work. It emphasised the negative impact of such a situation, including potentially negative effects on flight safety. This correspondence was signed by the applicant in her capacity as the chairperson of the Trade Union board. 9. On 14 February 2012 the Trade Union held a board meeting. The minutes of the meeting, which were signed by all three Trade Union board members, stated: “It has been decided to write a complaint in the name of the Trade Union to LGS’s [sole] shareholder and to the Minister of Transport, as the board sees no other way of rectifying the working procedures of the instructors. In the view of the Trade Union board, the LGS board does not have the necessary knowledge and expertise to comprehend the problem of the poor organisation of the ATCO instructors’ work and to take the appropriate decision to resolve the problem. The complaint should also address other relevant problematic issues.” 10. The above-mentioned complaint, formulated in a letter dated 2 March 2012, was addressed to the Minister of Transport and the person representing the State as the sole shareholder of LGS. It was drawn up on the letterhead of the Trade Union; its text used formulations like “the Trade Union announces”, “we, the air traffic control officers”; and it was signed by the applicant next to the words: “In the name of the Latvian Air Traffic Controllers’ Trade Union, chairperson of the board”. 11. The letter asserted that the LGS board did not comply with the requirements set out by the relevant laws, was infringing the legal rights of the LGS employees, and was mismanaging the company’s funds. The letter then stated: “Even though the Trade Union has repeatedly attempted to find a constructive solution through negotiations, the situation has become unmanageable [ kļuvusi nevaldāma ] and seriously endangers both the quality of the provision of aeronavigation services [ aeronavigācijas pakalpojumu nodrošināšanas kvalitāti ] and LGS’s ability to grow and compete in the international market.” The letter then recounted the history of unsuccessful negotiations and collective bargaining attempts, emphasising an alleged lack of cooperation and withholding of information on the part of the LGS board. 12. The letter continued by describing the problems regarding the ATCO training. The introductory part of this section read: “We also wish to draw your attention to other problematic issues that have not been resolved for a long time and could in the near future affect not only the sustainability of the enterprise, but also, unfortunately, flight safety in Latvian airspace. [ATCOs], and hence also the Trade Union, are very concerned in this regard and consider it to be their duty to inform higher State officials and authorities [of their concerns], so that the above-mentioned issue regarding a deterioration in flight safety and a lowering of the sustainability of the enterprise might be prevented.” 13. The letter then relayed the information that LGS had ordered ATCO instructors to train ATCO trainees outside their scheduled working hours. This training time was not recorded and the ATCO instructors were not paid for such work. Aside from being contrary to the labour laws, this practice harmed morale, hampered possibilities to upgrade qualifications, negatively impacted the training process, and caused disappointment among ATCO trainees who had been forced (without any proper explanation) to take unpaid leave. That increased the risk that LGS would lose those employees. According to the letter, all the above-noted factors would affect flight safety in future. 14. The letter then addressed numerous other problems concerning the organisation of ATCOs’ work, such as: discrimination with respect to the payment of bonuses (that is to say of all LGS’s employees the ATCOs received the lowest bonuses); failure to pay monthly allowances that had been agreed upon; failure to include ATCOs in the “high-risk” employee category in the light of the continuous stress that they faced; failure to categorise ATCOs working during the night time as night workers; a violation of the collective agreement by failing to insure ATCOs against the loss of their licences; failure to pay extra for carrying out the work of an absent colleague; and paying ATCOs only 75% of their agreed salary for two years following their acquisition of their permanent ATCO licences. 15. The letter next identified specific payments that were regarded as constituting the mismanagement of funds. It also stressed the fact that the ATCOs working for LGS were among the lowest paid in Europe and that owing to problems within LGS four very experienced ATCOs had resigned. This part of the letter included the following passages: “Everything we have mentioned in this letter points to a serious risk to the enterprise and to the aeronavigation sector in Latvia.” “If the situation within the enterprise does not change, this trend [of resignations] will not only continue but will get worse. However, if the goal of the [LGS] board is to lead the enterprise to a state in which it is unable to ensure safe air traffic navigation services, thereby endangering the existence of the enterprise, this could be attained in the not so distant future.” 16. In conclusion, the Trade Union noted that these issues were of societal importance and that the LGS employees were prepared to discuss them publicly and, if need be, to organise strike action and to appeal to international organisations. The Trade Union then called for the LGS board to be removed. The reaction to the letter of 2 March 2012 17. On 9 March 2012 nineteen ATCOs, some of whom were not members of the Trade Union, wrote a letter to LGS distancing themselves from the Trade Union’s letter of 2 March 2012. In the subsequent civil proceedings one of the signatories testified that they had been ordered to sign the letter of 9 March 2012 under the threat of suspension (see paragraph 31 below). 18. On 15 March 2012, in response to an enquiry made by LGS, the Civil Aviation Agency expressed concerns about the Trade Union’s “extreme pronouncements” regarding flight security. It advised LGS to assess whether the ATCOs whose statements had “contained threats about lowering the level of flight security” had complied with their terms of employment. As to LGS’s refusal to conclude agreements with ATCO instructors regarding their training duties, it noted that LGS was acting correctly, as it was “ensuring the allowed amount of monthly hours”. The Trade Union had not raised the issues that were of concern to them through the proper channels, as the Civil Aviation Agency had received no reports of “breaches in ATCOs’ employment”. 19. The Trade Union members in written statements addressed to the Trade Union reported that on the following day the LGS board summoned all the ATCOs who were at work that day to attend a meeting concerning the letter of 2 March 2012. The chairperson of the LGS board, D.T., emphasised that he had strong political support and asked everyone to sign a letter, addressed to him, certifying that ATCOs worked in compliance with the domestic and international legal instruments. 20. The Trade Union members also wrote statements of further meetings between the LGS board and the members of the Trade Union that were organised on 19, 20 and 22 March 2012. They submitted that D.T. had repeatedly emphasised that he had strong political support and asked the Trade Union members to sign statements attesting that they were ensuring that flight safety was maintained. It was indicated that signing them would be interpreted as compliance with the requirements of the post, whereas a refusal to sign would trigger an investigation and possibly suspension from duties. In addition, D.T. repeatedly asserted that the applicant was “inadequate”, that it was not possible to communicate with her, and that she was not capable of leading the Trade Union. He suggested that the applicant be removed as the Trade Union representative and be replaced with a more “adequate” person. 21. On 23 March 2012 LGS commenced an internal investigation with the stated purpose of establishing whether the dissemination of the statements about the potential threats to flight safety had been lawful. During the investigation, the applicant’s failure to sign the job description (see paragraph 6 above) was also reviewed. The applicant was suspended from her post for the period of the investigation. Her average salary was maintained, but she was prohibited from entering the premises of LGS. 22. On the same day, the Trade Union members gathered for a spontaneous meeting with the LGS board, requesting an explanation for the applicant’s suspension and the fact that only one person was being held responsible for a letter that had been sent in the name of the Trade Union. According to written statements by the Trade Union members, D.T. responded that the applicant would merely need to provide some explanations, as she had been the one who had signed the letter. Additionally, her representing the Trade Union was senseless, and her goals did not correspond with those of the Trade Union’s members. D.T. also warned against trying to obtain any help from “outside”. All issues had to be resolved within LGS, and letters such as this only harmed the Trade Union’s members. 23. On 27 March 2012 fifty-one ATCOs wrote a letter to D.T. expressing their support for the applicant. They requested that the applicant be reinstated in her post and called it unacceptable to confuse the applicant’s Trade Union activities with her direct duties at work. On 15 June 2012 forty-seven ATCOs wrote a letter to the Prime Minister in which they affirmed the continuance of the problems highlighted in the Trade Union’s letter of 2 March 2012. They also expressed their indignation about the retaliatory measures directed against the applicant. 24. On 30 March 2012 the Civil Aviation Agency ordered the applicant to undergo an evaluation of her neuropsychological state and on 14 April 2012 ordered an evaluation of her mental health. Both examinations confirmed that the applicant was healthy. On 28 April 2012 LGS lodged a complaint with the Security Police – the State’s counterintelligence and internal security service – concerning “the potential threat to flight safety in view of the Trade Union’s complaint”. On 18 June 2012, the Security Police responded that the conflict in question constituted a labour dispute and that there were therefore no grounds to examine it under the Criminal Procedure Law. 25. On 11 May 2012 the internal investigation was completed, with the investigation commission suggesting that the applicant be dismissed. The LGS board revoked the applicant’s salary and asked the Trade Union to agree to the applicant’s dismissal; the Trade Union refused. 26. In June 2012 the Latvian Federation of Aviation Trade Unions organised talks aimed at achieving a friendly settlement. LGS insisted that the applicant or the Trade Union write a letter to the Ministry of Transport stating that the threats outlined in the letter of 2 March 2012 no longer existed. The applicant and the Latvian Federation of Aviation Trade Unions considered this condition unacceptable. 27. On 26 June 2012, following the expiry of the maximum period for which she could be suspended, LGS reinstated the applicant in her position while simultaneously ordering her to “stand idle” – that is to say to be present at the workplace every day without carrying out her direct employment duties. During that period the applicant was to receive her average wage. However, from 14 December 2012 the applicant was again refused entry to the premises of LGS and from 11 March 2013 the payment of her salary was terminated. 28. Over this time period LGS management demanded explanations from colleagues of the applicant who had congratulated her on her birthday or had otherwise manifested a favourable attitude towards her (for example, by giving her a lift or taking a photograph of themselves together), as confirmed by witness statements during the civil proceedings. Civil proceedingsFirst-instance proceedings First-instance proceedings First-instance proceedings 29. On 23 April 2012 the applicant brought civil proceedings against LGS, challenging her suspension and seeking reinstatement. In a subsequent addendum she lodged additional claims regarding, inter alia, the order for her to stand idle, the discrimination against her on the basis of her trade union activities, and the interference in the work of the Trade Union. 30. At the first hearing LGS lodged a counterclaim seeking the termination of the applicant’s employment. That hearing was adjourned. At the next hearing LGS requested that the case be examined in closed proceedings, as the case called for an assessment of information about the security of Latvian airspace, and misinterpreted facts had already reached the public, fuelling undesirable speculation about threats to flight safety. The applicant’s representative objected, as the case did not concern any classified information. The court granted LGS’s request on the grounds that this would allow for a “more efficient and successful administration of justice”. 31. During the proceedings several ATCO instructors testified that they had to carry out their training duties in their free time (that is to say outside their work shifts). They spoke of the fatigue that this arrangement caused to them and to the ATCO trainees. They also testified about the pressure placed on them by the LGS management to sign statements attesting that there existed no threat to flight safety, and to distance themselves from the Trade Union’s letter of 2 March 2012. One of the signatories of the letter of 9 March 2012 testified that they had been told to sign that letter under the threat of suspension. She agreed with the text of that letter in so far as it stated that ATCOs were not endangering flight safety. The applicant’s superiors at LGS and a witness from the Civil Aviation Agency testified that the applicant was a highly qualified employee and that they had no information about her committing any infringements at work. 32. On 11 March 2013 the Riga City Kurzeme District Court dismissed all the applicant’s claims and upheld LGS’s counterclaim seeking the termination of her employment. The summary judgment was pronounced in a closed hearing; the full text was made available to the parties on 21 March 2013. 33. The court found that the applicant’s suspension and the requirement that she stand idle had been justified under section 34 of the Law on Aviation (see paragraph 51 below). With her statements about the risks to flight safety – which had been inextricably linked with her performance of her ATCO duties – the applicant had created an emergency requiring extraordinary measures. The applicant had not reported threats to flight security to the relevant institutions and had not used the opportunity, offered during the friendly-settlement negotiations, to “retract her conviction” about a threat to flight safety. A professionally substantiated opinion had to be distinguished from an “ideological conviction”, which the applicant had expressed merely for the sake of it ( pārliecības paušana pārliecības dēļ ), and it was inappropriate to invoke human rights in this instance. The applicant’s conduct could have caused the employer to be concerned that she might be unpredictable in the performance of her professional duties. 34. As regards the applicant’s discrimination claim, the court found that a suspension based on the performance of employment duties could not be perceived as constituting a difference in treatment. The circumstances meriting the applicant’s suspension pertained only to her. The applicant had submitted no evidence that LGS had interfered with the exercise of her trade union rights. The applicant’s suspension had had no impact on her ability to represent employees. The allegation that LGS had interfered with the work of the Trade Union could not be assessed, as the applicant’s claim had been lodged only in the name of the applicant. 35. LGS’s counterclaim seeking the termination of the applicant’s employment was based on the assertion that she, when performing her work, had acted unlawfully and had thereby lost the employer’s trust (section 101(1)(2) of the Labour Law – see paragraph 48 below). The court considered that the applicant had indeed acted unlawfully in two respects. Firstly, she had performed her employment duties without having accepted the revised job description. By adding a note expressing her disagreement with the revised job description (see paragraph 6 above) the applicant had indicated her intention not to comply with the normative acts regulating air traffic. Accordingly, the applicant had been unpredictable in her function as an ATCO, and it had been impossible to foresee whether she might significantly endanger flight safety. For that reason, the applicant had been prohibited, under section 34(1)(2) of the Law on Aviation, from carrying out her functions (see paragraph 51 below). 36. Secondly, the applicant had acted unlawfully by knowingly disseminating untruthful information about her employer. It could not be established that the letter of 2 March 2012 had been based on a decision by the Trade Union’s General Assembly or that it reflected the majority opinion of its members. Some ATCOs had distanced themselves from the letter (see paragraph 17 above), and the other board members had not authorised the applicant to sign Trade Union letters individually. Referring to three subsequent Trade Union letters (including the letter to the Prime Minister expressing support for the applicant (see paragraph 23 above) and the letter refusing consent to the applicant’s dismissal (see paragraph 21 above)), the court concluded that Trade Union’s letters were usually signed by at least two board members or by a large number of its members. It followed that in the letter of 2 March 2012 the applicant had expressed her personal opinions and had been acting in her capacity as an ATCO, instead of in her capacity as the Trade Union representative. 37. As to the truthfulness of the disseminated information, the court considered that the applicant had made allegations about threats to flight safety. Referring to testimony given by LGS employees asserting that there no danger was posed to flight safety, written statements from ATCOs that they were ensuring flight safety, and documents from the Civil Aviation Agency and other evidence attesting, in general terms, that aeronavigation was safe, the court concluded that the applicant’s allegations had not been confirmed. The witness testimony concerning the organisation of working time (see paragraph 31 above) was not mentioned in the judgment. 38. The court furthermore noted that the applicant had “made serious threats with respect to the quality of the performance of her direct employment duties”. Moreover, contrary to the procedure prescribed by law, the applicant had not reported the existence of any risks. According to the assertion that the applicant had made in her letter, ATCOs had acted in breach of section 34(2) of the Law on Aviation by performing their duties while tired and without reporting their tired state to their management. If the applicant considered that there had been threats to flight safety, she had been duty bound to stop performing her employment duties. Instead, for the purpose of creating a scandal, the applicant had disseminated an “untruthful opinion”, thereby harming her employer’s interests and damaging its reputation. The applicant had been loyal to her profession but not to the enterprise that she had worked for. The fact that the applicant had written the complaint to the Ministry of Transport, without first discussing the issues in question with her employer, indicated that the applicant had been merely interested in discrediting LGS. The applicant had knowingly disseminated to third parties untruthful information about threats to flight safety with the goal of securing socio-economic benefits for herself. Given those circumstances, the employer could justifiably have lost its trust in the applicant. Appeal proceedings 39. On 8 April 2013 the applicant lodged an appeal with the Riga Regional Court. The Free Trade Union Confederation of Latvia requested that the case be examined in a public hearing. LGS requested a closed hearing on the grounds that the case concerned rules governing the security of airspace and the possible violations of those rules. The appellate court granted LGS’s request, referring to section 11(3)(1) of the Civil Procedure Law, which allows the exclusion of the public from a courtroom for the protection of State or commercial secrets. During the appeal hearing a picket organised by the Latvian Federation of Aviation Trade Unions was held outside the courthouse with the participation of members of the Free Trade Union Confederation of Latvia and the Lithuanian trade union Solidarumas. 40. In its judgment of 20 June 2013, the operative part of which was pronounced publicly, the Riga Regional Court endorsed the findings and the reasoning of the first-instance court. It added that there was no doubt that the applicant had signed the letter of 2 March 2012 herself; hence, her objection to the fact that engaging in a trade union activity had been deemed to constitute a personal action on her part was unfounded. It would have been unacceptable to prevent the employer from taking measures against the applicant merely on the grounds that the letter stated that it had been written in the name of the Trade Union. Employees’ material or social guarantees could not be invoked as grounds for not complying with direct employment duties. 41. The appeal court considered it immaterial that the ATCOs who had distanced themselves from the letter of 2 March 2012 had not been members of the Trade Union (see paragraph 17 above). Their letter of 9 March 2012 had confirmed that ATCOs’ professional training and experience ensured the necessary level of flight safety. The applicant’s argument that ATCOs had been intimidated into signing that letter under the threat of suspension was unfounded, as the witness had testified that she had never endangered air traffic (see paragraph 31 above). No evidence had been adduced confirming that flight security was endangered or that the situation in LGS was out of control. The appeal court upheld the first-instance court’s finding that the applicant had “ made serious threats with respect to the quality of the performance of her direct employment duties” and had disseminated an “untruthful opinion” with the goal of destabilising LGS and securing socio ‑ economic benefits for herself. Appeal on points of law proceedings 42. On 5 August 2013 the applicant lodged an appeal on points of law. On 28 February 2014, after examining the case in written proceedings, the Supreme Court upheld the judgment of the Riga Regional Court. With respect to the applicant’s argument that her statements had not contained any threats, the Supreme Court responded that the question of whether or not the applicant had made a threat could not be understood merely as her having threatened not to fulfil duties with regard to flight safety but also as her having made statements that the institution carrying out such tasks was not capable of functioning and, hence, that Latvian airspace was not safe. Other aspects relevant to the dispute 43. On 10 January 2012 an internal audit of LGS identified nine areas of non-compliance with regulations in the field of air traffic control, including the training of ATCOs. It also concluded that the internal bodies of LGS had disagreements regarding their respective areas of responsibility, and that the applicable legal instruments and the internal mechanism for resolving such differences were not functioning. 44. On 24 May 2012 the European Transport Workers’ Federation wrote to the Prime Minister that the actions of LGS had contravened EU Directive 2003/42/EC on occurrence reporting in civil aviation, as well as the Law on Trade Unions and the Labour Law. It requested the Prime Minister to halt the disciplinary investigation against the applicant and to revoke her suspension. On 11 April 2013 it wrote to the LGS board that the treatment of the applicant, as well as that of the other employees who had been intimidated into signing various statements, had been incompatible with trade union freedoms and autonomy and had contravened International Labour Organisation (ILO) Convention No. 135. On 22 April 2013 the Latvian Federation of Aviation Trade Unions expressed similar concerns to the LGS board. 45. On 17 January 2013 the International Federation of Air Traffic Controllers’ Associations wrote a letter to the Prime Minister, the Minister of Transport, the Civil Aviation Agency, and the LGS board expressing serious concerns about compliance with the principles of a “just culture” in the light of the treatment of individual ATCOs who had raised safety concerns. On 14 March 2014 the International Transport Workers’ Federation and the European Transport Workers’ Federation wrote a joint letter to the President of Latvia expressing grave concerns about the ruling of the first-instance court and, notably, its anti-union bias. They emphasised the fact that the complaint of 2 March 2012 had been sent by the applicant as the chairperson of the board of, and on behalf of, the Trade Union. It had raised problematic issues within LGS relating to social dialogue and the main issues highlighted had concerned training, rest times and fatigue. The ruling contradicted the principles of freedom of association and the legal protection of trade union representatives, as well as ILO Conventions No. 87, 98, and 135 and EU Directive 2003/42/EC. 46. On 1 February 2013 the applicant was re-elected as the chairperson of the Trade Union board. 47. On 27 June 2014 the State Labour Inspectorate concluded that LGS had committed an administrative offence by not complying with the Labour Law in respect of overtime work – inter alia, by exceeding the lawful limits for ATCO overtime work and by failing to properly record employees’ working hours. | The applicant was an air-traffic controller and chair of her trade union. The case concerned her treatment by her employer and ultimately her firing for statements made regarding safety in a letter to the State officials overseeing her State-owned employer on behalf of the union. She complained of the negative consequences she had suffered owing to the letter in question, and about her appeal hearing being closed to the public and that the judgments had not been delivered publicly. |
1,020 | Care allowances and personal assistance | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1943 and lives in London. 5. The applicant suffered an incapacitating stroke in September 1999 which left her with severely limited mobility. In April 2006 she fell heavily, breaking her hip in several places. She then suffered two further falls, both of which resulted in further hospitalisation. 6. The applicant has a small and neurogenic bladder. As a result, she usually has to urinate some two to three times a night. On account of her mobility problems she is unable safely to access a toilet or commode unaided. 7. In March 2007, after the applicant ’ s third fall, she applied to the Independent Living Fund (“ILF”) for full day and night support. While the application was pending she was provided with a care package by the local authority (the Royal Borough of Kensington and Chelsea) which included seventy hours per week of night-time care. The application to the ILF was ultimately unsuccessful as the applicant ceased to be eligible for funding when she turned sixty-five in 2008. 8. A local authority care plan dated 27 April 2007 indicated that the applicant needed “assistance with toileting, when it ’ s required during the night”. Likewise, the FACE (Functional Analysis of Care Environments) Overview assessment which followed on 8 January 2008 noted that “Miss McDonald needs assistance to manage continence at night. Substantial need.” 9. However, the FACE Overview Assessment was subsequently amended to read “Miss McDonald needs assistance at night to use the commode. Moderate need.” 10. A further Needs Assessment was started on 19 February 2008 and signed off on 29 February 2008. It noted: “Ms McDonald wanted to emphasise that she requires assistance with all transfers and when she mobilises. Ms McDonald requested night care in order [for] someone to assist her using commode during the night. This is because Ms McDonald does not wish to use incontinence pads and sheets ... Summary of Needs Assessment Ms McDonald needs assistance to use the commode at night. Substantial need.” 11. A further Needs Assessment signed off on 28 October 2008 concluded that “Miss McDonald needs assistance to use the commode at night. Substantial need.” This assessment was subsequently described by Lord Dyson as “a concession” granted on a “temporary basis” (see paragraph 53 of the opinion of the Supreme Court). 12. On 17 October 2008 a formal decision was taken to reduce the amount allocated for the applicant ’ s weekly care from GBP 703 to GBP 450. This figure appears to have been assessed on the basis that the applicant would be provided with incontinence pads in lieu of night-time care. This decision was taken at a meeting between the local authority and the applicant at the applicant ’ s home. She was formally notified of the decision by letter dated 21 November 2008. It noted that: “As stated at the meeting, the rationale behind the planned reduction is that we consider the current provision to be in excess of that required to meet your eligible needs under the council ’ s Fair Access to Care Services criteria. The council has a duty to provide care, but we must do so in a way that shows regard for use of public resources.” 13. On 22 December 2008 the applicant sought permission to apply for judicial review on the ground that the local authority was unreasonably and unlawfully failing to meet her assessed and eligible needs. She further submitted that the local authorities ’ actions would cause her to suffer indignity which would amount to an interference with her right to respect for her private life in breach of Article 8 of the Convention. 14. Pending judicial consideration of the applicant ’ s complaints, a “holding compromise” was reached : from November 2008 to December 2008 she continued to receive night-time care five days a week and between December 2008 and September 2011 she received night-time care four nights a week. During this period the applicant ’ s partner stayed with her when night-time care wasn ’ t provided in order to assist her. In September 2011 all night-time care was withdrawn. 15. On 5 March 2009 the application was refused by a Deputy High Court Judge. Although the judge accepted that the local authority was obliged to meet the applicant ’ s assessed need, she found that the assessed need was not “assistance to use the commode at night” but rather ensuring the applicant ’ s safety. The judge considered there to be two ways to meet that need: the provision of a night-time carer or the provision of incontinence pads. The statutory scheme requiring that the applicant ’ s needs be met allowed the local authority some flexibility about how that was to be done and the local authority was therefore quite entitled to meet the need in the most economic manner. The judge further considered the applicant ’ s complaints under Article 8 of the Convention to be “parasitic” upon the first ground being established and did not, therefore, consider that they raised any issues which needed to be gone into. 16. Following that decision, the local authority carried out a Care Plan Review. The review, which was dated 4 November 2009, concluded that “It remains Social Service ’ s view that the use of incontinence pads is a practical and appropriate solution to Ms McDonald ’ s night-time toileting needs. There does not seem to be any reason why this planned reduction to provide care should not go ahead ... ” 17. After a visit to the applicant ’ s home on 15 April 2010, a further Care Plan Review was conducted. It was noted that “Ms McDonald did not want to discuss the option of using incontinence pads or Kylie sheets (absorbent sheets) as a way of meeting her toileting needs”. The Review concluded: “I remain of the opinion that Ms McDonald ’ s need to be kept safe from falling and injuring herself can be met by the provision of equipment (pads and/or absorbent sheets). She has however consistently refused this option. I am aware that she considers pads and/or sheets to be an affront to her dignity. Other service users have held similar views when such measures were initially suggested but once they have tried them, and been provided with support in using them, they have realised that the pads/sheets improve the quality of life by protecting them from harm and allowing a degree of privacy and independence in circumstances which, as the result of health problems, are less than ideal. The practicalities can be managed within the existing care package to accommodate Ms McDonald ’ s preferred bedtime and to allow her to be bathed in the morning and/or have sheets changed. If Ms McDonald were willing to try this option, she might similarly alter her views. ... ... ... In light of her entrenched position on this, and despite the council ’ s view that pads and/or sheets are the best way to ensure Ms McDonald ’ s safety, consideration has been given to Extra Care Sheltered Housing as a means by which Ms McDonald could continue to receive support throughout the day and night. This would be consistent with her wish to receive personal care and also remain living independently in the community. It is not the recommended option because being assisted to access the toilet at night carries a risk of falls, but has been explored because of the impasse as regards the use of pads. Such accommodation will make support available 24 hours a day and reduce any longer term need to provide residential care to Ms McDonald should her needs increase in future. Ms McDonald refused this option when it was discussed with her.” 18. The applicant applied to the Court of Appeal for permission to appeal against the refusal of permission to apply for judicial review on the grounds first, that the reduction in funding was inconsistent with the assessment of her night-time needs; secondly, that the reduction in funding violated her rights under Article 8 of the Convention; and thirdly, that in reducing her funding the local authority had failed to comply with its obligations under the Disability Discrimination Act 1995. In particular, she argued that if forced to use incontinence pads she would “lose all sense of dignity” and, as a consequence, she would suffer considerable distress. The local authority submitted that the provision of a night-time carer would cost GBP 22,270 per year, which would have to be paid out of the adult social care budget from which all other community care services for adults in the applicant ’ s borough were funded. The local authority also argued that the use of pads would ensure the applicant ’ s safety and provide her with greater privacy and independence in her own home. Finally, the local authority submitted that the weekly funding of GBP 450 could be used according to the applicant ’ s preferences. She could therefore pay for a bedtime visit for the purpose of fitting the pads, and even a subsequent visit if necessary. 19. Upon the applicant ’ s application for permission to appeal, a single Lord Justice granted permission and directed that the claim for judicial review should be heard by the Court of Appeal. In a decision dated 13 October 2010 the Court of Appeal departed from the judgment of the Administrative Court insofar as it did not consider that it was appropriate for the courts to re-categorise the applicant ’ s needs as assessed by the local authority. It therefore found that between 21 November 2008 (the date of the disputed decision letter) and 4 November 2009 (the date of its first care plan review) the applicant ’ s assessed need had been for assistance to use a commode. In failing to provide such assistance, the local authority had been in breach of its statutory duty. However, it had mitigated the breach by entering into an arrangement with the applicant ’ s partner. Moreover, the 21 November 2008 decision had not been put into operation and applicant ’ s need had been reassessed in the Care Plan Reviews of November 2009 and April 2010. As a consequence, the court found that the applicant had no substantive complaint under this head. 20. With regard to the complaint under Article 8 of the Convention, the Court of Appeal found that the conditions for finding a breach had not been established. Even though the local authority had failed in its duty at the time of its November 2008 decision, the error was not born of any lack of respect for the applicant ’ s dignity but of a concern to perform the difficult task of balancing its desire to assist the applicant with its responsibilities to all its clients within the limited resources available to it. 21. Finally, the court held that there had been no failure to comply with any obligations under the Disability Discrimination Act 1995. 22. The applicant was granted permission to appeal to the Supreme Court. She argued that: the Court of Appeal had been wrong to hold that the 2009 and 2010 Care Plan Reviews were to be read as including a reassessment of her needs; the decision to provide her with incontinence pads instead of a night-time carer had unjustifiably interfered with her rights under Article 8; and there had been a failure to comply with the Disability Discrimination Act 1995. 23. By a majority, the Supreme Court agreed with the Court of Appeal that the applicant ’ s needs had been reassessed on 4 November 2009, as the local authority had been entitled to do; that, from that date onwards, there had been no interference with the applicant ’ s rights under Article 8 of the Convention; and that there had been no failure to comply with the Disability Discrimination Act 1995. 24. With regard to the complaint under Article 8, Lord Brown observed that even if a direct link existed between the measures sought by the applicant and her private life, the clear and consistent jurisprudence of this Court established that States enjoyed a wide margin of appreciation in striking a fair balance between the competing interests of the individual and of the community as a whole. He went on to state that : “There is, of course, a positive obligation under Article 8 to respect a person ’ s private life. But it cannot possibly be argued that such respect was not afforded here. As already indicated, the respondents went to great lengths both to consult the appellant and [her partner] about the appellant ’ s needs and the possible ways of meeting them and to try to reach agreement with her upon them. In doing so they sought to respect as far as possible her personal feelings and desires, at the same time taking account of her safety, her independence and their own responsibilities towards all their other clients. They respected the appellant ’ s human dignity and autonomy, allowing her to choose the details of her care package within their overall assessment of her needs: for example, the particular hours of care attendance, whether to receive direct payments in order to employ her own care assistant, and the possibility of other options like extra care sheltered housing. These matters are all fully covered in paras 5, 42 and 66 of Rix LJ ’ s judgment below. Like him, I too have the greatest sympathy for the appellant ’ s misfortunes and a real understanding of her deepest antipathy towards using incontinence pads. But I also share Rix LJ ’ s view that the appellant cannot establish an interference here by the respondents with her Article 8 rights. I add only that, even if such an interference were established, it would be clearly justified under Article 8(2) – save, of course, for the period prior to the 2009 review when the respondent ’ s proposed care provision was not ‘ in accordance with the law ’ – on the grounds that it is necessary for the economic well-being of the respondents and the interests of their other service-users and is a proportionate response to the appellant ’ s needs because it affords her the maximum protection from injury, greater privacy and independence, and results in a substantial costs saving.” 25. In her dissenting opinion, Lady Hale considered that the need for help to get to the lavatory or commode was so different from the need for protection from uncontrollable bodily functions that it was irrational to confuse the two and to meet the need for one in a manner appropriate for the other. She would therefore have allowed the appeal. | This case concerned a 71-year-old lady with severely limited mobility who complained about a reduction by a local authority of the amount allocated for her weekly care. The reduction was based on the local authority’s decision that her night-time toileting needs could be met by the provision of incontinence pads and absorbant sheets instead of a night-time carer to assist her in using a commode. The applicant alleged that the decision to reduce her care allowance on the basis that she could use incontinence pads at night, even though she was not incontinent, had amounted to an unjustifiable and disproportionate interference with her right to respect for private life, and had exposed her to considerable indignity. |
377 | Ill-treatment by prison officers | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1977. He is serving a life sentence in prison. A. Background information about the applicant ’ s convictions and behaviour in prison 6. According to an extract from the register of convictions provided by the Government, the applicant had nine criminal convictions and one misdemeanour punishment on record. He was serving a life sentence on the basis of his conviction in 2001 for the murder of two people and attempted manslaughter of another person. Furthermore, he had several convictions for attacking prison officers and other prisoners. In addition, a large number of disciplinary punishments had been imposed on him in prison, including for disobeying orders of and threatening prison officers. In the individual action plans ( kinnipeetava individuaalne täitmiskava ) drawn up in Tartu Prison and in Viru Prison, the applicant was characterised as a dangerous person lacking in self-control and capable of physically attacking others. B. Events of 3 July 2009 7. On 3 July 2009 the applicant was informed by prison guard KA that he would be transferred to a punishment cell in the evening in order to serve a disciplinary punishment. The applicant was dissatisfied, as he had been led to understand that he would not have to serve the punishment in question until the resolution by the Chancellor of Justice ( Õiguskantsler ) of his complaint related to the matter. He said that he would not gather his belongings until he could clarify the situation with a security officer. KA told him that if he continued to object to going to the punishment cell, he would be taken there by force. The applicant replied that he would defend himself if unlawfully attacked. 8. At 5.45 p.m. KA, together with two further guards, MN and JT, went to the applicant ’ s cell. KA had a plastic shield and MN and JT wore flak jackets and helmets. KA moved towards the applicant, keeping the shield in front of him. MN and JT followed him. 9. According to the applicant, KA came up to him and pressed the shield into his chest while the two other guards added pressure from behind. The applicant tried to push back against the shield, while MN and JT tried to grab his hands. Then KA let the shield fall and tried to grab the applicant ’ s neck. The guards twisted his arms behind his back and ordered him to lie down on the floor. The applicant was brought down and KA pressed his neck so strongly that he lost his breath. According to the applicant, KA pinched his nose with his fingers, covered his mouth with his palm, pressed his knee into his neck and poked him in the eyes with two fingers. While on the floor, the applicant was handcuffed and kicked in the ribs so hard that he felt his left rib cracking. He was then raised up and escorted to the punishment cell. In the corridor the applicant lost his breath, cried that he could not breathe and asked for permission to straighten up but the guards pressed him down and continued on their way. 10. According to the prison guards, the applicant attempted to hit them and had a scuffle with KA, in the course of which the latter sustained minor injuries. They denied having kicked or strangled the applicant and submitted that he had subsequently threatened to kill them one by one. 11. In the punishment cell, two nurses came to examine the applicant. They suspected a broken rib and told him to lie still until an X-ray image was taken (for the medical evidence in the case, see paragraphs 21 to 27 below). A guard told them that a medical certificate was required to keep a mattress in the punishment cell around the clock. According to the applicant a nurse confirmed that such a certificate would be drawn up. C. Events of 4 July 2009 12. At 6.45 a.m. guard OV entered the applicant ’ s cell and told him to hand in the mattress. The applicant explained that the nurses had drawn up a certificate stating that he needed the mattress around the clock because his rib was broken. The guard left. 13. At around 8.00 a.m. guards AR, VG, RT and OV came to the applicant ’ s cell and told him to hand in the mattress. They had a discussion of some length, in the course of which the applicant requested that senior duty officer ML be called. Guard AR warned the applicant that force would be used if necessary. According to the statements of VG given in the subsequent criminal proceedings, the applicant threatened to kill them. The guards left and returned after about fifteen minutes. According to the Government the guards had in the meantime checked with the medical service that the applicant had not in fact been authorised to keep the mattress in the punishment cell. 14. At around 8. 3 0 a.m. six guards arrived at the applicant ’ s cell. AR and VG entered, four further guards remained in the corridor or stood at the door to the cell. 15. According to the applicant, AR came up to him, grabbed his left hand and told him that they were going to take the mattress from him. The applicant pulled his hand away and VG – unexpectedly and without any notice – sprayed pepper spray in his face while AR was attempting to twist his arm. The applicant ran out of the cell into the corridor, covering his face with his hands. Several guards attacked him from behind and he was forced down on the floor. He was repeatedly hit on the back after handcuffs had been put on him. After the applicant shouted that he could not breathe VG struck him a couple more times. He was then raised up off the floor, bent down and guided to the security room. According to the applicant, he fainted several times on the way because his injured rib caused him serious pain when being bent down. 16. The Government relied on the statements of the prison guards given in the subsequent criminal proceedings. All six prison guards present were interviewed in the criminal proceedings, either as suspects or witnesses. According to AR and VG, the applicant pushed AR when he attempted to take the mattress. Then VG used pepper spray. According to the statements of the guards, the applicant resisted strongly and was forced down on the floor in the corridor. According to VG, he struck the applicant, who was on all fours, three times with a telescopic baton in order to overcome his resistance and handcuff him. AR and RT were unable to give details about the blows inflicted by VG. Nor was OV initially able to provide such details, but at a second interview he stated that by the time he closed the handcuffs, the applicant had not yet been hit with the telescopic baton. AJ thought that the applicant had probably been handcuffed while he was being hit by VG. According to AT, the applicant had been handcuffed but had forcefully struggled and pushed VG with his shoulder, after which the latter had struck him one or two times without much force. 17. The applicant was then strapped to a restraint bed in accordance with the orders of duty officer ML, as he was still behaving aggressively and offering physical resistance to the officers. 18. According to the applicant he was suffocating from the pepper spray in his throat but the guards pressed him to the bed, strangled him and did not let him spit. Finally he was allowed to spit and given the water he had asked for. 19. According to a report on the use of the restraint bed, the applicant was strapped to the bed from 8.40 a.m. to 12.20 p.m. His condition was monitored once an hour, when the necessity of the continued use of the means of restraint was assessed on the basis of his behaviour. 20. The report contains the following entries. At 8.40 a.m., 9.35 a.m., 10.30 a.m. and 11.25 a.m.: “[use of the restraint measures] to be continued, [the applicant is] aggressive”. At 12.20 p.m.: “[use of the restraint measures] to be discontinued, [the applicant is] calm.” The report also contains an entry according to which medical staff checked on the applicant; the time of the medical check-up recorded on the copy of the report on file is illegible. D. Medical evidence 21. According to a medical certificate dated 3 July 2009 medical staff had been asked to establish the applicant ’ s injuries in the punishment cell. It was stated in the certificate that the applicant had no visible injuries but there was crepitation in the area of the seventh rib on the left side. A rib fracture was suspected. 22. According to two medical certificates dated 4 July 2009 the applicant was examined by nurse RK at 8.50 a.m. and at 12.20 p.m. after his release from the restraint bed. It is stated in the certificates that the applicant had no visible injuries and did not need medical assistance. According to the applicant these certificates were “fabricated” in order to cover up his beating and were in contradiction with other medical evidence. 23. On 4 July 2009 the applicant underwent an X-ray examination which revealed no clear traumatic changes. Photographs were taken of the haematomas (described below) on the applicant ’ s body. He gave a urine sample. Urine test results, dated 6 July 2009, showed red blood cells in the urine. 24. According to a medical certificate dated 6 July 2009 the applicant had three haematomas measuring 20 by 1.5 cm on his back, a haematoma with a diameter of 8 cm on his right upper arm, a haematoma with a diameter of 3 cm on the right shin, swelling to the left wrist, crepitation in the region of the eighth and the ninth ribs on the left side. The applicant complained that he had been beaten on the back by the guards, complained of pain in his back and said that his urine had been red. The doctor considered that providing the applicant with a mattress was justified. 25. An ultrasound scan of the applicant ’ s kidneys performed on 7 July 2009 revealed no signs of disease. 26. According to a medical certificate concerning the applicant ’ s examination in a punishment cell on 9 July 2009, there were haematomas on the applicant ’ s back and ribs. The applicant did not allow the doctor to touch him, was aggressive and demanded a mattress. However, the doctor considered that the applicant ’ s chronic lower back pain did not serve as a reason for him to have a mattress. She made a recommendation “for further referral to a psychiatrist”. 27. In a written explanation to the prison director by nurse RK, dated 21 July 2009, she submitted that she had been asked to examine the applicant, who had been strapped to the restraint bed on 4 July 2009. The applicant had complained, as he had already done on the day before, of pain in the chest under the ribs. The nurse and guards, as well as the applicant himself, had wiped his eyes with wet napkins. The nurse had issued a medical certificate stating that she had discovered no injuries on the applicant. At 12.20 p.m. on 4 July 2009, upon the applicant ’ s release from the restraint bed, she had again been asked to examine him. He had no complaints, save for the previously known complaint of pain in the lower part of his chest. The nurse had issued a certificate stating that she had not discovered any injuries and that the applicant had not needed medical treatment. On both occasions the examination had been carried out visually and the nurse had asked the applicant about his complaints. She had only noticed the haematomas on the evening of 4 July 2009. She had not noticed them before and had not carried out a more detailed examination because this had not been requested by the applicant. Based on her earlier experience with the applicant, the nurse had known that he was very demanding in respect of medical treatment. Thus, she had assumed that the applicant was not suffering from any serious conditions. E. Criminal proceedings concerning abuse of authority 28. On 7 July 2009 the Prisons Department of the Ministry of Justice started a criminal investigation into the applicant ’ s allegations of abuse of authority by prison guards. The investigation was carried out by Ida Police Headquarters. 29. On 8 July 2009 the applicant was interviewed as a victim. Between 7 and 28 July 2009 four guards (KA, MN, VG and JT) were interviewed as suspects. Six further prison officers (including OV), a prison doctor and a prisoner were interviewed as witnesses. Reports on the use of the special equipment and means of restraint (shield, helmets, flak jackets and handcuffs on 3 July 2009 and handcuffs and restraint bed on 4 July 2009), and written explanations to the prison director from prison officers involved in the incidents were also included in the criminal case file. 30. On 23 September 2009 prison guard OV was interviewed for the second time. 31. On 26 November 2009 the police requested additional information from the prison administration, including the applicant ’ s medical records and information about the telescopic batons used in the prison. 32. On 15 December 2009 the police ordered a forensic expert examination of the applicant ’ s injuries. The expert completed his report on 15 February 2010. He relied on the written materials in the criminal case file, including a report of the applicant ’ s interview, medical documents and photos of the haematomas on the applicant ’ s body. He was of the opinion that the stripe-shaped haematomas on the applicant ’ s back had resulted from blows struck with a blunt instrument such as a stick or a baton, possibly on 4 July 2009. The haematomas on the applicant ’ s upper arm and shin had resulted from blows struck with a blunt instrument or from the applicant ’ s body being slammed against it. The haematoma and crepitation in the region of the eighth and the ninth ribs may have resulted from a rib fracture, but that diagnosis could not be confirmed without an X-ray examination. The expert concluded that the injuries in question were not life threatening and usually caused short-term health damage lasting from four days to four weeks. 33. On 5 February 2010 the applicant was interviewed for the second time. 34. On 10 February 2010 the police ordered a forensic expert examination of video recordings from prison security cameras. The expert completed his report on 13 April 2010. Having obtained forty-eight magnified and processed images from the video recordings, he concluded that it was not possible to establish the exact time at which the applicant was hit. 35. On 15 June 2010 the police investigator discontinued the criminal proceedings. She considered that the use of force by the prison guards against the applicant on 3 and 4 July 2009 had been lawful, since he had not complied with their orders and had behaved in an aggressive manner. On 3 July 2009 he had refused to gather his belongings for his transfer to the punishment cell and had threatened to resist if force was used. On 4 July 2009 he had refused to comply with the prison ’ s internal rules and hand in his mattress. The guards had not denied that they had used force but had asserted that this had been the only way to overcome the applicant ’ s resistance. The applicant had attempted to escape and run out of the cell. Thus, the use of force had had a legal basis. It did not appear that VG had used the telescopic baton to deliberately cause injuries to the applicant. Nor could it be established that the force used by JT, VG, MN and KA had been excessive. They had countered an imminent attack after a more lenient response had not proved effective and the applicant had continued his resistance. 36. On 17 June 2010 the police investigator ’ s decision to discontinue the criminal proceedings was approved by a circuit prosecutor. 37. On 25 August 2010 the State Prosecutor ’ s Office dismissed the applicant ’ s appeal. It considered that the use of force, special equipment and means of restraint had been caused by the applicant ’ s behaviour, that is to say his failure to comply with the orders given to him and his physical and verbal aggressiveness towards the prison officers. It relied on the applicant ’ s handwritten letter of explanation to the prison director, in which he had confirmed having said on 3 July 2009 that if the prison officers unlawfully attacked him, he would strike back. Furthermore, according to prison guard MN the applicant had threatened to kill them if force was used to transfer him to the punishment cell. Considering the applicant ’ s extremely aggressive resistance, it had been proportionate to use force to bring him down to the floor and to hold him there. 38. In respect of the events of 4 July 2009 the State Prosecutor ’ s Office referred to the statements of the suspects and witnesses, according to which the applicant had threatened the prison officers. It had been established that guard VG had used pepper spray after the applicant had pushed AR. The applicant had been engaged in an unlawful attack and the use of pepper spray against him had been lawful. Although the applicant ’ s subsequent running into the corridor could not be seen as an attempt to escape, it had still been possible that the situation might have got out of the prison officers ’ control and they had had grounds to believe that the applicant would continue attacking them. To prevent such a scenario, the prison officers had legitimately acted in a quick and decisive manner, including through the use of the telescopic baton by VG. The incoherent statements of the witnesses as to the issue of whether the blows with the telescopic baton had been delivered before or after the applicant ’ s handcuffing did not allow for a firm conclusion to be made on that point. Nevertheless, based on the witness statements, the prosecutor considered it probable that the applicant had been hit before handcuffing. She also referred to the principle that any reasonable doubt should benefit the accused and considered that it had not been established that the prison guards had unlawfully used a weapon, special equipment or force against the applicant. In respect of the applicant ’ s being strapped to the restraint bed, the State Prosecutor ’ s Office concluded that the video recordings showed that after being handcuffed the applicant had remained aggressive and had offered physical resistance to the prison officers. 39. On 21 October 2010 the Tartu Court of Appeal dismissed the applicant ’ s complaint against the decision of the State Prosecutor ’ s Office. It found that it had been established that the applicant had offered resistance to the prison officers and therefore the use of special equipment and means of restraint had been legitimate. The court agreed with the position expressed in the decision of the State Prosecutor ’ s Office that the special equipment had been used to the extent it had been necessary to overcome the applicant ’ s resistance. Thus, there were no grounds to continue the criminal proceedings in respect of the prison officers. F. Administrative Court proceedings 40. On 6 August 2009 the applicant filed a claim for non-pecuniary damage with the prison administration for his inhuman and degrading treatment on 3 and 4 July 2009. The claim was dismissed and the applicant filed a complaint with the Tartu Administrative Court. 41. In a judgment of 8 March 2010 the Tartu Administrative Court found for the applicant. It declared the use of the means of restraint, special equipment and service weapons in respect of the applicant unlawful. The court found that although the applicant ’ s failure to comply with the orders given to him had undeniably constituted a threat to the general security of the prison, the use of handcuffs and his immobilisation had nevertheless not been justified, as there was no evidence and it had not been argued that the applicant had been armed or equipped with a dangerous item or that he had intended to escape or attack anyone. However, the court dismissed the applicant ’ s claim for compensation, considering that the use of means of restraint and special equipment had been caused, to a large extent, by the applicant ’ s own behaviour. He had disputed the officers ’ orders, engaged in an argument with them, voiced threats and offered physical resistance. In these circumstances the finding of the unlawfulness of the prison ’ s actions constituted sufficient just satisfaction. 42. Both parties appealed against the Administrative Court ’ s judgment. The applicant claimed monetary compensation and the prison administration contended that the prison officers had not acted unlawfully. 43. At the hearing of the Tartu Court of Appeal on 22 September 2010 the applicant submitted, inter alia, that on 3 July 2009 he had been kicked in ribs once and that on 4 July 2009 he had been hit with a telescopic baton after he had already been handcuffed. Video recordings concerning both 3 and 4 July 2009 were played at the hearing. 44. By a judgment of 14 October 2010 the Court of Appeal quashed the Administrative Court ’ s judgment and dismissed the applicant ’ s complaint. It found that the use of the means of restraint, special equipment, physical force and service weapons had been lawful. The court considered that the prison had been authorised to use preventive measures in case of a probable threat. It noted that the applicant was serving a life sentence and had two further convictions for attacking prison officers. In January 2009 he had also threatened to kill a prison officer. 45. In respect of the events of 3 July 2009 the Court of Appeal noted that there was no dispute that the applicant had repeatedly refused to comply with the prison officers ’ order to go to a punishment cell. Furthermore, he had offered physical resistance and caused minor injuries to KA. Therefore, physical force and handcuffs had been used. Considering the applicant ’ s unlawful and aggressive behaviour, threats to the prison officers and to the general security in the prison, as well as the short duration (fifteen minutes) of the use of the handcuffs, the Court of Appeal found that the use of handcuffs had not been unlawful. In respect of the use of force, the court found that there was no evidence to prove that the applicant had been kicked, strangled or poked in the eyes with fingers. According to the medical evidence there had been crepitation but no fractures of the ribs. The court considered that pain in the applicant ’ s chest that he had complained of could have resulted from his resistance, which had led to a scuffle and his being forced on the floor for handcuffing. 46. In respect of the events of 4 July 2009 the Court of Appeal considered it established that the applicant had displayed disobedience and threatened the prison officers. He had offered physical resistance against the guard who had attempted to take the mattress. Thus, the use of pepper spray had not been disproportionate or unlawful. Since the subsequent use of physical force had proved not effective, it had also been justified to use the telescopic baton in order to have the applicant handcuffed. The fact that the applicant had been aggressive at the time he was strapped to the restraint bed had also been proven by the video recording shown at the court hearing. 47. On 17 February 2011 the Supreme Court declined to hear the applicant ’ s appeal. | This case concerned a detainee’s complaint about having been ill-treated by prison officers when he refused to comply with their orders. In particular, pepper spray was used against him and he was strapped to a restraint bed. |
521 | Criminalisation of homosexual relations in general | 13. Mr. Jeffrey Dudgeon, who is 35 years of age, is a shipping clerk resident in Belfast, Northern Ireland. Mr. Dudgeon is a homosexual and his complaints are directed primarily against the existence in Northern Ireland of laws which have the effect of making certain homosexual acts between consenting adult males criminal offences. A. The relevant law in Northern Ireland 14. The relevant provisions currently in force in Northern Ireland are contained in the Offences against the Person Act 1861 ("the 1861 Act"), the Criminal Law Amendment Act 1885 ("the 1855 Act") and the common law. Under sections 61 and 62 of the 1861 Act, committing and attempting to commit buggery are made offences punishable with maximum sentences of life imprisonment and ten years ’ imprisonment, respectively. Buggery consists of sexual intercourse per anum by a man with a man or a woman, or per anum or per vaginam by a man or a woman with an animal. By section 11 of the 1885 Act, it is an offence, punishable with a maximum of two years ’ imprisonment, for any male person, in public or in private, to commit an act of "gross indecency" with another male. "Gross indecency" is not statutorily defined but relates to any act involving sexual indecency between male persons; according to the evidence submitted to the Wolfenden Committee (see paragraph 17 below), it usually takes the form of mutual masturbation, inter-crural contact or oral-genital contact. At common law, an attempt to commit an offence is itself an offence and, accordingly, it is an offence to attempt to commit an act proscribed by section 11 of the 1885 Act. An attempt is in theory punishable in Northern Ireland by an unlimited sentence (but as to this, see paragraph 31 below). Consent is no defence to any of these offences and no distinction regarding age is made in the text of the Acts. An account of how the law is applied in practice is given below at paragraphs 29 to 31. 15. Acts of homosexuality between females are not, and have never been, criminal offences, although the offence of indecent assault may be committed by one woman on another under the age of 17. As regards heterosexual relations, it is an offence, subject to certain exceptions, for a man to have sexual intercourse with a girl under the age of 17. Until 1950 the age of consent of a girl to sexual intercourse was 16 in both England and Wales and in Northern Ireland, but by legislation introduced in that year the age of consent was increased to 17 in Northern Ireland. While in relation to the corresponding offence in England and Wales it is a defence for a man under the age of 24 to show that he believed with reasonable cause the girl to be over 16 years of age, no such defence is available under Northern Ireland law. B. The law and reform of the law in the rest of the United Kingdom 16. The 1861 and 1885 Acts were passed by the United Kingdom Parliament. When enacted, they applied to England and Wales, to all Ireland, then unpartitioned and an integral part of the United Kingdom, and also, in the case of the 1885 Act, to Scotland. 1. England and Wales 17. In England and Wales the current law on male homosexual acts is contained in the Sexual Offences Act 1956 ("the 1956 Act") as amended by the Sexual Offences Act 1967 ("the 1967 Act"). The 1956 Act, an Act consolidating the existing statute law, made it an offence for any person to commit buggery with another person or an animal (section 12) and an offence for a man to commit an act of "gross indecency" with another man (section 13). The 1967 Act, which was introduced into Parliament as a Private Member ’ s Bill, was passed to give effect to the recommendations concerning homosexuality made in 1957 in the report of the Departmental Committee on Homosexual Offences and Prostitution established under the chairmanship of Sir John Wolfenden (the" Wolfenden Committee" and" Wolfenden report"). The Wolfenden Committee regarded the function of the criminal law in this field as "to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official, or economic dependence", but not "to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined". The Wolfenden Committee concluded that homosexual behaviour between consenting adults in private was part of the "realm of private morality and immorality which is, in brief and crude terms, not the law ’ s business" and should no longer be criminal. The 1967 Act qualified sections 12 and 13 of the 1956 Act by providing that, subject to certain exceptions concerning mental patients, members of the armed forces and merchant seamen, buggery and acts of gross indecency in private between consenting males aged 21 years or over should not be criminal offences. It remains a crime to commit a homosexual act, of the kind referred to in these sections, with a person aged less than 21 in any circumstances. The age of majority for certain purposes, including capacity to marry without parental consent and to enter into contractual relations, was reduced from 21 to 18 by the Family Law Reform Act 1969. The voting age and the minimum age for jury service were likewise reduced to 18 by the Representation of the People Act 1969 and the Criminal Justice Act 1972, respectively. In 1977, the House of Lords rejected a Bill aimed at reducing the age of consent for private homosexual act to 18. Subsequently, in a report published in April 1981, a committee established by the Home Office, namely the Policy Advisory Committee on Sexual Offences, recommended that the minimum age for homosexual relations between males should be reduced to 18. A minority of five members favoured a reduction to 16. 2. Scotland 18. When the applicant lodged his complaint in 1976, the relevant law applicable was substantially similar to that currently in force in Northern Ireland. Section 7 of the Sexual Offences ( Scotland ) Act 1976, a consolidating provision re-enacting section 11 of the 1885 Act, provided for the offence of gross indecency; the offence of sodomy existed at common law. However, successive Lord Advocates had stated in Parliament that their policy was not to prosecute in respect of acts which would not have been punishable if the 1967 Act had applied in Scotland. The Criminal Justice ( Scotland ) Act 1980 ("the 1980 Act") formally brought Scottish law into line with that of England and Wales. As in the case of the 1967 Act, the change in the law originated in amendments introduced in Parliament by a Private Member. C. Constitutional position of Northern Ireland 19. Under an Act of the United Kingdom Parliament, the Government of Ireland Act 1920, a separate Parliament for Northern Ireland was established with power to legislate on all matters devolved by that Act, including criminal and social law. An executive known as the Government of Northern Ireland was also established with Ministers responsible for the different areas of the devolved powers. By convention, during the life of the Northern Ireland Parliament (1921-9172) the United Kingdom Parliament rarely, if ever, legislated for Northern Ireland in respect of the devolved matters - in particular social matters - falling within the former Parliament ’ s legislative competence. 20. In March 1972, the Northern Ireland Parliament was prorogued and Northern Ireland was made subject to "direct rule" from Westminster (see the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, pp. 10 and 20-21, par. 19 and 49). Since that date, except for a period of five months in 1974 when certain legislative and executive powers were devolved to a Northern Ireland Assembly and Executive, legislation for Northern Ireland in all fields has been the responsibility of the United Kingdom Parliament. There are 12 members of the United Kingdom House of Commons, out of a total of 635, who represent constituencies in Northern Ireland. Under the provisions currently in force, power is conferred on Her Majesty to legislate for Northern Ireland by Order in Council. Save where there are reasons of urgency, no recommendation may be made to Her Majesty to make an Order in Council under these provisions unless a draft of the Order has been approved by each House of Parliament. It is the responsibility of the Government to prepare a draft Order and to lay it before Parliament for approval. A draft can only be approved or rejected in toto by Parliament, but not amended. The function of the Queen in Council in making an Order once it has been approved by Parliament is purely formal. In practice, much legislation for Northern Ireland is effected in this form rather than by means of an Act of Parliament. D. Proposals for reform in Northern Ireland 21. No measures comparable to the 1967 Act were ever introduced into the Northern Ireland Parliament either by the Government of Northern Ireland or by any Private Member. 22. In July 1976, following the failure of the Northern Ireland Constitutional Convention to work out a satisfactory form of devolved government for Northern Ireland, the then Secretary of State for Northern Ireland announced in Parliament that the United Kingdom Government would thenceforth by looking closely at the need for legislation in fields which it had previously been thought appropriate to leave to a future devolved government, in particular with a view to bringing Northern Ireland law more closely into harmony with laws in other parts of the country. He cited homosexuality and divorce as possible areas for action. However, recognising the difficulties about such subjects in Northern Ireland, he indicated that he would welcome the views of the local people, including those of the Standing Advisory Commission on Human Rights ("the Advisory Commission") and of Members of Parliament representing Northern Ireland constituencies. 23. The Advisory Commission, which is an independent statutory body, was accordingly invited to consider the matter. As regards homosexual offences, the Advisory Commission received evidence from a number of persons and organisations, religious and secular. No representations were made by the Roman Catholic Church in Northern Ireland or by any of the 12 Northern Ireland Members of the United Kingdom House of Commons. The Advisory Commission published its report in April 1977. The Advisory Commission concluded that most people did not regard it as satisfactory to retain the existing differences in the law with regard to homosexuality and that few only would be strongly opposed to changes bringing Northern Ireland law into conformity with that in England and Wales. On the other hand, it did not consider that there would be support for legislation which went further, in particular by lowering the age of consent. Its recommendations were that the law of Northern Ireland should be brought into line with the 1967 Act, but that future amendments to the 1967 Act should not automatically apply to Northern Ireland. 24. On 27 July 1978, the Government published a proposal for a draft Homosexual Offences ( Northern Ireland ) Order 1978, the effect of which would have been to bring Northern Ireland law on the matter broadly into line with that of England and Wales. In particular, homosexual acts in private between two consenting male adults over the age of 21 would no longer have been punishable. In a foreword to the proposal, the responsible Minister stated that "the Government had always recognised that homosexuality is an issue about which some people in Northern Ireland hold strong conscientious or religious opinions". He summarised the main arguments for and against reform as follows: "In brief, there are two differing viewpoints. One, based on an interpretation of religious principles, holds that homosexual acts under any circumstances are immoral and that the criminal law should be used, by treating them as crimes, to enforce moral behaviour. The other view distinguishes between, on the one hand that area of private morality within which a homosexual individual can (as a matter of civil liberty) exercise his private right of conscience and, on the other hand, the area of public concern where the State ought and must use the law for the protection of society and in particular for the protection of children, those who are mentally retarded and others who are incapable of valid personal consent. I have during my discussions with religious and other groups heard both these viewpoints expressed with sincerity and I understand the convictions that underlie both points of view. There are in addition other considerations which must be taken into account. For example it has been pointed out that the present law is difficult to enforce, that fear of exposure can make a homosexual particularly vulnerable to blackmail and that this fear of exposure can cause unhappiness not only for the homosexual himself but also for his family and friends. While recognising these differing viewpoints I believe we should not overlook the common ground. Most people will agree that the young must be given special protection; and most people will also agree that law should be capable of being enforced. Moreover those who are against reform have compassion and respect for individual rights just as much as those in favour of reform have concern for the welfare of society. For the individuals in society, as for Government, there is thus a difficult balance of judgment to be arrived at." Public comment on the proposed amendment to the law was invited. 25. The numerous comments received by the Government in response to their invitation, during and after the formal period of consultation, revealed a substantial division of opinion. On a simple count of heads, there was a large majority of individuals and institutions against the proposal for a draft Order. Those opposed to reform included a number of senior judges, District Councils, Orange Lodges and other organisations, generally of a religious character and in some cases engaged in youth activities. A petition to "Save Ulster from Sodomy" organised by the Democratic Unionist Party led by Mr. Ian Paisley, a Member of the United Kingdom House of Commons, collected nearly 70.000 signatures. The strongest opposition came from certain religious groups. In particular, the Roman Catholic Bishops saw the proposal as an invitation to Northern Irish society to change radically its moral code in a manner liable to bring about more serious problems than anything attributable to the present law. The Roman Catholic Bishops argued that such a change in the law would lead to a further decline in moral standards and to a climate of moral laxity which would endanger and put undesirable pressures on those most vulnerable, namely the young. Similarly, the Presbyterian Church in Ireland, whilst understanding the arguments for the change, made the point that the removal from the purview of the criminal law of private homosexual acts between consenting adult males might be taken by the public as an implicit licence if not approval for such practices and as a change in public policy towards a further relaxation of moral standards. The strongest support for change came from organisations representing homosexuals and social work agencies. They claimed that the existing law was unnecessary and that it created hardship and distress for a substantial minority of persons affected by it. It was urged that the sphere of morality should be kept distinct from that of the criminal law and that considerations of the personal freedom of the individual should in such matters be paramount. For its part, the Standing Committee of the General Synod of the Church of Ireland accepted that homosexual acts in private between consenting adults aged 21 and over should be removed from the realm of criminal offence, but in amplification commented that this did not mean that the Church considered homosexuality to be an acceptable norm. Press reports indicated that most of the political formations had expressed favourable views. However, none of the 12 Northern Ireland Members of Parliament publicly supported the proposed reform and several of them openly opposed it. An opinion poll conducted in Northern Ireland in January 1978 indicated that the people interviewed were evenly divided on the global question of the desirability of reforming the law on divorce and homosexuality so as to bring it into line with that of England and Wales. 26. On 2 July 1979, the then Secretary of State for Northern Ireland, in announcing to Parliament that the Government did not intend to pursue the proposed reform, stated: "Consultation showed that strong views are held in Northern Ireland, both for and against in the existing law. Although it is not possible to say with certainty what is the feeling of the majority of people in the province, it is clear that is substantial body of opinion there (embracing a wide range of religious as well as political opinion) is opposed to the proposed change ... [T]he Government have [also] taken into account ... the fact that legislation on an issue such as the one dealt with in the draft order has traditionally been a matter for the initiative of a Private Member rather than for Government. At present, therefore, the Government propose to take no further action ..., but we would be prepared to reconsider the matter if there were any developments in the future which were relevant." 27. In its annual report for 197 9-1980, the Advisory Commission reiterated its view that law should be reformed. It believed that there was a danger that the volume of opposition might be exaggerated. 28. Since the Northern Ireland Parliament was prorogued in 1972 (see paragraph 20 above), there has been no initiative of any kind for legislation to amend the 1861 and 1885 Acts from any of the mainstream political organisations or movements in Northern Ireland. E. Enforcement of the law in Northern Ireland 29. In accordance with the general law, anyone, including a private person, may bring a prosecution for a homosexual offence, subject to the Director of Public Prosecutions ’ power to assume the conduct of the proceedings and, if he thinks fit, discontinue them. The evidence as to prosecutions for homosexual offences between 1972 and 1981 reveals that none has been brought by a private person during that time. 30. During the period from January 1972 to October 1980 there were 62 prosecutions for homosexual offences in Northern Ireland. The large majority of these cases involved minors that is persons under 18; a few involved persons aged 18 to 21 or mental patients or prisoners. So far as the Government are aware from investigation of the records, no one was prosecuted in Northern Ireland during the period in question for an act which would clearly not have been an offence if committed in England or Wales. There is, however, no stated policy not to prosecute in respect of such acts. As was explained to the Court by the Government, instructions operative within the office of the Director of Public Prosecutions reserve the decision on whether to prosecute in each individual case to the Director personally, in consultation with the Attorney General, the sole criterion being whether, on all the facts and circumstances of that case, a prosecution would be in the public interest. 31. According to the Government, the maximum sentences prescribed by the 1861 and 1885 Acts are appropriate only for the most grave instances of the relevant offence and in practice no court would ever contemplate imposing the maximum sentence for offences committed between consenting parties, whether in private or in public. Furthermore, although liable to an unlimited sentence, a man convicted of an attempt to commit gross indecency would in practice never receive a sentence greater than that appropriate if the offence had been completed; in general, the sentence would be significantly less. In all cases of homosexual offences the actual penalty imposed will depend on the particular circumstances. F. The personal circumstances of the applicant 32. The applicant has, on his own evidence, been consciously homosexual from the age of 14. For some time he and others have been conducting a campaign aimed at bringing the law in Northern Ireland into line with that in force in England and Wales and, if possible, achieving a minimum age of consent lower than 21 years. 33. On 21 January 1976, the police went to Mr. Dudgeon ’ s address to execute a warrant under the Misuse of Drugs Act 1971. During the search of the house a quantity of cannabis was found which subsequently led to another person being charged with drug offences. Personal papers, including correspondence and diaries, belonging to the applicant in which were described homosexual activities were also found and seized. As a result, he was asked to go to a police station where for about four and a half hours he was questioned, on the basis of these papers, about his sexual life. The police investigation file was sent to the Director of Prosecutions. It was considered with a view to instituting proceedings for the offence of gross indecency between males. The Director, in consultation with the Attorney General, decided that it would not be in the public interest for proceedings to be brought. Mr. Dudgeon was so informed in February 1977 and his papers, with annotations marked over them, were returned to him. | The legislation then in force in Northern Ireland classified homosexual relations between males as a criminal offence. The applicant, who was a homosexual, complained that he experienced feelings of fear, suffering and psychological distress as a result of the very existence of the laws at issue, including fear of harassment and blackmail. He also complained that he had been subjected to an investigation into certain homosexual activities. |
629 | Doctors and health workers | I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant organisation is the Vienna Chamber of Medical Doctors ( Ärztekammer für Wien ). The Chamber represents all medical practitioners in Vienna and also has its own website. The second applicant was the Chamber ’ s president at the time of the events. A. Statement in issue and injunction proceedings 6. On 18 January 2007 the second applicant published a letter on the first applicant organisation ’ s website, which was addressed to all members of the Chamber in Vienna and was also sent out to all of them via e-mail. The letter was titled “Locust funds want to take over medical practices” ( “Heuschreckenfonds wollen Ordinationen übernehmen” ). The second applicant went on to state that he had been forced to write to his colleagues for a serious reason, namely, because it had been reported in the media that the F. company planned to go into “ the radiology business”. He added that share - bidding companies planned to offer medical services – initially in the area of radiology, but soon enough in other areas of the profession as well ‑ and that doctors risked becoming mere employees of such “locust” companies. If they would not act according to the companies ’ wishes, they would be dismissed. The second applicant then explained the assumed legal and organisational basis of such a plan: radiology services which were currently being provided by medical practices could, in future, also be offered by limited companies. Shares of those companies could then be bought by the F. company, and the “locusts” would reach their goal, namely control of the medical profession. Giving an example of a risky development, the second applicant stated that in the last 20 years, colleagues had founded laboratories which had reciprocal agreements with certain health insurance boards. Today, almost all of those laboratories were owned by the F. group, which, in turn, was owned by insurance companies, investment funds and foundations, and which employed a large number of doctors. The second applicant ended his letter by stating that he could guarantee one thing : that the doctors ’ professional representative body would make use of all legal and political means available to stop such a disastrous development from going ahead, to prevent that the quality of medical treatment being determined by “managers and controllers” and to ensure, inter alia, that existing medical practices were protected from the competition from “international locust funds” ( “internationale Heuschreckenfonds” ). 7. On 24 January 2007 the F. company lodged an action against the two applicants and an application for an injunction with the Vienna Commercial Court ( Handelsgericht Wien ). The applicants contested the application. 8. On 16 February 2007 the Vienna Commercial Court issued an injunction prohibiting the applicants ( each of them individually ) from repeating the statement that the F. company was ruthless towards third parties, in particular medical professionals. The injunction prevented the applicants from referring to the F. company as a “locust”, “locust company” or “locust fund”. The applicants were further prohibited from stating that the provision of services by the F. company, particularly services in the area of radiology, was a disastrous development. The court found that there was a competitive relationship between the F. company and the applicants, and found the statements made by the applicants to be defamatory under Article 1330 of the Civil Code and unethical under the Unfair Competition Act ( Bundesgesetz gegen den unlauteren Wettbewerb ). 9. The applicants appealed against the injunction. On 30 October 2007 the Vienna Court of Appeal ( Oberlandesgericht Wien ) partly granted the appeal, and prohibited the applicants from alleging that the F. company was ruthless towards third parties and medical practitioners, and from calling it, inter alia, a “locust company”. However, it dismissed the F. company ’ s application to prohibit the applicants from calling its provision of services a “disastrous” development. The Court of Appeal found that the first applicant organisation had locus standi in the injunction proceedings. The Chamber of Medical Doctors held official authority status in relation to certain areas of its work ( Bereich der Hoheitsverwaltung ), in addition to representing the interests of its members; it was therefore considered a legal entity under the Official Liability Act ( Amtshaftungsgesetz ). However, when acting as a special interest group, it represented its members ’ interests from a mainly economic perspective, rather than acting in its capacity as an official authority. According to the Court of Appeal, the letter in issue pursued the interests of the Chamber ’ s members, outside the Chamber ’ s official sphere of activity. 10. The Court of Appeal further established, referring inter alia to Wikipedia, that the term “locust company“ (“ Heuschreckenunternehmen “) was introduced into the political discussion in German speaking countries in 2005 by Mr Franz Müntefering, a German politician, and is ever since used in political debates as a pejorative term for private-equity companies or other forms of capital funds with short-term or exaggerated return expectations – like hedge funds or „vulture“ funds, which also had negative connotations. The domestic court found that there was a need to balance the interests involved in the present debate, reiterating that extreme opinions were only unlawful if they were excessive. As a result of that balancing exercise, the Court of Appeal found that the “locust” statement had to be considered a lawful criticism in the context of a public debate, and that the F. company could therefore not base its claim on Article 1330 of the Civil Code. However, the Court of Appeal classified the applicants ’ actions as competitive in nature. Statements of fact made in violation of the Unfair Competition Act could not be justified by the right to freedom of expression. The Court of Appeal found that Austrian law provided wide ‑ ranging protection for commercial and economic interests. Those who published an opinion in an economically competitive context were obliged to exercise a higher level of diligence with regard to the facts and bases of their allegations than those who acted in the non-competitive context of a public debate of general interest. Therefore, the Court of Appeal upheld the injunction decision with regard to the statements about the “locust company”. 11. However, as regards the further statement, namely that provision of certain services by the F. company was a “disastrous development”, the Court of Appeal found that, read in context, the statement indicated a general assessment and did not refer to a particular service of the F. company. It was therefore to be considered a personal opinion, and thus a value judgment that was not defamatory under Article 1330 of the Civil Code. It also did not fall under section 7 of the Unfair Competition Act. 12. The applicants lodged an extraordinary appeal with the Supreme Court ( Oberster Gerichtshof ). On 22 January 2008 the Supreme Court dismissed the extraordinary appeal. It acknowledged the applicants ’ argument that where a competitor, even for economic purposes, took part in a debate of public interest, freedom of expression had to hold more weight in the balancing test. However, the Supreme Court observed that the applicants had made their statement in the clearly economic context of competition between medical practitioners and companies which provided the same services. The applicants could have warned their members of the possible risks of cooperating with companies without overstepping the margin of acceptable criticism. However, the applicants had exceeded that limit and stated that the F. company was a “locust”. That statement was one of fact, and the applicants had not provided evidence of a factual basis for their allegations, and had therefore exceeded the permissible limitations of freedom of expression. B. Substantive proceedings 13. On 7 July 2008 the Commercial Court gave its judgment in the substantive proceedings and ordered the applicants to refrain from : repeating the statement that the F. company was ruthless towards third parties, in particular medical practitioners and patients; and stating that the F. company was a “locust company”, a “locust fund” or a “locust”. It further ordered the applicants to publish and display the operative part of the judgment on the first applicant organisation ’ s website for thirty days, and to publish it in the first applicant organisation ’ s print newsletter. 14. The Commercial Court made substantial reference to the Court of Appeal ’ s reasoning in the interim injunction proceedings. It followed the previous finding that the relevant statements did not constitute defamation pursuant to Article 1330 of the Civil Code. Examining the statements in relation to the provisions of the Unfair Competition Act, the Commercial Court found that the letter had been written by the Chamber of Medical Doctors in a commercial and not a political context. It had also had the advancement of independent medical practices as an objective, and had contained a warning regarding capital ventures which allegedly threatened doctors ’ independence. The Commercial Court found the relevant comparisons with “locusts” to be statements of fact regarding both the F. company and its conduct in relation to third parties, doctors and patients. The statements were also likely to damage the F. company ’ s commercial interests, and had not been proved to be true. 15. The used language could also not be justified with a reference to the right to freedom of expression as the statement was uttered within the framework of a commercial competitive relationship. With reference to the Court ’ s case-law allowing for a wider margin of appreciation under Article 10 of the Convention with regard to commercial language, the Commercial Court observed that a competitor was required to be more diligent in the context of commercial communication among competitors. The term “locust” was almost exclusively loaded with negative meaning, which led to the unethical general vilification of a competitor. The applicants were therefore prohibited from using that statement in relation to the F. company, pursuant to the Unfair Competition Act. 16. On 19 September 2008 the applicants lodged an appeal against that judgment. On 12 December 2008 the Vienna Court of Appeal dismissed the appeal as unfounded. It referred to the extensive reasoning given in the interim injunction proceedings and added that, according to the case-law of the Supreme Court, the test used to verify whether a statement was covered by the right to freedom of expression required the assessment of whether a factual basis for such a statement existed; if a competitor participated in a public debate of general interest, freedom of expression had more weight with regard to the assessment of the statement than in the context of purely commercial communication. The greater the public interest in being properly informed and the less the statement related to commercial interests, the more the statement would be protected by Article 10 of the Convention. In the present case, there was no doubt that there was an ongoing public debate; however, the commercial interests of the applicants had very much been in the foreground of the communicated statement itself. 17. The applicants lodged an extraordinary appeal on points of law against that judgment, which was rejected by the Supreme Court on 14 July 2009. The Supreme Court found that the applicants had not only called the F. company a “locust”, but had also reproached this company for negative conduct, such as dominating doctors, dismissing doctors who did not act in accordance with company wishes, and focusing on economic factors rather than the welfare of patients ( “Herrschaft über den ärztlichen Berufstand, Kündigung nicht “spurender” Ärzte, Orientierung an ökonomischen Erwägungen und damit nicht am Wohl der Patienten” ). Therefore, the expression used had turned into a statement of fact, giving the reader the impression that the F. company had already demonstrated unethical conduct which threatened the interests of doctors and patients. In view of the specific circumstances of the case, the prohibition ruled upon by the lower courts was justified. Even though the applicants had taken part in a debate of general public interest, an untrue and damaging statement of fact was not protected by freedom of expression. Furthermore, the issuing of warnings concerning the potential risks of the provision of medical services by companies was not, as such, prohibited by the decisions of the Austrian courts; the applicants had only been required to refrain from making untrue statements of fact in respect of their competitors. 18. The decision of the Supreme Court was served on the applicants ’ counsel on 27 August 2009. | The applicants in this case, namely the Vienna Chamber of Medical Doctors and its president at the time of the events, complained about decisions by the Austrian courts prohibiting them from making certain negative statements about a private company, which was planning to provide radiology services. These decisions followed a complaint by the company regarding a letter published by the second applicant on the Chamber’s website, referring in particular to the company as a “locust” company or fund. |
923 | Absence of outside influence | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1944 and lives in Innsbruck. 8. The applicant is a medical practitioner whose contract with the Tyrol Regional Health Insurance Board ( Gebietskrankenkasse ) was terminated by the latter on 31 December 1996. Subsequently the applicant was practising without a contract with the Health Insurance Board and is meanwhile retired. He complains about two sets of proceedings. A. The first set of proceedings 9. On 29 October 1996 the applicant instituted proceedings against the Tyrol Regional Health Insurance Board. He claimed that the defendant had to pay an additional amount of 120 Austrian schillings (ATS) for doctor ’ s fees. 10. On 2 April 1997 the Joint Arbitration Committee ( Paritätische Schiedskommission ) dismissed the applicant ’ s claim. The applicant appealed against this decision. 11. On 2 July 1998 the Regional Appeals Commission ( Landesberufungskommission ) dismissed the appeal. 12. On 25 September 1998 the applicant lodged a complaint with the Constitutional Court. He alleged, inter alia, that the general agreement between the Association of Social Insurance Boards ( Hauptverband der Sozialversicherungsträger ) and the Tyrol Medical Association ( Ärztekammer ) on which his doctor ’ s fees were based violated his constitutional right to non-discrimination ( Recht auf Gleichheit ). 13. On 15 April 1999 he amended his complaint and alleged that the Regional Appeals Commission was no independent and impartial tribunal within the meaning of Article 6 of the Convention by virtue of its composition. 14. On 17 December 1999 the Constitutional Court dismissed the complaint. It did not accept that the Regional Appeals Commission ’ s decision had violated the applicant ’ s constitutional rights. As regards the composition of the Regional Appeals Commission, the Constitutional Court noted that the applicant ’ s complaint had been lodged out of the statutory six months time-limit. However, referring to its constant case-law, it found that the applicant ’ s constitutional rights were not violated. B. The second set of proceedings 15. On 11 February 1997 the applicant instituted proceedings against the Tyrol Regional Health Insurance Board. He claimed that it had to pay some ATS 18 million (about 1,3 million euros) as the doctor ’ s fees provided for in the general agreement between the Association of Social Insurance Boards and the Tyrol Medical Association were far too low and, therefore, his contract with the Regional Health Insurance Board was null and void. 16. On 11 August 1997 the applicant made a request for transfer of jurisdiction ( Devolutionsantrag ) as the Joint Arbitration Committee failed to decide within the statutory six months-period. 17. On 28 October 1997 the Regional Appeals Commission, after having held a hearing, dismissed the applicant ’ s claim. 18. On 15 December 1997 the applicant lodged a complaint with the Constitutional Court. He alleged that the contract between the Association of Social Insurance Boards and the Tyrol Medical Association on which his doctor ’ s fees were based violated his constitutional right to non-discrimination. Further, he complained that the Regional Appeals Commission was no independent and impartial tribunal within the meaning of Article 6 of the Convention by virtue of its composition and submitted that the Association of Social Insurance Boards had provided two deputy directors of the Tyrol Regional Health Insurance Board as assessors. 19. On 16 December 1999 the Constitutional Court dismissed the complaint. Referring to its constant case law, the Constitutional Court found that the Regional Appeals Commission in general may be considered as an independent and impartial tribunal because of the term of office of the members and because members were not bound by any instructions. Further it found that ... “It is true that the assessors of the Regional Appeals Commission are representatives of two conflicting spheres of interest. However, these members are not bound by instructions from the sending organisation ... and they are by no means spokespersons of these organisations. Their task is rather to bring their experience to bear in the proceedings. ... A violation of the required impartiality could, thus, ... be due to specific circumstances in the individual case resulting, for example from an official or organisational dependence of the appointed member of the Regional Appeals Commission. ... Such official or organisational dependence does, however, in the Constiutional Court ’ s view, not arise from the mere fact that the parties of the general agreement provide the assessors of the Regional Appeals Commission. ... In view of the legally guaranteed freedom from instructions of the members of the Regional Appeals Commission, a constellation affecting the appearance of independence and impartiality could - also in the light of the case Hortolomei v. Austria (cited above) - only exist if the appointed assessors had been involved in the preparation of the general agreement or if there were other specific reasons raising legitimate doubts about their independence and impartiality in determining certain legal matters. ...” 20. In conclusion, the Constitutional Court found no indication that the members of the Regional Appeals Commission lacked independence or impartiality. | The applicant, who was a doctor at the time, brought two sets of doctor’s fee proceedings against the Tyrol Regional Health Insurance Board. He claimed, inter alia, that the rate for doctor’s fees, which was determined by a general agreement between the Association of Social Insurance Boards and Tyrol Regional Health Insurance Board, was too low. His case was dismissed by the Regional Appeals Commission and his further complaint that the Regional Appeals Commission was not independent was dismissed by the Constitutional Court. The applicant claimed that the Regional Appeals Commission could not be regarded as an independent and impartial tribunal. |
657 | Teachers and university lecturers | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1930 and lives in Istanbul. 6. The applicant is a professor of construction management at Istanbul Technical University. In his speech, delivered during the “First National Construction Conference”, which took place in 1997, the applicant analysed the progress of the work in his field of discipline. He also distributed a paper in which he criticised the way the examinations for assistant professors were being administered. 7. On 17 September 1997, an assistant professor, N.C.A., brought a civil action for compensation against the applicant, before the Şişli Civil Court of First Instance. He claimed that certain remarks used by the applicant in the paper constituted an attack on his reputation, although his name was not mentioned. The statements in question were as follows: “The panel for the assistant professorship examination in the discipline of construction management was formed by academics of the construction faculty. This led to the election of very inadequate assistant professors. ( ... ) During this period, before a panel on which [the applicant] was the only professor of construction management, a candidate was notified that his one - page - long report and his examination were not satisfactory. Blaming [the applicant] for the unsatisfactory result, the same candidate filed an action for damages, alleging that he had been beaten by [the applicant]. Before the action for compensation was finalised, he managed to pass the assistant professorship examination before another panel, whose members were not from the construction management department, and without publishing a single article ...” 8. On 10 June 1999 the first instance court rejected N.C.A's claim, holding that these statements were merely a criticism of the academic system and the institutions. N.C.A appealed. 9. On 13 September 1999 the Court of Cassation quashed the decision holding that the following sentence could be taken as an attack on the plaintiff's reputation: “ ... he managed to pass the assistant professorship examination before another panel, whose members were not from the construction management department, and without publishing a single article ...” 10. It held that the above sentence implied that, if there had been a different panel, the plaintiff would have failed the examination. 11. On 22 May 2000 the applicant's request for rectification of the latter decision was dismissed. 12. On 7 November 2000 the Şişli Civil Court of First instance, after having considered the Court of Cassation's views on the case, confirmed its earlier decision. It held that the defendant, who was an academic, should be granted the flexibility enjoyed by members of the press or lawyers. The reasoning of the court was as follows : “ If these statements were uttered by a press member or a lawyer, it would have been regarded as freedom of the press or the rights of the defence. If we hold that these remarks made by an academic were against the law, then this would be a breach of his constitutional rights, such as freedom of expression, dissemination of ideas (article 26) and freedom of science and the arts (Article 27).” 13. N.A.C. appealed once again. On 14 March 2001 the Joint Civil Chambers of the Court quashed the decision by 26 votes to 24, holding that the first instance court should have followed the opinion of the Court of Cassation. 14. On 30 May 2001 the applicant's request for the rectification of the latter decision was dismissed. 15. The case was resumed before the Şişli Civil Court of First Instance. The applicant informed the court that, at the beginning of the 1999-20 00 academic year, the Discipline Council of the Yıldız Technical University had dismissed N.A.C. from his post on account of his inadequate scientific competence and personal values. In view of this information, the applicant asserted that he had been right to criticise the system of promotion and thus asked the court to dismiss the plaintiff's request. 16. On 12 December 2001 the first instance court followed the decision of the Joint Civil Chambers of the Court of Cassation, and awarded N.A.C. compensation in the sum of 1,000,000, 000 Turkish liras (TRL) for non- pecuniary damage. The court did not address the applicant's argument concerning the dismissal of the plaintiff from the university. Both parties appealed against this decision. 17. On 10 June 2002 Court of Cassation upheld the decision of the first instance court. 18. On 13 November 2002 the applicant's request for rectification of the decision of 10 June 2002 was rejected by the Court of Cassation. 19. The applicant was ordered to pay TRL 3,455,215,000, the sum obtained by adding together the principal compensation, interest and court fees. | This case concerned the award of damages against the applicant, a university professor, for allegedly denigrating a colleague in one of his academic papers in which he criticised procedures for recruiting and promoting assistant lecturers. The latter had brought civil proceedings for compensation against the applicant claiming that certain comments used in that paper represented an attack on his reputation. The applicant complained of the domestic courts’ decisions which found him guilty of defamation. |
212 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE 10. The applicant was born in 1975 and is detained in Sofia Prison. A. Criminal proceedings against the applicant 1. The applicant ’ s arrest and detention in police custody 11. On 2 July 1999 two armed individuals burst into a bureau de change in Burgas. Shots were fired and two staff members were killed. The criminals fled with a sum of money. On the same day the Burgas investigation department instigated criminal proceedings against a person or persons unknown for armed robbery and homicide. 12. The bodies responsible for the criminal investigation implemented a number of investigative measures: inspection of the premises, autopsies on the victims and questioning of witnesses. The investigators quickly made a connection with the applicant and a certain A.S. 13. By decision of 9 July 1999 a police officer ordered the applicant ’ s detention for twenty-four hours, in accordance with the relevant provisions of the Ministry of the Interior Act. The order mentioned the detainee ’ s right to assistance from a lawyer as from the time of his arrest. It also stated that a copy of the order should be presented to the arrestee. The copy of the relevant order in the case file is not signed by the applicant, who was on the run and being sought by the police at that time. 14. On 3 October 1999 the applicant was arrested in Sofia. None of the case papers indicate whether he received a copy of the 9 July 1999 order after his arrest. He remained in detention in Sofia that day and the next. 15. On 4 October 1999 an investigator from Burgas, on the basis of Article 202 of the Code of Criminal Procedure, ordered the applicant ’ s detention for twenty-four hours from 8 p.m. 16. On 5 October 1999 the applicant was transferred to Burgas. His detention was extended by a prosecutor that same day. 17. The document containing the two decisions of 4 and 5 October 1999 does not mention the applicant ’ s right to the assistance of a lawyer and does not bear his signature. 18. The applicant affirmed that he had submitted four requests, on 3, 4, 5 and 6 October 1999, for contact with a lawyer, Mr V. Mihailov, and that the authorities had not acceded to those requests. 19. He stated that he had been questioned by the officers in charge of the investigation over the period from 3 to 6 October. While being questioned he had explained that he had taken part in the hold-up at the bureau de change but denied having committed the two murders. 20. The criminal case file contains no written trace of any such questioning. On the other hand, it includes a handwritten statement by A.S., the applicant ’ s presumed accomplice, dated 3 October 1999, in which A.S. explained that the applicant had instigated the hold - up, that he himself had agreed to cooperate with the applicant and that the latter had used a gun during the incident. 21. On 6 October 1999 the investigator in charge of the investigation appointed an official lawyer for the applicant. At noon, assisted by his officially appointed lawyer, the applicant was formally charged with the double murder and the hold - up in the bureau de change in Burgas. When questioned immediately after being charged, he made the following statements: “I have read the charge sheet in the presence of my officially appointed lawyer, D. Todorov. I have been informed of my rights and obligations as a charged person and of my right to refuse to give evidence. I shall make no submissions concerning the charges until my parents, who have been informed, have had time to engage a lawyer.” 2. Continuation of the criminal proceedings against the applicant 22. On 7 October 1999 A.S. was questioned by the investigator in the presence of a lawyer. A.S. related the circumstances surrounding the preparation, execution and aftermath of the hold-up, and explained how he had helped the applicant at all those stages. He affirmed that it had been the applicant who had killed both victims. 23. On 8 October 1999 the applicant engaged a lawyer practising in Burgas, Mr Kanev. During his questioning in the presence of that lawyer on 12 October 1999 he remained silent and stated that he would give evidence at a later date. 24. On 21 October 1999 the applicant confessed in the presence of his lawyer, Mr Kanev. He admitted that he had prepared and committed the hold-up at the bureau de change and claimed that the two victims had been killed by A.S. 25. On 22 December 1999 the applicant engaged a second lawyer, this time practising in Sofia, Ms Zheleva. 26. Subsequently, the officers responsible for the investigation gathered several different types of evidence, that is to say witness statements and medical, scientific, physical and documentary evidence. 27. On 4 January 2000 the applicant and A.S., assisted by Counsel, took cognisance of the case papers. They retracted their confessions, and their lawyers requested that their clients be questioned once again. 28. On 16 February 2000 the Burgas regional prosecutor returned the file to the investigator for further inquiries. He asked him, in particular, to conduct several investigative measures and to formally charge both suspects afresh. 29. On 7 March 2000 the applicant was charged with an additional offence, namely the unlawful purchase of the firearm which had been used during the robbery of 2 July 1999. On the same day the two suspects were questioned in the presence of their lawyers. In his statement the applicant related a version of events to the effect that the robbery and murders in question had been committed by a certain V., an Iranian national, aided and abetted by an unknown second person. 30. On 17 May 2000 the regional prosecutor ’ s office drew up the indictment and committed the applicant and his presumed accomplice for trial before the Burgas Regional Court. 31. The Regional Court considered the criminal case between 25 July 2000 and 14 June 2001. During the proceedings the applicant, who was assisted by a lawyer, submitted that he and his presumed accomplice had indeed been in Burgas on 1 July 1999 and that they had indeed intended to commit a robbery in the bureau de change, but that they had changed their minds and returned to Sofia the same day. 32. On 14 June 2001 the Burgas Regional Court delivered its judgment. The applicant was found guilty of armed robbery in the Burgas bureau de change, committed jointly with A.S. and resulting in the murder of two persons. He was also found guilty of the unlawful purchase of a pistol and ammunition for it. The Regional Court imposed the heaviest sentence available under the Bulgarian Criminal Code, namely a whole-life sentence. In accordance with section 127b (1) of the Execution of Punishments Act, the Regional Court ordered the applicant ’ s placement under the “special” prison regime. 33. Drawing on the evidence gathered during the preliminary investigation and at the trial, the Regional Court established the facts as follows: the applicant ’ s former partner, D.K., had started work as a cashier in the bureau de change in question in 1997 when she was still living with him. While working there she had met the first victim, a certain N.B., who was a close relative of the owner and an employee in the same establishment. In June 1999 D.K. had left the applicant and moved in with N.B. in Burgas. The applicant had then decided to kill N.B. and to steal the cash kept in the bureau de change. He had acquired a “Makarov” pistol, a silencer and ammunition. The applicant had persuaded a friend, A.S., to take part in the robbery. On the afternoon of 1 July 1999 the applicant and A.S. had arrived in Burgas by coach. They had then gone to the building in which the bureau de change was located, and had gone up to the top floor to spend the night there. The next morning, just before 9 a.m., they had gone down to the floor on which the bureau de change was located and noted that N.B. was in the premises alone. A.S., who had been carrying the pistol, had burst into the premises and fired one point-blank shot at the victim ’ s left temple. The victim had died instantly. The two accomplices had then placed the money found in the bureau de change in a bag which they had brought with them. Meanwhile the armed security guard of the bureau de change, a certain P.I., had rushed into the premises where the first victim had been killed. A.S. had fired two shots at him, hitting him in the face. The security guard had been killed instantly. A.S. and the applicant had left the building. They had then concealed the murder weapon under a rubbish bin, thrown away the clothes they had been wearing and hidden the stolen money. Some time later the two men had ordered a certain E.E. to fetch the money for them, which he had done. 34. The applicant appealed against that judgment. He complained that insufficient reasons had been given for the conviction, that his guilt had not been established, that the first-instance court had reached an erroneous decision, that there had been several breaches of procedural and substantive rules under domestic law and that the Regional Court had shown bias. 35. The applicant ’ s lawyer requested the withdrawal of all the judges of the Burgas Court of Appeal. He argued that the media coverage of the criminal case had created a climate of intolerance and hostility towards his client. The defence called for an additional witness to be summoned, the re ‑ examination of one of the witnesses already heard by the trial court, and several additional expert opinions. On 4 December 2001 the reporting judge responsible for the criminal case rejected the requests for further evidence ‑ gathering as irrelevant. He dismissed the challenge to the judges of the Court of Appeal for lack of any evidence of bias. 36. The Court of Appeal considered the criminal case between February and July 2002. It examined a new witness and received additional conclusions from psychiatric experts on the mental state of the two accused. 37. On 6 August 2002 the Court of Appeal upheld the judgment of the first-instance court, giving its full backing to the latter ’ s factual and legal findings. The evidence gathered during the preliminary investigation, presented before the first-instance court and produced for the first time before the Court of Appeal had demonstrated that the two accused had planned and carried out the robbery in the bureau de change and that the two victims had been killed by A.S. Yet the applicant had been the instigator of those crimes and had provided the weapon used by his accomplice. The Court of Appeal drew on the statements of the many witnesses questioned during the assessment of the case, on the results of the ballistic, technical and accountants ’ reports and the medical and psychiatric opinions, and also on the physical and documentary evidence gathered. 38. The Court of Appeal observed that the accused ’ s initial statements during the preliminary investigation had differed considerably from their submissions to the first-instance court. The initial statements had corroborated the finding concerning their participation in committing the criminal offences in issue, whereas the subsequent ones set out a version of events to the effect that an Iranian national had committed those offences. The Court of Appeal gave credence to the accused ’ s initial statements, which had been made to an investigator in their lawyers ’ presence after they had been formally charged. The two individuals thus charged had been advised that their statements could be used in court with a view to establishing the facts, and their prior medical examination had revealed no sign of physical violence, which contradicted the defence lawyer ’ s allegation that the applicant ’ s initial confession had been extracted from him. 39. The Court of Appeal turned its attention to the applicant ’ s version of events to the effect that the two murders and the robbery had been committed by a certain V., an Iranian national, and that the applicant himself had been at his place of work in Sofia at the material time. Checks carried out in the Ministry of the Interior database had shown that no Iranian national of that name was present in Bulgaria. It was true that the applicant had been at his place of work in Sofia on 2 July 1999. However, he had been working as a night watchman and the robbery and murders had been committed early in the morning, which had given him enough time to cover the distance between Burgas and Sofia and to arrive at work the same evening. The Court of Appeal deemed unconvincing the statement by the only witness who had corroborated the applicant ’ s version of events. 40. The Court of Appeal noted that the judgment of the first-instance court displayed none of the procedural defects mentioned by the defence. The factual and legal findings of the Regional Court had not been exclusively based on the accused ’ s confessions but on the whole body of consistent evidence gathered during the criminal proceedings. The applicant had participated actively in the proceedings and his lawyers had submitted several requests linked to the progress of the trial and the gathering of evidence. The Regional Court had responded to all those requests and had provided full reasons for its procedural decisions. There had, moreover, been no sign of bias on the part of the judges who had examined the case, and the proceedings had been conducted in such a way as to safeguard the parties ’ interests. 41. The Court of Appeal excluded a statement by one witness from the evidence for non-compliance with the procedural rules, but did not consider that statement decisive in terms of the factual and legal conclusions in the case. It held that even though the Regional Court had been dilatory in issuing the grounds for its judgment, the defence had nonetheless been able to submit additional observations on appeal after having secured a copy of those grounds. 42. The applicant lodged an appeal on points of law, reiterating his submissions to the Court of Appeal. In that appeal, which ran to forty pages, his lawyer raised seventy-four objections concerning the gathering and the interpretation of various pieces of evidence, as well as the factual and legal findings of the lower-level courts. In paragraph 33 of his submissions the lawyer contested the admissibility of a record of a reconstruction of the events of 7 October 1999, arguing that on that day his client had not been assisted by a lawyer of his choosing. At the time his client had been assisted by an officially appointed lawyer who had not been nominated by the local bar association, as required by the applicable legislation. The applicant ’ s lawyer added that his client had undeniably been deprived of a defence lawyer on 4 October 1999, when he had been taken into custody; he regarded this as an infringement of the provisions of section 70(4) of the Ministry of the Interior Act and of the Constitution. That was the only sentence relating to the circumstances of the applicant ’ s detention in police custody. 43. By a judgment of 17 December 2003 the Supreme Court of Cassation dismissed the applicant ’ s appeal on points of law. It found that none of the circumstances mentioned by the defence demonstrated the existence of bias on the part of the judges who had considered the criminal case. The applicant had had an opportunity to defend himself effectively during the criminal proceedings: he had given evidence and challenged the evidence against him. Some of his requests for further evidence-gathering had been accepted by the lower-level courts, and proper reasons had been given for their rejection of other requests by the defence for evidence to be taken. 44. Furthermore, in endorsing the Court of Appeal ’ s other arguments, the Supreme Court of Cassation considered that the facts had been well established, that the substantive and procedural rules had been appropriately applied and that the accused ’ s rights had been fully respected. B. The applicant ’ s conditions of detention 45. The applicant was held in Burgas Investigation Detention Facility from 5 October 1999 to 27 January 2000, and again from the beginning of March to 14 April 2000. He was incarcerated in Burgas Prison from 27 January 2000 to the beginning of March 2000, and again from 14 April 2000 to 25 February 2004. On the latter date he was transferred to Sofia Prison, where he is still being held. 1. Burgas Investigation Detention Facility 46. The applicant submitted that he had been held in a cell without windows, a toilet or running water. The premises had had poor ventilation and lighting. He had not been allowed to exercise in the open air. Access to sanitary facilities had been restricted and the time allowed for washing had been insufficient. The applicant emphasised that the conditions of hygiene in the detention facility had been deplorable. He had subsequently been moved to another cell with two other detainees. The three detainees had had to take turns sleeping because the cell only had one bench. 47. According to a rapport by the Director General of Prisons submitted by the Government, at the time the only furniture in the cells in Burgas Investigation Detention Facility had been a bench. The cells had had no windows and the only daylight had entered through holes in metal plates affixed to the doors. The facility in question had only had one shared washroom and lacked any open-air facilities for detainees. The report also mentioned that between 2002 and 2009 the facility had been completely renovated and redeveloped to bring the conditions of detention into line with the detainees ’ human dignity. 2. Burgas Prison 48. The applicant alleged that his cell in Burgas Prison had had a surface area of 6 sq. m. It had contained a bed and a metal rack. There had been neither running water nor a toilet in his cell. He had used a plastic bucket for his bodily functions. Like all the prisoners he was allowed out of his cell for thirty minutes three times a day, in order to empty the bucket and fill his water bottle. The applicant submitted, in support of those allegations, a statement by his co-accused A.S., who had been detained with him under the same conditions in Burgas Prison. The applicant added that he had been forced to wear a convict ’ s uniform even though he should have been allowed to wear his own clothes, under the prison rules. 49. The applicant explained that at the beginning of his term in Burgas Prison he had been deprived of open-air exercise. According to A.S. ’ s statement (see paragraph 48 above), prisoners were allowed one-hour ’ s open-air exercise every other day. The applicant was not involved in any organised activities in Burgas Prison. He had submitted several requests to the prison authorities to allow him to join in the various vocational training and occupational programmes and had applied for a transfer to Sofia Prison in order to be closer to his family, but no action had ever been taken on his requests. 50. According to a report by the governor of Burgas Prison submitted by the Government, the applicant had problems adapting to the prison regulations; his attitude to the wardens and the prison authorities had been refractory and disrespectful. However, the applicant had enjoyed all the rights afforded to persons deprived of their liberty. He had board and lodging in accordance with normal prison standards. He had open-air exercise every day and free access to the prison library. He had consulted a psychologist on several occasions and had had a number of meetings with the prison ’ s activity coordinator. 3. Sofia Prison 51. Following his transfer to Sofia Prison the applicant was subject to the “special” prison regime, involving virtually total isolation from the rest of the prison population. 52. The applicant submitted that over the period from February 2004 to summer 2006 he had been confined to a cell measuring 4 m by 2 m, which he had shared with another prisoner. The two beds had taken up most of the floor area, leaving the two prisoners with a free area of only 2 sq. m. There had been no running water in the cell and the prisoners had used a bucket as a toilet. 53. The applicant stated that he had spent most of the day sitting on his bed for lack of free space in the cell. He had eaten his meals in the cell and had been allowed to walk in the prison yard for one hour every day. His access to the prison library had been limited to the few minutes it took to choose and borrow a book, after which he had been immediately taken back to his cell. He had been allowed to attend the prison chapel twice a year, at Easter and Christmas, although not during worship so that he would not meet other prisoners. 54. Up until 2005 the high-security wing of the prison had been overcrowded and ill prisoners had not been held separately from other prisoners, which had fostered the transmission of infectious diseases. The physical conditions had improved somewhat after the renovation work in the high-security wing in 2005 and 2006. In December 2008 the applicant ’ s prison regime had relaxed. However, like all prisoners in his category, he had still been kept separate from the rest of the prison population and his cell had been kept locked during the day. In 2004 and 2005 he had occasionally worked in his cell folding envelopes. Since 2010 he had been allowed into an activities room, where he could talk to other life prisoners and read books. 55. According to a report by the governor of Sofia Prison dated 11 October 2011, the high-security wing of Sofia Prison had been completely renovated in 2005 and 2006. On the date of the report in question the applicant had been held in an individual cell measuring 7.7 sq. m., with a bed, a table, a rack, a shower and a private toilet. His cell had been heated and had running water and proper lighting. 56. Apart from the restrictions imposed by his prison regime, the applicant had access to all the activities provided to other prisoners: he could work, visit the library and the prison chapel, receive visits from his relatives, and write and receive letters. He was also eligible for relaxation of his prison regime under section 198 of the Prisons Act, subject to a favourable opinion from the relevant special panel, and could ultimately be accommodated with the rest of the prison population. 57. Furthermore, in 2010 the applicant applied to have a number of the provisions of the implementing regulations of the Prisons Act declared void as regards the conditions for the execution of his life sentence. His application was dismissed with final effect by a judgment of 14 September 2011 delivered by the Supreme Administrative Court, which found that the impugned provisions of the implementing regulations were not contrary to the Prisons Act and that the adoption of the regulations had not involved any irregularities justifying their being declared void. IV. REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (CPT) 76. The Burgas Investigation Detention Facility was visited in 1999 by a CPT delegation. The relevant part of the report published after that visit was quoted in paragraph 54 of the Chamber judgment. 77. Burgas Prison was visited by a CPT delegation in April 2002. The relevant part of the report published by the delegation was quoted in paragraph 55 of the Chamber judgment. 78. Sofia Prison was visited by a CPT delegation in September 2006, December 2008, March and April 2014 and February 2015. The four visit reports were published. The relevant parts of the reports on the first three visits were quoted in paragraphs 57-59 of the Chamber judgment. 79. The relevant part of the last report on a visit to this prison, in 2015, reads as follows: “3. Conditions of detention a. material conditions ... 39. At the time of the visit, the closed section of Sofia Prison was holding 816 prisoners for an official capacity of 650. The closed section of Varna Prison was accommodating 422 prisoners for an official capacity of 350. And as for Burgas Prison, at the time of the visit, there were 579 prisoners in the closed section for an official capacity of 371. In the three prisons, the overwhelming majority of the cells were extremely overcrowded ... The situation at Sofia and Varna prisons remained similar to that observed in the past, with most inmates having just a little more than 2 m² of living space per person. 40. The situation was aggravated even more by the fact that material conditions in all the three prisons visited in 2015 still demonstrated an ever-worsening advanced state of dilapidation and insalubrity, despite some last-minute cosmetic efforts observed. Most of the common sanitary facilities at Sofia, Burgas and Varna prisons were totally dilapidated and unhygienic. Moreover, they were accessible to prisoners only during the day; at night the majority of the inmates had to resort to buckets (one for each cell). The cells were mostly equipped with two-tier and three-tier bunk beds and access to natural light and ventilation was poor. Walls were covered with mould, floors were damaged, and ceilings leaking; cells were infested with cockroaches, bedbugs and other vermin. It should be noted in this regard that no cleaning materials were made available to the prisoners. Heating was functioning only a couple of hours a day (the delegation measured some 14 o C in cells and 10 o C in in-cell toilets at Sofia Prison ... It can thus be stated that most parts of these establishments were unfit for human accommodation and represented a serious health risk both for inmates and staff. Despite the repeated criticism, no progress was observed as regards the implementation of the CPT ’ s recommendations made after its visits in 2010, 2012 and 2014. To sum up, in the CPT ’ s opinion, the material conditions alone in the three prisons visited could be seen as amounting to inhuman and degrading treatment. … b. Regime ... 43. Possibilities for purposeful activities in Sofia, Varna and Burgas prisons were very limited. The cells were unlocked during the day (with the exception of the high security and admission units) and most prisoners just roamed the corridors or stayed in their cells watching TV or playing board games with other inmates. All inmates had access to a library and a multi-faith area. The only activity for most prisoners was daily outdoor exercise, usually lasting one hour at Varna Prison, one-and-a-half hours at Sofia Prison and two hours at Burgas Prison. 44. As regards work, at Sofia Prison, 258 prisoners had jobs (but 120 of the work places were unpaid), most of them on general prison maintenance services. ... Educational activities were offered to 78 prisoners at Sofia and 49 prisoners at Varna Prison. Other activities included language courses and IT classes (with 225 inmates attending at Sofia Prison) ...” 80. On 26 March 2015 the CPT issued a public statement on Bulgaria under Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The statement reads as follows (footnotes omitted): “1. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has carried out ten visits to Bulgaria since 1995. In the course of those visits, delegations of the Committee have visited all but one prison, several investigation detention facilities (IDFs) and numerous police establishments in the country. 2. Major shortcomings have been identified during the above-mentioned visits, especially as concerns the police and penitentiary establishments. Repeated recommendations have been made over the last 20 years concerning these two areas. In its reports, the CPT has many times drawn the Bulgarian authorities ’ attention to the fact that the principle of co-operation between State Parties and the CPT, as set out in Article 3 of the Convention establishing the Committee, is not limited to steps taken to facilitate the tasks of a visiting delegation. It also requires that decisive action be taken to improve the situation in the light of the CPT ’ s recommendations. The vast majority of these recommendations have remained unimplemented, or only partially implemented. In the course of the Committee ’ s visits to Bulgaria in 2010, 2012, 2014, and 2015, the CPT ’ s delegations witnessed a lack of decisive action by the authorities leading to a steady deterioration in the situation of persons deprived of their liberty. 3. In the report on its 2012 visit, the Committee expressed its extreme concern about the lack of progress observed in the Bulgarian prison system and stressed that this could oblige the CPT to consider having recourse to Article 10, paragraph 2, of the European Convention on the Prevention of Torture or Inhuman and Degrading Treatment or Punishment. This procedure was set in motion after the March/April 2014 visit; indeed, the Committee ’ s findings during that visit demonstrated a persistent failure by the Bulgarian authorities to address certain fundamental shortcomings in the treatment and conditions of detention of persons deprived of their liberty. The visit report highlighted a number of long-standing concerns, some of them dating back to the very first periodic visit to Bulgaria in 1995, as regards the phenomenon of ill-treatment (both in the police and the prison context), inter-prisoner violence, prison overcrowding, poor material conditions of detention in IDFs and prisons, inadequate prison health-care services and low custodial staffing levels, as well as concerns related to discipline, segregation and contact with the outside world. 4. The responses of the Bulgarian authorities to the report on the CPT ’ s 2014 visit and to the letter by which the Committee has informed the authorities of the opening of the procedure set out in Article 10, paragraph 2, of the Convention have, to say the least, not alleviated the CPT ’ s concerns. In particular, the responses were succinct, contained very little new information and failed to address the majority of the Committee ’ s recommendations, usually merely quoting the existing legislation and/or explaining the lack of action by referring to budgetary constraints. Further, most of the information contained in the CPT ’ s report as concerns ill-treatment and inter-prisoner violence was simply dismissed. The 2015 visit was therefore an opportunity for the Committee to assess the progress in the implementation of its long-standing recommendations and to review, in particular, the treatment and detention conditions of persons held at Sofia, Burgas and Varna Prisons, as well as at Sofia IDF (located on G.M. Dimitrov Boulevard). Regrettably, the findings made during the aforementioned visit demonstrate that little or no progress has been achieved in the implementation of key recommendations repeatedly made by the CPT. For these reasons, the Committee has been left with no other choice but to make a public statement, pursuant to Article 10, paragraph 2, of the Convention; it took this decision at its 86th plenary meeting in March 2015. Police ill-treatment 5. In the course of the 2015 visit, the Committee ’ s delegation received a significant number of allegations of deliberate physical ill-treatment of persons detained by the police; the number of such allegations had not decreased since the 2014 visit but was even on the rise in Sofia and Burgas. The alleged ill-treatment generally consisted of slaps, kicks, and in some cases truncheon blows. The delegation concluded that men and women (including juveniles) in the custody of the police continued to run a significant risk of being ill-treated, both at the time of apprehension and during subsequent questioning. 6. Very little progress, if any, has been made as regards the legal safeguards against police ill-treatment, and the CPT ’ s key recommendations in this sphere are still to be implemented. In particular, access to a lawyer remained an exception during the initial 24 hours of police custody and the ex officio lawyers did not perform their function as a safeguard against ill-treatment. Further, persons in police custody were still rarely put in a position to notify promptly a person of their choice of their detention, and were not systematically informed of their rights from the outset of their custody. ... Detention in the Ministry of Justice ’ s establishments 8. The situation as regards physical ill-treatment of prisoners by staff remains alarming in the three prisons visited in 2015. Many allegations of deliberate physical ill-treatment (usually consisting of slaps, punches, kicks and truncheon blows) were again heard at Sofia and Burgas Prisons and, at Varna Prison, the Committee ’ s delegation was flooded with such allegations. In a number of cases, the delegation found medical evidence consistent with the allegations received. ... 12. Overcrowding remains a very problematic issue in the Bulgarian prison system. For example, at Burgas Prison, the vast majority of inmates had less than 2 m² of living space in multi-occupancy cells, with the notable exception of the remand section. The situation at Sofia Prison remained similar to that observed in the past, with most inmates having just a little more than 2 m² of living space per person. 13. The material conditions at Sofia, Burgas, and Varna Prisons remained characterised by an ever-worsening state of dilapidation. In particular, most of the sanitary facilities in these three prisons were totally decrepit and unhygienic, and the heating systems functioned for only a few hours per day. The majority of prisoners still did not benefit from ready access to a toilet during the night and had to resort to buckets or bottles to comply with the needs of nature. The kitchens at Burgas and Varna Prisons (and the dining hall at Varna Prison) remained filthy and unhygienic and infested with vermin, with leaking and over-flowing sewage pipes, and walls and ceilings covered in mould. Most parts of the establishments visited were unfit for human accommodation and represented a serious health risk for both inmates and staff. To sum up, in the Committee ’ s view, the material conditions alone in the three prisons visited could be seen as amounting to inhuman and degrading treatment. 14. The vast majority of inmates (including almost all the remand prisoners) in the three prisons visited in the course of the 2015 visit still had no access to organised out-of-cell activities and were left in a state of idleness for up to 23 hours per day. ... Concluding remarks 17. In its previous reports, the Committee has taken due note of the repeated assurances given by the Bulgarian authorities that action would be taken to improve the situation of persons placed in the custody of the police, or held in establishments under the responsibility of the Ministry of Justice. However, the findings of the 2015 visit demonstrate again that little or nothing has been done as regards all the above ‑ mentioned long-standing problems. This state of affairs highlights a persistent failure by the Bulgarian authorities to address most of the fundamental shortcomings in the treatment and conditions of detention of persons deprived of their liberty, despite the specific recommendations repeatedly made by the Committee. The CPT is of the view that action in this respect is long overdue and that the approach to the whole issue of deprivation of liberty in Bulgaria should radically change. 18. The Committee fully acknowledges the challenges that the Bulgarian authorities are facing. In the CPT ’ s view, there is a real need to develop a comprehensive prison policy, instead of concentrating exclusively on material conditions (which, as should be stressed, have only improved to an extremely limited extent). Having in place a sound legislative framework is no doubt important. However, if laws are not backed by decisive, concrete and effective measures to implement them, they will remain a dead letter and the treatment and conditions of persons deprived of their liberty in Bulgaria will deteriorate even further. As regards the treatment of persons detained by law enforcement agencies, resolute action is required to ensure the practical and meaningful operation of fundamental safeguards against ill-treatment (including the notification of custody, access to a lawyer, access to a doctor, and information on rights). The Committee ’ s aim in making this public statement is to motivate and assist the Bulgarian authorities, and in particular the Ministries of the Interior and Justice, to take decisive action in line with the fundamental values to which Bulgaria, as a member state of the Council of Europe and the European Union, has subscribed. In this context, the CPT ’ s long-standing recommendations should be seen as a tool that helps the Bulgarian authorities to identify shortcomings and make the necessary changes. In furtherance of its mandate, the Committee is fully committed to continuing its dialogue with the Bulgarian authorities to this end.” | The applicant, who is currently serving a sentence in Sofia Prison, alleged in particular that he had not been assisted by a lawyer during the first days of his detention. |
715 | Right to strike | I. THE CIRCUMSTANCES OF THE CASE 9. Mr Roland Ezelin is a French national who lives at Basse-Terre ( Guadeloupe ). He practises as a lawyer (avocat). A. Background to the case 10. On 12 February 1983 a number of Guadeloupe independence movements and trade unions held a public demonstration at Basse-Terre to protest against two court decisions whereby prison sentences and fines were imposed on three militants for criminal damage to public buildings. The applicant, who was Vice-Chairman of the Trade Union of the Guadeloupe Bar at the time, took part and carried a placard. 11. The Chief Superintendent of the Basse-Terre police drew up a report on the very same day and sent it to the local public prosecutor. The report, which had eleven appendices, gave the following account: "While at the station, I was informed in a radio message that the demonstration being held today by various independence movements in the Champ d ’ Arbaud, Basse-Terre, from 9 a.m. onwards, whose progress we were monitoring, had taken the form of a procession in town. Demonstrators had set off at 10.30 a.m. and were marching through the streets of the town chanting slogans hostile to the police and the judiciary. During the procession graffiti were daubed in paint on various buildings, in particular the Institut d ’ émission d ’ Outre-mer, known as the ‘ Central Treasury ’. The group of 450-500 people which had left the Champ d ’ Arbaud had joined another group of 500 people, at the rue Schoelcher, forming a compact group of about a thousand people headed by the leaders, who announced over loudspeakers the slogans to be chanted. The following were recognised among these leaders: Roland Thesauros (University of West Indies-Guiana); Luc Reinette, leader of the MPGI (Popular Movement for an Independent Guadeloupe), a former member of the GLA, who came out of prison after 10 May 1981; Max Safrano, presumed head of the ALN (National Liberation Army), against whom criminal charges had been brought and who had been released from Basse-Terre Prison the previous day; Fernand Curier of the UTS/UGTG Trade Union, recently (1 February 1983) sentenced by the Basse-Terre Court of Appeal to 15 days ’ imprisonment and a fine of 10,000 francs; the sister of Joseph Samson, another person given the same sentence on 7 February 1983 by the Basse-Terre Criminal Court; Rosan Mounien, another member of the UTA/UGTG Trade Union;Marc -Antoine, convicted by the Basse-Terre Court of Appealon 7 September 1983 along with Alexander, ... and others,known to be particularly fanatical and determinedextremists, including one Rupaire, etc ... This processionwas now in the Cours Nolivos and was entering the rue de laRépublique and would soon be arriving in front of the policestation. At this point I reported what was happening to the Chief Constable (call-sign ‘ Polaire ’ ), who was at the Law Courts with two squads of riot police which we had agreed to deploy at the bottom of the boulevard Félix-Eboué in order to bar access to the Law Courts and prevent any damage to the building and to the département council building. At ten past eleven the demonstrators reached the police station and assembled in front of it. While I made the necessary arrangements for countering any attack on the building, the demonstrators took up their position in front of the police station and were addressed by two leaders from outside the district who were unknown to the police officers present. The speakers, who spoke in Creole, urged the police officers to move up and join them. There followed a violent tirade against Police Officer Beaugendre, who was accused of betrayal, after which the crowd of demonstrators rhythmically chanted ‘ BEAUGENDRE-MAKO! UN JOU OU KE PAYE ’ (One day you will pay). The following were identified among the demonstrators: Roland Thesauros, Luc Reinette, Max Safrano, Fernand Curier, Rosan Mounien, Rupaire, Marc-Antoine, Samson ’ s family (see report no. 1) and Dr Corentin (see report no. 7) and Mr Ezelin, a barrister; the two last-mentioned displayed a banner with the words ‘ LAWYERS - DOCTORS ’ (see report no. 7). The majority of demonstrators, however, including the most worked up and the most aggressive ones, were people from outside Basse-Terre, most of them from Grande-Terre island, it seemed, and consequently unknown to the police. The demonstrators left the police station at about 11.30 a.m. and headed in the direction of the Law Courts and the council building. My Chief Constable, who was continuously kept informed of events, then told me that he had abandoned the idea of blocking the lower end of the boulevard Eboué with a police line - as we had agreed, with the aim of preventing the demonstrators from approaching the two danger spots, the Law Courts and the council building - because the demonstrators ’ numerical superiority was too great. The procession then went along the boulevard Félix-Eboué and eventually reached the Champ d ’ Arbaud, where it dispersed after having made two lengthy halts during which further speeches were made and slogans chanted by the crowd, firstly in front of the Law Courts in order to insult the judges and then outside the prison in order to demonstrate their solidarity with the imprisoned militants. After the demonstrators had gone past, it was found that they had taken advantage of these stops to paint offensive and insulting graffiti in green, red and black on the walls of the administrative buildings. The investigation that was immediately undertaken failed to identify those responsible for defacing the buildings. According to information received, most of the graffiti were the work of girls who were not from Basse-Terre, no doubt to avoid recognition as far as possible. One of them was claimed to be a teacher from Pointe- à-Pitre, but this could not be positively established. The intelligence service ( Renseignements généraux ) confirmed that the persons responsible for the graffiti were among the demonstrators who arrived by coach from Pointe- à-Pitre. They did not know their identities. I am accordingly sending you this report as it stands at present. The case is receiving my officers ’ full attention, however. Any new development or information making it possible to identify the perpetrators would immediately be followed up and I would not fail to keep you informed." B. The judicial investigation 12. A judicial investigation was commenced on 21 February 1983 into the commission by a person or persons unknown of offences of criminal damage to public buildings and insulting the judiciary. 13. On 24 February, the Principal Public Prosecutor at the Basse-Terre Court of Appeal wrote to the Chairman of the Guadeloupe Bar as follows: "Please find enclosed a photocopy of a police report of 21 February 1983 from which it appears that Mr Ezelin, of the Guadeloupe Bar, took part in a public demonstration against the judiciary in circumstances likely to entail criminal liability under Article 226 of the Criminal Code." [See paragraph 23 below.] "Would you kindly let me have your opinion of this case after hearing your colleague ’ s explanations." 14. In a letter of 14 March 1983 the Chairman of the Bar informed the Principal Public Prosecutor of the outcome of his investigations, as follows: "... Mr R. Ezelin [had] not [been] carrying a banner with another person but [had been] carrying a placard on his own which bore the words ‘ Trade Union of the Guadeloupe Bar against the Security and Freedom Act ’. No act, gesture or words insulting to the judiciary [could] be attributed to him. His participation in a demonstration [had] therefore [been] confined to protesting at the use of the ‘ Security and Freedom ’ Act. ... ." And he concluded: "This being so, having regard to: (a) the facts: even assuming the worst as regards Mr Ezelin, the report by [the] Chief Superintendent ... does not accuse him of any insulting gesture, act or words; and (b) the provisions of Article 226 of the Criminal Code, it does not seem to me that my colleague Mr Ezelin can have incurred any liability in exercising his right to join a demonstration which had not been prohibited, carrying a placard with the words ‘ Trade Union of the Guadeloupe Bar against the Security and Freedom Act ’. ... ." 15. After a postponement, the applicant was summoned to appear before the investigating judge on 25 April 1983 in order to give evidence as a witness, and at the interview he stated that he had nothing to say on the matter. 16. On 19 May 1983 the judicial investigation ended with a discharge order on the ground that no evidence had been obtained which would make it possible to identify those responsible for the graffiti or for the insulting or threatening words uttered during the demonstration. C. The disciplinary proceedings against the applicant 1. The decision of the Bar Council 17. On 1 June 1983 the Principal Public Prosecutor sent the Chairman of the Bar a complaint against the applicant, which read as follows: "Further to my letter of 24 February 1983 and our conversation of 31 May last, I wish to bring to your attention, under Article 113 of the Decree of 9 June 1972," - see paragraph 25 below - "the conduct of Mr Ezelin, whose name appears on the roll of the members of the Guadeloupe Bar. In my earlier letter I sent you a photocopy of a police report of 21 February 1983 which gave an account of Mr Ezelin ’ s participation in a demonstration at Basse-Terre on 12 February 1983. The aim of the demonstration was to protest against two court decisions, the first of which was given on 1 February 1983 by the Basse-Terre Court of Appeal against Fernand Curier and the other of which was given on 7 February 1983 by the Basse-Terre tribunal de grande instance against Gérard Quidal and Joseph Samson, who were charged with offences of criminal damage to public buildings. During the demonstration, a number of particularly offensive graffiti were daubed in paint on the walls of the Law Courts calling one of the judges who had taken part in one of the decisions a fascist and calling all the judges ‘ MAKO ’ [pimps]. The demonstrators even chanted death threats on numerous occasions against police officers who witnessed the events. The Basse-Terre investigating judge opened an investigation into the commission by a person or persons unknown of offences of criminal damage to public buildings, insulting the judiciary and aiding and abetting. All the persons reported as having taken part in the demonstration were interviewed and they stated either that they had not seen anyone paint the graffiti or, at the very least, that they did not know who the people responsible were. Only Roland Ezelin refused to answer the questions. As the proceedings ended with a discharge order, I am sending you attached a photocopy of the record of his examination as a witness, the date of which had been delayed for more than a month in order to suit his convenience. This attitude therefore strengthens, in my opinion, the view that Mr Ezelin, who was acquainted with the purpose of the demonstration (cf. photocopies of the leaflets distributed during it), wanted, by taking part in it, to associate himself in exemplary fashion with a political organisation ’ s criticisms of the judiciary in Guadeloupe and that, at all events, neither the death threats nor the insulting graffiti directed against judges before whom he argued cases surprised him on this occasion or even shocked him as a barrister. His refusal to reply to the investigating judge as a witness displays, moreover, an attitude of contempt for justice. In these circumstances I consider that there has been in this case a breach under Article 106 of the Decree of 9 June 1972" - see paragraph 25 below - "and I accordingly would ask you to kindly bring disciplinary proceedings against Mr Ezelin before the Bar Council. ... ." 18. At a disciplinary hearing held under Article 104 of Decree no. 72-468 of 9 June 1972 (see paragraph 25 below), the Bar Council adopted the following decision on 25 July 1983: "... At the request of the Principal Public Prosecutor, the Chairman of the Bar has already given an opinion dated 14 March 1983 as to the first series of charges against Mr Ezelin. It appears both from that opinion and from further explanations obtained from Mr Ezelin that he took part in the relevant demonstration in response to a call by the Trade Union of the Guadeloupe Bar, of which he is one of the leaders, in order to protest against the use of the direct-committal procedure" - obviating the need for a preliminary judicial investigation - "and the continuation in force of the so-called Security and Freedom Act, which has since been repealed. It does not appear from the judicial investigation that Mr Ezelin committed a breach of Article 106 of the Decree of 9 June 1972 in connection with taking part in the aforesaid demonstration or that any disciplinary sanction can consequently be imposed on him. The inquiries made into these events have, moreover, been brought to an end with a discharge order that has now become final. As regards the second series of charges against Mr Ezelin, it appears both from the judicial investigation and from Mr Ezelin ’ s explanations that his refusal to make a statement to the investigating judge was prompted by anxieties based on Article 105 of the Code of Criminal Procedure" - see paragraph 24 below - "and a concern to comply with Article 89 of the Decree of 9 June 1972," - see paragraph 25 below - "as some of the persons summoned by the investigating judge in connection with the events on which his evidence was being sought had previously consulted him as a lawyer. It is true, as Mr Ezelin maintained, that in a letter of 24 February 1983 the Principal Public Prosecutor informed the Chairman of the Bar that Mr Ezelin ‘ [had taken] part in a public demonstration against the judiciary in circumstances likely to entail criminal liability under Article 226 of the Criminal Code ’. Mr Ezelin, having been informed of this charge, was thus justified in relying on the provisions of Article 105 of the Code of Criminal Procedure. While it may seem regrettable that Mr Ezelin did not make clearer to the judge his reasons for refusing to make a statement, it does not appear to the board that this refusal may be regarded as contempt for justice and the judiciary. Moreover, if it had been deemed sufficiently serious to amount to obstructing the normal course of the proceedings in question, the investigating judge would not have failed to avail himself of the provisions of Article 109 of the Code of Criminal Procedure" - see paragraph 24 below - "nor the prosecution to make the appropriate applications before the discharge order was made closing the investigation proceedings in connection with which Mr Ezelin had been summoned as a witness. Consequently, having regard to the evidence, to Mr Ezelin ’ s explanations and to his usual excellent professional conduct, the board considers that there is no occasion to impose any disciplinary sanction on Mr Ezelin, For these reasons, The Bar Council, acting in its disciplinary capacity and at first instance, Decides 1. There is no occasion to impose any disciplinary sanction on Mr Roland Ezelin on account of the matters of which it was seised by the Principal Public Prosecutor on 1 June 1983. 2. The board recommends the Chairman of the Bar to remind both Mr Ezelin and the whole of the Bar of the traditional rules of good behaviour and sound judgment in all activities in which their status as avocats may be involved. ... ." 2. The Basse-Terre Court of Appeal ’ s judgment of 12 December 1983 19. The Principal Public Prosecutor appealed to the Basse-Terre Court of Appeal against this decision. At the hearing he asked the Court to impose on the applicant the disciplinary penalty of a warning. 20. On 12 December 1983 the Court of Appeal reversed the Bar Council ’ s decision and imposed the disciplinary penalty of a reprimand on Mr Ezelin, a heavier penalty than a warning: "... It is established that on 12 February 1983 Mr Ezelin took part in a demonstration in the streets of Basse-Terre. The police report and appended documents make it clear beyond contradiction that the acknowledged purpose of the demonstration, which was organised by the independence movements in the département, was to protest noisily against the recent sentences of three militants to 15 days ’ imprisonment and a FRF 10,000 fine for damage to administrative buildings." [There followed a summary of the report reproduced in paragraph 11 above.] "It is not alleged that Mr Ezelin took part in this demonstration any more actively than by his constant presence and by carrying a placard. Following those events a judicial investigation was opened into the commission by a person or persons unknown of offences of damage to public buildings, insulting the judiciary and aiding and abetting. Mr Ezelin was summoned as a witness by the investigating judge, together with a number of other persons recognised by the police officers. After he had taken the oath, his examination is recorded as follows: ‘ You explain to me the circumstances of the events which have given rise to this case. I have nothing to say on the matter. After an intervention: I repeat that I have nothing to say on the matter. Question: Were you present at the demonstration which took place on 12 February last in the streets of Basse-Terre? If so, did you see anybody painting anything on the walls of various buildings in the town? Answer: I have nothing to say on the matter. Read, confirmed and signed together with me and the registrar. ’ It appears from the foregoing that Mr Ezelin, avocat at the Court of Appeal and member of the Bar Council, participated in the whole of the demonstration which took place in the aforementioned, undisputed circumstances. During this demonstration serious threats were continually made against a police constable and insults uttered against various other persons, including a judge of the Court of Appeal, a well-known regional figure and the judiciary as a whole, and the walls of the Law Courts and of the département council building opposite were covered with particularly offensive and insulting graffiti directed against the same persons. It is beyond doubt that Mr Ezelin, who formed part of the procession, notably when it halted in front of the police station, the Law Courts and the prison, could not have failed to see these insulting and offensive graffiti being painted in very large letters on all the walls of the Law Courts - the place of work of judges and barristers alike - and of the council building, and that he could not have failed to hear the threats and insults that were unceasingly directed against the same people. He was there in his capacity as an avocat, since he carried a placard announcing his profession, and at no time did he dissociate himself from the demonstrators ’ offensive and insulting acts or leave the procession. Such misconduct on the part of a member of the Bar publicly proclaiming his profession cannot be justified - as has been submitted on his behalf - by personal beliefs or trade-union instructions, and it amounts to a breach of discretion under Article 106 of the Decree of 9 June 1972. Furthermore, Mr Ezelin, when examined as a witness by the investigating judge, refused to give evidence about matters of which he had knowledge, without giving any reason. He thus contravened the provisions of Article 109, third paragraph, of the Code of Criminal Procedure, which are binding on all citizens and of whose requirements he could not, as a lawyer, be unaware. Seeing that Mr Ezelin contravened a statutory provision and showed a lack of discretion, he rendered himself liable to the disciplinary sanctions listed in Article 107 of the Decree of 9 June 1972 ." [See paragraph 25 below.] "Having regard to the unanimously favourable opinion of his professional conduct, the Court considers that the penalty should be a reprimand. For these reasons, Having regard to sections 22 et seq. of Act no. 71-1130 of 31 December 1971 and Articles 104 et seq. of Decree no. 72-468, Sitting in public as a full court, Sets aside the decision taken on 25 July 1983 by the Council of the Bar of the département of Guadeloupe at the Basse-Terre Court of Appeal, sitting as a disciplinary board, Sentences Mr Ezelin, of that Bar, to the disciplinary penalty of a reprimand; and Awards costs against him. ... ." (Gazette du Palais, 9 February 1984, jurisprudence, pp. 76-77) 3. The Court of Cassation ’ s judgment of 19 June 1985 21. The applicant appealed on points of law. He argued in particular that the disciplinary sanction imposed on him infringed Articles 10 and 11 (art. 10, art. 11) of the Convention. On 19 June 1985 the Court of Cassation (First Civil Division) delivered a judgment dismissing the appeal. It said, inter alia: "... The Court of Appeal ... did not hold [Mr Ezelin] liable in virtue of a collective responsibility for criminal offences committed by other demonstrators but stated that during the demonstration, whose purpose was to protest noisily against recent criminal sentences, insults had been uttered and offensive graffiti daubed on all the walls of the Law Courts, directed against the judiciary as a whole and against a judge of the Court of Appeal by name and a well-known figure in the département who practised as a barrister. The Court of Appeal added that Mr Ezelin, who was at the demonstration as an avocat and had heard the threats and insults and seen the offensive graffiti daubed on the walls of the Law Courts, the place of work of judges and barristers alike, did not at any time express his disapproval of these excesses or leave the procession in order to dissociate himself from these criminal acts. It was entitled to infer from this that the behaviour was a breach of discretion amounting to a disciplinary offence. ... ... ... Article 109 of the Code of Criminal Procedure lays a duty on any person heard as a witness to give evidence; and by Article 106 of the Decree of 9 June 1972, any infringement of statutes or regulations constitutes a disciplinary offence, irrespective of the investigating judge ’ s power to fine a witness who refuses to give evidence. The Court of Appeal found that in reply to the questions put by the investigating judge, and in particular the question: ‘ Were you present at the demonstration in the streets of Basse-Terre on 12 February 1983? ’, Mr Ezelin said merely: ‘ I have nothing to say on the matter ’. It added that Mr Ezelin gave no reason to explain this attitude. It was entitled to infer from this that Mr Ezelin, who had thus refused to give evidence without justifying his refusal on the basis of Article 105 of the Code of Criminal Procedure or of professional confidentiality, had committed a breach of the law and of discretion vis-à-vis the investigating judge and that these amounted to a disciplinary offence. The Court of Appeal thus justified its decision in law, and none of the limbs of the ground of appeal is well-founded ... ." (Gazette du Palais, 11-12 October 1985, pp. 16 and 17) | This case concerned a disciplinary penalty imposed on the applicant, who was Vice-Chairman of the Trade Union of the Guadeloupe Bar at the time, for taking part in a public demonstration – during which insulting remarks were made – organised by a number of Guadeloupe independence movements and trade unions at Basse-Terre (in protest against two court decisions imposing prison sentences and fines on three activists for criminal damage to public buildings), and for refusing to give witness evidence before the investigating judge. |
538 | Police brutality | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1987 and lives in Gulia, a village with an 80% Roma population in the commune of Dolhasca, Suceava county. A. The ill-treatment inflicted on the applicant 6. On 3 April 2001 the deputy mayor, four police officers from the Dolhasca Police Force and their chief, six public guards from Dolhasca and a driver, left in three cars to enforce a by-law against owners whose cattle were grazing on public pasture. Three of the public guards were wearing black uniforms with hoods and carrying truncheons. At around 8 pm, on their way back to Dolhasca Police Station, they entered C.C. ’ s bar in Gulia to check the owner ’ s documents. A conflict arose between the authorities and the 20 ‑ 30 Roma gathered in front of the bar. The parties ’ submissions differ as to the sequence of events. 1. Applicant ’ s version of the facts 7. F.L., a villager of Roma origin, was just leaving the bar as the police entered. Sergeant D.T. asked him whether he was a “Gypsy ( ţigan ) or Romanian”. When F.L. answered that he was a Gypsy, the deputy mayor asked the police officers and the public guards to teach him and the other Roma “ a lesson ”. The police and public guards started beating F.L. and other Roma who happened to be in the vicinity of the bar. 8. The applicant, who had just bought something from a nearby shop, ran away with other children, but was tripped up by D.T. who started beating, kicking and hitting him on the back of his head and pushed him into a ditch. The applicant told D.T. that he had just undergone head surgery and that the beating could endanger his life. D.T. continued beating him until the applicant lost consciousness. Several persons, including the applicant ’ s schoolmates witnessed the incident. The deputy mayor and police officers were heard shouting racist remarks. 9. The officials left the premises, leaving the applicant unconscious on the ground. A.S., V.D. and I.C., witnesses to the incident, carried him to his parents ’ home. 2. Government ’ s version of the facts 10. The deputy mayor entered C.C. ’ s bar with a police officer and complained about the insalubrious conditions in the premises and that C.C. allowed people to drink excessively. 11. C.C. asked his customers to leave the bar. During the discussions with the authorities, C.C. and his wife urged their customers, who were gathered in front of the bar, to antagonise the officials. The customers became aggressive. The police officers surrounded the deputy mayor in order to protect him. The officials returned quickly to their cars and left the premises immediately. The deputy mayor ’ s car, which was the last to leave, was attacked by the locals with bats. B. Applicant ’ s medical examination 12. On the evening of 3 April 2001 the applicant was taken by his parents to Sfânta Maria Hospital in Iaşi. 13. On 6 April 2001 he was examined by a doctor from the Iaşi Forensic Institute. The certificate issued recorded the following: “ - On the exterior upper side of the left elbow : a discontinuous excoriation of 1,2x 1 cm with red haematic crust. - The space between the scapula and the vertebras : purple transversal linear ecchymoses, ranging from 9x3,2 cm to 5,52x 2,8 cm, two on the right side, one on the left side. - On the exterior side of the right arm: one red transversal linear ecchymosis of 5,5x 2 cm. - The subject states that he is experiencing pain in the right parietal epicranius but there are no visible exterior post ‑ traumatic lesions ... Conclusion Stoica Constantin presents with ecchymoses, thoracic concussion and excoriation, inflicted by a linear blunt instrument, which could date from 3 April 2001. He needs three to five days of medical care to recover.” 14. With regard to his medical history, the applicant was diagnosed with brain disease and was operated upon on 20 December 1999. On 12 April 2001, the Commission for the Protection of Handicapped Persons established that he had a first- degree disability which required permanent supervision and a personal assistant. C. Investigations into the incidents 15. On 4 April 2001, the 3 April incidents between the Roma and the authorities were discussed in the Mayor ’ s office with representatives of the Prefect ’ s Office, the Government and the Roma Party. Several persons gave evidence, including the applicant ’ s mother and eyewitnesses. On 5 April 2001 a report was sent to the Suceava Police Inspectorate (“the Suceava Police”). 16. On 9 April 2001 the Romani CRISS, acting on behalf of the applicant, asked the commander of the Suceava Police to open criminal investigations into the incidents. The same day, they expressed their concern to the Prefect about the racist motivation behind the incidents. 17. On 18 April 20 0 1 the Prefect informed the Romani CRISS that the Mayor ’ s investigation of 4 April, in which his representative had also taken part, had excluded the possibility of any racist motivation being behind these incidents. 18. On 18 April 2001 the applicant ’ s father lodged, on behalf of his son, a criminal complaint with the Bacău Military Prosecutor, against D.T., the other police officers and the deputy mayor. 19. On 5 June 2001 the Ombudsman, informed of the events by Romani CRISS, requested the opening of investigations by the Suceava Police, the Bacău Military Prosecutor, the Suceava Child Protection Agency and Suceava County Council and asked for compensation and aid for the applicant ’ s family. 20. On 20 August 2001 the Suceava Child Protection Agency informed the Ombudsman that conciliation proceedings had been started and that 2,000,000 old Romanian lei (ROL) had been awarded to the applicant ’ s family in aid for assistance in the psychological and medical recovery of the applicant. 21. On 29 May 2001 the Romani CRISS filed a criminal complaint with the Bacău Military Prosecutor against D.T. and the other persons allegedly responsible for the incidents, accusing them of abusive behaviour. 1. Investigations by the Suceava Police 22. The Suceava Police, hierarchically superior to Dolhasca Police Force, started the investigations into the case. 23. On 7 May 2001 evidence was heard from villagers D.D. and F.L., eyewitnesses, F.S., the applicant ’ s mother and A.S., the father of another alleged victim. They stated that either police officers or public guards had tripped up and then beaten the applicant. 24. Two police officers and the deputy mayor gave evidence on 8 May 2001. They stated that C.C. criticised the deputy mayor, alleging that he had won Roma votes by making false promises which he had reneged upon when elected. These words had roused the Roma gathered in front of the bar to protest against the officials, to insult them in Romani and to attack their cars as they were leaving. They stated that no villager had been beaten by any of the police officers and public guards that night and that all the officials had left the premises in a hurry by car. 25. Villager L.D. testified the same day that he had seen D.T. beating the applicant on his back and chest and that the officer had stopped when he had seen the witness approaching. 26. On 16 May 2001, the police heard evidence from the applicant. He reiterated that he had been tripped up and had fallen and that D.T. had punched him in the stomach, kicked him in the back and beaten him with a truncheon. 27. Giving evidence on the same day D.T. denied that he had beaten the applicant, declared that he had not even been carrying his truncheon that day and gave the same version of the facts as the other police and public guards. 28. Two police officers and four passers-by gave evidence that day, all stating that no violence had been used by the authorities. 29. On 1 June 2001 the Suceava Police sent its final report to the Bacău Military Prosecutor. It proposed not to press charges against the accused persons. 30. On 11 June 2001 the Suceava Police informed the Ombudsman and the Romani CRISS that the proceedings concerning the accusations of abusive behaviour against sergeant D.T. were pending, and that the final decision would be taken by the Military Prosecutor ’ s Office. On 11 July 200 1 the Suceava Police informed the Ombudsman that the case had been sent to the Bacău Military Prosecutor with recommendation not to press charges. 2. Investigations by the Military Prosecutor 31. On 20, 21 and 31 August, 3 and 13 September 2001 the prosecutor heard evidence from several persons: C.C., the owner of the pub, and E.C., his wife, the applicant, his father, D.S., and mother, D.F., four villagers who had witnessed the conflict, the deputy mayor (twice), the eleven police officers and guards, including D.T. and four passers-by. All of them maintained the version of events they had given to the Suceava Police. The Roma involved contended, mainly, that they had seen the police officers and public guards using violence against some of the Roma children present while the officials denied the allegations. The passers -by supported the authorities ’ version. The school principal and the head of the Roma Party stated that the Roma refused to send their children to school after the incidents, for fear of reprisal. 32. C.C. stated the following: “20 to 30 Roma armed with bats, axes etc. gathered around the three cars. I yelled at the deputy mayor: ‘ We voted for you in the elections and now you come to kill our people! ’ As the situation became tenser ... I yelled at the Roma present not to come close to the three cars and then I sought to protect the deputy mayor and the other officials until they got into their cars and left for Dolhasca. The cars were not hit, but Roma were insulting the occupants of the cars until they left. I did not see any Roma getting beaten that evening by the police or public guards, but I heard later that D.S. ’ s son ( the applicant ) had been beaten by the police officers ... While I was present, none of the police officers or public guards hit, insulted or threatened the Roma. It is not true that the conflict that evening was of a racial nature ... ” 33. His wife, E .C., confirmed his statements. 34. The applicant ’ s father stated in particular that: “Scared of what was happening in front of the pub ... my son came out [ of the store] and started running home, but a public guard tripped him up and then Sergeant D.T. savagely beat him ... My son ... ran home on the evening of 3 April 2001, out of fear, although he knew that he was not allowed to run [due to his medical condition].” 35. The applicant declared that: “Seeing what was happening, I got scared and started running home. After 4-5 steps, the police officer D.T. tripped me up, so I fell to the ground. After I fell I saw that officer D.T. wanted to hit my head with a truncheon, so I told him ‘ don ’ t hit my head, I have had head surgery ’. He did not listen and hit me several times with the truncheon and with his fists and kicked me all over my body, on my back and chest.” 36. On 23 August 2001 the Suceava Police informed the military prosecutor that the Dolhasca police officers had not filed a report in order to have criminal investigations started against the Roma for insulting behaviour, for the following reason : “ [T] he way in which some of the Roma acted is pure Gypsy behaviour ( pur ţigănesc ) and does not constitute the crime of insulting behaviour.” 37. On 2 October 2001 the Bacău Military Prosecutor decided not to prosecute, as the evidence did not confirm the alleged violence against the applicant. The relevant parts of his decision state as follows: “ At a certain point, bothered by the [ deputy mayor ’ s] criticism, C.C. became verbally aggressive, complaining to the deputy mayor about certain aspects of his professional activity. C.C. came out of his bar and, speaking in Romani, incited the twenty-thirty Roma there present against the two officials [the deputy mayor and one of the police officers who accompanied him]. Considering that the situation was likely to degenerate, as the Roma were becoming extremely aggressive and violent, and as they were armed with blunt objects, the police officers surrounded the deputy mayor to protect him, then they got into their cars and left in a hurry towards the centre of Dolhasca. The Roma nationals ( cetăţeni) attacked the last vehicle, where the deputy mayor was seated, with blunt objects, but no damage was caused since the vehicle was already leaving the area. C. C. declared that he had not seen any Roma being beaten by the police that evening. He also denied that the incidents amounted to racial conflict. His statement corroborates those of the police officers and public guards [who testified in the case]. Eyewitness statements in support of the applicant shall be disregarded as unreliable in so far as the evidence in the file shows that these persons arrived at the scene of the incidents after the three cars had left. Moreover these witnesses ’ statements are contradictory and do not corroborate the statements made by [the applicant and his father ] who alleged that [the applicant] had been punched, kicked and beaten with the truncheon all over his body, including on his head ... This conclusion tallies with the medical certificate in the file ... The [applicant ’ s] witnesses ’ statements show that when the incident started [the applicant] ran home, against the medical recommendations that had been made to him ... ” It also considered that C.C. ’ s statements, supported by those given by the police officers and public guards, confirmed that the conflict had not been racially motivated. 38. On 3 October the military prosecutor informed Romani CRISS of its decision, stating that “the evidence gathered showed that the applicant was not injured, insulted or threatened by the police officers ”. 39. The applicant ’ s mother and Romani CRISS contested the conclusion reached in the investigations. 40. On 14 May 2002 the prosecutor ’ s decision was confirmed by the Military Prosecutor ’ s Office attached to the Supreme Court of Justice, on the ground that the case indicated that no violence had been inflicted on persons of Roma origin. 3. Other complaints 41. On 19 February 2002 the applicant ’ s father asked Romani CRISS to file a complaint with the competent authorities about some incidents that had occurred during the investigations. He alleged that, on 3 September 2001 the military prosecutor who had dealt with the case had tried to intimidate witnesses and physically assaulted the Romani CRISS representative. Consequently, some witnesses had refused to testify. Moreover, he claimed that members of the police were trying to persuade them to give up their complaints by harassing the family. On 7 December 2001 a police patrol had come to the applicant ’ s house at around midnight but had left when told that the applicant ’ s father was not home. In February 2002 D.T. had allegedly threatened and punched the applicant ’ s grandfather. 42. On 19 February 2002 Romani CRISS forwarded the complaint to the Suceava Police, which dismissed it as unsubstantiated on 20 March 2002. | During a clash between officials and a group of Roma, the 14-year-old applicant, a Romanian national of Roma origin, was allegedly beaten by a police officer despite a warning that he had recently undergone head surgery. The applicant alleged in particular that he had been ill-treated by the police and that the subsequent investigation into the incident had been inadequate. He also complained that the ill-treatment and decision not to prosecute the police officer who had beaten him had been motivated by racial prejudice. |
248 | 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. 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 B. The United States Supreme Court ’ s judgment in Rasul v. Bush C. 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 D. 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. Restrictions on information about the applicant ’ s secret detention and his communication with the outside world B. The applicant ’ s capture, transfer to CIA custody, secret detention and transfers from 27 March 2002 to 22 September 2003, as established by the Court in Husayn (Abu Zubaydah) v. Poland and supplemented by the 2014 US Senate Committee Report C. The applicant ’ s transfers and detention between his rendition from Poland on 22 September 2003 and his alleged rendition to Lithuania on 17 February or 18 February 2005 as established by the Court in Husayn (Abu Zubaydah) v. Poland, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court D. The applicant ’ s alleged secret detention at a CIA “Black Site” in Lithuania from 17 February or 18 February 2005 to 25 March 2006 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 alleged rendition to Lithuania on 17 February or 18 February 2005 and his rendition from Lithuania on the plane N733MA on 25 March 2006 (a) The applicant ’ s submissions (i) Rendition to Lithuania (17 or 18 February 2005) (ii) Rendition from Lithuania (25 March 2006) (b) Evidence before the Court (i) The 2015 Reprieve Briefing (α) As regards the colour-coded names of the CIA detention facilities and periods of their operation (β) As regards the CIA prisoners ’ transfers into Lithuania – February 2005 transfers – October 2005 transfer – March 2006 transfer (ii) Expert evidence (iii) “Detention Site Violet” in the 2014 US Senate Committee Report 2. Detention and treatment to which the applicant was subjected E. 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 F. The applicant ’ s detention at the US Guantánamo Bay facility since 5 September 2006 to present G. Psychological and physical effects of the HVD Programme on the applicant H. Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts I. Parliamentary inquiry in Lithuania 1. The Seimas investigation and findings 2. Extracts from transcripts of the Seimas ’ debates on the CNSD Findings J. Criminal investigation in Lithuania 1. Investigation conducted in 2010-2011 2. Reopening of the investigation on 22 January 2015 and further proceedings VII. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001 A. United Nations Organisation 1. Statement of the UN High Commissioner for Human Rights on detention of Taliban and Al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16 January 2002 2. Statement of the International Rehabilitation Council for Torture 3. UN Working Group on Arbitrary Detention, Opinion No. 29/2006, Mr Ibn al-Shaykh al-Libi and 25 other persons v. United States of America, UN Doc. A/HRC/4/40/Add.1 at 103 (2006) B. 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 1. Reports published in 2002 2. Reports published in 2005 3. ABC News reports of 2009 4. Other Reports (2009- 2011) B. Lithuanian media IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING LITHUANIA 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 Flautre Report and the 2012 European Parliament Resolution 4. The 2013 European Parliament Resolution 5. The 2015 European Parliament Resolution 6. The October 2015 hearing before the LIBE 7. The 2016 European Parliament Resolution C. The 2007 ICRC Report D. The 2010 UN Joint Study X. SUMMARY OF WITNESS TESTIMONY PRODUCED BY THE GOVERNMENT Witness A Witness A1 Witness A2 Witness A3 Witness A4 Witness B Witness B1 Witness B2 Witness B3 Witness B4 (also referred to as “person B” by the Government) Witness C Witness C1 Witness C2 (also referred to as “person C” by the Government) Witness D Witness D1 Witness E Witness E1 Witness F Witness F1 Witness G Witness G1 Witness G2 Witness H Witness H1 Witness K Witness L Witness M Witness N 1. Questioning on 9 March 2010 2. Questioning on 16 March 2010 Witness O 1. Questioning on 9 March 2010 2. Questioning on 10 March 2010 Witness P Witness Q Witness R Witness S Witness T 1. Questioning on 2 March 2010 2. Questioning on 16 March 2010 Witness U Witness U1 Witness V Witness X Witness Y Witness Z XI. OTHER DOCUMENTS AND EVIDENCE BEFORE THE COURT A. The 2011 CPT Report B. The Lithuanian Government ’ s Response to the 2011 CPT Report C. Mr Fava ’ s testimony regarding the “informal transatlantic meeting” given in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland D. Documents concerning the on-site inspection of Project No. 1 and Project No. 2 carried out by the investigating prosecutor 1. Record of on-site inspection of Project No. 1 of 17 March 2010. 2. Record of the on-site inspection of Project No. 2 of 4 June 2010 E. Resolution and Operational Action Plan of 25 July 2002 F. Report on the incident of 6 October 2005 in Vilnius airport G. Letter from former President of Lithuania Mr Adamkus to the CNSD of 26 November 2009 H. Letter from the Ministry of the Interior of 9 December 2009 I. Letter from Palanga airport of 15 March 2010 J. The Customs Department letter of 12 April 2010 K. The SBGS letter of 27 April 2010 XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE COURT A. Presentation by Senator Marty and Mr J.G.S. “Distillation of available evidence, including flight data, in respect of Lithuania and the case of Abu Zubaydah ” B. Senator Marty C. Mr J.G.S. D. Mr Black | This case concerned the applicant’s allegations that Lithuania had let the United States Central Intelligence Agency (CIA) transport him onto its territory under the secret extraordinary rendition programme and had allowed him to be subjected to ill-treatment and arbitrary detention in a CIA detention “black site”. He also complained that Lithuania had failed to carry out an effective investigation into his allegations. |
Subsets and Splits